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Legislative Assembly for the ACT: 2004 Week 01 Hansard (Tuesday, 10 February 2004) . . Page.. 146 ..

other conduct of the deceased, in deciding whether the act or omission causing death occurred under provocation. This is intended to preserve the availability of provocation where the non-violent sexual advance is an act that follows from a previous history of other provoking conduct.

The Legal Affairs Committee, in its scrutiny report on this bill, has raised the question of whether the amendments proposed to section 13 of the Crimes Act will produce a sufficiently clear law. The law relating to provocation, as the committee observed in its report, is an extremely difficult and vexed one. There is no doubt about that. It is the government’s view that these proposed amendments are as clearly drafted as is possible within this area of the law. The proposed amendments would certainly not make the law any more difficult than it already is. In the absence of any concrete suggestion as to how the provision could be improved, the government’s view is that the ill that it seeks to address is quite clearly indicated.

The issue of provocation as a whole will be examined, in any event, in the context of the implementation of chapter 5 of the model criminal code, work still in hand. Until chapter 5 is complete, the government is keen to ensure that provocation is not used in this particular way.

The Legal Affairs Committee also asked whether the principle of equality before the law had been breached. In particular, the committee posed the question of why a particular sensitivity to a sexual advance should be treated differently to a particular sensitivity to anything else. The purpose of this deliberately specific amendment is to address a very specific issue that has arisen at common law. There is a distinct body of law on the use of the homosexual advance defence which, as has been pointed out, has been subject to much academic comment. It is the government’s view that the use of the homosexual advance defence as a partial excuse for murder is of itself discriminatory, and this amendment is designed to address that issue.

Another aspect of the bill that has been the subject of comment is the proposed repealing of sections 18 and 30 of the Public Baths and Public Bathing Act 1956. Sections 18 and 30 of the Public Baths and Public Bathing Act essentially provide that a person over the age of six may not enter any part of a public bath or public bathing convenience that has been set aside for persons of the opposite sex. The penalty for the offence is $100. The inappropriateness of these offences is evident in the fact that, under these offences, a seven-year-old child who uses the wrong changing room becomes criminally liable for using the wrong changing room.

We have, as everybody in this place knows, an accepted principle of law in the ACT that no child under the age of 10 is to be held criminally responsible for an offence. We proceed on the basis that no child under the age of 10 can form a criminal intent, and yet here we have in the Public Baths and Public Bathing Act a provision which renders a child of seven, eight or nine a criminal. As I say, that is a broadly accepted principle within the ACT. I know of no other provision in ACT law in which a child under the age of 10 can be held criminally liable for an action except in this piece of legislation—

Ms Tucker: It is strict liability, as well.

MR STANHOPE: Yes, good point, Ms Tucker.

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