Page 2616 - Week 09 - Wednesday, 24 August 1994
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Fifth, the offence of conspiracy would be completely revamped, both substantively and procedurally. Substantively, the offence would be changed to add a requirement that an overt act is necessary to establish the conspiracy, not just an agreement; the scope of the offence would be confined to conspiring to commit serious criminal offences; and the defence of withdrawal, which is currently available for complicity, would be extended to conspiracy. Procedurally, the courts would be given a discretion to dismiss a charge of conspiracy, where it is in the interests of justice; and the consent of the Attorney-General or the DPP would be required to commence a conspiracy prosecution. These proposed changes to the law of conspiracy have been advanced following repeated criticism of the offence by the courts over a long period.
Sixth, the law would require that a reversal of the burden of proof must be made explicit in legislation, otherwise the prosecution retains responsibility for discharging the burden. This proposal hopefully will lay to rest what has been a vexed issue, particularly where regulatory offences are concerned.
Seventh, there would be a statement of corporate liability so that a company may be criminally responsible for any crime, including murder or manslaughter. There are some innovative proposals to define this liability, including a "corporate culture of non-compliance", and the aggregation of negligent behaviour so that the company's conduct may be viewed as negligent, even though no single servant or agent has been negligent.
Those are the changes encompassed by this code. I want now to briefly address the primary issue for consideration, namely, whether this legislation should be adopted in the ACT. The codification of the criminal law is an important way of improving the accessibility of the law. Many commentators regard it as unacceptable that important matters like the general principles of criminal responsibility remain uncodified, requiring lawyers to search through sometimes contradictory case law in order to determine what those principles are. The few opponents of codification who remain argue that codification curbs judicial creativity, but I believe that this problem is best addressed by a vigorous law reform program as we have in the ACT.
A related matter is the uniform enactment of a criminal code across the jurisdictions. A national criminal code would be important in helping to ensure the equal and consistent application of the criminal law across Australia. As the Attorney-General of Queensland, Dean Wells, said recently:
In a modern democratic nation like Australia, all citizens should be equal before the law. This is only really possible if the law itself is equal between the States.
Of course, the achievement of uniformity requires compromise, and we must decide whether the changes embodied in this legislation are compromises that we in the ACT are prepared to make. The adoption of this legislation in the ACT is not an issue that needs to be resolved immediately. My tabling of the code is intended to initiate debate at the
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