Page 5200 - Week 12 - Thursday, 27 October 2011
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higher end of criminal culpability. They are offences that involve either very serious injury or death.
As members would be aware, the guide for framing offences was prepared in my directorate as part of the government response to the Standing Committee on Legal Affairs of the Sixth Assembly report into strict and absolute liability offences. In agreeing with recommendation 3 of that report, my directorate prepared a guide for framing offences, the same guide Mr Rattenbury quoted. The intention of this guide was to consolidate advice that my directorate has given to other government directorates on fundamental issues that arise in a regulatory context on the drafting of criminal laws and other legislation. The overall goal of the guide is to improve consistency in the preparation of government bills and regulations, and it is meeting this goal.
The government response and the guide for framing offences also provide the Assembly with a clear framework for the government’s policy for the creation of strict liability offences, again predominantly in a regulatory context. The offences being considered today are ones that the community expects will attract a penalty that befits a serious criminal act. These are offences that attract the moral condemnation of the community, not offences used to regulate a particular area of operation.
Another way of viewing these offences is through the concept of mala in se crimes. Mala in se crimes are regarded as wrong independently of the law defining them as criminal. These offences contrast with the concept of mala prohibita, which are crimes where the conduct is not wrongful independently of the legal regulation that prohibits it. The offences we are dealing with here today are mala in se crimes; that is, crimes that are independently wrong. We all know it is wrong to seriously injure or kill someone.
I would now like to turn to consideration of the Crimes (Penalties) Amendment Bill that Mrs Dunne has mentioned in her speech. It appears there has been an overall lack of careful consideration in the preparation of this bill. The bill relies too heavily on penalties in other jurisdictions and fails to adequately consider the ACT context. This is evidenced by the fact that Mrs Dunne’s bill has appended a table to the explanatory statement to her bill outlining all other jurisdictions’ penalties for similar offences. (Extension of time granted.) This is an acceptable starting point, but the many issues unaddressed by the bill suggest that this is the extent of the analysis conducted by Mrs Dunne.
Mrs Dunne’s bill proposes to increase the maximum penalty for the offence of manslaughter despite the fact that the DPP has said that the current penalty is appropriate, in giving evidence to the very committee inquiry that Mrs Dunne says is the basis for the recommendation to increase the manslaughter penalty. The DPP has since reconfirmed his position that he believes the current penalty for manslaughter is appropriate. So it is curious—indeed it is bizarre—to see Mrs Dunne seeking to increase the penalty.
In addition, the penalty increase proposed by Mrs Dunne for manslaughter, from 20 to 25 years, means there would be an even greater gap between the penalty for
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