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Legislative Assembly for the ACT: 2002 Week 3 Hansard (5 March) . . Page.. 566 ..

MS TUCKER (continuing):

We can guess, but we do not yet know and may never know. As far as I am aware-and I am only going on what has been publicly announced-there are no leads on who is behind the scares. So while it is easy to construct in our minds a nasty intention that is in proportion to the alarm caused and the horror that preceded it, we do not really know what was going on.

Mr Stanhope's approach is to try to define what is wrong with those acts in a more general sense rather than to add a specific offence covering distribution of possibly biochemical agents, as Mr Stefaniak proposed to do. The new offence is claimed to be needed because the only other option for this type of non-specific victim action is in public mischief legislation. Public mischief, a summary offence, which was explained to me as having the police called out unnecessarily, is punishable by fines.

My first concern with this legislation, after considering whether it really is necessary, was about whether it would unintentionally catch people who are protesting in a way that either causes harm-for example, self-harm through a hunger strike-or may be perceived as potentially causing harm. I understand that the Attorney-General has picked up on this concern in the scrutiny of bills report and has developed an amendment.

However, there are still questions about whether this type of provision could be used to punish organisers of an angry, noisy demonstration or, as we saw a few years ago, a few people getting out of control and barging the doors of Parliament House. Or imagine the alarm and anxiety that was aroused in some people by the anti-Vietnam protests or the Springbok protests.

I do not believe that we want to increase the penalty for this kind of action in the same way that we want to punish terrorism. Even terrorism is a vague and overused word at this point in time, and it is difficult to be clear about what it means-perhaps even some people at a demonstration burning a flag or getting violent. Don't we see these as different to large scale threats in which the main medium for the message is planned intimidation? I was concerned about this and not reassured by the explanation at first that the intent was not to widen the net and that no prosecutor would take up such a case. We do not know who will be in these positions in the future, and I am still cautious about it.

However, after the lengthy discussions that we have had through scrutiny of bills and more generally, it is clear that it must be proved that a person has the intention of causing public alarm or anxiety through an activity perceived to be one that could endanger human life or health, which could occur in a protest. But I am satisfied at this point that it is clear in this legislation that it has to be proved that the intention is to cause alarm or anxiety in the broad public sense, which I have already discussed.

The explanatory memorandum says that the offence does not apply where there is no intention to:

  • behave in a way that, in the circumstances, raises a reasonable suspicion that human life or health could be at risk; and
  • by doing so, cause public alarm or anxiety, ...

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