Page 3125 - Week 10 - Thursday, 18 October 2007
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Strict liability offences can be dealt with in a way that is fair to people. But one of the basic rules that we should have as legislators is that you cannot send people to jail or impose disproportionately large fines for a strict or an absolute liability offence. This is not the way the justice system in Australia and in commonwealth countries works. What Dr Foskey is basically saying is that there is no place for prosecutors to demonstrate and prove their case. It is not because in many ways Dr Foskey is in favour of strict liability offences, because on occasions she has, in fact, supported amendments by me to water down strict liability provisions in other legislation. It seems to be ideological: “This is occupational health and safety and this is about employers versus employees and employers are ipso facto bad people and we should find every opportunity to lock them up.” This is what this is about.
The Liberal Party have a very principled position on this: we do not believe that strict liability offences should be in place at such a level that it sends people to jail. We will continue to hold this position and the government, if it were a just policymaker, a right policymaker, would support these amendments. A government that has as part of its modus operandi to put people into jail in circumstances where the reverse onus of proof is engaged is absolutely wrong and it is a serious infringement of people’s liberties. This is not just my view. If you read the comments of the scrutiny of bills committee, even out of season, the advisers to the scrutiny of bills committee are constantly drawing this place’s attention to this government’s propensity to introduce strict liability offences—and this is probably one of the worst that we have seen because here we have jail sentences attached to it.
Clause 18 agreed to.
Clause 19.
MR MULCAHY (Molonglo) (12.19): As we discussed in the Assembly on 27 September 2007, which makes it very clear that my speech today is not a repeat, the government’s Occupational Health and Safety Amendment Bill, if passed without amendment, will impose strict liability on important elements of occupational health and safety offences in the ACT.
These changes are draconian amendments which violate basic principles of criminal law and human rights principles and I am therefore surprised that Mr Barr, who comes in here so often and champions human rights, emulating his leader, is so quick to dismiss them through these legislative measures. They allow a defendant to be imprisoned for up to five years for negligent conduct even where there is no guilty mind. The amendment proposed by the opposition will remove the change to strict liability and allow defendants in prosecutions for these offences to enjoy the presumption of innocence to which defendants in other serious crimes are rightly entitled.
I will now address some of the government arguments about alleged confusion. In his speech on this bill on 27 September Mr Barr tried to convince the Assembly that the issue of strict liability was all just a big misunderstanding. He stated in his speech:
… there remains a level of confusion surrounding strict liability in the territory.
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