Page 867 - Week 03 - Tuesday, 20 March 2012
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MR CORBELL (Molonglo—Attorney-General, Minister for Police and Emergency Services and Minister for the Environment and Sustainable Development) (11.23): The government will not be supporting this amendment. I wish to address the questions raised about the proposed new section 58B(5), which deals with validating directions given by police to remove face coverings. I would like to advise the Assembly that this type of provision is used in circumstances where the intention is that the policy aims of the power not be thwarted because of technical fault. The clause is included to prevent incidental challenges of the kind that are sometimes used in criminal proceedings in an attempt to justify noncompliance with the law or a direction made by police or other officials.
An analogous provision exists in the commonwealth acts, including in the Classification (Publications, Films and Computer Games) Act 1995. Amendments to that act presented by the Hon Philip Ruddock, who was the then federal attorney, inserted a provision to validate decisions made by the Classification Board. The purpose of section 22C in that act is to remove any doubt as to the validity of classification decisions made by the board in response to deficient or defective applications of classification by law enforcement authorities before or after commencement.
The explanatory statement for the bill recognises the tension between the need for officers to take reasonable steps to support a person’s dignity where their privacy is at stake and the fundamental aim of the proposed section to properly identify the person. The Road Transport Authority regularly encounters clients who contest the interpretation of road transport laws in an attempt to avoid liability and the obligations they may have. This can include the client pursuing these matters through legal representation.
Similarly, from time to time in prosecutions for road traffic law offences, lawyers will seek to exploit what is perceived to be a loophole or technical defect in the law. A case of this type occurred a couple of years ago when a lawyer for a person on a drink-driving charge argued that a missing umlaut on the name of the Drager breath analysis instrument in the text of the legislation rendered the prosecution invalid. Ms Bresnan may recall that case. On that occasion the court did not accept this to be the case. However, it illustrates the reality that lawyers will attempt to exploit any perceived shortcoming in legislation.
There are other examples of this type of provision in the ACT statute book. For example, the Legislation Act, the engine room of our statute book, contains a similar provision in relation to appointments. It provides that an appointment, acting appointment or delegation or anything done under any of them is not invalid only because of a defect or irregularity in or in relation to the appointment. So it is not an unusual provision. It is, as I have said, simply a clause to prevent technical challenges to actions taken by people responsible for administering the territory’s laws.
The decision the Assembly makes today needs to be whether members are satisfied to allow people to refuse to obey the spirit of the law based on a technical point. That is not something the government is prepared to accept. The government will not support the amendment proposed by Ms Bresnan.
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