Page 906 - Week 04 - Tuesday, 27 March 1990
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Nothing in this Act renders the Crown liable to be prosecuted for an offence.
That kind of provision is quite familiar to some of us. Perhaps I should explain it in detail. That clause provides that nothing in the Act renders the Crown liable to be prosecuted for an offence.
As we are aware, the Standing Committee on the Scrutiny of Bills and Subordinate Legislation, in report No. 1 of 1990, commented on this clause. The committee implied, as Mrs Grassby has now stated, that the inclusion weakened the legislation. I reiterate the comment made in my response to the committee. It would seem that, while a statute may impose criminal liability on the Crown, a prosecution would present such procedural difficulties that to do so would be purposeless.
In the committee's report No. 3 it commented that it was aware of instances in which Crown instrumentalities had been prosecuted for an offence. I am not sure that this is the case, and I say that with respect to my colleague who is sitting behind me. I am advised by the Law Office that it is unaware of cases in which the Crown has been prosecuted for an offence, and I am also personally unaware of such cases.
The committee probably had in mind cases involving statutory authorities, such as Qantas, being prosecuted for a criminal offence. However, not all statutory authorities enjoy what is known as the shield of the Crown. Some do; some do not. For example, there is a strong presumption that government commercial enterprises, such as Telecom and ACTEW, do not enjoy the immunities of the Crown for many purposes.
Government authorities such as these, which purport to trade commercially, are therefore not exempted from the provisions of this Bill, including the criminal offences. I suggested that if ACTEW - and I am sure it never would - were to dump some transformers containing some polychlorinated biphenyls, particularly in any areas in relation to which Mrs Grassby is sensitive, that pollution act could be open to prosecution, and well it should be.
In theory, as was stated in my response to the committee's first report, a statute can impose criminal liability on the Crown. The difficulty with the Crown being criminally liable is procedural rather than substantive. My Law Office takes the view that it would be necessary, when bringing a prosecution against some legal entity, for the Crown, if it were to prosecute itself, to proceed against an agency of the Crown, which is an incorporated body. Not all Crown agencies are incorporated bodies - for example, government departments or, in the case of the ACT, administrative units. In these cases, it would be necessary to identify some person who could be held criminally responsible for the acts of the Crown. Thus, as
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