Page 3127 - Week 10 - Thursday, 18 October 2007
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I hate to break it to Dr Foskey, but negligence is not a mental element. The existence of negligence as a sufficient criterion for successful prosecution means that these changes will allow a defendant to be convicted without any mental guilt on the basis solely of negligence. Dr Foskey might want to talk to Mr Stefaniak; he is a qualified solicitor and he can give her some advice about these legal issues that she is struggling with. If Dr Foskey is serious about her statement that it would be inappropriate to have such serious penalties without a qualifying mental element to the offence, she should join with the opposition in voting in favour of the proposed amendments to the bill.
I will now address some of the government’s arguments relating to the seriousness of offence. Both the government and Dr Foskey seem to agree that removing basic elements of intention in the criminal law is legitimate whenever a criminal act has the potential to harm people. But of course there is harm. Are we honestly to believe that there is less harm caused by other serious criminal offences such as assaults, rapes and murders? If this precedent is allowed to stand in the ACT, there is no reason to suppose that we cannot remove protections to defendants willy-nilly whenever we think that the offence is serious.
By the same logic, the government could remove the onus of proof of intention for murder or rape, both of which are surely also extremely harmful to the victim. This is the exact opposite of the correct approach. It is precisely because these are serious offences, precisely because they carry serious penalties, that we must be most vigilant in ensuring that the defendants are protected by a presumption of innocence and an onus on the prosecution, not the defendant, to prove that the defendant had a guilty mind.
The minister’s contradictory statements on this issue are a poor attempt to justify this government’s war on employers and a poor excuse for its violations of basic principles of criminal justice. The bill makes a mockery—
Mr Barr: It’s a war on everything, led by the Chaser boys.
MR MULCAHY: The minister is dismissive of this. As I left my office a minute ago I had a businessman from Campbell expressing his absolute frustration at his inability to get officials of your department to give him advice on workers compensation. They will not give correct advice or interpretation. The government say they are going to have these punitive approaches to employers, yet they run for cover when people call up and want some sensible advice. This is reckless and irresponsible in the extreme and it is something we will be addressing in our policies going to the next election because it is a completely unreasonable, unfair situation to say on the one hand to people that they had better stick by the law or they can be put in jail, but when people ring up for advice they are told: “Look at the act. We do not give out advice.”
As I said, the minister’s statements are a poor attempt to justify the government’s war on employers and a poor excuse for its violations of basic principles of criminal justice. The bill makes a mockery of the government’s supposed human rights credentials. It is a clear demonstration that such concerns go out the window when the government is dealing with employers and other parties.
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