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Legislative Assembly for the ACT: 2004 Week 06 Hansard (Tuesday, 22 June 2004) . . Page.. 2419 ..

examination of the dangerous substances bill—report No 43. I wrote to the chair of the Standing Committee on Legal Affairs in response to report No 43 advising that the committee was incorrect in identifying clauses in the dangerous substances bill as absolute liability offences.

Despite my response to that report the committee has repeated the mistake by improperly identifying proposed sections 34D and 34E as absolute liability offences. Absolute liability applies to only one of the elements in the offences contained in proposed sections 35D and 35E. As it does not apply to each offence as a whole, these offences cannot be categorised as absolute liability offences.

The explanatory statement for the Criminal Code Amendment Bill 2003 contains a useful explanation of the effect of providing that absolute liability applies 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. The approach taken in this bill is consistent with the comments by the committee in its earlier scrutiny 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. The government will be opposing these amendments.

MS DUNDAS (11.57): I have had to think very carefully about these amendments put forward by Mr Pratt. As members know, I have remained extremely vigilant about the imposition of strict liability and absolute liability offences. This bill has been no exception. However, the issue here is about the safety of workers and in what circumstances an employer has a safety duty towards their workers. Mr Pratt’s amendments propose that an offence of not complying with a safety duty should only have strict liability apply to the physical element of being required by law to comply with that safety duty, rather than absolute liability.

While there appears to be a consensus between the government and the opposition, the physical element of being required to comply with a safety duty does not require a mental element, such as knowledge. However, the main difference between strict liability and absolute liability is that the defence of mistake of fact exists for a strict liability offence. A mistake of fact is not simply ignorance of safety duty. I would point out to the government that the explanatory statement states that this is the case with any reading of the criminal code, which states:

A person is not criminally responsible for an offence that has a physical element for which there is no fault element if:

(a) when carrying out the conduct making up the physical element, the person considered whether or not facts existed, and was under a mistaken but reasonable belief about the facts; and

(b) had the facts existed, the conduct would not have been an offence.

This is very different from ignorance of the law; however, in this case it is necessary to also consider the ramifications of applying strict liability to only this part of the offence. For example, if a person fails to comply with a safety duty and, as a result, serious harm occurs to another person it is sufficient to show that the defendant made a mistake of fact

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