Page 2827 - Week 09 - Thursday, 27 September 2007
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and absolute liability offences in the ACT. I understand that the committee’s report is expected in the near future and this work should go to decreasing the level of confusion to some extent.
However, the territory is, in many ways, in a special position in relation to our system of criminal law. We are the only Australian jurisdiction that has adopted the Model Criminal Code and enacted human rights legislation. The ACT and those other jurisdictions who have adopted the Model Criminal Code—namely, the commonwealth and, more recently, the Northern Territory—are in a unique position in that the legislature is required to specify whether strict or absolute liability applies to an offence or, in this case, an element of an offence. If the legislature does not specify the application of strict or absolute liability, the Criminal Code imports default fault elements into the offence.
This is in contrast to the approach of those non Model Criminal Code states whereby it is left to the judiciary to interpret provisions in legislation to determine whether or not strict liability applies. In doing so, the judiciary considers a vast amount of case law established over time in relation to the application of strict and absolute liability. In the ACT, legislation is developed to specify strict or absolute liability, employing the same principles established over time by the courts, and we as the Legislative Assembly debate the merits or otherwise of the provisions. This is why we continually debate the merits or otherwise of the application of strict and absolute liability, and rightfully so.
However, this unique position also creates a level of misunderstanding and confusion, especially among those stakeholders who operate across state and territory borders. Some stakeholders have associated the Criminal Code concept of strict liability with the offence regime in the New South Wales OHS act. This is not correct. New South Wales has a reverse onus of proof construction for its OHS offences and this means that under New South Wales law an employer, for example, has an absolute obligation to ensure the health, safety and welfare at work of all employees.
In a prosecution under the act, a defendant in New South Wales may rely on a defence if the person proves that it was not reasonably practicable for the person to comply with a duty, or the commission of the offence was due to causes over which the person had no control. Under this regime the prosecution is only required to prove that an employee’s safety was compromised. Following that, the onus of proof in relation to the defence shifts to the defendant. This is in contrast to other Australian jurisdictions, including the ACT, where OHS obligations are limited by reasonable practicability. In other words, the prosecution must establish all elements of an offence beyond reasonable doubt, including that a duty holder did not take reasonably practicable steps to guard against a contravention.
The New South Wales approach has been subject to much criticism. Chris Maxwell QC, in a review of the Victorian OHS legislation, noted that there is no demonstrated deterrent effect in shifting the onus of proof to the defendant in OHS prosecutions. The New South Wales approach has also been criticised on the basis of the cost burden imposed on defendants in OHS prosecutions and its questionable compatibility with human rights principles in relation to the right to a fair trial and
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