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Thursday, 29 March 2001
Page: 26076


Mr ROSS CAMERON (10:28 AM) —The member for Denison, characteristically, has not used all of the time at his disposal to comment on the Law and Justice Legislation Amendment (Application of Criminal Code) Bill 2001. That is a mark of his tendency, which I appreciate, to say only that which he regards as worth saying, rather than simply to occupy the time, and all members of the chamber would express their gratitude. It is not a practice that the member for Parramatta has frequently followed, in spite of the encouragement of the member for Bonython, but I may well be persuaded to do so on this occasion.

The Model Criminal Code is clearly a substantial project. It is a reflection of the Western empiricist tradition that wants to reduce everything to uniformity and commonality, and finds any aberration or deviancy, anything that does not fit into neat categories, somehow an irritant. So we have a vast, substantial army of expert Commonwealth lawyers and draftsmen and draftswomen who are aiding us by producing a much more homogenised version of the criminal law.

I certainly accept the parliamentary secretary's advice that this will improve the efficiency of the courts, reduce resources expended on litigation and provide greater certainty and security to Australian citizens. I prefer to argue about what should be regarded as criminal than argue about how we can homogenise this in a more sort of vanilla expression of the law. But I nonetheless recognise that today's bill represents a very substantial body of work by a large number of very committed servants of Her Majesty's government in Australia and I appreciate their efforts.

This bill applies to those criminal offences which fall within the jurisdiction of the Attorney, and that is probably desirable since it is fair to say that he has been providing leadership in this project across all portfolios. But he has been preceded in introducing such a measure by the portfolios of Treasury, Environment and Heritage, and Veterans' Affairs. It is clearly desirable that each of the various portfolios of the Commonwealth should reflect the same approach towards the elements of criminality in whatever offences exist within those portfolio areas.

There are a number of points at which the model code explicitly incorporates the principles of the common law, which I regard as an extremely desirable willingness on the part of the Commonwealth, where we pause to recognise the fact that, over the centuries of incremental growth in the common law, in the wisdom handed down from the breasts of the judges who sat on illustrious benches in the United Kingdom and Australia, there is something precious in that tradition and it ought to be preserved. We ought not to have that arrogance which says that we, at this moment in this generation, have the capacity to invent wisdom and that all of those who preceded us somehow lacked it.

There is a pleasing humility about the legislation, particularly, for example, in the area of strict liability and absolute liability offences, where Mr Deputy Speaker will be aware that the common law provides defences to offences and, in relation to criminal law generally, an element which is present in criminal law offences is that there must be this intention; there must be the guilty mind; there must be the mens rea. There has been a tendency on the part of parliaments in Australia and elsewhere to make behaviour criminal, to attach the stigma of criminality, while removing this requirement that there actually be a moment of guilty intention on the part of the person or company committing the offence. The bill creates a presumption that, unless otherwise stated, there must be this presence of intention, knowledge, recklessness or negligence, there must be a mens rea, there must be a guilty state of mind, in order to found a criminal offence. I regard that as desirable.

If we ask ourselves what the purpose of the criminal law is and if we seek to place it in a wider cultural context, that is an important question to ask today because clearly, in some parts of our community, the consensus behind the criminal law is fragmenting. We do not live in a Taliban style, monocultural community in which some elite at the top simply dictates to the rest of the nation what is offensive and what is not offensive. We live in a vibrant, relatively pluralistic, tolerant, democratic nation in which there is a contest for the establishment of shared values. This parliament is the emblem of that contest.

I accept nonetheless that the criminal law represents a statement of those values of the community which we feel so strongly and intensely about that we are prepared to attach the stigma of criminality to those who offend against them. It plays this important role in the community as a snapshot of shared values. It is very important that we do not include offences in the criminal law which do not actually reflect that consensus. At the same time it is important that any offence against those values is included in the criminal law. If there is a kind of gulf between the expectations and values of the community and what they see reflected in the legislation that is passed, for example, by this parliament, especially relating to the stigma of criminality, that is the sort of gulf which causes a breakdown in democracy.

I turn to a book which is not uncontroversial but which has, whatever its content, the merit of being beautifully written, by a former Lord of the Privy Council who addressed his mind to this question of what offences ought to attract this very great sanction and stigma—the equivalent of the Plymouth Brethren tradition of shunning. What ought we be prepared to attach this stigma to?


Mr Slipper —What was his name?


Mr ROSS CAMERON —I will tell you in a moment, Parliamentary Secretary. He said:

I return to the statement that I have already made that society means a community of ideas. Without shared ideas on politics, morals and ethics, no society can exist. Each one of us has ideas about what is good and what is evil. They cannot be kept private from the society in which we live. If men and women try to create a society in which there is no fundamental agreement about good and evil, they will fail. If, having based it on common agreement, the agreement goes, the society will also disintegrate. For society is not something that is kept together physically; it is held together by the invisible bonds of common thought. If the bonds were too far relaxed, the members would drift apart. A common morality is part of the bondage. The bondage is part of the price of society, and mankind, which needs society, must pay its price.

Today we are, in part, paying our price for society. We are submitting ourselves to the law in the greatest tradition of Western society, which is the rule of law, in the passage of this model Criminal Code and its application to the portfolio of the Attorney-General.

This is essentially a mechanical piece of legislation, in that it sets out at the start to say that the amendments are designed to enable the law to operate not in some new way, not in some revolutionary, different way, but `in the same manner as at present'. So it is not the intention to introduce a new offence; it is not the intention to question the presence of an existing offence. It is merely the sort of homogenising project which this government and the one that preceded it are particularly fond of. We must have the guts to address our minds to the deeper question of the underlying consensus on what ought and ought not to be criminal. Those sorts of questions as to what are the values that bind together a community are important questions for us to consider, debate and discuss in a forum such as this. It happens very seldom. It ought to happen more. Nonetheless, I commend the bill to the House.


Mr Slipper —Have you told us the name?


Mr ROSS CAMERON —The name of the author was Patrick Devlin.


Mr DEPUTY SPEAKER (Mr Nehl)—The chair notes in passing that the member for Parramatta did not precisely emulate the example of the member for Denison in terms of brevity. I call the parliamentary secretary.