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| Dr TOYNE (Justice and Attorney-General): Madam Speaker, I move that the bills be now read a second time. The purpose of these bills is to continue to government’s reform of the Criminal Code by revising the offences and defences related to homicide. The bills constitute a significant reform to Northern Territory criminal law. As members would be aware, the government commenced its reform of the Criminal Code in 2005 with a Criminal Code amendment in respect of criminal responsibility. This act, Madam Speaker, which I refer to as the ‘reform act’ created a new Part IIAA to the Code, and introduced new general principles of criminal responsibility. This act also establishes a foundation upon which, over a proposed period of approximately five years, the new criminal responsibilities principles will be applied to all Criminal Code offences. Madam Speaker, the reform act also repealed the existing manslaughter and dangerous act provisions. These were replaced with a revised manslaughter offence, and by the offences of recklessly endangering life, recklessly endangering serious harm, negligently causing serious harm, and dangerous driving causing death. It also amended the existing rape offence. The new criminal responsibility principles will immediately apply to all of these offences upon the commencement of the reform act later this year. The bills I introduce today are an important next step in the reform of the Criminal Code. It will ensure that all offences related to homicide will function appropriately within the new principles of criminal responsibility. This is an important consideration in the reform process because offences that are likely to attract alternative charges should be dealt with under the same principles of criminal responsibility. The government wants to ensure that these reforms cause as little disruption as possible to stakeholders in the criminal justice system. One way to this achieve this goal is for each stage of the reforms to include as many related offences as possible. Madam Speaker, I now set out the detailed aspects of the bill to hand, namely Serial 71. The distinction between murder and manslaughter is a part of the law in all Australian jurisdictions, and exists to reflect the degree of seriousness of the unlawful homicide committed by the offender. As I noted earlier, the manslaughter offence was dealt with in the reform act. This bill now deals with the offence of murder, the partial defences to murder, and the offence of assisting or encouraging suicide. As an important first step, the bill defines what can be unlawfully killed by providing that a person against whom and offence may be committed under the Code is a person who has been born, and who has not already died. The bill then defines ‘birth’ by adopting the model code provision, which sets out a helpful and relevant test for juries. This complements the definition of ‘death’ which is contained in the reform act. In line with the recommendations of the Model Criminal Code Committee, the bill reformulates the offence of murder to remove the constructive form of murder from the code. This type of murder involves an unintentional killing by an act of violence, for example, where an act of violence causing death is committed in an effort to resist, prevent or escape from lawful arrest and custody. Constructive murder has been extensively criticised because it involves the imputation of the fault element required for murder when the violent death occurs in the context of other criminal conduct. If these elements exist, a murder conviction follows as a matter of course, even if there is no evidence of intentional recklessness on the part of the accused. This is a particularly critical issue in light of the Northern Territory’s mandatory life sentence penalty for murder. To equate an accidental killing with murder is directly contrary to the fault-based approach to determining culpability. In the absence of intention or recklessness, where the death is truly accidental, the government considers that it is not appropriate or just for a person to be convicted of murder. However, it is important to note that, in the absence of the offence of constructive murder, an offender may nevertheless be criminally be responsible for manslaughter on the basis of reckless or negligent conduct. Because the Territory’s Criminal Code has not previously not recognised fault elements of recklessness and criminal negligence, constructive murder arguably fills a gap in the criminal responsibility where an accused engaged in specific forms of conduct. With the introduction of fault grounds for manslaughter in the reform act, there is no further need for a constructive homicide offence. I move now to the reform of the codes homicide defence provisions. Although the existing partial defences of provocation and diminished responsibility are not contained in the Model Criminal Code, it is necessary to retain them in Northern Territory criminal law because of the existence of the mandatory life imprisonment penalty for murder. However, the defences have been redrafted to clarify and, in the case of provocation, to restrict their operation. Under the current Territory code, provocation operates as a partial defence to murder, that is, murder can be reduced to manslaughter due to the existence of provocation. Provocation also currently exists as a total defence in matters not resulting in death or, in the old terminology, grievous harm. Provocation is a complex