Page 3693 - Week 11 - Thursday, 22 September 2005
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(1) The Criminal Code 2002 did not apply to offences created in 2001 and 2002. Consequently, it would be a major task and an undue demand on my department’s resources to attempt to provide the information requested for those years because there was no necessity at that time for an offence to state whether strict or absolute liability applied to the offence or an element of the offence. Therefore, to determine the position for those years it would be necessary to examine each offence and make an assessment based on a number of varying and competing factors such as the nature of the offence concerned, the language used and the level of penalty that applies.
As for the offences created in the years 2003, 2004 and 2005, the task involved in accessing and collating that information is significant and not one I could justify my department to undertake given that it is publicly available on the internet and that, in my opinion, the questions are designed to produce misleading answers. For instance the results will not show:-
• the number of existing strict liability offences (with prison terms) replaced by the strict liability offences enacted in those years;
• the amount of legislation enacted in those years compared to others;
• the proportion that related to criminal law matters or incorporated regimes (such as regulatory regimes) that justified the inclusion of strict liability;
• the nature of the legislation involved and the serious consequences that could flow from a contravention of the offences concerned;
• the instances in which absolute or strict liability was applied to a particular physical element of a fault element offence that has little if any relevance to the culpability of the defendant (such as where the defendant may think that he or she is obstructing a Commonwealth official instead of a Territory official – see for example section 361(b) of the Criminal Code);
• the instances in which absolute or strict liability was applied to a particular physical element of an offence as a device to deactivate section 22 of the Code so that a more suitable element that relates to fault could be applied (such as sections 13 (1)(b) and (3) of the Classification (Publications, Films and Computer Games) (Enforcement) Act 1995);
• the instances in which the enactment of such offences was supported by non government members of the Assembly.
(2) For the reasons stated in my response to question 1, this would be too resource intensive to answer. Also, for the years 2003 to 2005 to date, the information requested can be obtained from the ACT legislation register at www.legislation.act.gov.au by clicking on the link titled “Acts” and then the annual list of Acts as notified for 2003, 2004 and 2005 and then opening each Act for that year and under the drop down menu titled “Edit”, click “Find” and in the box indicated type in the phrase “strict liability and “absolute liability” for each Act.
(3) See response to question 2.
(4) The Office of the Director of Public Prosecutions (the DPP) has advised that it does not collect the requested information in a statistical form and that the work involved in obtaining that information would place a significant burden on the resources of the DPP and, in its view, cannot be justified.
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