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Legislative Assembly for the ACT: 1998 Week 3 Hansard (26 May) . . Page.. 552 ..

MR HUMPHRIES (continuing):

I am asked to comment on that. Mr Speaker, I do not know that I can pass any comment on that. It is, indeed, impossible to predict what effect might be had on such matters, on the range of choices. The body of the comment does not make any reference to rights or liberties at all, but the heading does. The comment is a little bit inscrutable, with great respect to the committee and to its legal adviser. If the committee is saying, as it seems quite literally on its face to be saying, that it is impossible to predict the outcome of the legislation, with great respect, that could be said of any legislation which has been passed.

However, Mr Speaker, I would point out that there is a fairly reliable way of predicting what will happen, and that is to look at what has happened in our courts, both in other Australian jurisdictions and in the ACT before 1993. That gives you a perfectly accurate picture of what is likely to happen, because that is what has been happening. This principle, I repeat, is simply a reinstatement of the common law. So, we can predict what the effect of the amendment will be. We know very well what it will be. It is in the present common law.

Ms Tucker: What will it be?

MR HUMPHRIES: It will be that the prevalence of offences is taken into account and that sometimes people will get a heavier sentence because judges and magistrates feel the need to send to the community a signal that certain offences are not to be committed again. That is clear; but it is already clear in other courts in this land and it was clear in the ACT courts up until 1993.

Mr Stanhope: It is unjust.

MR HUMPHRIES: It may be unjust; but it is quite unfair and inaccurate to describe it as being a new principle, or something which has been invented by this Government. It has not been.

Ms Tucker: If it is unjust, why are you doing it?

MR HUMPHRIES: It is not unjust, Ms Tucker.

Ms Tucker: You just said that it may be unjust.

MR HUMPHRIES: No; I am quoting back his comments, Ms Tucker. I am not saying that I adopt those comments at all.

The second comment in the scrutiny of Bills report relates to the common law before 1993. The comment points out:

The common law is not a static body of principle, and particularly so in respect of sentencing principles.

I might draw that comment to Mr Stanhope's attention, because he just made the comment that judges merely interpret the common law rather than make it. That comment would seem to reflect otherwise, with great respect. It then goes on to say:

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