Legislative Assembly for the ACT: 2008 Week 10 Hansard (Tuesday, 26 August 2008) . . Page.. 3651 ..
Is the Chief Minister then suggesting that we should all obtain independent legal advice before voting on every single legislative provision that comes before us? I presume not. We are tasked with deciding whether legislative proposals best achieve what is in the best interests of our constituents. When the government intends to introduce significant changes to criminal procedure, it should make the effort to justify these changes to us, our legal advisers and the community.
I do not support the cost provisions in this bill. The default position should be that a person who is found to be innocent should be awarded full indemnity costs. It is inequitable that an innocent person should suffer financially after being forced to defend their freedom and their reputation. The government should be proud that the ACT led this country in compensating people who are found to be innocent. In circumstances where it is apparent to the court that the prosecution has been completely unfounded, it should be open for the court to award compensatory damages without the need for the defendant to take civil action.
In some other circumstances, the reduced scale of costs would be appropriate. For instance, where the balance of probabilities test is easily satisfied but the prosecution’s case falls just short of the beyond reasonable doubt test, it should be open then for the court to award costs according to the gravity of the miscarriage of justice that the court perceives to have happened.
I do support the changes to the appeal mechanisms in this bill. I think that the existing system is wasteful and illogical. Even though I have considerable misgivings about it, I do thank the Attorney-General for his briefings on this bill which, as usual, were conducted by his staff and officers in a courteous, professional and helpful manner. They provide a glimpse of what would be possible if the government were committed to a consultative process and were minded to seek the input of MLAs at an early stage of policy formulation.
I will be supporting the government’s amendments to its legislation because, on the whole, I think they improve the legislation. I do urge the government and its successors to keep a close watch on these changes and to ensure that they do not result in unjust convictions or in more innocent people being locked up on remand and acquitted at trial when they could have avoided time in custody if they had had the option of challenging the prosecution’s case at committal. I will speak to Mr Stefaniak’s amendments when we get to the detail stage.
MR CORBELL (Molonglo—Attorney-General, Minister for Police and Emergency Services) (5.25), in reply: I thank members for their support of this important piece of legislation. The reform of the criminal justice system has been talked about in the ACT for many years. A discussion paper canvassing some of the issues in this bill was released by the current shadow Attorney-General in 2001. No legislative changes were made following that process but there have been continued calls for reform in different aspects of the criminal justice system since that time.
Finding consensus on the issues raised in this bill was difficult, particularly given the range of different interests of participants in the criminal justice system. However,