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Legislative Assembly for the ACT: 2002 Week 11 Hansard (26 September) . . Page.. 3346 ..

MR STANHOPE (continuing):

agree; we will have to agree to differ. You make the point that you think it appropriate that the civil standard apply in these circumstances. I disagree with you to some extent. We always will disagree, Mr Stefaniak, on some aspects of how we need to respond to certain action and activities within the community.

Mr Stefaniak used the example of the young bloke who engaged in serious criminal and antisocial behaviour by breaking into a hotel through a back window, startling the owner, and was then severely beaten. A young bloke, drunk, who climbs through a back window is obviously engaging in criminal behaviour and antisocial behaviour with no excuse and should not be forgiven for that, but should he be beaten to within an inch of his life? Do we think that that is appropriate? I do not.

I trust the courts in relation to these issues. I trust the court that made a judgment in that case that the response was grossly excessive in the circumstance. It was a result of the decision that the judge made in that case that he awarded damages. Prima facie, I cannot accept the assumption that in every circumstance you have to think the worst, that you have to assume the worst with some blinking, slightly out of control, young bloke. I am concerned about this attitude. One of the concerns I have about the response of some of my colleagues in other jurisdictions is that this insurance crisis is generated to permit open slather. That is not an appropriate response. We need a measured response to these things. We do not need to turn the community on its head to deal with this, albeit major, problem.

I understand what you are saying about clause 34, Mr Stefaniak. I am prepared to concede and accept your amendment. But I do not accept some of your philosophy, some of your arguments or some of your rationale. I do not accept your legal interpretation, either, but I will concede the point on whether, in these particular circumstances, a criminal or civil standard might apply.

MR STEFANIAK (4.53): I thank the Chief Minister for accepting the amendment. Might I say, Chief Minister, that I was referring in that Sydney incident to the public perception. I do, as you obviously do, read lots of reports. We are both lawyers and I can accept the court's decision there because of the peculiar factual situation. Obviously, it was not a case of a person being startled by an intruder and then responding through fear of what might occur to himself and his family. In that instance, it would have become apparent to any reasonable man at an early stage that the intruder was young and drunk and the owner had control of the situation. Obviously, he went too far. I think the factual situation there is fairly clear when one looks at that particular case.

The point I was making was about the reaction of the community. The community often does not delve too much into the whole facts. It just shows the abhorrence of the community at what it perceives to be criminals who break into people's houses or commit serious offences and are injured whilst committing the offences getting large payments. That is something that the vast majority of the community simply cannot understand and do not want to see occur. That is why I think the Chief Minister's statement on page 8 of his introductory speech very much expresses what the community feels. The community might not know the full facts of lots of cases and go off a bit half-cocked, but the point I was making, Chief Minister, was that there is a very strong feeling in the community that criminals should not be rewarded for their misconduct.

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