Next page . . . . Previous page . . . . Speeches . . . . Contents . . . . Debates(HTML) . . . .

Legislative Assembly for the ACT: 2003 Week 12 Hansard (19 November) . . Page.. 4298 ..

MR STANHOPE (continuing):

provide a notional defence of appropriate diligence. If it is an absolute offence, it is an absolute offence. It is a nonsense to thereby seek to deal with the fact that it is an absolute offence by saying, "It is an absolute offence but, if you show appropriate diligence in your supervision of your staff, then it is not an offence."I think we need to take this point and I will discuss it later: shop owners, in most cases small shop owners, would have to stand by the cash register for every minute the shop is open.

As a matter of criminal law policy, there should be a very good reason for removing the fault element of an offence. Absolute liability offences make the wrongdoer's intention irrelevant. These offences are rare. The creation of an absolute liability offence in section 384A (2) means that an employer would be liable to take the issue further, even if that employer reminded his or her employees on a daily basis not to sell spray paint cans to children and filled the store with signs to that effect.

The bill, contrary to what Mr Cornwell stated in his introductory speech, is not consistent with legislation in other Australian jurisdictions. In New South Wales, as Mr Cornwell indicated, there are laws in relation to the sale of spray paint cans to children but, in New South Wales, an employee is not liable if they believed on reasonable grounds that the person was of, or above, the age of 18 years. It is not the strict liability offence that is provided for here in the ACT. In the other jurisdiction that has sought to ban the sale of spray paint cans, South Australia, the salesperson is not liable if it is proven that he or she asked the minor to produce evidence of age and the minor made a false statement or produced false evidence, and the salesperson reasonable assumed the minor was over the age of 18.

I think we all support the intention of the bill, which is to reduce the amount of graffiti that despoils some buildings but, having said that, I have to say that I find some graffiti quite attractive. I know most people are often appalling outraged by it but I see, on underpasses around Belconnen, some quite incredible and beautiful art. There is some on the underpass on Caswell Drive that I would draw to members' attention and suggest they visit. It is quite beautiful artwork and I think it is quite appropriate in that circumstance.

Having said that, of course, there is much graffiti that is offensive, that is expensive to remove, that does despoil our homes and buildings and that grates on us all. Graffiti, the despoiling of buildings and the vandalism that is essentially at the heart of graffiti is abhorred by the majority of us, but I am one of those who feel that our pursuit of young people who vandalise and despoil buildings, and paint graffiti, really does raise a number of other issues. It is not simply a black-and-white criminal justice issue and we should not look at it like that.

In relation to all these sorts of offences, we should always be open to looking at some of the underlying causes of the antisocial behaviour in which our young people engage. One of the reservations that I have, and one of my objections to this form of law making, is that it avoids a range of issues arising from the causes of antisocial behaviour. It is simplistic, it is populist and it goes straight to the criminal law. This is populist, red-necked law and order legislation of the first order and let us not be mistaken about that.

This is not the sort of law that seeks, at any stage, to address the real issues involved in the antisocial behaviour of our young people, our children, our grandchildren, our

Next page . . . . Previous page . . . . Speeches . . . . Contents . . . . Debates(HTML) . . . .