Page 3928 - Week 12 - Thursday, 20 October 2005
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There has been considerable concern by the scrutiny committee that too many new offences are being created as strict liability and, in some instances, absolute liability offences. There are, I understand, no absolute liability offences in this bill, although some strict liability offences have been replicated in the modernisation process. The situation has been clarified in this bill in that the term “strict liability” has been used in any offence where it is to be applied. If it is not to be applied, the fault element applies; that is, the normal standards of proof that the Crown, the prosecution, bears. I think that is a positive step. The bill does seem to replicate fairly faithfully existing offences and harmonise them with the criminal code. It is interesting, however, that because of the fact that some of the offences dealt with are strict liability offences, there are potential inconsistencies with the Human Rights Act which the government has to explain away.
The scrutiny committee has also commented that the government’s explanatory statement is insufficient in places. While this bill has the benefit of harmonising a number of offences and making them consistent with the criminal code, the code is not totally implemented in all its parts and I think the government needs to act in proper haste to ensure that the code is implemented fully as quickly as possible. A large number of parts are yet to be brought in. I note that lawyers and the profession are finding the interim period when some offences are in harmony with the code and some are not somewhat confusing.
I understand that my colleague Dr Foskey will be moving a motion to send this bill to the legal affairs committee. Given the scrutiny committee’s concerns about the number of strict liability offences in this bill, this would probably provide an ideal opportunity for general questions and concerns around strict liability to be examined by the committee. I certainly envisage that there would be a quick inquiry. Obviously, Dr Foskey’s motion will not get up if the government does not support it, but I think there is merit in what she proposes and the opposition will be supporting the motion. If the bill is agreed to in principle and her motion is passed, the bill can then come back to the Assembly. As chair of the committee, I would envisage a pretty quick inquiry were the government to support the motion. Of course, this matter is in the hands of the government because they have the numbers.
DR FOSKEY (Molonglo) (11.45): There are a number of items within the Criminal Code Harmonisation Bill that I am uncomfortable with and I will be requesting that the bill be referred to the legal affairs committee for further review. The most prominent concern that I have with the bill before us is the application of strict liability offences and their penalties. Although I can understand the need to have strict liability offences in certain circumstances, I do not believe that the ACT government has developed a consistent approach to these matters. Whilst the bill is attempting to place into black letter law a number of existing common law offences that seem to already have community acceptance, that does not preclude us from examining our treatment in those offences with human rights and community opinion in mind.
I would like to draw the Assembly’s attention to two important documents that provide guidance to governments on strict liability legislative offences and penalties. The first is the February 2005 ACT Assembly scrutiny of bills committee report. The second is the June 2002 Senate Standing Committee for the Scrutiny of Bills report into the application of absolute and strict liability offences in commonwealth legislation.
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