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Legislative Assembly for the ACT: 2004 Week 06 Hansard (Tuesday, 22 June 2004) . . Page.. 2420 ..

as to whether they had to comply with the safety duty in order for no conviction to be found. This is a serious decision before the Assembly because a change in the element of these offences may distort the process of justice for a victim under this law.

In considering all this I am not able to support Mr Pratt’s amendments, but I would like it to be noted that absolute liability applies to only the first part of each of these offences. Thus, under sections 35D and 35E, the prosecution must still provide proof of criminal recklessness or criminal negligence in order to secure a conviction under these laws. For the general offence under 35C a defendant can still rely on a mistake of fact. If these offences were “absolute liability” in their entirety it would be easier to agree with Mr Pratt but, as they are not, I support them in their current form.

MS TUCKER (12.00): I will be opposing these two amendments. Mr Pratt has picked up on a concern of the scrutiny committee about the implications of offences of absolute liability; however, there has been a dialogue between the committee and the government on this. The fact that “absolute liability” applies only to the part of the offence that establishes that a safety duty exists, rather than other conditions that constitute an offence, appears to be the key point.

I have yet to hear an argument as to why we should not make the existence of a safety duty an “absolute” offence, because it really is something that can be misunderstood, with strict liability applying to whether the person complies or not. More serious offences, of course, have a fault element within them. The point in issue here is the general approach of this legislation to establishing safety duties and the requirement for all employers, managers, clients, manufacturers and so on to take that responsibility on.

MR PRATT (12.01): I reiterate the concern about absolute liability. We are not seeking to undermine the seriousness of the offences by seeking to downgrade that liability; those levels of penalties are still going to be there. We are saying that absolute liability quite often reflects “guilty until proven innocent”—and not even the worst offence should carry that stigma. So I again put that point to members, to ensure that there is a little more flexibility to allow those who are judging those offences to make more reasoned decisions.

Question put:

That Mr Pratt’s amendments be agreed to.

The Assembly voted—

Question so resolved in the negative.

Amendments negatived.

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