Page 791 - Week 03 - Tuesday, 1 April 2008
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improve existing legislation. I have studied both this bill and the supporting materials and am of the view that the changes are essentially of a largely technical nature and involve correcting what are now redundant clauses or errors from previous versions of the act.
Some of the changes do go beyond corrections, but these two are changes that are welcome. For example, I support the changes to the Civil Law (Wrongs) Act 2002 that enable mutual recognition between jurisdictions of schemes approved in other jurisdictions. This is a commonsense change that must be made to keep the ACT uniform with the rest of Australia.
I have also studied the consideration given to the bill by the scrutiny of bills and subordinate legislation committee which Mr Stefaniak has focused on in his remarks and have noted the two items that they have brought to the Assembly’s attention. These two items are more than simply corrections or adjustments to language and it is worth giving consideration to them.
The first of these two items, the creation of a strict liability offence under the Civil Law (Sale of Residential Property) Act 2003, is relatively non-controversial. The offence concerned appears to be, as the committee pointed out, regulatory and the maximum penalty attached to a breach of the proposed section is no more than 10 penalty points. In general, as I have said previously in this place, strict liability offences should only be created in very specific circumstances. We must be very careful about reducing the burden on the prosecution in matters that can result in serious punishments. However, given the regulatory nature of this offence and the amount of the maximum penalty, in this situation I do not object to the creation of a strict liability offence.
The second issue raised by the scrutiny of bills committee relates to the removal of the exclusion of blind and deaf persons from juries and requires more consideration. It does pose an interesting question, particularly given the ACT’s Human Rights Act. The Human Rights Act provides for the right to equal treatment under the law but also provides for the right to a fair trial. The bill gives precedence to the former right, without seeking to address the human rights aspect of the issue in its explanatory statement. Nor, it should be noted, did the minister discuss this consideration in his presentation speech. This, I believe, is probably an oversight and it should not have fallen to the scrutiny of bills committee to pick up on it.
It would seem to me that this is an issue best decided by commonsense. I do not believe that a person should necessarily be prohibited from serving on a jury because they are blind or deaf but recognise, as I am sure all members would, that there will be times and cases when a person’s disability will preclude them from participating in that particular case.
The Law Reform Commission of New South Wales recognised these reservations about the ability of deaf people to perform jury duties and listed accuracy of sign interpretation, the ability to evaluate evidence, the comprehension of instructions, the requisite secrecy of the jury room, jury deliberation, and the effects on length and cost of the trial. I believe that these points are all telling. Both the effect of a juror’s
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