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Legislative Assembly for the ACT: 2015 Week 02 Hansard (Tuesday, 17 February 2015) . . Page.. 369 ..

Crimes Legislation Amendment Bill 2014

Debate resumed from 27 November 2014, on motion by Mr Corbell:

That this bill be agreed to in principle.

MR HANSON (Molonglo—Leader of the Opposition) (11.16): I indicate at the outset that the opposition will be supporting this legislation. This is an omnibus bill that amends a number of laws in the criminal framework. I will not go through all of them in detail, but I will comment on a couple.

First, I turn to the amendments to the Crimes Act 1900. These amendments seek to criminalise intentional observation or recording of another person if it amounts to an invasion of privacy and is indecent. We would refer to this perhaps as voyeurism. It includes elements such as emerging technologies and live internet streaming, and a specific offence for, in the terms of the bill, “capturing visual data” of another person’s genital or anal regions or female breasts.

There are strict and absolute liability elements involved. A defence is available if consent can be proven. There are slightly softer provisions when young people are involved. There is also a range of exemptions.

This area of law is very complex, and I acknowledge that it is difficult to write legislation that covers all existing situations, let alone emerging technologies.

The explanatory statement has a thorough analysis of indecency, intent, consent, the role of young people, the justification for strict and absolute liability offences, the interaction of the law with human rights for both offender and victim, and the interaction of the law with other laws. Importantly, the explanatory statement notes that the issue of intent is crucial for whether an offence will be proven.

In considering the report of the scrutiny committee on these amendments, I note that the Human Rights & Discrimination Commissioner and the Children & Young People Commissioner made a lengthy joint submission to the committee.

The committee commented on three matters. One of them coincides with my main concern with the amendments in this area of law, and that is the legal burden that the provisions cast on the defence to prove their innocence. The dictum that has stood the test of time immemorial is enshrined in the Human Rights Act: the defendant has the right to be held innocent unless they are found guilty of an offence; the burden of proof of guilt lies fairly and squarely with the prosecution. Not in this case, in this legislation, though, Madam Speaker.

I do accept that it is difficult for the prosecution to prove the attitude of the mind of a defendant. Was the offence committed by mistake or was there intent? What was the attitude of the victim? Did the victim consent or object? Was there consent at the start but a claim of objection after subsequent events? These matters go to one of the significant challenges in drafting legislation of this kind.

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