Page 675 - Week 03 - Tuesday, 8 March 2005
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may be appropriate to overcome the knowledge of law problem where a physical element of the offence expressly incorporates a reference to a legislative provision.
Third, strict liability may be appropriate where it is proved difficult to prosecute fault provisions, particularly those involving intent. As with other criteria, however, all the circumstances of each case should be taken into account. Last, strict liability offences should be applied only where the penalty does not include imprisonment and where there is a cap on monetary penalties. The general commonwealth criterion of 60 penalty points appears to be a reasonable maximum.
This bill does not include any strict liability offences where imprisonment is a possible punishment and in no case does the penalty exceed 60 points, but I note that there are concerns about the number of strict liability offences. The bill also creates a number of offences of absolute liability. In some cases imprisonment has been noted as a possible punishment. I note that, for each instance, there is a provision for the defendant to avoid conviction if he or she proves certain matters—generally if they acted with reasonable care in some respect.
The bill also contains some offences where the legal burden of proof is borne by the defendant. This occurs in instances to protect children. The main concern was for clause 13 (4) covering private exhibition of films in the presence of a child. The saving grace is that you only have to demonstrate, on the balance of probabilities, that you believed that that person was a child.
MR HARGREAVES (Brindabella—Minister for Disability, Housing and Community Services, Minister for Urban Services and Minister for Police and Emergency Services) (10.40): Essentially this legislation does a couple of things, one of which is to bring us in line with what other jurisdictions are already doing, as the Chief Minister said in his presentation speech. The states and the Northern Territory have either made, or are in the process of making, these sorts of amendments anyway as part of a national cooperative scheme. It seems to me that we need to be absolutely sure that we are not the ones left behind in this.
To take the points Dr Foskey made, she talks about strict liability offences. I think scrutiny of bills spoke about strict liability offences ad nauseam, Mr Stefaniak, if my memory serves me correctly, in the last Assembly. We were particularly cautious at that time to make sure that the punishment fitted the crime, sort of thing. We have got to be careful about just how we apply strict liability. There also needs to be a link about the liability and the jurisdiction in which it applies. If we, for example, are talking about strict liability offences we want to make sure that the other states and territories also have strict liability as a rider for this offence.
Essentially, though, with this legislation it becomes more explanatory. We all see it on the TV guide, for example. When you look up the movie of the day, it will have MA, MA, L, V, SX, WC and “change” probably even whacked on the end. These classifications make it even more explanatory for parents when they are talking about picking up a video, taking the kids to the movies, or even going to somebody else’s house because their kids are going to have a movie night, or something like that.
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