Page 2215 - Week 07 - Thursday, 23 June 2005
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basically the description of the prohibited act or omission, while the fault element is essentially the degree of fault that is required for this offence to apply, such as intention, knowledge, or recklessness. Section 22 of the Criminal Code will provide a fault element by default, if one is not specified, and strict or absolute liability is not expressed to apply.
The aim in reformulating the offices in the bill has been to give them their current effect, which includes applying strict liability where there is the apparent intention. In cases where the code does not apply, the court has to take a judgment about whether an offence is a strict liability offence based on principles of statutory interpretation. The Criminal Code eliminates this uncertainly by providing, in effect, that, unless the offence states that strict or absolute liability applies, the offence is a fault element offence.
Strict liability offences generally arise in a regulatory context where it is in the public interest for the regime to be strictly observed, such as in regulatory schemes that deal with public health and safety. Strict liability has been applied to the offences in the bill where the relevant factors indicate that strict liability is intended, such as the context in which the offence appears, the language employed and the level of penalty that applies. The mistake of fact offence expressly applies to strict liability offences, as do the other offences in part 2.3 of the Criminal Code. Absolute liability has not been applied to any offence or to particular physical elements in this bill.
The offences that have been harmonised in this bill have also had their exceptions and defences reviewed. Some have been removed because the general defences in part 2.3 of the code cover them. Others have been rewritten to ensure the provisions of proof in part 2.6 of the Criminal Code clearly operate. The prosecution bears the legal burden of proving every element of an offence relevant to the defendant’s guilt beyond a reasonable doubt. A defendant bears an evidential burden of proof in relation to a general defence, other than insanity, under part 2.3 of the Criminal Code
In most cases where a defence applies to an offence, the bill only imposes an evidential burden on the defendant. That is, the defendant will satisfy the onus if he or she adduces or points to evidence that suggests a reasonable possibility that the defence applies. However, in five cases where the relevant offence already imposes a legal burden of proof on the defendant, the bill will maintain that position. That is, to establish the defence, the defendant will have to prove on the balance of probabilities that the defence applies.
The relevant provisions are section 12A of the Animal Welfare Act 1992; sections 12A and 20 of the Business Names Act 1963; section 58 of the Community Title Act 2001 and section 24 of the Lakes Act 1976. As members are aware, placing the burden on the defendant engages the assumption of innocence protected by section 22(1) of the Human Rights Act 2004. The government has considered whether imposing the legal burden is proportionate and appropriate, in accordance with the tests laid down in section 28 of the Human Rights Act. I draw members’ attention to the discussion in the explanatory statement on the rationale for retaining the legal burden for those offences harmonised in this bill.
During the harmonisation process the government has also sought to rationalise the use of the reasonable excuse defence. Part 2.3 covers many of the matters that might have been intended to be covered by the defence of reasonable excuse. Where this was the
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