Page 934 - Week 03 - Thursday, 28 February 2013
compels a verdict of significant criminal culpability … however, the better view may be that the prosecution must always bear the onus of proof and a reverse onus is not justified.
In this case we are talking about an indictable offence with a maximum penalty of seven years imprisonment. The fact that some elements of the offence are required to be proved does not detract from the fact that the major element of culpability for which more serious penalties are applied is deemed to have occurred. I agree with the comments of the Chief Justice that a reverse onus simply is not justified and a person should not be found guilty of such an offence simply because of an unrebutted presumption.
In a developed mature democracy the change proposed in clause 23 is exactly the type of law that the Human Rights Act is designed to protect. This is where we get to see how strongly those who profess certain values really hold on to them. In looking at this provision, we have had significant discussions with the Justice and Community Safety Directorate, and we are unpersuaded by their justification for this provision. On that basis, I wrote to the human rights commissioner here in the ACT seeking her view on the proposed amendments. The human rights commissioner has sent me back quite a significant letter. She also copied it to Mr Corbell, and I provided a copy to Mr Seselja so that he could see the comments.
The human rights commissioner has expressed concerns at the proposed offence. I do note that the human rights commissioner has also said that she would like to have more time to consider this matter, and I think that, given the extent of her letter, it is worth taking time to consider this issue. Certainly when I raised it with Mr Seselja yesterday, he indicated that, given the complexity of the matter, it would be wise to take more time to consider this.
On that basis I can indicate that I will be voting to support the bill in principle today; however, when we come back to the in-detail stage I will be looking to either make amendments or strike out the provision that I have spent some time discussing today—and certainly taking time to further consider the advice from the human rights commissioner and consider whether a more appropriate way through can be found for this particular provision of the bill.
MR CORBELL (Molonglo—Attorney-General, Minister for Police and Emergency Services, Minister for Workplace Safety and Industrial Relations and Minister for the Environment and Sustainable Development) (11.17), in reply: I thank members for their support of this bill in principle. The Crimes Legislation Amendment Bill 2012 (No 2) will provide greater access to justice and protections for victims of sexual offences. The bill will also improve key areas of criminal justice law, benefiting both justice stakeholders and the broader community.
The amendments in the bill result from issues brought to my attention by justice stakeholders, including the Director of Public Prosecutions, ACT Policing and the Supreme Court. The bill enhances many different areas of criminal justice law, but focuses particularly on the rights and protections of sexual offence victims. I note that there would appear to be commonality of agreement in relation to those provisions.