Page 3279 - Week 09 - Tuesday, 18 August 2009
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• the application of absolute liability for offences against the mass, dimension and loading requirements;
• the reasonable steps defence afforded to alleged offenders;
• enforcement powers that extend to conducting a search of premises and vehicles;
• the extended period for commencing prosecutions for breaches of the mass, dimension and loading requirement;
• the protection and confidentiality of information;
• embargo notices and the return of forfeiture of seized things; and
• protection from self-incrimination.
I will mention briefly some of the detail in relation to some of those departures because I know the extent to which members focus on some of these issues in their consideration of legislation.
The model tiered penalty structure, which provides one penalty level for first offenders and another for repeat offenders, is considered to interfere with the discretion of the courts to deal with each case according to all the circumstances, particularly where there may be several fault element offences. In place of the tiered structure a single maximum penalty is to apply for heavy vehicle road law offences. In terms of quantum the national model infringement and maximum penalty amount for offences has generally been adopted, with the maximum penalty representing double that of the tiered approach for a first offence.
The bulk of contraventions under the national model arrangements apply absolute liability as the standard for offences. The ACT bill departs from this approach by applying strict liability for minor and substantial breaches of the mass, dimensions or loading requirements. In the case of severe breaches, a greater penalty than the 50 penalty unit maximum usually applied to strict liability offences in the ACT is considered necessary and for severe breaches the penalty is related to the degree of criminal intent or responsibility involved in the offence. For example, in a case involving a severe mass breach the maximum penalty is 100 penalty units where negligence is a factor in the offence; 150 penalty units and six months imprisonment where recklessness is involved and 200 penalty units and six months imprisonment where there is an intention to offend.
This departure from the national approach has been adopted because, as a general rule, in order to prove a criminal offence the prosecution must prove two key elements: an actus reus and, of course, a mens rea. When an offence is a strict or absolute liability offence, the prosecution is only required to prove an actus reus, or physical element, and not the fault element as well. I remember all that well, Mr Speaker, as I am sure you do. It has been a pleasure to actually provide some additional detail in relation to this bill. If time permitted, there is a lot more that I could let you know.
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