Chapter 7 - Application of absolute and strict liability offences in Commonwealth legislation

Chapter 7 - Application of absolute and strict liability offences in Commonwealth legislation

Introduction

7.1       During the 40th Parliament, in addition to its legislative scrutiny work, the Committee finalised an inquiry into a specific matter referred to it by the Senate. On 28 June 2001 the Senate referred the following matter to the Committee for inquiry and report:

The application of absolute and strict liability offences in Commonwealth legislation, with particular reference to:

  1. the merit of making certain offences ones of absolute or strict liability;
  2. the criteria used to characterise an offence, or an element of an offence, as appropriate for absolute or strict liability;
  3. whether these criteria are applied consistently to all existing and proposed Commonwealth offences; and
  4. how these criteria relate to the practice in other Australian jurisdictions, and internationally.[1]

Conduct of the inquiry

7.2       The Committee received a total of 12 submissions and held one day of hearings in Canberra on 1 May 2002. Eleven witnesses appeared before the Committee, representing six organisations. The Committee’s report was tabled on
26 June 2002.[2]

7.3       The Committee received evidence from the Attorney-General’s Department on Commonwealth policy and practice on strict and absolute liability. The Department advised that the Criminal Code, which has been progressively applied to Commonwealth offences since 1997 and which has applied to all strict and absolute liability offences from 15 December 2001, provides general principles of criminal responsibility applicable to all Commonwealth offences. Section 5.6 of the Code creates a rebuttable presumption that, to establish guilt, fault must be proven for each physical element of a Commonwealth offence. If it is intended that no fault element apply then the element must be expressly provided as one of strict liability (section 6.1 of the Code) or absolute liability (section 6.2 of the Code). The difference between the two is that the defence of mistake of fact under section 9.2 of the Code is available for strict liability but not for absolute liability offences. Defences available to an accused, other than those removed by making a matter one of strict or absolute liability, remain available to him or her.

7.4       The Attorney-General’s Department advised that since 1997 it had undertaken a project to harmonise existing offences to ensure that they operated appropriately under the Criminal Code. The exercise was designed to maintain the status quo, by making explicit the application of strict and absolute liability offences which previously were rarely expressed in this way. This often involved adjusting the wording of offences to meet the requirements of the Criminal Code. The Attorney-General’s Department emphasised that harmonisation was not intended to be a fresh approach to the policy merits of fault, strict, and absolute liability, but was a process to determine the original character of each offence. The Department also advised the Committee that it scrutinises proposed Commonwealth strict and absolute liability offences to ensure a consistent approach across agencies.

7.5       The Committee identified a set of principles that they concluded should form the framework of Commonwealth policy and practice in relation to strict and absolute liability.

Basic principles

7.6       The Committee concluded that the following basic principles should constitute the starting point for Commonwealth policy on strict and absolute liability:

Merits of strict liability and criteria for its application

7.7       The Committee took evidence from a number of agencies who provided information on the perceived merits of the strict and absolute liability offences that they administered. In respect of the supposed merits of strict liability, Commonwealth agencies identified the following principles, some of which were qualified by the Committee:  

7.8       The Committee concluded that the supposed merits of strict liability and criteria for its application should be subject to strong safeguards and protections for those affected.

Principles of protection for those affected by strict and absolute liability

7.9       Having considered a number of submissions, including one from the Law Council of Australia, which highlighted the adverse consequences of strict and absolute liability offences from the viewpoint of those affected by such provisions, the Committee concluded that agencies had not given enough attention to the interests of parties affected by strict and absolute liability. The Committee developed the following principles that it believed should be taken into account when deciding on the need for strict or absolute liability offences and the form that they take:

Principles for the sound administration of strict liability

7.10         The Committee concluded that, in addition to conceptual safeguards, schemes of strict liability should also be administered in a way that provides maximum protection for those affected:

Application of criteria to existing and proposed Commonwealth strict and absolute liability offences

7.11         The Committee concluded that the application of criteria to Commonwealth strict and absolute liability should be subject to the following principles:

Recommendations

7.12         The Committee made four recommendations to the Government regarding the application of strict and absolute liability offences in Commonwealth legislation:

  1. The Criminal Code provisions relating to strict and absolute liability are appropriate and adequate and do not require amendment at this time.
  2. The Legislation Handbook[3] should require agencies to abide by the above principles when developing new or amending legislation which includes strict or absolute liability. The Attorney-General’s Department should coordinate this process.
  3. The Attorney-General’s Department should coordinate a new project to ensure that existing strict and absolute liability provisions are amended where appropriate to provide a consistent and uniform standard of safeguards. This should also be included in the Legislation Handbook.
  4. Agencies should take into account the above principles in the day-to-day administration of strict and absolute liability offences. The principles should be included where applicable in agency guidelines.[4]

Government response

7.13         The Government’s response to the Committee’s report was tabled in the Senate on 17 June 2004.[5] The Government welcomed the Committee’s Sixth Report of 2002, noting that the use of strict and absolute liability is necessary in certain circumstances for ensuring the effective application and prosecution of Commonwealth offences. However the Government recognised that ‘no fault’ liability should only be applied in instances where it is necessary and appropriate.

7.14         The Government advised that it:

...recognises and values the need to maintain fundamental concepts of criminal law liability, such as the need for the prosecution to prove beyond a reasonable doubt both the physical and fault elements of criminal offences. The Criminal Code reflects the common law and Commonwealth policy position that a person should only be guilty of an offence if the prosecution can prove fault (intention, knowledge, recklessness or negligence) for each element of the offence. The only exceptions to this position are where there is express legislative provision that an offence or element of an offence carries absolute or strict liability.[6]

7.15         In respect of the four recommendations made by the Committee, the Government fully accepted only one of them, namely recommendation one, which indicated that the Committee considered that the Criminal Code provisions relating to strict and absolute liability were appropriate and adequate and did not currently require amendment.

7.16         In relation to the Committee’s second recommendation, that the Legislation Handbook should require agencies to abide by the principles outlined elsewhere in this chapter when developing new or amending legislation that includes strict or absolute liability, the Government recognised the merits of regulating the application of strict and absolute liability by principles. However, the Government did not accept the need to require agencies to comply with the principles set out by the Committee, arguing that ‘decisions should continue to be made by reference to the specific provisions of each piece of legislation’.[7]

7.17         The Government did, however, indicate that:

any departure by an agency from these principles should be justified to the Minister for Justice and Customs when seeking his approval and in the Explanatory Memorandum to the relevant Bill. Parliamentary scrutiny allows Government decisions to be reviewed.[8]

7.18         The Government’s response also provided some specific comments on the principles outlined by the Committee.[9]

7.19         The Government did not accept the Committee’s recommendation that the Attorney-General’s Department should coordinate a new project to ensure that existing strict and absolute liability provisions are amended, where appropriate, to provide a consistent and uniform standard of safeguards (recommendation 3). The Government asserted that this was not necessary as:

7.20         The Government partially accepted the Committee’s fourth recommendation, that agencies should take into account, in the day-to-day administration of strict and absolute liability, the principles identified by the Committee. The Government response indicated that:

Subject to the comments made in the Government’s response to recommendation 2 [on individual principles], the Government agrees that agencies should take into account the principles outlined in the Committee’s Report. However, any decisions on how those guidelines should be adopted or promulgated within an individual agency should rest with that agency. [11]

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