Page 2062 - Week 07 - Tuesday, 21 June 2005

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Leave granted.

MR STEFANIAK: I thank members. Scrutiny report 11 contains the committee’s comments on eight bills, 28 pieces of subordinate legation and seven government responses. The report was circulated to members when the Assembly was not sitting.

I want to say something in relation to strict liability offences. In the report that has just been tabled the committee has drawn attention to the provisions of the Utilities (Gas Restrictions) Regulation 2005 that introduced strict liability offences in relation to the enforcement of gas restrictions. Subsection 14 (1) provides that a person commits an offence if he or she is the occupier of premises; if gas is used on the premises, in contravention of a gas restriction; and the gas restriction has been properly notified, under section 10 of the Regulations.

An offence under section 14 (1) carries a maximum penalty of 10 penalty units—in other words, $1,000. Under subsection (2), an offence under subsection (1) is expressly a strict liability offence. The committee notes, however, that subsection (3) goes on to provide that is a defence to a prosecution for an offence against section 14 if the defendant proves that he or she did not know that a gas restriction had been imposed.

Section 16 also creates a strict liability offence, also punishable by a maximum penalty of 10 penalty units, of contravening a direction given by an authorised person under section 15 of the regulation. Unlike section 14, however, no defence is provided for in section 16.

As noted in report 2 of the Sixth Assembly, the use of strict liability offences is a recurring issue for the committee. In report 2 of the Sixth Assembly, at pages 5 to 8, the committee set out a general statement of its concerns, as it had to the Fifth Assembly. The committee also referred to the principles endorsed by the Senate Standing Committee for the Scrutiny of Bills in relation to strict liability offences. In particular, the committee noted that, in its report No 38 of the Fifth Assembly, it had proposed that where a provision of a bill, or of a subordinate law, proposes to create an offence of strict or absolute liability, or an offence which contains an element of strict or absolute liability, the explanatory statement should address the issues of:

why a fault element, or guilty mind, is not required and, if it be the case, explanations of why absolute rather than strict liability is stipulated;

whether, in the case of an offence of strict liability, a defendant should nevertheless be able to rely on some defence, such as having taken reasonable steps to avoid liability, in addition to the defence of reasonable mistake of fact allowed by section 36 of the Criminal Code 2002.

In report No 38 of the Fifth Assembly, the committee went on to say:

The Committee accepts that it is not appropriate in every case for an Explanatory Statement to state why a particular offence is one of strict (or absolute) liability. It nevertheless thinks that it should be possible to provide a general statement of philosophy about when there is justified some diminution of the fundamental

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