Page 4164 - Week 11 - Thursday, 17 Sept 2009
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The government rejects absolutely any suggestion of an attempt to ram this legislation through the Assembly. It has been on the table in the Assembly for 10 months. At the heart of it, this is not a complex change. I appreciate members’ caution and the seriousness with which they treat this issue, as they should. But at the heart of it, this is not a complex change.
The offence of murder in our legal history is one that has the longest continuity. The heart of the offence, its essence, has remained the same for centuries. Any change must be carefully constructed in the context of the jurisdiction’s body of law.
I recognise that the standing committee, in its report, has recommended a specific set of words to amend the government’s bill and, in particular, to omit clause 5. This recommendation is, in the government’s view, ill conceived. Taking this step will damage the statutory language of the offence and inevitably lead to the Assembly having to consider it again prematurely.
The committee recommended that I should move an amendment that replaces the words in clause 4 “intending to cause serious harm to any person” with the words “intending to cause a bodily injury of such a nature as to endanger, or be likely to endanger, the life of the person killed or another person”. The committee also recommends that I move to omit clause 5 of the government bill. This amendment would leave the offence without any statutory definition. For those reasons, I will not be moving that amendment.
The government has indicated that it will respond to the other recommendations in the committee’s report, in full, in due course. What I have done is table a government response to specifically address recommendation 5 of the committee’s report. This response sets out in detail the arguments I am about to make for enacting the bill in its current form, not in the form recommended by the commitee.
Turning to the committee’s recommendation, it borrows from recommendation 7 of the Western Australian Law Reform Commission report Review of the law of homicide, published in 2007. It is important to note that the Western Australian report’s recommendation is a reconfiguration of the existing words in section 279 of the Western Australian Criminal Code. The language is consistent with Western Australian statute law and case law.
However, the committee’s recommendation to insert specific words from Western Australia is fundamentally flawed, for these reasons:
• firstly, it would require the ACT’s legal system to start from scratch with the concept of bodily injury, a concept that has no modern legal history in the ACT;
• secondly, it would transplant Western Australian words into the ACT statute book but would inherently give the words a different meaning from the Western Australian context, while the ACT statute book would contain none of the terminology or definitions used in the Western Australian code;
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