Page 3878 - Week 11 - Tuesday, 19 September 2017
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are supported by recommendations from law reform bodies and long-term evidence around the issue of drink spiking.
I want to focus my remarks on the structure of the new offences and their interpretation. In July 2003 the Australian Institute of Criminology was commissioned by the Australian Attorney-General’s Department to conduct a national project on drink spiking where the AIC estimated that there were between 3,000 and 4,000 cases of spiking in Australia in that year. The AIC recommended that each jurisdiction review its criminal law provisions in terms of their applicability to different forms of drink spiking and the appropriate maximum penalties. Drink spiking was also identified as an emerging issue under the ministerial council drug strategy.
In this bill, the government has also directly responded to a report prepared by the then Model Criminal Code Officers Committee, or MCCOC, submitted to the Standing Committee of Attorneys-General. The MCCOC provided a model for drink and food spiking laws for jurisdictions to adopt into their own criminal statutes, and this new offence reflects the recommendations of the MCCOC report.
The ACT already has offences in section 27 of the Crimes Act of administering a stupefying or overpowering drug or injurious substance intending to commit an indictable offence against the person, punishable by at least 10 years’ imprisonment, and the offence carries a maximum penalty of 15 years’ imprisonment. This is a very serious offence. But the weakness in the continuum of the law lies at the least serious end of the scale of culpability.
The MCCOC noted that the current law provides only incomplete coverage for this category of drink spiking as it does not necessarily apply to drink spiking with alcohol and it does not apply generally where there is intent to commit an indictable offence. The offence intended must be an offence against the person that carries a maximum penalty of 10 years’ imprisonment or more.
That is why it was recommended that all Australian jurisdictions enact an offence of “mere” drink spiking without further intent, that the offence be summary and that the offence extend to any substance, any classification of poison, substance, drug, alcohol, traditional aphrodisiac et cetera, which is likely to impair the consciousness or bodily function of the victim or which is intended to do so whether or not the spiked drink is drunk wholly, partly or at all. It was specifically recommended that the ACT amend our criminal laws to close the gaps, and our government has acted to address these gaps in the bill.
As the Attorney-General has outlined, the bill amends the Crimes Act 1900 and introduces a new section 28AA dealing with food or drink spiking. Section 28AA will provide for two new offences with two sets of physical elements—or actus reus—under subsections (1) and (2). For both offences the physical elements must be established that the person gives or causes another person to be given food or drink or alternatively causes another person to consume food or drink. The offence in subsection (1) deals with a situation where the food or drink contains an intoxicating substance and the other person is not aware the food or drink contains the intoxicating substance. The offence in subsection (2) deals with a situation where the food or drink
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