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Legislative Assembly for the ACT: 2001 Week 1 Hansard (15 February) . . Page.. 276 ..

MR STANHOPE (continuing):

person's coat pocket which they did not at any stage remove. The police, when they arrest the person, might take the pen from the person's pocket.

At 5.00 pm, in accordance with standing order 34, the debate was interrupted. The motion for the adjournment of the Assembly having been put and negatived, the debate was resumed.

MR STANHOPE: We have converted an offence of robbery, with a prison term of 14 years, into an offence of armed robbery, carrying a penalty of 25 years, on the basis that the arresting officer used his discretion to decide that it was not a robbery, because the person was carrying an object which was capable of being used for causing injury. It is a discretion which you do not need to give to the police. There should be an element of intent. The object may never have been removed from their pocket. It may never have been used for the purposes of the robbery.

There should be some notion of intention. You are giving a level of discretion that you do not need to give. Your own example, Attorney, illustrates the point precisely: it is possible to turn the offence of robbery into the offence of armed robbery on the basis that the person who committed the offence had somewhere on their person an object.

MR MOORE (Minister for Health, Housing and Community Services) (5:03): I am pleased that Mr Stanhope gave that example, because it reinforces the position I have taken in not supporting his amendments, for a number of reasons.

Mr Stanhope: We never expected you to, Michael.

MR MOORE: Mr Stanhope interjects, "I never expected you to, Michael." The reality is that I have supported many amendments you have moved with regard to civil liberties over the last two years. Should the person with the walkman be charged in the way that Mr Stanhope suggests, then it is the judge who makes the decision. It is the judge who has that prerogative. So that is appropriately tested in a court of law.

The more complex we make our definitions, the more loopholes we create. Therefore, if it is possible to give a broad definition that is interpretable by the courts, then it is the courts that we use to protect our civil liberties. I have come into this place on a number of occasions and said, "Where I am most concerned is where you remove the discretion of the court." That is the thing that tests civil liberties. That is the thing that removes the civil liberties, as far as I am concerned. In this case, whilst I think there is some weight in Mr Stanhope's arguments, it is not as much weight as in the argument for having a broad definition and allowing the courts to interpret that definition.

MS TUCKER: I seek leave to make a very quick response to Mr Moore.

Leave granted.

MS TUCKER: Mr Moore said he supports discretion for the court. I think you are removing it. You are taking out the possibility of looking at the context and the intent. That is the whole point.

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