Legislative Assembly for the ACT: 2003 Week 12 Hansard (19 November) . . Page.. 4297 ..
MR STANHOPE (Chief Minister, Attorney-General, Minister for Environment and Minister for Community Affairs) (11.36): Mr Speaker, the Crimes Amendment Bill 2003 was introduced into the Assembly on 24 September by Mr Cornwell. The bill aims to reduce the incidence of graffiti, a laudable aim in itself, by prohibiting the sale of spray paint cans to a person under the age of 18.
The bill amends the Crimes Act through the insertion of new sections 384A and 384B. Section 384A makes it an offence for a person, or an employer of a person, to sell a spray paint can to a person under the age of 18. Section 384B provides for the provisions of the offences to be taken as regulations under the Magistrates Court Act 1930.
Mr Speaker, the government will not be supporting Mr Cornwell's bill. Mr Cornwell's bill is opposed by us on the grounds that it is inconsistent with a policy of access to justice. The imposition of the offence of selling spray paint cans to a child, as an absolute liability offence, is also a major concern. The creation of absolute liability offences in section 384A is quite incompatible with concepts of criminal justice and criminal law, and the values of a legal system in which innocent victims are not convicted and citizens know and understand their rights and obligations under the law. There are no available defences to prosecution with absolute liability offences.
With this bill, a very careful but unlucky defendant would be incriminated and potentially convicted. The imposition of absolute liability on the offences is a harsh burden. It imposes an obligation on the person selling the spray paint can and the employer of that person to pay particular attention to the age of the purchaser and the reason for the purchase of the paint. This focuses attention on the seller and the retailer of the paint, rather than on the graffiti offender and the offence that the bill seeks to address.
The bill is also problematic because of its insertion of section 384A (6), which provides that an employer may defend a prosecution for selling paint to a person under the age of 18 if that employer had no knowledge of the sale and could not, by appropriate diligence, have prevented the sale. The bill therefore raises a very interesting question about a new term that would be introduced into the criminal law by Mr Cornwell, namely the notion of appropriate diligence. One wonders what the real meaning of appropriate diligence is, and also the standard and amount of appropriate diligence that would be required of an employer.
It is a new and quite unique notion that it is a defence to an absolute obligation if appropriate diligence was shown. This is a new standard in the criminal law, a standard of appropriate diligence. If an employer of a person who sells a spray paint can to a person under the age of 18 shows appropriate diligence in the prevention of the sale by that employee of the can of paint, then that is a defence to this absolute liability offence. For the employer to successfully plead that he or she had no knowledge of the sale and could not, by appropriate diligence, have prevented the sale, the employer would have to supervise the sales person, one assumes, for the entire time that the shop was open.
The creation of a defence provision is incompatible with the making of absolute liability offences. There is no defence to an absolute liability offence, yet Mr Cornwell seeks to