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Legislative Assembly for the ACT: 2003 Week 12 Hansard (18 November) . . Page.. 4268 ..

MS TUCKER (continuing):

cover all reasonable circumstances, but due diligence, as Ms Dundas has explained, is still a narrow defence and reasonable excuse.

I can't remember exactly in detail Ms Gallagher's comments on that, but I thought in the scrutiny committee we did refer to Canadian examples of the use of the due diligence clause. I don't have that with me now. I haven't actually had time to do as much work on this amendment as I would have liked as I have not had it for very long.

However, I am supportive of the work, at least on the basis that the government's amendments are arguably removing a capacity to make a defence to these offences. Ms Dundas's amendment takes a smaller step towards defining the defence more closely and still, I believe, in a way that will allow the act to function to protect workers while also not breaching basic justice.

Ms Gallagher also said, I think, that it wasn't appropriate to be making up this law or different aspects of law. But it is not correct to suggest that there was some agreement and that we are bound by the provisions of the Criminal Code. As I said in my presentation speech before, I think it would be very unwise to use the unaltered and unconsidered provisions from the Criminal Code just in a blanket way.

With regard to Ms Dundas's amendment, three of the four sections that previously had the reasonable excuse provisions, sections 114, 126, and 190, are again all administrative-type provisions of information. The minister has argued in her response to the scrutiny committee that the mistake of fact would include not receiving the letter requesting information. Due diligence seems more appropriate, however, in ensuring that we take account of a serious effort to provide the information or attempt to provide the information in good faith.

I agree with the minister that in the provision in section 191, which is about asking to see the inspector's identity and allowing them in, it is reasonable to allow only the defence of mistake of fact. It is difficult to see, on a yes or no question, what form of due diligence would make a difference.

Clause 210, protecting confidentiality, is another on which I have some uncertainty. Again, it is difficult to see how due diligence could come into the fairly explicit acts prohibited by this section. Mistake of fact seems an appropriate defence.

MS DUNDAS (8.37): Just briefly, I will again quickly put the case. The minister raised some interesting points when she raised the question of you do a thing or you do not, or you do another administrative thing or you do not. But for a small or micro business owner, sometimes attempting to do that thing is hampered by pressures beyond their control such as a bung phone line, problems with Australia Post or sick children. When you are looking at very small and micro businesses, which will be covered by this legislation, and rightly so, you need to recognise that they are more influenced by external factors such as those. They can try to do a thing but it might not happen, for reasons beyond their control.

I was requesting the due diligence defence be put in so that they can say, "Well, I attempted. I thought it happened, but for reasons beyond my control it did not."I do

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