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Legislative Assembly for the ACT: 2015 Week 02 Hansard (Tuesday, 17 February 2015) . . Page.. 370 ..

In responding to the scrutiny committee’s report, the attorney noted that presumption on the defendant only comes into play once the prosecution has established “that a reasonable person would expect privacy and that the defendant intended to invade that privacy”. The Attorney-General then goes on to say that the defendant is able to rebut the presumption “by proving on the balance of probabilities that they did not know or could not reasonably expect to know that they captured an image without consent”.

In consulting with peak legal bodies, I note that the Law Society is generally supportive of the bill. The society says, however:

… in general, the Society’s concerns align in broad terms with the committee’s assessment—particularly in regard to the provisions being vague and the potential for them to ensnare defendants where their moral culpability is low. While the Society supports the creation of the offence, it is important to ensure that any new offences do not operate unfairly, particularly for young people in times of changing social standards.

In my assessment, as I said earlier, the drafters seem to have covered off on these issues as best they can, on the back of the experience of a number of other jurisdictions.

In considering these issues, I benefited from a briefing I took the week before last from the Attorney-General’s staff and directorate officials. I thank them for that. Further, I received a response to questions that I asked that were raised in that briefing about how other jurisdictions deal with these matters, and I thank the staff for providing that. I note from further advice that the ACT has followed the example of a number of other jurisdictions. Of note, New South Wales initially took a path of trying to create specific offences. However, they abandoned that approach after discovering that this just became too prescriptive, creating a menu for the prosecution. They found it could not keep up with changes with social values and emerging technologies.

Meanwhile, it is worth noting how the Law Society concludes its feedback to me. The society makes the more general comment that it “continues to oppose the imposition of absolute liability offences”. The government needs to take on board and examine the effectiveness and fairness of absolute liability offences. That is a very important point that we have seen emerging in recent legislation.

In summary, we have a range of provisions that quite deliberately are somewhat broader in nature but carry the capacity to cover emerging technologies. The bottom line is that an attempt is being made to counter this very difficult and ever-evolving problem. It may not be perfect, and we will monitor its progress. I trust that the government will, too, and facilitate evolution of the law as required.

I will comment briefly on the amendments to the Crimes (Forensic Procedures) Act 2000. These amendments, put simply, are to provide interview friend support for Aboriginal and Torres Strait Islander people who undergo forensic procedures. There are significant cultural issues at play here for a sector of our community that is far too over-represented in the justice system. The proposed amendments are welcome because they will provide additional levels of support for that vulnerable sector.

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