Page 3870 - Week 11 - Tuesday, 19 September 2017
As I stated, the “intent to harm” element in this legislation is an integral part of the offence and an important part of protecting against misuse. This intent to cause harm is so important in this bill that I want to place certain matters on the record. First, the definition of “harm” in the bill is as follows:
harm, to a person, includes impairment of the senses or understanding that the person might reasonably be expected to object to in the circumstances.
That is from section 28AA of the bill. The main substantive change in this legislation is that the entire offence will be made out when a person administers a substance, or more of a substance, with the intent to cause harm, whether actual harm was committed or not. As the explanatory statement notes:
The offence is committed whether or not the harm actually occurs.
This does raise matters which need careful consideration and note. This section creates a criminal offence, one with the serious penalty of up to five years imprisonment. We should not be doing this lightly. It is the intent to cause harm provision that offers protection against misapplication. It is a matter which the Canberra Liberals are alive to and support. As the explanatory statement notes:
As with the model offence, the offences proposed in the Bill are not intended to capture behaviour that is a normal part of Australian social life and is not intended to cause harm. Because the new offences require a fault element of intention to cause harm, people providing extra alcohol in drinks provided to their friends would not be covered by the new offences. The definition of harm in the Bill includes impairment of the senses or understanding that the person might reasonably be expected to object to.
I note that the defences available in the Criminal Code 2002 will also apply, including that if a person makes a mistake of fact they will not be criminally responsible. The bill also creates a specific defence for medical practitioners who give an intoxicating substance in the course of practising the health profession. Therefore, there is a legitimate balancing of the aim the bill purports to deliver—that is, to effectively protect against a current and all too frequent offence—and the risk of over-application.
The balance of this has been the subject of debate during our consultation, with the Law Society and the Bar Association noting that, if criminal sanctions are to be created, care needs to be taken with drafting. I note their concerns and I thank them for their input in our consideration of this bill. I formally recognise their input into this debate. However, after our discussions, and the assurances of the government that the intent is not to be so broad as to be draconian but to be wide enough to be effective, we will be supporting the bill, noting the concerns that the Bar Association and the Law Society have raised. But we will be watching the application of these laws with those concerns foremost in our minds.
In conclusion, the tabling speech sums up the legislation. The attorney stated:
These new provisions will allow police, prosecutors and the courts to focus more on the facts of alleged drink spiking cases and less on legal technicalities about which statute should be applied.