doctrine which has been the subject of much debate. It consists of a union of two tests, a subjective test which asks whether the defendant was actually provoked to the point where he lost self-control, and whether he committed the killing as a result of that loss, and an objective test, which asks whether the provocation was sufficient to make a reasonable ordinary person behave as the defendant did. Notably, the current provision in the Territory code extends the ordinary person test to an ordinary person similarly circumstanced. This has been interpreted to include reference to and consideration of the defendant’s cultural or ethnic background. The High Court reviewed the ordinary person test in the case of (inaudible) vs The Queen and decided that although it was relevant to determining the gravity of the provocation, the subject characteristics of the defendant are irrelevant to the standard of self control imposed by the law. This standard, the High Court concluded, should be determined by reference to the hypothetical ordinary person facing that degree of provocation, in other words, a completely objective test. The redrafted provocation provision in this bill restricts the application of the defence to cases of murder only and adopts the High Court’s recent statement on the appropriate test. The revised provision also removes the requirement for the defendant to have acted on the sudden and before there was a time for his passion to cool. This requirement has, to date, made the defence unavailable in cases where there has been a history of serious abuse inflicted on the defendant which ultimately leads them into attacking their abuser. This is the situation in what is commonly referred to as ‘battered women cases’. The bill also clarifies that the defence is available in circumstances where the provocation is directed at someone other than the accused, for example, towards children of the defendant. The government considers that this revised provision will reflect the best law on this defence. The bill also revises the diminished responsibility partial defence to murder. This defence also operates to reduce murder to manslaughter, and the amended provision will provide increased flexibility in dealing with defendants who display some kind of mental dysfunction which is not serious enough to establish the complete defence of insanity, known under our criminal law as mental impairment. This defence is based on the fault element necessary to find a murder conviction being of a diminished quality. The bill will replace the defence of diminished responsibility with the new defence of substantial impairment by abnormality of the mind. It is still a partial defence and it must still be proved on the balance of probabilities by the accused. The specific changes to the defence contained in this bill are: 1. that the complex and often confusing concept of mental responsibility is removed. The new defence will instead turn on the accused’s capacity to understand events, to judge actions as right or wrong, or to control himself; 2. the impairment has to be so substantial as to warrant liability for murder being reduced to manslaughter; 3. the current defence of abnormality of mind arises from a condition of arrested or retarded development of mind, and any inherent causes or causes induced by disease or injury. The new defence provision requires the accused to prove that the abnormality of mind arises from an underlying and not transiently condition. This revised defence is based on the recommendations of the New South Wales Law Reform Commission. The provision makes it clear that the jury has a specific role once the evidence has established the existence of the defence in determining whether, by community standards, the impairment is of such an extent that the defendant should not be convicted of murder, but should be convicted of manslaughter. Notably, the new provision clarifies that self-induced intoxication is to be disregarded from any consideration of the impairment. This bill also inserts two further defence provisions. The first is for the protection of persons whose conduct causes serious harm, or gives rise to a danger of death or serious harm, during conduct engaged in by the person for the purpose of benefiting another, or pursuant to a socially acceptable function or activity where the conduct is reasonable in the circumstances. This covers good Samaritan situations and sporting pursuits. The second covers police, prison and law enforcement officers acting in the course of duty where the conduct is reasonable in the circumstances. The reform act already contains a number of general offences which apply to fatal offences against the person. The are duress, sudden and extraordinary emergency, and self-defence, and the defence of law authority which applies to all offences including fatal offences. Where a defendant wishes to deny criminal responsibility under these provisions, he or she bears the evidential burden in relation to the matter. The bill contains some repetition of contents of the reform act. This is unavoidable, as each new offence and provision will effect the numbering of the Criminal Code. Consequentially, the offence and punishment of manslaughter reappears in this bill so that necessary transitional numbering can be reordered appropriately. The bill also reorganises the homicide related offences to group them more appropriately in one part of the Criminal Code. The bill also redrafts the child concealment offence, which is an alternative charge