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Legislative Assembly for the ACT: 1995 Week 10 Hansard (7 December) . . Page.. 2826 ..

MR MOORE (continuing):

to say that the spouse would be considered to be involved in such a crime automatically unless they could prove that they were not involved. The proposed amendment, as new subsection 92W(3), is to insert after the new subsection (2):

Where a person who has been found guilty of an offence against subsection (1) is a parent or guardian of the person on whom the female genital mutilation was performed, in proceedings against the spouse of the first-mentioned person for an offence against that subsection in relation to that mutilation by reason of the operation of section 345 it will be presumed, in the absence of proof to the contrary, that the defendant is guilty of the offence.

The difficulty in reversing the onus of proof to that extent, amongst other things, is that a separated or perhaps even divorced spouse, or someone who is out of the country at the time, would effectively be guilty of an offence unless they could prove that they had acted in a different way. Basically, it would almost require a male to give instructions, to put something in writing and leave a copy with his lawyer, saying, "I have given instructions that no female genital mutilation can possibly take place, and that is my instruction". We would not expect that to happen. The point was made, I think fairly powerfully, by Mr Hunt and others that what I was trying to achieve was already achieved in the Act in some ways and that it would be a too-powerful instrument to put into the Act. I am still concerned with the general principle, and I think this is what Mr Connolly was referring to, and Mr Humphries in our conversation too, who had some sympathy with what I was trying to achieve; but to do it by reverse onus of proof would be not an appropriate way to go, particularly when we are talking about an offence that carries something like 15 years' imprisonment.

Nevertheless, when we are dealing with situations such as this, whilst we have a responsibility to ensure that such mutilations do not occur and that we take whatever action we possibly can to prevent them, there is, even for us, a cultural barrier that makes it almost incomprehensible. I simply cannot comprehend how somebody could commit such an assault. I do not think it would matter how much reading we do, I do not think it would matter how many people we speak to; it is something that to our society is basically incomprehensible.

I am supporting the Bill, of course. I think the most significant aspect of it is to ensure that the community as a whole understands that this is not something that is supported in our culture in Australia, and that that message gets through to people who move to Australia, who must understand that this sort of action is simply unacceptable, is simply not on. That is the importance of the legislation. I think it is a pity we cannot spread the responsibility in a clearer way between both spouses, but it certainly is a very important first step.

MR HUMPHRIES (Attorney-General) (4.15), in reply: Mr Speaker, I think anyone reading this debate would appreciate the very strong position of the Assembly that, as Mr Moore has just put it, there is a view that such practices ought not to take place in this country and that we, like other jurisdictions around Australia, are prepared to indicate our strong abhorrence of the practice of female genital mutilation.

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