Legislative Assembly for the ACT: 2002 Week 11 Hansard (26 September) . . Page.. 3345 ..
MR STEFANIAK (continuing):
very much expects. The community was outraged by what happened in a case in New South Wales-the situation here might be a bit different from the situation there, but it was in the same ballpark-in which a young man was awarded $50,000 for injuries suffered after being found on hotel premises by the hotel keeper. The hotel keeper may well have overreacted, but would have been in a very difficult situation when confronted with something like that at night. The community outrage in terms of the damages awarded was understandable,.
The Chief Minister's statement that people should not be rewarded for criminal acts is a sensible one. It is in line with community expectations. A person who sustains injury whilst committing a serious offence should bear their own losses. The rest of the clause is quite fair. Firstly, it enables liability for damages to be excluded if paragraphs (1) (a) and (1) (b) are not satisfied. Despite that exclusion, the court can still award damages if the circumstances of the case are exceptional or the exclusion would operate harshly and unjustly. The example has been given of a young person who has been disfigured for life being an instance where the court can say, "Despite what you have done, despite the crime you have committed, we are still going to give you some assistance."
The exemptions are there. It is more than fair, I think, that a person who has been convicted of an indictable offence can still get damages. The Chief Minister has referred to a situation where an incident occurred as a result of something different from the conduct the person was engaged in. He talked about a person in a supermarket who had a shelf fall on them after the person has actually engaged in shoplifting. Of course, that person would get damages.
I just think it is quite wrong to have the criminal standard of proof for actually proving the accident occurred, which is how I read that clause, whereas in New South Wales the civil standard applies. I note that Mr Quinlan, who is not present, was quoted not that long ago as saying the government is trying to run in parallel with New South Wales wherever it can. For something as important as this matter, given that we are surrounded by New South Wales, we should follow the practice in that state. At any rate, this bill for an act is the Civil Law (Wrongs) Bill and the civil standard should apply there. Of course, the criminal standard should apply to the threshold question of whether an indictable offence has been committed. If an indictable offence has not been committed, that would be the end of the story.
MR STANHOPE (Chief Minister, Attorney-General, Minister for Health, Minister for Community Affairs and Minister for Women) (4.49): This is a circumstance, and a very rare circumstance, in which Mr Stefaniak and I disagree on the interpretation of a provision. I guess that the crux of it, Mr Stefaniak, is that we each apply a different interpretation to the meaning, intent and effect of clause 34 (1) (a). You are assuming that there are two elements that need to be proved beyond reasonable doubt-namely, that the offence was committed and that the accident happened-and you are putting an argument that in that circumstance there is no justification for applying the criminal standard and that the lesser standard, the civil standard, should apply.
I take the view-a view supported by the department-that the clause does need to be considered as a whole and that what has to be proved beyond reasonable doubt is that the accident happened during the commission of an indictable offence. It is not the double bunger test that you are applying, Mr Stefaniak. Having said that, we are not going to