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Legislative Assembly for the ACT: 2003 Week 12 Hansard (18 November) . . Page.. 4265 ..

MS DUNDAS (continuing):

I understand that it is quite likely this amendment will not be agreed to. However, I think this will be a missed opportunity for the Assembly to re-examine how the Criminal Code is being implemented. When this Assembly passed the Criminal Code a number of members referred to the fact that its implementation should not reduce the rights of ACT citizens before the law. However, the sweeping introduction of strict liability offences has gone far beyond what many members expected when the Criminal Code was introduced, and this is clearly eroding the rights of the people in the ACT.

The fundamental principle we have to consider is that strict liability offences still allow people to be convicted of an offence despite the fact that they have made every effort to comply with the law. Members should think carefully about the ethics of convicting people who have done their best to follow the rules. I am happy to concede that there are cases where this may be necessary but it should not be par for the course on almost every offence, as we see in this bill.

The questions that members need to ask is: what is the appropriate form for an offence that meets the requirement for government to ensure effective compliance with a regulatory regime but goes no further? I believe that the current use of strict liability offences goes far beyond what is necessary to ensure compliance, and I believe that my amendment addresses this question while still allowing effective operation of the Workers Compensation Act.

This amendment introduces a defence of due diligence into the act for some strict liability offences in this bill. The amendment does not offer a defence of due diligence to all strict liability offences in the act. There is a clear argument that some offences should not be excused, for example, the requirement that an employer have a workers compensation policy or that employers must allow injured workers to continue their employment with duties suitable to their abilities. I have not suggested that due diligence should be implemented for these offences. I am suggesting that it only be applied to a minority of offences which are relatively minor and generally only directed at administrative compliance.

The due diligence defence is far more restrictive than the current defence of reasonable excuse that is available for some existing offences in the act. It places the legal burden of proof on the defendant to prove on the balance of probabilities, that they acted with due diligence. This means that it does not require the prosecution to prove that the defendant did not act with due diligence. It does not make the offence any harder to prosecute. It only allows, in a very small number of cases, some defendants who can show that they had effectively attempted to comply with the law to use the defence.

I believe the inclusion of this defence is only a very minor addition to the defences in the Criminal Code. It will have little effect on prosecutions under the code and will not mean that the ACT is widely out of step with the provisions of the code, and I believe that we would be remiss in our duty to the people of the ACT to blindly implement the Criminal Code without careful consideration of the effects on the rights of the people of the ACT. It is wrong that the government would take the path of straight-jacketing the rights of the ACT citizens for mere administrative convenience.

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