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Legislative Assembly for the ACT: 2010 Week 13 Hansard (Tuesday, 16 November 2010) . . Page.. 5390 ..


The bill sets a three-step test that must be satisfied before the defence is available. The attorney has outlined the test in some detail, and the explanatory statement adds further detail, so I will not repeat what has already been said and made clear. What I would like to do is commend the departmental officers and the attorney for preparing an explanatory statement that slightly breaks the mould. The statement gives practical examples of how the defence would operate in real life.

The outcome is that the bill is easily understandable. I am not aware of many, if any, other bills that take this approach, but I would like to encourage that type of thinking. It really meets the ultimate goal of explanatory statements very well, which is, of course, to actually explain the changes being made.

There is one issue raised by the scrutiny committee and addressed by the attorney that I would like to discuss briefly. It has been confirmed by the committee and the attorney that the possession of the illegal material must be found to be objectively reasonable for the purposes of the law enforcement—that is, it must be seen to be reasonable through the eyes of an ordinary person. The scrutiny report asked whether it would not be more appropriate to set a subjective test to be applied where the accused themselves only must have thought the possession was reasonable.

Giving consideration to the overall policy objective of the amendment, which is to give certainty and security to people going about their job, I believe the objective test is appropriate. To insert a subjective test would leave open the possibility that the defence would be abused by an employee who obtained material through the course of their employment but then dealt with it in an inappropriate manner, for example, a drug lab technician who was required to analyse a sample at the lab, but actually took the sample home with them.

It is possible that such behaviour would satisfy a subjective test simply because the technician was able to show that he or she thought it was a good idea at the time. However, under an objective test, they would need to show the rationale and practical reasons as to why it was necessary to take it home to perform their job. It would then be for the court to decide whether there is enough of a link between the job and the activity to say that it is for the purposes of their job. I think that is an appropriate threshold to set for this defence. The defence is designed to protect workers going about their job, but it is not designed to protect workers who stretch the rules or outright break them. Care and diligence are required when dealing with sensitive material, and this bill will protect those who go about their job in that way.

To conclude, the Greens support this bill. We believe it offers the protection that is required to allow people employed in law enforcement and in justice agencies to go about their important jobs to the best of their ability.

MS GALLAGHER: (Molonglo—Deputy Chief Minister, Treasurer, Minister for Health and Minister for Industrial Relations) (10.12): The Criminal Code Amendment Bill 2010 aims to introduce a new defence of lawful possession into chapter 2 of the Criminal Code 2002. The purpose of the new defence is to provide people who work in the criminal justice system with the protection of the law when, as part of that work, they acquire prohibited items.


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