ALRC submission on absolute and strict liability offences (11 September 2001)
Mr James Warmenhoven
Secretary
Standing Committee for the Scrutiny of Bills
Parliament House
Canberra ACT 2600
11 September 2001
Dear Mr Warmenhoven
I refer to your invitation to the Commission to provide a submission to the Senate Scrutiny of Bills Committee's inquiry into the application of absolute and strict liability offences.
In February 2000, the federal Attorney-General asked the Australian Law Reform Commission to conduct an inquiry into the arrangements for civil and administrative penalties in the federal jurisdiction. The Commission has been asked to report by March 2002. A copy of the terms of reference for this review, together with a preliminary background paper released in June 2001 in association with a conference we hosted on this topic, are enclosed for your information.
Under the terms of reference for the review of civil and administrative penalties, the Commission is to have regard to the importance of maintaining an effective and efficient Australian criminal justice system, the need for federal civil and administrative penalty systems to be based on clear and consistent principles, and the balance which ideally should be maintained in deterring and punishing wrongdoing in regulatory and supervisory regimes between the use of criminal sanctions, or administrative and civil penalties. The terms of reference specifically ask the Commission to consider how the circumstances and conduct giving rise to administrative and civil penalties should be expressed and, in particular, whether principles relating to criminal liability (including fault elements), corporate criminal responsibility, vicarious responsibility, and strict responsibility, should apply to liability for administrative and civil penalties.
Over the coming months the Commission must consider whether the past and present approach to the definition and application of civil and administrative penalties has been appropriate. This will involve the Commission looking at such issues as the availability of certain penalty types, procedural fairness, officer discretion in relation to the application of penalties, avenues of appeal, and the way in which penalties are enforced. All of this must be done against a background of examining the purpose of regulation and the specific areas of regulatory activity in the federal sphere.
One issue of interest to the Commission is the way in which fault elements are ascribed to certain types of penalties. The Commission has noted that over half the civil penalties and around a third of the administrative penalties do not explicitly state a fault element or mens rea. In the case of administrative penalties, the provisions are, on their face, predominantly absolute or strict liability. Criminal penalties were more likely to have a fault element expressly incorporated into the offence.
At this stage of the inquiry, the Commission has noted that existing penalties are not necessarily arranged in a 'pyramid' or hierarchy whereby the penalty type, process and consequence escalate in accordance with the degree of wrongdoing. Similarly, there is not necessarily a link between culpability and the penalty type, process and consequence. In fact, some forms of administrative penalty may have a significant impact on the life of a penalised person or company. At the same time, some penalties defined as criminal involve relatively minor wrongdoings and low levels of penalties. (However, the stigma and consequences of conviction may be greater than the penalty itself).
The Commission is currently working on a Discussion Paper in relation to this inquiry with a view to publication in early 2002. After release of the Discussion Paper, the Commission will consult extensively with government regulators, the regulated community, and lawyers and judges, before completing its final report to the Attorney-General.
It is expected that the Commission's review and the Scrutiny of Bills Committee's examination of absolute and strict liability offences will overlap in some areas, although the Commission's review is more wide ranging in relation to civil and administrative penalties. However, given the ongoing work of the review, the Commission will not be able to provide a comprehensive submission to the Committee within the required timeframe. The Commission eagerly awaits the outcome of the Committee's inquiry.
With kind regards
Yours sincerely,
[David Weisbrot, President]