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Legislative Assembly for the ACT: 2003 Week 9 Hansard (28 August) . . Page.. 3381 ..

Clause 26.

MRS DUNNE (3.50): I move amendment No 1 circulated in my name [see schedule 1 at page 3403].

As Mr Stefaniak foreshadowed in the in-principle debate on Tuesday, the opposition has one amendment. This amendment seeks to delete the figure 50 in clause 26 and substitute the figure 100, an effective doubling of the penalty proposed. There are a number of penalty clauses in this legislation. Subclauses (1) and (2) of clause 26, clause 28 and clause 32 all provide a maximum penalty of 50 units where an auctioneer omits to do something, such as not sighting proof of identity through to not displaying the sign for the place of the auction for at least 30 minutes before the auction begins or not copying the auctioneer's conditions.

Clause 26 (4) states that an agent must not enter any details of a person in the bidders record if the agent knows or is reckless about whether the details are false. In other words, the agent cannot do something that he knows to be wrong or is reckless about. The other offences in clauses 28 and 32 are essentially sins of omission whereas this one is an act of dishonesty and the opposition feels that the penalty should be higher for an act of dishonesty than for a sin of omission.

The opposition feels that clause 26 (4) is a much more serious offence than merely an omission to do something and it fits into those ranges of offences described in clauses 29 and 31, such as accepting dummy bids, and believes that the penalty should reflect that. I commend the amendment to the Assembly.

MR STANHOPE (Chief Minister, Attorney-General, Minister for Environment and Minister for Community Affairs) (3.52): The government, through my office, has had a number of discussions and entered into correspondence with Mr Stefaniak in relation to this matter. Mr Stefaniak did give us some notice of his concerns about the level of penalty in relation to clause 26 (4). We did have a discussion about that and ultimately I did write to Mr Stefaniak seeking to allay his concerns.

Mr Stefaniak and Mrs Dunne, as Mrs Dunne has just explained, are concerned about the penalty level in clause 26 (4) on the basis, as Mrs Dunne explained, that the offence outlined in clause 26 (4) contains a knowledge element, the argument being that a knowledge element should have a higher penalty than a strict liability offence where conduct alone is sufficient to make a person culpable.

In my letter to Mr Stefaniak I expressed the view-I maintain the view I expressed then-that, accepting that in most cases it is appropriate for a knowledge offence to carry a higher penalty than a defence without a knowledge element, there are nevertheless other factors that may displace that as a general rule.

In selecting the appropriate penalty level for this offence, very careful thought was given to the individuals who would be subject to the offence and the level of injury likely to occur from someone committing the offence. We took the view that we needed to look at who would be likely to commit such an offence. In coming to the decision we did, we were mindful of the fact that in almost all cases the person committing the offence will

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