Page 3929 - Week 12 - Thursday, 20 October 2005
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In summary, the Assembly report cited a number of legal principles that are raised from our human rights and/or legal system, including: a defendant is innocent until proven guilty; generally, an offence provision should contain a mental element which ensures that a person is not guilty if they had no intention to commit the offence and were not reckless or negligent in their actions; there are times when the legal or evidential burden of proof is reversed and the onus is placed on the defendants; the penalty imposed on an accused and the stigma which attaches to that penalty and/or to the conviction itself necessitate a level of fault which reflects the particular nature of the crime; and human rights may be subject only to reasonable limits set by territory laws that can be demonstrably justified in a free and democratic society.
The Senate report recommended that the commonwealth apply a number of basic principles when dealing with strict liability offences. The ACT government has adhered to most of these recommended principles. However, there are two principles that it has not adhered to consistently. They are that strict liability offences should, if possible, be applied only where the penalty does not include imprisonment and there is a cap on monetary penalties—the general commonwealth criteria of 60 penalty points, which is equivalent to $6,600 for an individual and $33,000 for a body corporate, appears to be a reasonable maximum—and there appears to be general public support and acceptance for both the measure and the penalty. Although the ACT Assembly does not have to agree with everything that is recommended by a committee from other levels of government, I believe it is important to keep the Senate committee recommendations in mind when examining the bill before us.
There are nine strict liability offences in the bill before us where the government has applied penalties that are greater than 60 penalty units and/or include a term of imprisonment. Whilst the absence of a mental element appears to be justified for some of the more serious strict liability offences, I do have serious concerns about the appropriateness of strict liability for some of the other offences. A couple of days ago I received a letter from the Attorney-General, part of which stated:
There must be clear legitimate grounds for penalising a person without the usual requirement to prove fault, and in the case of regulatory schemes this is usually because the persons affected will have good reason to be aware of the obligations and the need to guard against the possibility of contravention.
Generally, the maximum penalty for a strict liability offence is limited to a monetary penalty, though in some cases a term of imprisonment, up to six months, may be appropriate. This is usually where it is important for the offence to have a high deterrent effect because of the possibility a contravention presents a serious or immediate threat to public health, safety, the environment or public revenue.
I can understand the arguments presented by the ACT government in this letter and debate, but what about those unusual cases, as referred to in Mr Stanhope’s letter? How far should we go in penalising what could be innocent, albeit possibly misguided, behaviour?
I am also still concerned about whether there is community acceptance of these heavy penalties, as the government does not appear to have acquired general public support for the strict liability offences and their penalties. One example of this public acceptance is
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