14.19 There are a range of Commonwealth laws that could be said to impose strict or absolute liability. The Terms of Reference for this Inquiry asked the ALRC to include consideration of Commonwealth laws in commercial and corporate regulation, environmental regulation and workplace relations law that impose strict liability. This chapter will examine these areas, as well as some laws that arise in the following areas:
customs and border protection legislation
national security legislation; and
14.20 The imposition of absolute liability is relatively rare, and is largely confined to technical or jurisdictional elements. Some notable exceptions arise in relation to customs and border protection and national security.
For example, absolute liability is imposed on elements relating to the value of the property and cash (in the proceeds of crime context), the time period in which the conduct occurred, or whether the conduct contravenes particular legislation: Criminal Code (Cth) ss 360.2, 360.3, 400.3(4)–400.7(4). Another example relates to extradition. A nominal offence is created to facilitate prosecution in lieu of extradition. It applies where a person is remanded by a magistrate under s 15 of the Extradition Act 1988 (Cth), and the person engaged in conduct outside Australia which would have constituted an offence if it had occurred in Australia: Extradition Act 1988 (Cth) s 45. Absolute liability applies to these two elements, on the basis that the prosecution would have to prove all elements of the underlying offence beyond reasonable doubt. These elements are technical elements, and if the prosecution, for instance, could prove all the fault elements relating to the offence of murder, it should not also be required to prove that the defendant knew or was reckless to the fact that murder constitutes an offence under Australian law.