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Legislative Assembly for the ACT: 1998 Week 2 Hansard (19 May) . . Page.. 315 ..

MR STANHOPE (continuing):

in the context of this debate. The scrutiny of Bills committee's report was tabled this morning. It is a pity that it was tabled only in the last few minutes. We are now debating the matter and we really have not had time to ponder the significance of what the scrutiny of Bills committee said. The committee felt it needed to draw to the attention of the Assembly the potential impact of the proposed amendments on the range of choices which would be open to a sentencing judge or magistrate. The next bit concerns me to some extent because I am not 100 per cent sure what it means. The report says:

It is however impossible at this point to predict just what effect (if any) there might be in this respect.

The scrutiny of Bills committee goes on to state:

The Explanatory Memorandum states that these amendments would
"reinstate the relevant common law" as it stood prior to the enactment of the Crimes (Amendment) Act (No. 2) 1993. There will be difficulties if this is taken as a guide to the operation of these amendments. The common law is not a static body of principle, and particularly so in respect of sentencing principles.

The scrutiny of Bills committee recommends:

It would be undesirable for a sentencing court to attempt to ascertain the state of the common law in 1993 as a guide.

I think there are some matters there that really do need further development. I think the concern which the scrutiny of Bills committee expressed about the legislation should be taken into account by the Assembly in determining whether or not to agree to these amendments.

I think I have explained the basis of our objection to the Bill, Mr Speaker. I am not sure that there is all that much more I can add. We should not, as a community, accept this amendment. It is quite unnecessary. There seems to have been some attempt by the Government, in its explanatory memorandum on this Bill, to indicate or to suggest that there are concerns within the courts, within the judiciary, about the factors which courts should take into account. The issue is whether or not rehabilitation of a prisoner is a more worthy goal or a higher ideal in terms of sentencing than punishment.

The Government relies on a decision of the Full Federal Court of last year to indicate that there is some uncertainty. The court in that case did find that there was not a difficulty in relation to the strata of matters which should be taken into account. I think the court felt quite comfortable. Chief Justice Miles, who dissented in that case, did express some concern. The Government is running the line that because it was not a unanimous decision the way is left open for an appeal to the High Court; that because of the possibility of an appeal to the High Court from a Full Federal Court decision there is uncertainty in the law, and there is some confusion within our judiciary about the matters that should be taken into account in sentencing.

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