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Legislative Assembly for the ACT: Week 5 Hansard (13 May) . . Page.. 1878..

Question resolved in the affirmative.

Environment Legislation Amendment Bill 2004

Detail stage

Clause 1.

Debate resumed from 4 May 2004.

Clause 1 agreed to.

Clauses 2 to 6, by leave, taken together and agreed to.

Clause 7.

MS DUNDAS (9.23): I seek leave to move amendments 1 to 3 circulated in my name together.

Leave granted.

MS DUNDAS: I move amendments Nos 1 to 3 circulated in my name [see schedule 1 at page 1912].

Mr Speaker, the issue of strict liability offences is one that has been raised constantly by the scrutiny of bills committee. It was raised again by the scrutiny of bills committee with regard to this bill. I note that, in addition to the 100 penalty unit offences mentioned by the committee, there are also penalties of 500 and 1,000 penalty units. This would make these the largest penalties for strict liability offences ever passed by the Assembly since the introduction of the Criminal Code.

The scrutiny of bills committee has repeatedly raised rights objections to the introduction of strict liability offences. This is particularly the case where a defendant has taken due diligence to comply with the law. By imposing a penalty upon someone, despite no requirement to prove a fault or admit elements to the offence, and disregarding any evidence the defendant took all reasonable action to prevent the contravention, the penalty may be widely seen as unfair and unwarranted by both the defendant and the community at large, particularly when the penalties are so very high.

My amendments do not actually change the level of the penalties as there is a reasonable argument that penalties should remain consistent across both the Environment Protection Act and the Nature Conservation Act. However, these amendments insert a defence of due diligence which maintains the approach taken in the Environment Protection Act which specifically includes a defence of due diligence. This approach ahs been omitted in this bill, and these amendments seek to ensure consistency across the two acts.

The form of defence is reasonably specific; the burden of evidence is on the defendant and cannot be used if the prosecution can prove that the defendant did not take any step that was reasonable. The defence is not as vague as a reasonable-excuse defence that exists in some other pieces of legislation and has attracted adverse comment.

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