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Legislative Assembly for the ACT: 2004 Week 2 Hansard (4 March) . . Page.. 775..

MS GALLAGHER (continuing):

Amendment agreed to.

Clause 15, as amended, agreed to.

Clauses 16 to 41, by leave, taken together and agreed to.

Clause 42.

MR PRATT (4.41): I move amendment No 1 standing in my name [see schedule 2 at page 816].

Mr Speaker, first I commend the government for their agreement to adjourn this debate from the last sitting until today. I believe that this has allowed those on the cross benches and opposition members to properly complete their consultation process and amendments to be able to competently debate this bill today. The first group of amendments-Nos 1 to 5-deal with the absolute liability penalties attached to the requirements to comply with a safety duty: clause 42 deals with general offence; clause 43, exposing people to substantial risk of death or serious harm; clause 44, causing death or serious harm to people; clause 45, exposing property or environment to substantial damage; and clause 46, causing substantial damage to property or environment.

The opposition is today proposing that the absolute liability penalties attached to these clauses be removed and replaced with strict liability penalties. These clauses are subject to absolute liability, which, according to the Criminal Code 2002, does not make available the defence of mistake of fact. The opposition does not believe that absolute liability penalties should be imposed on subparagraph (1)(a) of clauses 42 to 46 inclusive.

MS GALLAGHER (Minister for Education, Youth and Family Services, Minister for Women and Minister for Industrial Relations) (4.42): The government will not be supporting Mr Pratt's proposed amendments. There are five safety offences in the bill and their construction is fundamental to the integrity of the scheme. The general offence of failing to comply with the safety duty set out in clause 42 is a strict liability offence. The specific offences in clauses 43, 44, 45 and 46, which refer to failures to comply with duties with the result that people are exposed to substantial risk of death or serious harm, people are killed or seriously harmed, property or the environment is exposed to substantial risk or substantial damage or property or the environment are substantially damaged, require conduct which is either reckless or negligent to be proved. Absolute liability applies to the first element of each of these offences but none of the offences is rendered absolute liability offences in its entirety.

Absolute liability applies solely to the requirement to comply with a safety duty. There is a reason for this. These duties are not discretionary; they are absolute, and it is essential that they are not undermined. By applying absolute liability to the requirement to comply with the duty it is not necessary to establish that the defendant was aware that he or she was required to comply with a particular safety duty. This is appropriate because the defendant's awareness of the fact has no real bearing on his or her moral culpability.

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