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Legislative Assembly for the ACT: 2002 Week 3 Hansard (5 March) . . Page.. 570 ..

MR STANHOPE (continuing):

are doing but determined to cause alarm and distress through a malicious act they think is a great joke facing a potential penalty of 12 months imprisonment or a $2,000 fine.

Mr Cornwell: Hardly worth pursuing, Chief Minister, is it?

MR STANHOPE: Well, it is a penalty that this government believes and which the opposition believes does not fit the offence. That is essentially what we are talking about here. We are talking about ensuring that the penalty fits the crime. That is the issue here. Given the distress and alarm that was caused and the cost that was incurred, is it appropriate to deal with an offence of that order as a summary offence with a maximum fine of $2,000, having regard to the way in which we these days deal with these issues?

This is the debate, and Ms Tucker and Ms Dundas have touched on it in relation to the tests and the standards. There is no standard or fixed rule for what reasonable grounds for suspicion are-this is part of the debate that we have had. An often cited test is whether a reasonable person would fairly suspect the matters in question given all the circumstances. It is clear that reasonable suspicion-and this is the test that is applied in the legislation-is something more than mere suspicion and does require a legitimate basis.

There are a couple of other points I will go to before returning to that. Suggestions have been made that this offence will be used by the authorities to control what we might otherwise regard as legitimate behaviour, such as holding protest rallies, and that it in some way criminalises protest or political activity. I need to repeat that to establish that an offence has been committed under these amendments, it will be necessary to show that a defendant has either done something that could endanger human life or health or something that in the particular circumstances a reasonable person would suspect could endanger life or health. In addition, the act committed by the person will have to be shown to have been done with the intention to cause public alarm or anxiety.

When one has regard to those tests, I cannot see how in the ordinary course of events the holding of a protest rally or some other political activity could possibly be seen to satisfy any of those requirements. Even if a protest rally were conducted in such a way as to endanger human life or health-of either the protestors or others-the intention of protestors would not normally be characterised as being to cause public alarm or anxiety but to raise public or political awareness of an issue. That is the intention of the protestor.

In the example that was used of somebody who, as a political protest, set fire to himself, it is quite clear that his intention was to raise public or political awareness of the issue. His intention, quite clearly, would not be characterised as being to endanger the life or health of others.

It is fanciful to suggest that a prosecution would be brought under this provision as a means of silencing protestors. As I said, that would have to be established through the tests. Firstly, the police and the DPP would have to be satisfied that the elements of the offence were made out, and I cannot see how that could be done. Secondly, the DPP would have to be satisfied in accordance with the officers guidelines that such a prosecution would be in the public interest and that there would be a reasonable prospect of conviction. There are prosecution guidelines, and they are adhered to rigidly.

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