Page 3879 - Week 11 - Tuesday, 19 September 2017

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contains more of an intoxicating substance than the other person would reasonably expect it to contain.

The fault element—or mens rea—of the offences must also be established. The fault element is that the person intends a person to be harmed by the consumption of the food or drink. This bill recognises that food and drink spiking comes in a range of forms with different substances, so the definition of intoxicating substance includes any substance that affects a person’s senses or understanding, and this includes alcohol. The mens rea for the offence—that is, the intention for a person to be harmed—provides an important safeguard. As the explanatory statement notes:

… 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.

The definition of “harm” in the bill is:

… impairment of the senses or understanding that the person might reasonably be expected to object to in the circumstances.

The explanatory statement to the bill is clear that people providing extra alcohol in drinks provided to their friends is not covered by the new offences.

I think this is important to point out—and to clarify for anyone that is not aware of how legislation is interpreted in the ACT to now do so. For that we rely on chapter 14 of the Legislation Act 2001, which provides under section 142 that in working out the meaning of an act the explanatory statement for the bill may be considered. So I think the intention in the bill is clear, but I also think the intention in the explanatory statement for the bill is clear in the type of behaviour that is being targeted. That intention can certainly be considered in terms of the non-legislative material when looking at the intention of the bill. It is behaviours that the person might reasonably be expected to object to; so intention to harm is based on the reasonable standard, not a subjective standard, an important protection in the bill.

There is also an important defence provided for in the bill for people practising a health profession, although the bill places the onus on them to prove the intoxicating substance was given to another person in the course of practising a health profession.

I mentioned that the gap this bill addresses is the absence in our criminal law of a lower level offence of drink spiking or food spiking, as other offences under ACT laws target higher levels of culpability, which also attract higher levels of imprisonment up to 15 years. This bill provides that offenders can be sentenced to a lower level of imprisonment of five years, which is consistent with a lower level of culpability, and financial penalties may apply.

This bill provides for a maximum penalty of 500 penalty units associated with the offences. At the time of speaking, under section 133 of the Legislation Act 2001, the monetary value of a penalty unit is $150 for individuals, and this means that those charged with drink or food spiking in the ACT under these new offences may be liable to pay up to $75,000 in penalties.

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