Page 3272 - Week 09 - Tuesday, 18 August 2009
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constitutes an offence can seem quite arcane but it is important. In general, the ACT often does better in these things than other jurisdictions, partly because of our history as a small, new and fairly progressive jurisdiction and now the impact of the ACT Human Rights Act.
So it is worth noting that one of the differences between this ACT bill and the national model legislation is the use of strict liability rather than absolute liability as the standard offence. In the context of a human rights jurisdiction, absolute liability offences are not preferred as they provide almost no defence for an accused in any circumstance. Not only is the matter of intent irrelevant, even the mistake of fact is irrelevant. Strict liability, however, does provide some defence, although it is limited.
In addition, the explanatory statement for this bill points to a reasonable-steps exception which allows the accused to establish they took reasonable steps to do the right thing. In this bill, then, the standard of proof for that particular defence is less onerous than the legal standard required under the model legislation. I commend the department for these considerations. However, the underlying principle of our criminal law is that the severity of the crime reflects the guilty mind of the offender and, where strict liability offences are defined, making the guilty mind irrelevant, a rationale ought to be provided.
The scrutiny of bills committee raised a number of concerns in this regard in its analysis of the bill. The continuing plea from that committee is that the ACT government ought to consistently provide a clear rationale for strict and absolute liability offences when it resorts to them.
On occasions the relevant departments would revisit their explanatory statements, define the use of the offences more carefully and/or reject the requests for more careful explanations. One would have thought that by now some kind of convention in explaining and dealing with these offences would have been arrived at.
Indeed, for exactly this reason, the then legal affairs committee, on 6 December 2005, advised the Legislative Assembly that it would inquire into and report on:
the merit of making certain offences ones of absolute or strict liability;
the criteria used to characterise an offence, or an element of an offence, as appropriate for absolute or strict liability.
The committee report was tabled in the Assembly in February last year. This debate is not the place to go into that in depth but it is unfortunate that the ACT government has not yet responded to that report nor implemented in any systematic way its recommendations, the key recommendation being No 3:
The committee recommends that the Office of Parliamentary Counsel develop and implement guiding principles for the drafting of offence provisions in legislation.
As it is, we have had a fairly complex exchange of views on these offence provisions in this bill through the scrutiny of bills process where a more systemic approach would have been helpful. Perhaps the most serious concern raised by the scrutiny of bills committee was in regard to clause 331 which was whether, when it came to
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