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Legislative Assembly for the ACT: 2004 Week 05 Hansard (Thursday, 13 May 2004) . . Page.. 1879 ..

I will be moving similar amendments later that reflect these changes in another part of the bill.

MS TUCKER (9.25): Ms Dundas’s amendments are about the ongoing discussion we are having in this place on the use of strict liability offences. In this case the penalty units for the offences are much higher than those of any other strict liability offences that the Assembly has accepted so far. This is a problem because strict liability as a legal concept was supposed originally to apply only to essentially administrative offences, not to situations where imprisonment is a possible penalty.

The Senate committee, in its sixth report of 2002, considered the issue of strict and absolute liability, which our scrutiny of bills committee referred to extensively. Ms Dundas referred to this in her in-principle speech and I would like to quote some of the Senate committee’s conclusions as quoted by the scrutiny of bills committee:

The [Senate] committee concluded that there were certain basic principles which should constitute the starting point for Commonwealth policy on strict and absolute liability, as follows:

• fault liability is one of the most fundamental protections of criminal law; to exclude this protection is a serious matter;

• strict liability should be introduced only after careful consideration on a case-by-case basis of all available options; it would not be proper to base strict liability on mere administrative convenience or on a rigid formula; ...

• strict liability should, wherever possible, be subject to program specific broad-based defences in circumstances where the contravention appears reasonable, in order to ameliorate any harsh effect; these defences should be in addition to mistake of fact and other defences in the Criminal Code.

• strict liability offences should only be applied where the penalty does not include imprisonment and where there is a cap on monetary penalties; the general Commonwealth criteria of 60 penalty units, ($6,600 for an individual and $33,000 for a body corporate) appears to be a reasonable maximum.

So in this case, where the penalties are as high as 1,000 penalty units, if we take the Senate committee’s penalties seriously, then we need to have some defences. The defence posed in Ms Dundas’s amendments retains much of the strictness of this offence.

Clearing native vegetation in a reserved area is a serious assault on the values of nature reserves and, as far as those values are concerned, once the clearing has happened the damage is done. It is difficult to imagine a situation where someone could accidentally clear a significant area causing serious harm to the reserved area. But we need to be careful about creating strict liability offences.

Ms Dundas’s amendments put the onus on the defendant to establish their defence, but they do allow that, in situations where the defendant took all reasonable steps to avoid committing the offence, they have a defence. This is just. And the Greens will be supporting these amendments here and in other parts of the bill.

MRS DUNNE (9.29): Ms Dundas is on a crusade about strict liability provisions, and it is a crusade that must be commended. There are many occasions when she has come in here and pointed out the inconsistencies in legislation as they relate to strict liability

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