Page 793 - Week 03 - Tuesday, 1 April 2008
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one’s peers, and by peers we mean other citizens. These provisions are going to result in a broader cross-section of society being eligible for jury duty, which will make the juries more representative of the community at large—surely a good thing if we accept that the jury system represents community standards and values and is a desirable safeguard against arbitrary government. There are no provisions absolving people with a disability from being charged with an offence and, if they are charged, it would seem a bit unfair that they could not be tried before a jury which at least held the possibility of including people with similar disabilities who would stand a better chance of being able to understand their life experiences.
I note the committee’s concerns about the admission of non-jurors to the jury room in order to assist a blind or deaf juror. I assume that this problem has been resolved in other jurisdictions and I assume that JACS has decided that it will not present a major obstacle. I do hope that the court’s budget is increased to cover the costs associated with the amendment. Alternatively, or additionally if it does not already do so, perhaps the government could have someone on hand to provide signing services for the whole of government and to help with general policy consultation with citizens with disabilities. However, I am not sure that I can agree with the Attorney-General when he says that these amendments are of a merely minor and technical nature. This, for instance, is one provision that will be of considerable importance to people affected by it.
In strict technical terms, the amendment to the Civil Law (Sale of Residential Property) Act 2003 creates a strict liability offence. It removes one strict liability offence from the statute book and then it creates another. But, in reality, the amendment does do what the Attorney-General says it does in his response to the scrutiny of bills report: it adds a sensible defence to the offence, and the minister is to be congratulated for injecting some more commonsense into the act.
On their face, strict liability offences derogate from a number of human rights. In this case, the committee identified the right to be presumed innocent and the right to liberty and security. Whether such a derogation is justifiable and desirable is a matter for reasoned ethical and legal reasoning. That reasoning should always take place and it should always be a matter for the public record, not locked away in a secret departmental filing cabinet, as is usually the case given the present arrangements for the issue of human rights compatibility statements.
In the case of section 10 of the Civil Law (Sale of Residential Property) Act, I think the derogation is justifiable, particularly after this amendment takes effect. While I am mindful of the ongoing review of strict liability offences in the territory, it is by its very nature a very ongoing review and it should not prevent or discourage the Attorney-General from instructing his staff to stay alert to the possibility of enacting similar amendments to other existing strict liability offences where it is possible to provide a defence that limits the class of actions which attract the legal liability.
In many cases, the mental element of an offence is removed for reasons of administrative expedience because of the difficulty in obtaining probative evidence, particularly evidence concerning the state of mind of the accused. In these cases, the primary intention is not to capture everyone who commits the offence. Having been
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