Page 2666 - Week 07 - Thursday, 3 July 2008

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For the Crimes Act 1900, the bill amends the act to reconcile the operation of section 54 dealing with sexual intercourse without consent with the existing common law. The amendment resolves the interpretative contradiction raised in R v Maddison, where the court inferred that sections 54 (1) and (2) should be interpreted as two offences for each subsection because each subsection refers to mental elements of recklessness and knowledge.

The original intention of the offence in section 54 was to enable a jury or a judge to decide on the facts that the mental element of either knowledge or recklessness was satisfied. It was never intended that the prosecution would have to nominate in advance of the trial the prosecution’s determination of what mental element the evidence would prove. Evidence that might prove knowledge or recklessness or both could be tendered. It would then be up to the judge or jury to determine whether the evidence meets either test. This amendment will permit the Director of Public Prosecutions to lead evidence which satisfies knowledge or recklessness without having to conduct separate prosecutions and without having to elect the mental element in advance of the trial, consistent with the common law.

For the Crimes (Restorative Justice) Act 2004, the bill amends the act to remove a referring entity’s obligation to explain restorative justice to eligible victims or parents before the entity refers an offence for restorative justice. Referring entities lack the financial resources to properly train staff in the dynamics of the restorative justice process and the potential consequences for victims. Amendments will instead place the obligation on the chief executive of the restorative justice unit, who is better equipped to provide an adequate explanation. The explanation will be provided before an eligible victim or parent gives written consent to take part in the restorative justice process. In addition, the bill amends the act to clarify the appropriate training required of a non-lawyer convenor.

For the Discrimination Act 1991, the bill amends the act to reinsert a vicarious liability provision which existed in the act until 2004 before it was inadvertently removed in 2005. The vicarious liability provision provides that unlawful conduct engaged in by an employee or agent of a person within the scope of their actual or apparent authority is taken to have been engaged in by the person, unless they took all reasonable steps to prevent the employee or agent from engaging in the unlawful conduct.

For the Legal Profession Act 2006, this bill amends the act to provide the disciplinary tribunal with new powers to require witnesses to attend the tribunal to give evidence and to issue arrest warrants where such witnesses fail to attend, consistent with the powers in the ACT Civil and Administrative Tribunal. The bill also makes amendments to various definitions in the act to accord with current ACT drafting practice.

For the Legal Profession Regulation 2007, the bill amends the regulation as a consequence of the amendments made to the Legal Profession Act 2006 by this bill.

For the Magistrates Court Act 1930, the bill amends the act to ensure that where a convicted person is lodging an appeal against their conviction or sentence, the court

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