Page 2830 - Week 09 - Thursday, 27 September 2007
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Question resolved in the affirmative.
Bill agreed to in principle.
Detail stage
Clauses 1 to 17, by leave, taken together and agreed to.
Clause 18.
MR MULCAHY (Molonglo) (5.44): I will be opposing this clause. The government proposes amendments to various offences under the Occupational Health and Safety Act and the Dangerous Substances Act. As the minister has acknowledged and as Mr Seselja has mentioned, the offences that the government proposes to amend are serious offences and are subject to penalties which include up to five years imprisonment.
I stress that these offences may potentially result in the deprivation of liberty of a convicted offender for a significant period of time—indeed, for a period of time similar to the term imposed in the ACT for many serious violent crimes such as assaults and rapes. The proposed amendments take the incredible step of imposing strict liability on defendants in prosecutions for failure to comply with safety duties imposed under these acts. These amendments would allow defendants to be convicted under these offences for negligent breaches of safety duties even where no element of intention or recklessness is present.
Whilst this may be reasonable for some less serious offences such as traffic violations, it is a general principle of law that such a person should not be subject to imprisonment without having a guilty mind; that is, without the prosecution having to prove intention or recklessness on the part of the defendant. Mere negligence, even under the criminal standard of negligence in section 21 of the Criminal Code, should not be sufficient to warrant such a severe penalty as five years imprisonment. To put it rather bluntly, the amendments proposed by the government would allow them to imprison a person for being stupid, rather than for acting in a genuinely criminal manner.
In relation to strict liability, report and current offences, this was an issue which was highlighted in the report of the scrutiny of bills committee on this very bill. In that report the committee noted:
The issue can be avoided (as has been done in Territory legislation) by creating two offences. One offence as is proposed by clauses 18 and 19 would contain elements of absolute and strict liability but would not provide for imprisonment as a penalty. The second offence would provide for imprisonment, but would not affect the governing rules that fault elements attach to all physical elements of the offence.
In fact, this is what we already have under the existing act. The Occupational Health and Safety Act already provides for a less serious strict liability offence under section
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