Page 4387 - Week 14 - Tuesday, 22 November 2005
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illogical in the extreme for the corollary not to apply. In taking this out, all it means is that the court might have regard for an offender’s behaviour in court; it does not say they must, so both of you got that wrong. It just enables the court to take that into consideration, among many other things, should it wish to do so. At this stage they cannot take that into account and I think it is wrong. I reiterate the fact that I think you both missed the point there.
Amendments negatived.
Clause 34 agreed to.
Clause 35.
MR STEFANIAK (Ginninderra) (10.55): My amendment 17 is consequential and I will not proceed with it.
Clause 35 agreed to.
Clauses 36 to 39, by leave, taken together and agreed to.
New part 4.1A.
MR STEFANIAK (Ginninderra) (10.56): I move amendment No 18 circulated in my name which inserts a new part 4.1A, incorporating new clauses 39A and 39B [see schedule 1 at page 4462]. I listened with interest to what the attorney said when we did this last time about there being some problem which went to the High Court, which did not rule definitively in relation to this. This is very much akin to what occurs in New South Wales, in the guideline judgments, which serve New South Wales very well. New clauses 39A and 39B would enable our Court of Appeal—just like the Court of Criminal Appeal of New South Wales—on its own initiative, or at the request of the Attorney, to give a guideline judgment. That can be given separately or in any proceedings the Court of Appeal considers appropriate—and it lists why and how that can come about. It is a fairly simple provision that enables guideline judgments to be reviewed, varied or revoked in later guideline judgments and does not limit any power or jurisdiction the Court of Appeal has, apart from this section.
It also enables the attorney to request the Court of Appeal to give a guideline judgment, and that request may include submissions about the proposed guidelines. I know this is going to be voted down out of hand, which is a pity. If the attorney had a problem and did not want to ask the court for a guideline judgment, you could simply scrub 39B. I think it is very handy. I discount the argument raised earlier in relation to size of jurisdiction. I know New South Wales is a much bigger jurisdiction, but the size of the jurisdiction is irrelevant. I think it is essential for commonality in sentences and for some sort of certainty in serious matters—we are dealing with serious matters; this would only apply to serious matters; no-one is going to do it for a minor matter—that if you go before a court it does not matter who you get, there is a range applicable for that type of offence. It enables a superior court to issue a guideline judgment for the guidance of the court.
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