Page 5394 - Week 13 - Tuesday, 16 November 2010
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MR CORBELL (Molonglo—Attorney-General, Minister for the Environment, Climate Change and Water, Minister for Energy and Minister for Police and Emergency Services) (10.22), in reply: I thank members for their support of this bill. As members have observed, the bill introduces a new defence of lawful possession into the Criminal Code 2002.
I would like to take the opportunity to thank members for their support of this bill and to provide some further detail as to the effect of the provisions of section 43A of the bill and a number of other points that I note have been of concern to members during the briefing on this bill.
The purpose of the defence contained in section 43A is to provide statutory protection for certain categories of people who work for or provide particular services to the criminal justice system. I would like to make it clear from the outset that the defence has been carefully drafted to ensure that the defence is not available to those who act as vigilantes, do-gooders or self-styled private investigators. In other words, only those who have a legitimate and formal involvement in the criminal justice system will be able to use the defence. This is something that will be apparent as I provide some more detail during this speech.
A person will only avoid criminal responsibility for an offence of possessing a particular material or thing if they are able to satisfy the three limbs of the defence, as my colleague Ms Gallagher has outlined. The first limb relates to establishing the person’s credentials in terms of their work as part of the criminal justice system. The second relates to the need for a law enforcement purpose and the third provides an objective requirement of reasonableness.
Before moving on to these three elements of the defence, I should deal briefly with the concept of possession. In legal terms, this is an accepted and well-understood concept which needs no further definition within the new section 43A. Use of the undefined term in this context allows the courts to apply the ordinary meaning of the term and is needed to encompass the broad family of possession offences to which the defence is intended to apply.
Turning to each of the limbs of the defence, the first limb of the defence requires a person who is in possession of a prohibited item to establish their credentials as a worker in the criminal justice system. To satisfy this limb, a person must fall within one of three categories. The first is that they are a person employed by, or appointed as a member of, a law enforcement or justice agency. The second is that the person is required to provide technical, professional or expert services to a law enforcement or justice agency. The third is that the person is a legal practitioner or a person employed by or required to provide technical, professional or expert services to that practitioner.
Examples of the types of people who would come within the first category of person are police officers, employed forensic scientists, the judiciary themselves, court staff and prosecutors. The terms “law enforcement” and “justice agency” are sufficiently broad to include the array of agencies which perform justice-related functions, while still ensuring that there is a clear link to the overall criminal justice system.
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