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Legislative Assembly for the ACT: 2002 Week 11 Hansard (26 September) . . Page.. 3280 ..

MR STANHOPE (continuing):

Mr Speaker, my government listens to what the community want. Before and since the passage of the code act 2001, the legal profession and others have warned that the default fault element provision is a vital part of the scheme developed by officers and should be included. It provides an important safety net that ensures that a fault-based offence that fails to specify the fault element that applies to a physical element of the offence will have a fault element attributed to it. This will eliminate the consequences of a mistake and ensure that the courts are not left with a mess that in some cases they are simply unable to rectify.

The draft offences that confront instructors and drafters alike are often so complex that they simply cannot be expected to always identify all the physical elements of an offence with accuracy. This provision ensures that if a mistake is made, the code will go into default mode and retrieve the situation. The provision sets out a formula for determining whether intention or recklessness should apply, ensuring that an inappropriate fault element is not applied.

Some, but not all, of the provisions of chapter 2 of the bill will come into force on 1 January 2003. Clause 10 of the bill sets out the clauses that will apply immediately in relation to all offences, whether they were created before or after 1 January 2003. They include the clauses relating to the burden and standard of proof, children, intoxication, and the extension offences, such as attempt and conspiracy. The corresponding provisions in the Crimes Act 1900 and the Children and Young People Act 1999 will be repealed to make way for the new.

Except for the clauses concerning mental impairment, the rest of chapter 2 will apply immediately to all offences created after 1 January 2003, but not to the offences created before that date. The code will not apply to existing offences until January 2006. Again, this is to allow sufficient time to redraft the offences and related provisions so that they conform to the principles of the code. The provisions concerning the mentally impaired require special consideration because a number of important concepts covered by the special procedures in the Mental Health (Treatment and Care) Act 1994 and part 13 of the Crimes Act 1900 are defined differently in the related provisions in chapter 2. These matters need to be reconciled before the impairment clauses of the code can apply to them, so they have been delayed until January 2006.

Mr Speaker, chapter 4 of the bill will enact modern property damage, computer and sabotage offences based on the recommendations in the January 2001 officers' report entitled "Damage and computer offences". The new updated offences will take effect on 1 January of next year and will replace the existing computer and property damage offences in the Crimes Act.

Although it may not be immediately apparent, there is a logic to including these offences in the same package, because they are all broadly connected in some way. The computer offences apply familiar concepts of criminal damage to conduct that impairs computer data or electronic communications between computers. The sabotage offences are, in turn, directed at those who cause or threaten to cause damage to a public facility by committing a property damage offence or by causing an unauthorised computer function.

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