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Legislative Assembly for the ACT: 2000 Week 9 Hansard (7 September) . . Page.. 3085 ..
MR STANHOPE: It is not the language of the Interpretation Act, which refers to an indictable offence in terms of one year of imprisonment. But I take the point and I am reassured that the Attorney can guarantee to me that there is no such indictable offence. That is an issue that has been cleared up for me and I am grateful to the Attorney for that. The Attorney has clarified for me a point which was causing me some concern. Perhaps some small concern that I have expressed has now quite simply been allayed.
The other issue, though, is the circumstances under which samples will be taken in relation to this range of people and exactly who is included within this range of people. Perhaps the Attorney can explain something to me. There is one point on which I am confused, Attorney. It is another issue on which you and I have crossed swords metaphorically. I think that in relation to this sort of legislation one should always look at the extreme circumstances. There is the old adage that we must always look at the person who will be affected in such extreme circumstances. I have heard the Attorney say a number of times that it is simply not possible under this legislation for anybody other than a serious offender to be tested.
Mr Humphries: That is right.
MR STANHOPE: The difficulty I have with that claim of the Attorney is my interpretation of the situation. Again, if the Attorney can clear up this matter for me, he will have gone some way to allaying another major concern of mine. The provisions that limit the circumstances in which a police officer or a court may take a sample in respect of clauses 23, 29 and 34 are matters to be considered before a sample is taken. I agree with the Attorney that clauses 23 and 34 do restrict the taking of samples to a serious offender, but I cannot understand why it is that in subparagraphs (1)(b)(ii) and (iii) of clause 29 the reference is only to an offence.
Perhaps it is in relation to this provision that some of my paranoia has sprung, that is, I would have thought that clauses 23 and 34 should have been in the same form as clause 29 if all of these circumstances were to relate just to serious offenders. It was in relation to this provision that I made certain claims about my belief that this legislation did extend in some circumstances, perhaps extreme, to somebody who satisfied the definition of "suspect". You will need to argue very hard to convince me that the absence of the word "offence" in subparagraphs (1)(b)(ii) and (iii) of clause 29-
Mr Humphries: The word "offence" is there.
MR STANHOPE: The word "offence" is, but the words "serious offence" are not, and under any rule of statutory interpretation-
Mr Humphries: It is four lines above.
MR STANHOPE
: It is, certainly; so why is it not in subparagraphs (1)(b)(ii) and (iii) of clause 29 if it is in subparagraphs (1)(b)(ii) and (iii) of clause 23 and subparagraphs (1)(b)(ii) and (iii) of clause 34? There must be a reason. The draftsman has to have a reason for excluding the word "serious" and the reason must be that there was a determination that in those circumstances, perhaps reasonably limited, a police officer could take a non-intimate sample from a suspect. That is what it means. That is the clear
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