Justifications for imposing strict and absolute liability

14.82   The imposition of strict or absolute liability is a departure from a fundamental protection of the criminal law. The Strict and Absolute Liability Report concluded that the imposition of strict liability may be justified:

  • where it is difficult to prosecute fault provisions;

  • to overcome ‘knowledge of law’ issues, where a physical element incorporates a reference to a legislative provision;

  • where it is necessary to protect the general revenue; or

  • to ensure the integrity of a regulatory regime (eg, public health, the environment, financial or corporate regulation).[101]

14.83   Additionally, the following general principles apply in relation to the imposition of strict liability. The Strict and Absolute Liability Report stated that the following factors should be considered in imposing strict liability:

  • It should only be imposed after careful consideration of all available options, and where there is general public support and acceptance of the measure and the penalty.

  • It should not be imposed for mere administrative convenience, or based on a rigid formula. It is insufficient to rely on broad uncertain criteria (such as general public good or community interest), or solely on reduced resource requirements. Strict liability should only be imposed based on specific criteria/rationales.

  • It should not be imposed, where schemes are so complex and detailed that breaches are virtually guaranteed, or where parties must by necessity rely on information from third parties.

  • It should not be imposed, where it is accompanied by an excessive or unreasonable increase in agency powers of control, search, monitoring and questioning.

  • It should only apply for offences where the penalty does not include imprisonment, and where there is a cap of 60 penalty units for monetary penalties.

  • It should be accompanied by program specific defences which account for reasonable contraventions. These should be in addition to the defences in the Criminal Code.[102]

14.84   On the question of absolute liability, the Strict and Absolute Liability Report states that the imposition of absolute liability should be ‘rare and limited to jurisdictional or similar elements of offences’.[103] Additionally, it stated that it ‘may be acceptable [to impose absolute liability] where an element is essentially a precondition of an offence and the state of mind of the offender is not relevant’.[104]

14.85   The Human Rights Committee considers strict and absolute liability offences through the lens of the ICCPR. Strict and absolute liability is considered in the context of concerns which may arise about the presumption of innocence under art 14(2) of the ICCPR.

14.86   The Human Rights Committee noted that the imposition of strict or absolute liability will not violate art 14(2) where it pursues a legitimate aim, and is reasonable and proportionate to that aim.[105] Strict liability offences drafted in accordance with the principles set out in the Strict and Absolute Liability Report and the Guide to Framing Commonwealth Offences[106] are likely to satisfy the proportionality test set out above.[107] In relation to absolute liability, the Human Rights Committee has stated that imposing absolute liability on jurisdictional elements is unlikely to raise human rights concerns.[108]