Page 3243 - Week 11 - Tuesday, 17 September 2013
my position on the reform. I have thought about this at some length and I accept that there is potential for the changes proposed to have a positive impact.
I was concerned that the change could operate to the detriment of some defendants, leaving them excessively exposed to the advice of their lawyers and creating a somewhat cumbersome system that involved calculating risk taking, which did not sit easily with me. Having had the chance to further consider the way the proposed change has been administered in New South Wales, I do now consider that on balance there should be an additional mechanism to encourage defendants and their lawyers to act responsibly and assist the trial process.
Based on the New South Wales experience, I think we should give it a go here in the ACT. I think that the justices of the court will be able to appropriately balance the range of factors that they will be required to consider and deliver fair outcomes both for the community and offenders. As the Attorney-General mentioned, this is an initiative of now retired Chief Justice Higgins.
Related to the issue of how the changes will be applied, the scrutiny committee raised concerns about proposed new section 35A(3). The minister in his response to the committee noted that there are other sections, 23(2), 35(6) and 36(4), of the current act that use the same subsection as that proposed to be included by the bill and that it is necessary to include this to ensure the availability for appeals. I do not agree that it is necessary for appeals, nor is the fact that there is already a problematic section in the bill reason to replicate that shortcoming. I agree with the committee that the expression used is not the best and that it is probably unnecessary.
However, I do not believe that it indicates a lack of confidence in the judiciary by the Assembly. There are many examples where we require decision makers, both executive and judicial, not to act in a manner that we would not expect them to act in any way and for which the common law operates to restrain. Given that the clause proposes a consistent change and that it has not been problematic to date, I will support its inclusion today, although I will say that in the context of a broader review of the act this is something that I think can be improved as part of a package of further reforms to the act.
MR CORBELL (Molonglo—Attorney-General, Minister for Police and Emergency Services, Minister for Workplace Safety and Industrial Relations and Minister for the Environment and Sustainable Development) (11.50): I thank Mr Rattenbury for his support of this bill. I note that the Liberal Party have not indicated their position on the bill.
Mr Hanson: I am sorry; my apologies. This is the JACS bill?
MR CORBELL: Yes.
Mr Hanson: I was advised that this was the previous bill. My apologies for that.
MADAM DEPUTY SPEAKER: Mr Hanson, you wish to speak?