Page 3174 - Week 10 - Thursday, 18 October 2007
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Mrs Dunne used the example of people in the business of selling plants in the context of the Pest Plants and Animals Act defences. However, I am firm in saying that duty holders under the OH&S and dangerous substances acts squarely fall in the category of persons who ought to know their obligations.
The government agrees that, as a general rule, strict liability should not attach to offences with an imprisonment term. I am advised that in some more serious circumstances, an imprisonment term of six months is appropriate for a strict liability offence. However, I cannot emphasise enough that the offences in question today are not strict liability offences. Strict liability applies to only one element of the offences, and the offences as a whole remain fault element offences. During this morning’s debate, Mr Mulcahy spoke about the offences reversing the onus of proof. Again, I will state that this is not correct.
On the record, I agree with the views of Mr Mulcahy and Chris Maxwell QC that there is no demonstrated benefit in reversing the onus of proof in OH&S-related defences. Under the offences, the prosecution is still required to prove each element of the offence beyond reasonable doubt. But I do have to disagree with Mr Mulcahy’s remark about negligence. Whilst Mr Mulcahy may be technically correct in saying negligence is not a mental element, I am advised that negligence is most certainly a fault element for an offence, and “negligence” is defined in division 2.3 of the Criminal Code, which is entitled “Fault elements”. It is a fault element that employs an objective test and is necessary to cover those persons whose conduct involves such a great falling short of the standard of care that a reasonable person would exercise in the circumstances that the court is satisfied that the person’s conduct merits criminal punishment.
Mr Deputy Speaker, the application of strict and absolute liability offences in the territory is, as I think I observed in the debate last month, currently the subject of a standing committee inquiry. I understand that the committee’s report is expected in the near future, and I very much hope that this inquiry assists members of the Assembly in their understanding of strict and absolute liability, as it is clearly an area that requires some further examination by some members of this place. I indicate, of course, that the government will be opposing all of Mr Mulcahy’s amendments and that we will continue in our support for the bill in its original form.
Schedule 1, part 1.1, agreed to.
Remainder of bill, by leave, taken as a whole.
MR MULCAHY (Molonglo) (5.11): I am not going to go into a long dissertation again—I think the views of the opposition have been made well known. I have researched this extensively, and I stand by the advice which I conveyed in my earlier remarks to the Assembly. I am troubled by the direction in which this legislation is going, and it will be something that will be addressed by a future Liberal government. I have no doubt about that. I am also, of course, disappointed with the Greens. I thought it was a sad reflection on them to come in here and present a repeat speech in this place that showed no consideration of subsequent comments that have been made. I would hope that we never see that level of performance again in relation to a piece of legislation. Certainly, in the case of my office, we are a bit too diligent to let things
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