Page 4118 - Week 09 - Thursday, 26 August 2010
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Thank you, Madam Assistant Speaker. In scrutiny report No 25 of 9 August this year, the scrutiny of bills committee commented:
Particularly problematic are subsections 121(1), 122(1), and 122(2), which create a strict liability offence in respect of actions taken by children. This brings into focus HRA subsection 11(2):
(2) Every child has the right to the protection needed by the child because of being a child, without distinction or discrimination of any kind.
In addition, there is a question whether a child can be said to be aware of her or his obligations while on licensed premises so that it may be said that these are regulatory offences.
The government has considered the committee’s comment, and the government agrees that strict liability in clause 121 does raise a concern, unlike in clause 122, that a child or young person may not be aware of her or his obligations under the law and, therefore, my amendment omits the relevant clause.
MRS DUNNE (Ginninderra) (6.20): The Liberal opposition will support this amendment from the government. It demotes from a strict liability offence to a defensible offence the offence—did I write this; no, I did not—that is committed if a child or young person is in an adults-only area at a licensed or permitted premises.
This amendment responds to the issues raised by the scrutiny of bills committee. It held under the Human Rights Act that all are equal before the law and—this is a generally held maxim too—that everyone is presumed to know the law, but that cannot always apply to children and young people, and so a strict liability offence for wandering into an adults-only area of a premises is a heavy-handed approach to enforcing this provision. There may be one of many reasons why a child or young person might unknowingly go into an adults-only area or go into an area, not being aware of the law that applies in relation to adults-only areas.
To make this a defensible offence is a reasonable approach, and we support it. I note in passing that the explanatory statement that accompanies this amendment cites the scrutiny committee’s similar comments in relation to section 122 of the bill—that is, the section creating a strict liability offence if a child or young person uses false identification as proof of age in relation to adults-only areas.
I agree with the government that this offence would remain a strict liability offence. If a child or young person used false identification, it would likely be done in a premeditated way. The false identification would have had to be obtained and then presented, and the action of the child or young person would be deliberate. In these circumstances, a strict liability offence appears to be a reasonable approach. The Liberal opposition will be supporting this amendment.
MR RATTENBURY (Molonglo) (6.22): The Greens support this amendment. Strict liability offences are only appropriate where the person charged with the offence willingly and deliberately engaged in the conduct. This can be easily demonstrated where a person has chosen to set up business in a particular regulated industry, for
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