14.87   A wide range of Commonwealth laws across a number of different contexts may be seen as encroaching upon the presumption that evil intent or recklessness must be proved in imposing criminal liability. A significant number of these may be justified.

14.88   It is accepted that strict liability may generally be imposed to protect public health, safety and the environment. It may also be accepted for regulatory offences. The general principle is that strict liability may be imposed where a person is placed on notice to guard against the possibility of inadvertent contravention.

14.89   Absolute liability may generally be accepted when applied to technical or jurisdictional elements of an offence. It may be accepted where there are legitimate grounds for penalising a person who has made a reasonable mistake of fact.

14.90   Extensive guidance is available to policymakers in considering whether the application of strict or absolute liability is justified. The Guide to Framing Commonwealth Offences[109]and Drafting Directions[110] both provide specific guidance on the imposition of strict and absolute liability, which reflects comments made by the Scrutiny of Bills Committee both in the Strict and Absolute Liability Report, and as part of its ongoing review of bills. Additionally, policymakers are encouraged to seek assistance from relevant sections of the Attorney-General’s Department in drafting strict or absolute liability offences.

14.91   However, some areas of particular concern have been identified, as evidenced by parliamentary committee materials, submissions and other commentary. These aspects of Commonwealth law might be reviewed to ensure that these laws do not unjustifiably encroach upon the presumption that intent or knowledge must be proved in imposing criminal liability:

  • counter-terrorism and national security legislation dealing with:

  • financial transactions related to freezable assets—ss 20 and 21 of the Charter of the United Nations Act 1945 (Cth));

  • associating with a terrorist organisation—ss 102.5 and 102.8 of the Criminal Code);

  • the disclosure of operational information concerning a warrant issued under s 35D of the Australian Security Intelligence Organisation Act 1979 (Cth)—s 34ZS; and

  • a person’s presence in a declared area—s 119.2 of the Criminal Code

  • directors duties relating to insolvent trading in the Corporations Act;

  • reporting requirements under the Customs Act;and

  • commercial scale infringement in the Copyright Act.

14.92   The Strict and Absolute Liability Report also recommended that ‘[t]he Attorney-General’s Department should coordinate a new project to ensure that existing strict and absolute liability provisions are amended where appropriate to provide a consistent and uniform standard of safeguards’.[111]

14.93   The government did not accept this recommendation for a number of reasons, including that the Criminal Code harmonisation project has achieved a significant degree of certainty and consistency in the application of strict and absolute liability.[112]

14.94   However, the trend in legislation brought before the Parliament to harmonise provisions with the Criminal Code is that it does not consider the policy merits of imposing strict or absolute liability. These amendments simply seek to ensure that existing strict or absolute liability offences continue to operate as such, despite the introduction of the Criminal Code by expressly stating that the relevant offences are strict or absolute liability offences.[113]