Page 2822 - Week 09 - Thursday, 27 September 2007
have occurred, only a risk of substantial harm. This means that a person could potentially be imprisoned under these laws for mere negligence, even when no actual harm is caused. The committee said:
The critical question in either case might be posed in this way: supposing the worst case where a person through their negligence exposed a person to a substantial risk of serious harm, would the imposition of a fine of 1500 penalty points and imprisonment for 5 years be justifiable?
I would say no. Another option which has been provided certainly in commonwealth legislation, and I think it may have been used in ACT legislation, is the option of an alternative offence with strict liability attaching but with lower penalties. This is something that the government certainly should have considered.
We need to look at what this actually means in practice. If we look at the offence as it is now, under section 48, failure to comply with safety duty, we see that it already has a very draconian absolute liability offence attaching to the first element. Currently, it states:
A person commits an offence if:
(a) the person is required to comply with a safety duty;
That is an absolute liability offence. Now, under the government’s amendments, under paragraph (b), if a person fails to comply with a safety duty, that will have strict liability attached, while paragraphs (c) and (d) will not have either strict or absolute liability attached. Essentially, we can have a circumstance under this amended legislation where a person commits an offence punishable by up to five years in prison where, under paragraph (a), the person is required to comply with a safety duty. If they did not know about the safety duty, there is no defence there in terms of a response, because there is absolute liability. In terms of the person failing to comply with a safety duty, strict liability attaches. So most of the elements of the offence are made out without any guilty intent on the part of the person being charged or prosecuted. We have the extraordinary potential for people to be put in prison for up to five years where, for most parts of the offence, there are no mental elements, and no mental elements need to be proved in order to do that.
I draw the attention of the Assembly to the report by the commonwealth Standing Committee for the Scrutiny of Bills in relation to strict and absolute liability offences. It refers to the commonwealth Attorney-General’s Department guidelines, and I think they provide a reasonable guide as to strict liability and absolute liability offences. The report states:
Strict liability has been applied in the following cases:
to regulatory offences, particularly those which relate to the environment or public health;
where it is difficult for the prosecution to prove a fault element because a matter is peculiarly within the knowledge of the defendant;