Page 3513 - Week 09 - Thursday, 21 August 2008
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I worry that the effect of proposed new section 38C (4) (b) may be that a self-represented accused may be prevented from adducing contradictory evidence from another witness. However, the Attorney-General’s report implies that the court retains the power to cope with an apparent breach of the rule in Browne v Dunn by allowing the prosecution to recall a witness to give fresh evidence-in-chief. This is the proper way for the court to deal with these circumstances. Why is proposed new section 38C (4) (b) necessary? It does not appear to amount to a warning, as suggested in the Attorney-General’s response. It reads as a prohibition. It is hard to reconcile the Attorney-General’s response with the proposed amendment.
As I said, the Attorney-General’s letter contains a number of arcane discussions out of which emerges a statement that there are no human rights implications in this or that amendment. I have doubts about the veracity of a number of those statements. It seems to me that there are human rights implications. There are also good arguments why the restrictions on them are proportionate and justifiable, but no attempt has been made to justify them because there is a lack of acknowledgement that they exist.
Why did the Attorney-General’s letter only arrive on our desks today? If I was the Chief Minister, I might turn up the histrionics and bang on about the timing of the letter being a blatant, grubby political stunt to deflect criticism and thereby score cheap political points. But if I did that everyone would see how transparently obfuscatory and ridiculous I was being. So I recognise the tardiness for what it is—a mixture of a very busy workload and a lack of resources in JACS combined with a lack of respect for the workings of the committee system and non-government MLAs.
The question remains: why is the Attorney-General so insistent on getting this bill through today in its entirety? If I thought I had any chance of succeeding, I would have suggested, as have others, that the bill is sent to a committee. However, given our proximity to the caretaker period and the election, I know that a referral to committee is highly unlikely to be successful. As I am sure everybody knows, I have a number of amendments to the bill. They have been circulated for some time and I look forward to discussion on those.
MR MULCAHY (Molonglo) (8.01): I will speak to a particular aspect of the bill which has given me cause for concern. It is one in which I think there needs to be a very serious examination. Like Dr Foskey, I am not qualified in the field of law, but I do have three legally trained people in my office and I have taken advice from other organisations. So I will detail the area of particular concern and hope the Attorney-General can give us some advice that will provide us comfort on these matters.
I am referring particularly to a recent letter which has come into my possession from Mr Ken Archer to the Attorney-General that highlights a serious potential problem with the evidentiary provisions before us. Mr Archer has been both a prosecutor and defence counsel and his experience in this area of law is quite impressive; so we should not dismiss his claims lightly. Mr Archer claims:
The passage of the legislation in its present form will cause a procedural breakdown in the Courts and embarrassment to the Government. It will
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