to homicide and of a child, to ensure that new principles of criminal responsibility will apply. Section 317 of the Criminal Code, which provides that an alternative offence is available, has been amended accordingly. The current Criminal Code offence of procuring, counselling, inducing, and aiding suicide has been redrafted as an offence of aiding and encouraging suicide, which a composite of the two model code suicide provisions. The amended offence is intended to capture the same behaviour as the current offence, and the penalty of life imprisonment is retained. The offence requires that a person must have intended that his or her conduct would assist or encourage the other person to commit suicide and that, as a result of that encouragement or assistance, the other person does commit suicide or attempts to commit suicide. As the act of suicide or attempted suicide must result from encouragement or assistance, an attempt at assisting or encouraging is not an offence. The redrafted offence provides very clear guidance to this complex area of law. The Criminal Code’s homicide and related offences division also covers the abortion provisions and are, accordingly, part of this reform package. The offences of procuring abortion and supplying drugs to cause abortion have simply been revised in accordance with the principles of criminal responsibility. The penalties, being a maximum of seven years imprisonment, are retained. The current section 174, which deals with lawful medical terminations, is more appropriately dealt with in the health legislation, not in the Criminal Code. This historical anomaly is repealed in this bill and redrafted in the Medical Services Amendment Act. I will address the reason for this amendment in more detail shortly. The bill also includes some minor consequential amendments to replace division headings and renumber offences as part of the necessary restructuring of the Criminal Code. This will be an ongoing process as each new stage of the reforms is introduced. Madam Speaker, I turn now to the cognate Medical Services Amendment Bill. As I outlined earlier, this bill makes a technical change by transferring a provision currently located in the Criminal Code into a more appropriate location, the Medical Services Act. This provision sets out the matters relevant to lawful medical terminations in hospitals and the allowance for conscientious objections by health staff. It ensures that the duty of care and relation to medical treatment and the need for consent are preserved. These matters are all retained in the redrafted provision. The purpose of the bill is threefold. First, to remove the historical anomaly of a non-criminal matter being located in the Criminal Code; second, to restructure and simplify what is currently a very convoluted provision; and third, to remove the absolute requirement for a specialist to perform a medical termination where it is determined that that termination must be performed within the first 14 weeks of a woman’s pregnancy. Currently, medical treatment to procure a termination in this early stage of pregnancy can only be performed by a gynaecologist or obstetrician in accordance with the requirements set down in the existing provision. The amendment will allow, within the same requirements, a properly credentialed and qualified medical practitioner to give that medical treatment in a hospital. The Northern Territory’s requirement for a specialist to carry out this procedure is out of line with every other Australian jurisdiction. It was inserted as a committee stage amendment in the Criminal Law Consolidation Bill in June 1973, when it was considered that such a requirement was necessary. Senior clinicians in Territory hospitals have raised this issue with government and explained that there is no medical reason for this provision. They note this requirement also puts an unwarranted pressure on one medical specialty which already faces a significant workload in the Territory. If this provision was allowed to stand unamended, it could create a workforce issue for Territory hospitals at some point in the future. Registration of medical practitioners in the Northern Territory is mandatory clinical practice and occurs through the Medical Board under the Health Practitioners Act. The Director of the Medical Services determines according to qualifications, demonstrated skills and experience, what a medical practitioner is prevented to do clinically at a hospital. This occurs in both private and public hospital systems. I note that the amendment to this provision also inserts a requirement that where practicable at least one of the two medical practitioners who are required to authorise a medical termination is a gynaecologist or obstetrician. These amendments are sensible, safe and bring the matter into line with current medical technology and knowledge. The government has received advice from senior clinicians that they do not expect the amendments contained in this bill to alter the number of terminations carried out in the Territory and that the safety and scrutiny currently surrounding the procedure would be maintained at their current very high levels. I am pleased to present these cognate bills to the Assembly. This is a substantial, important and long overdue revision of the Northern Territory’s criminal law. The government expects to present a further comprehensive reform bill in the first half of next year. Madam Speaker, I commend the bills to honourable members and table copies of the explanatory statement. |