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Thursday, 1 March 2001
Page: 22323


Senator GREIG (1:12 PM) —This bill applies the criminal code to all offence creating and related provisions in legislation administered within the Attorney-General's portfolio. As a result, many offences are now declared to be offences of strict liability. Absolute liability is applied to the elements of certain offences and an evidential burden is imposed on defendants in relation to the raising of various other matters.

Where an offence is declared to be one of strict or absolute liability the prosecution need not establish default elements of the offence. Default elements are normally intention, recklessness and the like. Strict and absolute liability provisions are thus a departure from the entrenched common law position that the prosecution must show not only a guilty act but also a guilty mind. No fault elements need be provided in relation to strict liability offences. Such provisions are only justified in limited circumstances.

The Scrutiny of Bills Committee rightly drew attention to the presence of strict liability provisions in this legislation, noting that such provisions may be considered to trespass unduly on personal rights and liberties. The committee sought an assurance from the minister that this legislation created no new strict liability provisions and it simply continued the operation of existing strict liability provisions with the coming into force of the criminal code. The minister gave such an assurance in the following terms:

You can be assured that the offences by which strict liability is applied by the bill are limited to those where it can be clearly inferred that parliament intended that strict liability would apply.

Given this assurance from the minister to all those involved in the Scrutiny of Bills Committee, my party, the Australian Democrats, is prepared to support this legislation.