Page 1335 - Week 05 - Thursday, 31 May 2007
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all sorts of good reasons at times for doing that. It will be much more difficult with just one prison to do that properly and effectively in a way that protects other prisoners and the community as a whole.
Issues have been raised about human rights principles, in particular under section 38 of the Human Rights Act, looking specifically at the provisions for offences of strict liability in clauses 145 (2) and 147 (3). The legal affairs committee often raises the issue of strict liability. I think strict liability offences are an important regulatory tool but that they have tended to be overused by this government in recent times and the committee has commented on that at times. You really do need to justify why you are putting in place strict liability clauses; you do not just do it as a matter of course. You do not just do it because of lazy drafting or because it is easier not to have to prove the mental element of an offence.
The Liberal Party in the ACT did not support the Human Rights Act, but that is the law of the territory and with the Human Rights Act in place we need to take account of it. These strict liability clauses come up time after time, often without justification. Sometimes they are well justified; sometimes it is well documented in the explanatory statements, but other times it is not, so I raise that issue. When I see strict liability offences that have terms of imprisonment, as these do—the maximum penalty for both of these offences that I mentioned is 50 penalty units or imprisonment for six months—I have real concerns. I have real concerns about putting someone in prison potentially without having to prove a mental element.
If we are going to put people in prison we should have to prove the usual mental fault elements of an offence. It is a good principle and it is a principle that we should stick to. It really does call into question what effect the Human Rights Act has when we consistently get provisions like this which really do not seem to take account of those general principles. You would think that in implementing the Human Rights Act the government would, firstly, do its best to avoid offences like that—imprisonment for offences with strict liability—and, secondly, seek to justify clearly when there are strict liability offences whether that is an imprisonment offence or not. In both cases the government has failed.
I refer to the scrutiny report 38 of the Fifth Assembly. The committee drew attention to the possibility that derogation from this important principle would not be justifiable where the potential punishment included imprisonment. In its report it quoted the words of Lamer CJ of the Supreme Court of Canada in R v Wholesale Travel Group Inc, a 1991 case:
The rationale for elevating mens rea from a presumed element … to a constitutionally required element, was that it is a principle of fundamental justice that the penalty imposed on an accused and the stigma which attaches to that penalty and/or to the conviction itself, necessitate a level of fault which reflects the particular nature of the crime.
Moreover, the severity of the punishment for an offence may be such that it will derogate from the Human Rights Act right not to be treated or punished in a cruel, inhuman or degrading way, which is section 10 (1) (b). To imprison a person for committing an act they did not intend to commit might well be regarded as breaching this right.
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