Page 907 - Week 04 - Tuesday, 27 March 1990
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I stated in my written comments to the committee, a law which imposes criminal liability on the Crown would, for practical purposes, be unenforceable through the existing criminal justice system. This is a complex and confusing area of the law with almost no cases on which to rely.
It should not be thought, however, that the Crown can disregard the Bill with impunity. This is the nub of it. Clause 5, in effect, will not result in a prosecution by the Crown against itself, but it certainly will leave there, in the statute, a salutary lesson for the officials and the administrators of the Bill.
Clause 4 clearly binds the Crown. This means that a person aggrieved by some act or omission of the Crown may seek, through the Administrative Decisions (Judicial Review) Act 1989, to enforce the law on the Crown. In effect, someone can seek a declaration under that Act or seek some other injunctive remedy to insist that a government department, for example, not do or do some act.
In the ACT an equitable remedy, such as an injunction, may also be available against an officer of the Crown to enforce compliance of the Crown's obligations under the law. In the case of a servant or agent of the Crown - that is, a public servant employed by a Crown agency - any breach of the law by that person can be proceeded against under public service employment legislation, and disciplinary action can be taken. It is a fundamental principle of the rule of law that a servant cannot be authorised to breach the law.
I am also advised that, because the Crown is bound by this Bill, it is probable that individual public servants may be liable for criminal prosecution. I am further advised that deleting clause 5 will not necessarily impose a criminal liability on the Crown. The decision of the High Court of Australia in Cain v. Doyle, which was reported in 1946, supports this view. Clause 5, in reality, does no more than acknowledge the difficulties inherent in providing that the Crown may prosecute itself.
In conclusion, for these reasons, it would serve no useful or practical purpose to delete clause 5 from the Bill. If I can distil that, the fact is that in no way will the Crown prosecute itself. But that provision there, I can assure Mrs Grassby, would ensure that public officials, and particularly those who administer this legislation in future years, are well aware that criminal penalties will apply for breaches of the provision in circumstances in which the Crown might authorise a prosecution.
Indeed, there may well be very few situations in which the Crown would authorise a criminal prosecution against its own servants. I doubt very much whether we would ever see that. But these issues involving the protection of our precious environment are so important, in my view, as to mean that we should leave this provision in here as a
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