Page 3931 - Week 12 - Thursday, 20 October 2005
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referred to the legal affairs committee to further examine the approach to strict liability offences and, more usefully, to produce some guidelines that the ACT government would be able to use when considering creating strict liability offences and their penalties. Mr Speaker, I would like to report that I am supported in this move by the ACT branches of the Lawyers Alliance and Civil Liberties Australia, as they have similar concerns about the government’s approach to strict liability penalties.
MR STANHOPE (Ginninderra—Chief Minister, Attorney-General, Minister for the Environment and Minister for Arts, Heritage and Indigenous Affairs) (11.55), in reply: Mr Speaker, firstly, I thank members for their contributions. I particularly thank Dr Foskey for her very considered and detailed consideration of the legislation.
This harmonisation bill is another step forward in the implementation of the criminal code in the ACT. The harmonisation program will see each offence reviewed and reformulated to give offences effect within the operating environment of the criminal code. With this bill, 283 offences in 32 acts and six regulations have been reformulated. Further bills will be presented to the Assembly as the government progresses its review of the statute book.
The general approach has been to reformulate offences so that the physical elements and the fault elements that apply can be clearly identified. The physical element is basically the description of the prohibited act or omission, while the fault element is essentially the degree of fault that is required for the 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.
In cases where the criminal code does not apply, the court has to make a judgment about the elements of a defence where it is unclear. This is particularly so where a question arises as to whether an offence is a “strict” or, in rare cases, an “absolute” liability offence. Here the magistrate or judge will need to make an assessment based on the principles on statutory interpretation, drawing on the tests laid down by the case law, in particular the High Court in He Kaw Teh v R.
The criminal code eliminates this uncertainty by providing, in effect, that unless the offence states that strict or absolute liability applies, the offence is a fault element offence. This has had the effect of clarifying the application of strict liability but has also increased the visibility of such offences and may have created the unfortunate and misleading impression that there has been an increase in the creation of such offences, when in fact there has not. It is just that we have now identified where they exist.
In this bill, strict liability has been expressly applied to offences where the relevant facts indicated that strict liability was intended, such as the context in which the offence appears, the language employed and the level of penalty that applies. They have generally arisen in the regulatory context where it is in the public interest for the regime to be strictly observed, such as regulatory schemes that deal with public health and safety, the environment, and the protection of revenue. I note that absolute liability has not been applied at all to offences or physical elements in this bill. It is a question of balance whether the application of strict liability in particular instances is appropriate. The relevant matters for consideration will include the mischief the offence is intended to
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