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Legislative Assembly for the ACT: 2003 Week 12 Hansard (18 November) . . Page.. 4266 ..

MS DUNDAS (continuing):

I know that members remain concerned at the current overuse of strict liability offences, and I believe the government should exercise greater care in using this classification. I am pleased to see the minister has made changes so that strict liability will not apply to custodial sentences. But in any case I hope the Assembly can have some debate today about what it is we expect from strict liability offences, and that is why I move this amendment.

I don't believe that the debate is over. This issue will return to the Assembly in the future. So I ask the government to take more care in the future in how it applies the Criminal Code and strict liability offences in new legislation.

MS GALLAGHER (Minister for Education, Youth and Family Services, Minister for Women and Minister for Industrial Relations) (8.28): The government will be opposing Ms Dundas's amendment. The amendment seeks to insert a new mental fault element into the act-one of due diligence, a term which is not defined and to which the application would need to be tested before the courts before its meaning could be established. In effect, this would replicate problems identified by the scrutiny of bills committee with the existing reasonable excuse defence. This would also undermine the application of the Criminal Code to which the Assembly has previously agreed.

Ms Dundas does not want the offences she has identified in her amendment to be characterised as strict liability, and the real question is: which of the code's existing mental fault elements of intention, recklessness or negligence would she prefer to apply to the sections? We do need to maintain consistency with the code. We are not in a position to create a new fault element every time a bill comes before the Assembly.

The explanatory memorandum that accompanies Ms Dundas's amendment states, among other things, that the sections of the act against which the defence of due diligence should be generally available are:

... only in those offences that are enforcing administrative arrangements.

The memorandum then goes on to state that sections 156 to 162 are sections of that type.

I will briefly go through the issues in sections 156 to 162 to explain in more detail why they have been identified as strict liability offences. Sections 156 to 162 are administrative in nature, but they are far from simply being about requiring information from employers. They are in fact the sections of the act that deal with the underreporting of wages. The underreporting of wages is one of a handful of issues that have the potential to undermine the operation and the viability of any workers compensation scheme.

When unscrupulous employers underreport wages they make the scheme more costly for the employers who do the right thing by properly declaring wages. Such employers deprive the scheme of much-needed premium income, and by depriving the scheme of premium income they drive up the cost of premiums for those employers who are doing the right thing. The lack of information on correct premium income then places pressure on the scheme cost. In workers compensation matters pressure on scheme cost is usually only relieved in one of two ways, either by increasing premiums or by reducing benefits.

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