Page 1229 - Week 04 - Tuesday, 23 March 2010
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the minister’s power to adopt a code of practice via regulation and will restrict the minister’s power to make a code of practice to making them under either section 22 or new section 23. This is important given the detailed consultation and notification processes envisaged by section 22 and new section 23. The former regulation-making power would have provided the minister with a means of circumventing the consultation and publication processes associated with making a mandatory code.
The criminal provisions of the bill, to be found in new sections 24A, 24B and 24C, outline a staged penalty scale approach for breaching a mandatory code of practice. New section 24A deals with more serious offences against a code of practice, where a person has recklessly failed to follow a code’s requirements, and has a maximum penalty of 100 penalty units. New section 24B provides for a strict liability offence for failing to comply with a code requirement and has a maximum penalty of 50 penalty units. It is intended for lesser breaches of a code of practice.
As members are aware, making the section 24B offence a strict liability offence means that in prosecutions under this section the intention of offenders to breach the code does not need to be proved. It presupposes that people know about the relevant code. In some circumstances, such as codes that are industry based, this is reasonable; it is just part of doing business.
Although there is an expectation that future mandatory codes of practice, particularly those developed nationally, will focus on industry, it is still possible for future mandatory codes of practice to apply to individuals in their private capacity. In these circumstances, it is unfair to expect individuals to know about the details of the code and they should generally be given a chance to comply.
The scaled approach I have just outlined will require officers to advise people about their code requirements in circumstances where it is not reasonable to expect that the person should know about the code. However, more serious or repeated breaches of a mandatory code can still be dealt with by the courts, with appropriate penalties applied.
It is important that we get this understood by the Assembly: if it is an industry that has breached the code, they can be expected to have known about it. All industries know what rules govern their actions. But when it comes to private individuals we do not expect people to think, “I am going to buy a goldfish this week so I will go and find out what rules apply to having a goldfish,” or a dog or a cat.
Mr Hanson: Or a chicken or a goose.
MR HARGREAVES: Speaking of goose—you raised it.
Mr Hanson: Gooses? Are they geese or gooses?
MADAM DEPUTY SPEAKER: Mr Hargreaves!
MR HARGREAVES: You said “goose”, Mr Hanson. I do wish you would not look at Mrs Dunne every time you mention the word “goose”.
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