Page 680 - Week 03 - Tuesday, 8 March 2005
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The use of the legal burden is a proportionate measure to achieve that objective. Of necessity, the application of the Human Rights Act in circumstances such as this requires value judgments to be made, there is no doubt about that. In this case the judgment to be made by the Assembly is about the value to society of procedural rights of the accused, as opposed to the value to society of ensuring that our children are safe.
It is a classic stand-off between competing rights. We go then to a discussion around proportionality. Is it reasonable: acknowledging the right of an accused or defendant not to have to bear the burden of proof, perhaps as an incident of their procedural rights, against the rights of children to be protected? Of course, we come down on the side of children. We weigh the competing procedural rights of a defendant against the right of a child to be safe.
That is how the Human Rights Act works. In a case such as this, as we contemplate and consider the issue around the legal burden of proof which we impose in relation to certain offences under this legislation—and we say that this is appropriate—the limitation of procedural rights of the accused and the result of retaining a legal burden of proof in these provisions is justified by the greater protection from exposure to violent and sexually explicit material that it affords to children.
The protection of children from exposure to unsuitable and explicit contents is an important objective of the Australian classification system. It is appropriate that cinemas and video shop owners show due diligence in ensuring that their businesses comply with the classification system. There is perhaps no more important role, responsibility or function of government than to protect children.
I will just go to the other issue that both the shadow attorney and Dr Foskey raised in relation to strict liability or absolute liability in relation to elements of offences. Certainly this bill does include a number of offences where strict liability applies to the offence or to a specific element of the offence. Section 23 of the Criminal Code provides that, if a law that creates an offence provides for strict liability, there are no-fault elements for the physical elements of the offence. Essentially this means that conduct alone is sufficient to make the defendant culpable. However, if strict liability applies, the defence of mistake of fact is available where the person considered whether or not facts existed and was under a mistaken but reasonable belief about the facts. Other defences such as intervening conduct or event are also available.
Offences incorporating strict liability elements are carefully considered when developing legislation and generally arise in a regulatory context where for reasons such as public safety or protection of the public revenue, the public interest in ensuring that regulatory schemes are observed requires the sanction of criminal penalties. In particular, where a defendant can reasonably be expected, because of his or her professional involvement, to know what the requirements of the law are, the mental, or fault, element can justifiably be excluded.
The rationale is that professionals engaged in producing or distributing films, videos or publications as a business, as opposed to members of the general public, can be expected to be aware of their duties and obligations. The provisions are drafted so that, if a particular set of circumstances exists, a specified person is guilty of an offence. Unless
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