Legislative Assembly for the ACT: 2008 Week 03 Hansard (Tuesday, 1 April 2008) . . Page.. 733 ..
Of course the police exercise discretion—police exercise discretion in a very broad range of circumstances—but is it appropriate for police to exercise discretion where they have to make a judgement about the mental element, not just the physical activity that the offence involves? That is the issue at play and Mr Stefaniak needs to argue why it is appropriate for the police to make a judgement about the mental element in these circumstances, without referring the matter to a court, which is what a strict liability offence does. That is where the government and the opposition disagree.
Those matters should be dealt with by a judicial officer and the government, as I foreshadowed in my earlier speech, is proposing mechanisms to ensure that those arguments can get to court in a timely way. The way we propose to get those matters to court in a timely way is through a court attendance notice, so removing the requirement for police to attend the court on an extra occasion to lay information and to get the summons to have someone appear before the court. Instead, the government is proposing that that be a streamlined process with a court attendance notice, no need to lay any information and the person is required to attend court immediately at a set time. That is how we propose that those types of offences be dealt with.
I have outlined previously what the government’s view is in relation to the application of strict liability offences, so I will not go into that again in relation to these types of matters. I simply indicate that, contrary to Mr Stefaniak’s posturing on it, it is not that we are going to turn a blind eye to these offences or that we do not accept that these matters are offences. Of course they are, and they should be dealt with. It is a matter of how they are dealt with and whether or not Mr Stefaniak is having proper regard to the mental element, not just the physical one. In the government’s view, he is not.
DR FOSKEY (Molonglo) (12.26): I understand that Mr Stefaniak’s amendment comes out of a genuine concern and what we have here is a shared concern right through this house but different approaches to the problem. I am not so sure that Mr Stefaniak’s remedy is as simple as he indicates, for the kinds of reasons that were put forward by the Attorney-General. On the other hand, I am also not sure that police officers themselves, especially many of the young people that we have out there on the beat, would feel confident in being required to apply their discretion in matters which are not exactly straightforward in nature.
I think we all know from our observation that these kinds of incidents are often quite chaotic and very difficult to assign a fault judgement to, and we are requiring police to do that in the moment. Usually they have not seen the beginning of an event; they come along and they see the result of the event and not the cause. So we could see people who are the victims of an attack being made just as liable as the attacker, because the victims might fight back to protect themselves but all that is not visible to the police officer. This is just one example of the concerns that I would have about such an application of this principle.
There is no doubt that the police officer, well trained or not, may make mistakes and may make judgements that they would prefer not to make about what Mr Corbell referred to as the mental aspect. We ask a lot of our police officers and I think that we assist them best when the law is clear and straightforward; they know the avenues and