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Legislative Assembly for the ACT: 1998 Week 5 Hansard (27 August) . . Page.. 1431 ..


MR HUMPHRIES (Attorney-General, Minister for Justice and Community Safety and Minister Assisting the Treasurer) (11.02): Mr Speaker, I move:

That the Assembly refer the Crimes (Amendment) Bill (No. 4) 1998 to the Standing Committee on Justice and Community Safety, for the Committee to consider whether the Bill provides an appropriate and effective response to the availability of the so-called "drunk's defence" in the ACT criminal law.

Mr Speaker, members will be aware that this Bill is the Bill which deals with the availability in the ACT of the so-called drunk's defence, allowing a person in certain situations of extreme intoxication to avoid the effect of a prosecution for certain crimes. Mr Speaker, in response to a decision in the ACT Magistrates Court last year, legislation has been prepared and is now before the Assembly as the Crimes (Amendment) Bill (No. 4). It is the view of the Government that this defence ought to be removed from the law of the ACT. Having said that, Mr Speaker, I acknowledge that there are different views about the way in which that might be effected. I make no bones about the fact that there are different views among lawyers as to the effectiveness of the legislation which the Government has presented. There are different views about the legal efficacy of legislation which deals with removal of an element of mens rea, or capacity to form a guilty mind. Those issues are legally complex and I think deserve further consideration.

Acknowledging that the view the Government has put in the Bill is not necessarily the only tenable view, I am moving today for the reference of this legislation to the Justice and Community Safety Committee, which might choose to have an inquiry into the matter or at least to canvass the views of a variety of lawyers and others on the effectiveness of the proposal the Government has put forward. I hope that it will shed some light on the process.

This is a reference which does, in a sense, involve the committee in an exercise of legal drafting. I am aware that it also has the role of operating as the scrutiny of Bills committee. Perhaps therefore that is appropriate, but in either circumstance this is the appropriate committee to refer it to so that we can resolve an outstanding debate in the ACT's legal community about the most effective way of dealing with this particular hangover of ACT common law. I commend the motion to the Assembly.

Question resolved in the affirmative.

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