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Legislative Assembly for the ACT: 2004 Week 02 Hansard (Thursday, 4 March 2004) . . Page.. 776 ..

Mr Pratt would amend these absolute liability elements of the offences to render them strict liability. Should this change be made, it would mean that the defendant’s awareness of the existence of a safety duty would become relevant and the mistake of fact defence could apply. In these circumstances, a defendant could simply assert that they did not know that they had a duty. This would abrogate the fundamental principle that ignorance of the law is no excuse. The prosecution would have great difficulty in proving that the defendant was aware of the requirement to comply with the safety duty if absolute liability were removed. Consequently, the effectiveness of the regulatory scheme established by the legislation would be severely compromised for no practical purpose.

It is unfortunate that the Scrutiny of Bills Committee report No 43 failed to properly assess this issue. I have written to the Chair of the Standing Committee on Legal Affairs in response to the report and have provided members with copies of that letter. In it I noted that that committee is incorrect in identifying clauses 42 to 46 as absolute liability offences. Absolute liability applies to only one of the elements in the offences contained in clauses 42 to 46. As it does not apply to each offence as a whole, these offences cannot be categorised as absolute liability offences.

A similar approach was taken in clause 311 of the Criminal Code (Theft, Fraud, Bribery and Related Offences) Amendment Bill 2003. The explanatory statement for that bill contains a useful explanation of the fact of providing that absolute liability applied to one element of an offence, usually the existence of a fact or circumstance where the accused’s state of mind about that fact or circumstance has no logical bearing on his or her culpability for that offence.

This approach taken in the Criminal Code Bill and in the Dangerous Substances Bill is consistent with the comments by the committee in its earlier report, No 38 of 2003, which recognises at page 14 that “absolute liability may be acceptable where an element is essentially a precondition of an offence and the state of mind of the offender is not relevant”. This is a fundamental matter of law and the government opposes the amendments moved by Mr Pratt.

MS TUCKER (4.46): The Greens will not be supporting these amendments. They take out the absolute liability component of the offences, which establishes the requirement to comply with the safety duty. The Scrutiny of Bills Committee raised the question of these offences in its report. The government response made the point that the absolute liability is only pertinent to the first component of any offence—namely, that the safety duty exists. In other words, no argument can be advanced that a defendant was not or is not required to comply with the safety duty, but the question of any offence would revolve around the performance of that duty. The debate on this amendment centres on one of the key elements of this regime, which is of a positive duty of care. The regime that this bill and the subsequent Occupational Health and Safety Amendment Bill put in place rests on an overarching presumption of care and responsibility—for people dealing with dangerous substances in this case and, in the OH&S Amendment Bill, more generally in the workplace.

In that context, it is important to build in a presumption of care and responsibility. We should not be able to use the law to dispute that we ought to have a safety duty in regard to dangerous substances under our control. In this case, it seems valuable to maintain an

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