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Legislative Assembly for the ACT: 2000 Week 7 Hansard (27 June) . . Page.. 2052 ..

MR HUMPHRIES (continuing):

Let me turn specifically to what Mr Stanhope wants to do. I think we should reject his amendment for three reasons. First, it is complicated; secondly, it is unclear; and thirdly, it is inconsistent with the approach we took originally back in 1996 on the imposition of this penalty. It is complicated because, for an indefinite period into the future, it provides for a two-tiered system of levies to be imposed on criminals.

This arrangement will need to be carried on for some years to come. In fact, potentially decades from now there will still be an arrangement whereby some people will have to pay a $30 levy if convicted of a crime and others will pay a $50 levy if convicted of a similar crime. Two people could come before the court on the same day charged with the same kind of offence with one paying a $30 levy the other paying a $50 levy, depending on when the crime was committed. I think that would be unfortunate. That is not a particularly good signal to be sending about this scheme which is operating in our courts. So the amendment is complicated.

The second objection to this amendment is that it is unclear in its application. This perhaps is the fatal flaw in the amendment. The amendment requires that if the offence was committed before commencement of this subsection you pay $30; if it was partly before and partly after then you pay $30; and if it was clearly after then you pay $50.

Two issues arise from this complication. First of all-and I hope members are listening to this argument because it is quite important-let us assume this section comes into effect on 4 July, which is about the day I expect it to come into operation. Someone is charged in the court with an offence that between 1 July and 10 July 2000 they defrauded an account at the Commonwealth Bank in the ownership of Mr X to the value of $10,000. The provision is broadly drafted and often it will not be clear to the prosecution in that case exactly when the offence was committed. So necessarily you have to have a broad description of when the offence might have occurred.

Do we know when exactly the offence was committed? Was it committed before or after, or partly before or partly after, 4 July? How would anyone know? The defendant pleads not guilty, he is tried, and nonetheless convicted. How do we know when the offence was committed? We simply do not. It is simply not possible in many cases in our courts to settle on a date when an offence actually occurred.

The scheme provided for in the amendment will require that there be some mechanism in the courts to enable an official in the registry, who collects money for the fines, to know exactly when the crime was committed so that he or she can determine how much criminal injuries levy to collect. How will he or she be made aware of that information? It is not provided at the moment. At the moment you pay your fine and your $30 at the same time. Under this amendment, the official will need to know exactly when the crime was committed to work out at what level the levy will be paid.

To go back to my first point, it often is impossible to know exactly when a crime was committed. For example, a family go on holiday in the first two weeks of July 2000 and on their return find that their house has been burgled. A person ultimately is charged with the theft on the basis of fingerprint evidence or whatever. Do they pay the $30 penalty or do they not, particularly if they are convicted without making any admissions? Do they pay the $30 penalty or do they pay the $50 penalty? I do not know and neither would a court. For that reason the provision is unclear and ought not be supported.

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