Legislative Assembly for the ACT: 2003 Week 2 Hansard (4 March) . . Page.. 446 ..
MR STEFANIAK (continuing):
citizens in this community would want to see this provision remain. The example is of Jane Citizen who commits an indictable offence, writes a book about the commission of the offence and then directs the publisher of that book to pay the royalties to her husband and not to her. The royalties, of course, would still be derived by Jane Citizen because they were paid to her husband at her direction. That would be an example of profit which she would not be entitled to.
The Chief Minister mentioned Chopper Read. The Chief Minister also mentions quite correctly the discretion the court has. He outlined the matters in the bill which the court has to take into account. The Chief Minister is quite right in saying that the criticism our courts in the territory get is that they are far too lenient on criminals. I would not necessarily agree with his other comment-I think Australia-wide it has been shown that we have the most lenient courts in the country. I certainly think-and I have been saying this-they should be a bit tougher. I have no dramas about saying that-I think they are too lenient. But Mr Stanhope is quite right in saying that they are more than capable of exercising a discretion.
Might I say that perhaps there will be some people who will criticise the courts as being overly favourable to criminals when they exercise their discretion. They will say, "Maybe that should have been confiscated. Why didn't the court do it?"But that is a case of the court actually exercising its discretion. That discretion is set out in this bill. There are things that the court has to take into account and they will be taken into account.
Anybody who has had any experience in our courts would know that the courts will in fact bend over backwards to be as fair as they possibly can in exercising their discretion. They will take all of this into account. They will abide by this statute. Obviously Ms Tucker has some worries and she mentioned them on the ABC a couple of weeks ago. But these are the sorts of things a court will take into account. It may well be that in many of those instances they will say, "No, that is not the proceeds of crime, that is not what this is all about, that is something quite different."That is an example of a court exercising its discretion.
They may perhaps also say that quite clearly this is something that is a bit like the example of Jane Citizen, or Chopper Read, or whatever-"No, sorry, proceeds of crime."Again, they would be exercising their discretion. They are paid very good money to do that, Ms Tucker, and they do, on an everyday basis, exercise their discretion. It is not as if this is just absolutely black and white. They do have a discretion, they have to take certain things into account, and they will take those things into account. I am sure that occasionally they will be criticised by whatever side who think they might get it wrong, but that is the nature of our system. But they do have that discretion and they will exercise it. I do not know whether Ms Tucker really quite appreciates how that works and what that does mean in reality.
MR PRATT (12.29): Mr Speaker, I rise to make a quick observation in regard to Ms Tucker's amendment. Of course we must support initiatives that allow convicted criminals to be educated and rehabilitated. That is axiomatic. But I fail to see what all the fuss is about with respect to courts using their discretion to stop criminals from profiting from their deeds. It is incredible that we should be concerned about that. I just again ask the question: where is the damn balance in respect of this amendment? Are we fighting for the rights of the criminal or are we more concerned about the rights of victims?