Next page . . . . Previous page . . . . Speeches . . . . Contents . . . . Debates(HTML) . . . .

Legislative Assembly for the ACT: 2001 Week 8 Hansard (9 August) . . Page.. 2784 ..

MR STANHOPE (continuing):

There is the additional danger of the unintended consequence of giving the banks a weapon to use against their clients. A client with a marginal account with a bank could pass a cheque believing the bank would pay because they have done so in the past. Whether unscrupulously or accidentally, a bank could, through not actually honouring the cheque, render a client a criminal.

The subsection cannot be supported whilst the onus is on the defendant to prove his or her innocence. I have an amendment that I propose to this clause to make it clear that the responsibility for proving all elements of the offence rests on the prosecution. This is what happens with other offences, and there is simply no justification for reversing the onus of proof in relation to this particular provision.

MR MOORE (Minister for Health, Housing and Community Services) (11.09): Mr Stanhope puts a rather eloquent and convincing argument in this case. I cannot imagine that there are many of us who have not at some stage written a cheque thinking there that were funds in our account and not having them. I think the way the original legislation is set out, with those penalties and the reverse onus of proof, is over the top. I shall be supporting the amendments put by Mr Stanhope.

MR OSBORNE (11.10): I, too, will be supporting Mr Stanhope's amendments. They are quite reasonable. I shudder to think of the amount of charges that would be forthcoming should this legislation pass in its original form. Many people have joint accounts, which a wife and a husband can access. One person will write a cheque not realising the money has been withdrawn, and all of a sudden they are a potential criminal.

From my reading of the proposed subsection, any type of defence that you tried to mount would be very hard to put up. There are sections within the current Crimes Act for people who are attempting to fraudulently forego their liability, and I think this is overkill on the part of the government. Mr Stanhope has rightly fixed it.

MR STEFANIAK (Minister for Education and Attorney-General) (11.12): This law inserts the new offence of passing valueless cheques. It is similar to provisions that have operated very successfully in New South Wales, Victoria and South Australia for many years, and it is something we had until 1985.

The police have indicated that they receive about three complaints each week from business people who have been given valueless cheques as payment for goods or services, and they estimate that those complaints represent only about 30 per cent of all cases. Members will have noticed that in recent years many businesses are refusing to accept cheques or will accept them only by prior arrangement, which is a real indication of how pervasive the problem has become.

The existing offences dealing with theft and obtaining an advantage by deception have proved inadequate in these cases because the alleged offender is usually able to raise a reasonable doubt as to the mental element of dishonesty by claiming that he or she thought that there was enough money in the account. The DPP and the police have found it very difficult to disprove such claims beyond a reasonable doubt, which is a very high criminal standard. That is in most cases. Only the defendant can know

Next page . . . . Previous page . . . . Speeches . . . . Contents . . . . Debates(HTML) . . . .