Page 3338 - Week 11 - Tuesday, 20 September 2005
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There are a couple of other issues, which I think Mr Mulcahy will address, about vicarious liability, but my favourite one is clause 59. It is a bit of a compromise and it is slightly better than, I think, clause 35 in the previous legislation. It provides that the conservator can declare a site where the conservator thinks that a tree was damaged, that the tree was the subject of prohibited groundwork, and that what was done caused the important tree to die and, therefore, to lose its registration on the register. If the conservator thinks that someone was responsible for the tree dying, and there is no real test of how the conservator may come to this view, the conservator may ban all development activity on that site for up to five years. So, just in case you do something nefarious, we will make you pay. This is a real problem.
The problems with this legislation are legion. The legislation as it was tabled and as we are debating it here in the in-principle stage, however, has one glaring, hideous error, one hideous fault, which needs to be addressed. Many of the offences in the act as it is currently drafted are strict liability offences. This bill offends all the principles of Australians’ notions of justice, many of the principles of common law and the principles of justice as it has evolved in common law jurisdictions. It is unfair and un-Australian and, as has been said by many people in this case and in other cases that we have discussed in this Assembly this year, is an infringement of people’s civil liberties.
There is a strong principle in law that goes something along the lines that an act does not make a person guilty unless his mind be guilty. My Latin is not up to it, but that is the English translation of it. It goes to the old common law concept of mens rea: you have to intend to do something wrong. There are many provisions in this legislation as currently drafted that basically prosecute people or cause people to have been deemed to commit an offence if they act accidentally.
The bill contains a number of strict liability offences. One of the most onerous is that contained in proposed section 15 (4), which provides that a person commits an offence if that person does something that damages, or is likely to damage, a tree. Proposed section 15 (6) goes on to say that that offence is a strict liability offence. In order to understand what is a strict liability offence, we need to go to the criminal code, which provides that there is no fault element for the offence. Simply put, a person’s intention to commit an offence, which is ordinarily needed to establish a prosecution, has gone out the window. Lawyers would know that as mens rea; but, under this bill as presently drafted, mens rea has gone out the window.
What does that mean for Mr and Mrs Waramanga? It means that if the government charges them with an offence under this bill the burden of proof is cut dramatically. It would be lowered to such a point that they may be punished for a guanine accident. If Mr and Mrs Waramanga have a protected tree in their front yard and Mr Waramanga accidentally drives into it, he could be charged under proposed section 15 (6) of this act, even though he did not intend to damage the tree and he was not morally blameworthy.
There are serious provisions here that have been raised with me and by me. These things have been raised also by the scrutiny of bills committee. I understand that the Council for Civil Liberties wrote to the Chief Minister on this matter. I wrote at considerable length to the Chief Minister on the importance of this matter, a well-crafted 2½-page letter on the subject. There is a huge body of public opinion that says that the way that this
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