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Legislative Assembly for the ACT: 2004 Week 06 Hansard (Tuesday, 22 June 2004) . . Page.. 2418 ..

penalties to graduate the offences; whereas, if they are downgraded to “strict liability”, that flexibility will exist.

MRS CROSS (11.53): I will not be supporting Mr Pratt’s first, second, or third amendments, which seek to make a number of safety duties strict liability offences rather than absolute liability offences. When it comes to safety duties it is important that employers realise they have a basic standard of care for workers and their safety. Mr Pratt’s amendments Nos 1 to 3 dilute this responsibility and hence will not receive my support.

MS GALLAGHER (Minister for Education and Training, Minister for Children, Youth and Family Support, Minister for Women and Minister for Industrial Relations) (11.53): The government will not be supporting these amendments either. There are three safety offences in the bill and, like those in the dangerous substances act, their construction is fundamental to the integrity of the new OH&S compliance scheme. The general offence of failing to comply with the safety duties set out in proposed section 35C is a strict liability offence.

The specific offences in proposed sections 35D and 35E, which refer to failure to comply with duties, with the result that people are exposed to a substantial risk of serious harm or that serious harm is caused to a person, require conduct which is either reckless or negligent to be proved. Absolute liability applies to the first element of each of these offences but none of the offences are absolute liability offences.

Absolute liability applies solely to the requirement to comply with the safety duty. There is a reason for this. These duties are not discretionary and it is essential that they are not undermined. By applying absolute liability to the requirement to comply with the duty it is not necessary to establish that the defendant was aware that he or she was required to comply with a particular safety duty. This is appropriate because a defendant’s lack of knowledge of the law should not be a defence to a prosecution for breaching a health and safety duty.

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

I am troubled that Mr Pratt’s proposed amendments are identical to the amendments he proposed during debate on the dangerous substances act, which were rejected by the Assembly. Aside from the fact that we have clearly been unable to convince Mr Pratt that his position regarding the duty based offences will be incorrect if these amendments are passed, this would introduce fundamental differences between the compliance provisions under the OH&S Act and the dangerous substances act.

It is also troubling that report No 45 of the scrutiny of bills committee has again failed to properly assess the application of absolute liability, just as the committee did in its

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