Environmental protection

14.30   Strict liability is a key feature of a variety of environmental regulatory frameworks, including the general framework relating to environmental protection and biodiversity, standards and measures targeted at improving water efficiency, prohibitions on the manufacture and use of ozone depleting substances, fisheries and marine reserves, and areas of particular significance, such as the Great Barrier Reef.

14.31   The Environmental and Planning Law Committee in its submission to this ALRC inquiry, stated:

On  balance,  removing  strict  liability  for  offences  under  Commonwealth  environmental legislation would, in the EPLC’s view, significantly reduce the efficacy of the EPBC Act and  other  Commonwealth  environmental  legislation  in  deterring  environmental  crime.[41]

14.32   The ALRC did not receive any other submissions raising concerns about the imposition of strict liability for environmental offences.

14.33   The Environment Protection and Biodiversity Conservation Act 1999 (Cth) is the central plank of environmental regulation at the Commonwealth level.[42] It contains a number of strict liability offences. The effect of the majority of these provisions is that the prosecution does not need to prove fault in relation to a particular property or species being protected. [43] In justifying a number of these provisions to the Scrutiny of Bills Committee in 2006, the Minister stated:

The relevant offence provisions of the EPBC Act form part of a fundamental environmental regulatory regime that is aimed at protecting matters of national environmental significance. The application of strict liability to elements of these offences is considered appropriate for ensuring the maintenance of the integrity of the regulatory regime of the EPBC Act.[44]

14.34   Additionally, the Minister noted that strict liability is appropriate

where it has proved difficult to prosecute fault provisions … The experience of the [Department], as confirmed by the Commonwealth Director of Public Prosecutions, is that the requirement to prove a mental element (for example that a person knew or was reckless as to the fact that a species is a listed threatened species) is a substantial impediment to proving these offences.[45]

14.35   Strict liability has also been justified on the grounds that it overcomes a knowledge of law problem.[46]

14.36   By contrast, the Scrutiny of Bills Committee did not accept such justifications for similar provisions in the Fisheries Management Act 1991 (Cth). The relevant provisions impose strict liability to the element that a foreign fishing boat is located in the Australian Fishing Zone.[47]

14.37   In its consideration of the insertion of ss 100B and 101AA of the Fisheries Management Act 1991 (Cth), the Scrutiny of Bills Committee, in 2007, expressed an initial view that these provisions did not appear to comply with the principles set out in its report on the application of strict and absolute liability (Strict and Absolute Liability Report).[48]

14.38   The Strict and Absolute Liability Report states that where strict liability is imposed because proving fault is undermining the deterrent effect of the offence, there must be ‘legitimate grounds for penalising persons lacking ‘fault’ in respect of that element’.[49] The Scrutiny of Bills Committee

[was] concerned about the fairness of applying strict liability to the element of the location of a foreign fishing boat in the territorial sea of Australia when ‘the territorial sea is not generally depicted on Australian charts or charts issued under other jurisdictions’, thus making it virtually impossible for a foreign fishing boat to know whether or not it has entered the territorial sea.[50]

14.39   The ALRC has identified a number of provisions in the Great Barrier Reef Marine Park Act 1975 (Cth), which are potentially analogous. These provisions impose strict liability in relation to whether certain conduct was engaged within specified zones in theGreat Barrier Reef Marine Park, [51] and do not appear to have raised concerns with stakeholders or parliamentary scrutiny committees.