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Legislative Assembly for the ACT: 2001 Week 8 Hansard (9 August) . . Page.. 2785 ..

MR STEFANIAK (continuing):

what he or she believed at the time. So, there is currently no effective sanction on passing valueless cheques. Most small business people do not have the time or resources to pursue the alleged offender through the Small Claims Court to obtain proper payment.

The amendment will deter people from presenting cheques they know will not be honoured by placing the onus of proving the absence of dishonesty onto the person who has passed the valueless cheque. All that will do is require the person to do more than just claim that he or she thought there was money in the account; he or she will need to justify the basis of that claim. This is not earth shattering stuff; it is not rocket science. We do have reverse onuses of proof in a number of matters, and these are proved on the civil standard of balance of probability.

If someone bona fide happens to be charged and has to go through a police process and a DPP process-our police and DPP are pretty reasonable in terms of not charging people who have a real excuse-it would not be particularly difficult for them to discharge that onus in court, if they actually got there.

Mr Stanhope's amendment totally defeats the purpose of the proposal, and I do not think the opposition understands why the government has proposed the new section. I would say to members: if you do not want to vote for mine, knock his out, because his amendment would further complicate the law and make it even worse than it is. If you want to have the status quo, vote against ours and vote against his as well. If you vote for his amendment, you are really going stuff up the law and we will be back here in three months time trying to sort it out. So if you want to keep the status quo, you are best off voting against both amendments.

As I have previously explained, the whole point of our amendment is to place the onus of disproving dishonesty on the person who has passed the valueless cheque. Otherwise, it is far too easy for a defendant to evade liability, merely claiming that he or she thought the sum would be paid.

People have not demonstrated a real understanding of the difficulties faced by small business people, who are given valueless cheques regularly and are basically told by the police that there is no point pursuing it because the alleged offender will not be convicted. There would be absolutely no point in this Assembly enacting a new valueless cheque offence that contains all the same shortcomings as are apparent in the existing provisions.

If you want to keep the status quo, oppose Mr Stanhope's amendments and you can oppose ours. But I would strongly urge members to support our amendments; you will be doing small business a favour. We are all occasionally in a situation where we might write a cheque when there is no money in the account. Commonsense dictates that that is something any honest person can sort out. In all my years as prosecutor and defence counsel I have not seen too many honest people in court for offences like this. It simply does not happen.

MR KAINE (11.16): I agree with Mr Stanhope on this question. Wouldn't the administration of the law be wonderful if we could always say that anybody picked up for any alleged offence has to prove their innocence? The prosecutor does not have to

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