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Legislative Assembly for the ACT: 2003 Week 9 Hansard (28 August) . . Page.. 3395 ..

MR STANHOPE (continuing):

The first two issues became apparent after Operation Minotaur-the national foot and mouth disease simulation-in which the ACT participated in 2002. That simulation showed up the commencement issue in the Animal Diseases Act. Since the Plant Diseases Act provisions were modelled on the Animal Diseases Act, it was apparent that they also needed revision.

The more general directions power from the Plant Diseases Act also became apparent, by implication, from consideration of how a disease emergency would have to be responded to. The simulation re animal diseases showed up a weakness in the original design of the scheme in the Plant Diseases Act. The scrutiny of bills committee raised concerns about the strict liability offences in the bill and the removal of the reasonable excuse defence from those offences.

As noted above, the offences in the Plant Diseases Act are being revised to comply with the criminal code. Clauses 18, 20, 21 and 23 amend provisions in sections 16, 26, 27 and 34 by clarifying the mental element and removing the reasonable excuse defence.

The concern raised was that there was no adequate justification for the removal of the defence even if, as suggested by the explanatory statement, the range of defences provided for in the code is adequate. The response sent back to the committee was the government's view that the range of defences available under the code is adequate but that further consideration be given to the matter.

The policy for use of reasonable excuse as a defence has been articulated by the criminal law and justice group of the Department of Justice and Community Safety as follows:

The reasonable excuse defence will not be included in an offence if the excuses that the instructing agency intended it to cover are already covered by a generic defence in the code. The reasonable excuse defence will not be included in an offence if the excuses that the instructing agency intended it to cover can be articulated as a specific defence to the proposed offence. For instance, the provision could provide that it is an offence to discharge a firearm in a public place unless the registrar gives prior approval. Items 1 and 2 above of the policy will not apply in the following circumstances: (a) if the subject matter is such that it is difficult to anticipate the justifiable excuses that may arise and are impractical to attempt to specify them; and (b) if, in a particular case the CLJ considers that it is not appropriate for items 1 and 2 to apply.

This policy is consistent with the objectives of the code and the Commonwealth's policy on the reasonable excuse defence.

The offences in the bill that are having the reasonable excuse defence removed are such that the defences in the code-such as mistake of fact, duress, intervening conduct or event, or sudden or extraordinary emergency-will cover the intended range of defences. It was the government's view in its response that there was no need for further defences for these offences.

By way of conclusion, I acknowledge the support of members of the Assembly for this legislation. I understand Ms Tucker has foreshadowed some amendments. The government's position in relation to those is that they perhaps were not of an order that we were concerned about-and I think that was conveyed to Ms Tucker by my staff.

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