Page 380 - Week 02 - Tuesday, 17 February 2015
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A range of justice stakeholders have provided comments in relation to these amendments. The offences as drafted seek to balance the rights of the accused person while providing appropriate protection to the community against such offences.
I am aware that there has been some comment on the use of a defence of consent with a legal burden on the defendant. I have noted those comments and the concern that a legal defence for consent could be too restrictive. But voyeurism is, by definition, an offence which is conducted in relative secrecy. The nature of the offence means that the defendant may be the only person able to identify the victim or know if they consented.
A legal burden is appropriate because the defence relates to a matter that is peculiarly within the defendant’s knowledge, and evidence about this question would not be available to the prosecution. If it is necessary for the prosecution to prove there was no consent in circumstances where it is not clear who the victims are, then almost by definition we are saying that in most cases we think it is acceptable for the people who commit these offences to go unpunished.
Before the defence is raised, therefore, the prosecution must prove every element of the offence beyond reasonable doubt, which is already an onerous task. Having the defence prove consent requires the defendant not to disprove knowledge but to prove something that is solely within their knowledge.
The explanatory statement, at the recommendation of the Human Rights Commission, includes reference to the Australian Law Reform Commission definition of consent and notes that the Human Rights Act applies to every part of the offence. The use of a legal burden is controversial because it is unusual. For that reason the government intends to keep these offences under review.
As members have noted, the bill also creates a new offence in the Criminal Code to prohibit the display of certain drug equipment. New section 621A will make it an offence for a retailer or wholesaler to display drug pipes, including ice pipes, hash pipes and cannabis water pipes, in retail and wholesale outlets.
The display ban is consistent with the ban on the display of smoking products at a tobacco retailer and wholesaler under the Tobacco Act. The prohibition does not apply to the display of smoking equipment that is not intended for use with illicit drugs but could conceivably be used in that way anyway.
Banning only the display for sale of these items and not the sale itself supports the government’s commitment to a harm minimisation approach to illicit drugs. Banning the sale of drug equipment completely will only lead to less safe drug-taking behaviour. Sharing drug-taking equipment can lead to devastating consequences such as illnesses like hepatitis C or HIV, and the take-up of more extreme and dangerous ways of using drugs—for example, through injection. Banning the display for sale of drug pipes is an important health initiative that will support Canberra as a healthy and safe place to live.
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