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Legislative Assembly for the ACT: 2006 Week 4 Hansard (2 May) . . Page.. 1017..

MR STEFANIAK (continuing):

animal. I suppose this is at least a step in the right direction, and it was a step which the government flagged about 12 months ago when it defeated, for the second time, a bill I brought in to increase penalties for cruelty to animals.

Before I mention one thing in relation to this bill, which the scrutiny of bills committee reported on, let me say that cruelty to animals is one of the lowest acts a person can commit. Animals, by and large, are defenceless. Domestic animals depend on human beings for their succour and for their livelihood. For anyone to wantonly injure or kill an innocent animal—and in some instances, with a domestic pet, a loving animal who cannot understand why the person they love is being so cruel to them—is despicable. It is in fact a heinous crime. And it is worthy of a significant penalty.

For too long in the ACT, the maximum penalty has been one year or $10,000. Magistrates have on occasions indicated the penalties are far too low. These offences rarely get to the Supreme Court because of the low nature of the penalty. Personally, I still think that two years for the worst offences is far too low.

Before I come to that, because I have some points to make in relation to the government's tardiness on this, let me make some comments. I thank Mr Hargreaves and his department for responding so promptly to the scrutiny report. It is worth reading out. In this bill, proposed new section 7B deals with alternative verdicts. As I indicated, it is where the relevant facts have not been proved to indicate intent but there is still cruelty, which would drop it down to a one-year imprisonment maximum offence. Subsection (2) reads:

The trier of fact may find the defendant guilty of the offence against section 7, but only if the defendant has been given procedural fairness in relation to that finding of guilt.

The scrutiny committee indicated in relation to that, and I quote from our report No 24:

The Committee has noted that by proposed new section 7B of the Act (see Clause 4 of the Bill) the trier of fact (that is the court) in relation to a prosecution in respect of proposed new section 7A may find the defendant guilty of the alternative offence against existing section 7, "but only if the defendant has been given procedural fairness in relation to that finding of guilt".

The Committee has no objection in principle to this proposition, but is concerned that it has been thought necessary to state it in the statute. It is long accepted in our legal system that a court will accord procedural fairness (or, as it has been said for centuries, natural justice) to a defendant on a criminal trial. This principle is embedded in subsection 21 (1) of the Human Rights Act. There is a slight risk that an express statement that a court in a particular situation is obliged to accord procedural fairness might be understood to mean that, in other contexts, it is not so obliged. At the least, it is curious that it is felt necessary to make an express statement.

If as a matter of policy it is proposed that such express statements about the obligations of courts to accord natural justice will be more common, the Committee considers that the Assembly would be assisted by a statement of the policy, and the reasons for the policy. This will facilitate a more informed human rights analysis of bills.

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