10.10 There is a common law principle that presumes ‘mens rea, an evil intention, or a knowledge of the wrongfulness of the act, is an essential ingredient in every offence’. The general requirement of mens rea is said to be ‘one of the most fundamental protections in criminal law’, and it reflects the idea that
it is generally neither fair, nor useful, to subject people to criminal punishment for unintended actions or unforeseen consequences unless these resulted from an unjustified risk (ie recklessness).
10.11 Professors Andrew Ashworth and Jeremy Horder commented that:
The essence of the principle of mens rea is that criminal liability should be imposed only on persons who are sufficiently aware of what they are doing, and of the consequences it may have, that they can fairly be said to have chosen the behaviour and consequences.
10.12 In He Kaw Teh v The Queen,Brennan J explained the operation of mens rea as an element in criminal offences:
It is implied as an element of the offence that, at the time when the person who commits the actus reus does the physical act involved, he either—
(a) knows the circumstances which make the doing of that act an offence; or
(b) does not believe honestly and on reasonable grounds that the circumstances which are attendant on the doing of that act are such as to make the doing of that act innocent.
10.13 Historically, criminal liability at common law necessarily involved proof of mens rea. In Williamson v Norris, Lord Russell CJ said the ‘general rule of the English law is, that no crime can be committed unless there is mens rea’.
10.14 In his Commentaries on the Laws of England, William Blackstone wrote that, to ‘constitute a crime against human laws, there must be first a vitious will, and secondly, an unlawful act consequent upon such vitious will’.
10.15 Criminal offences are generally characterised in one of three ways:
mens rea offences—the prosecution must prove a physical element (actus reus) and a mental element (mens rea);
absolute liability offences—proof of mens rea is not required and the defence of reasonable mistake is not available.
10.16 In the mid to late 19th century, strict and absolute liability offences were increasingly created by statute, particularly so-called ‘regulatory offences’. Regulatory offences were designed to protect individuals from the risks that came with greater industrialisation and mass consumerism.
10.17 In Australia, the common law presumes that mens rea is an essential ingredient of a criminal offence is reflected in statute. Chapter 2 of of the Criminal Code codifies the general principles of criminal responsibility which apply to all Commonwealth offences. Offences are made up of physical elements (actus reus at common law) and fault elements (mens rea at common law).
10.18 A law may expressly provide that there is no fault element for one or more physical elements of an offence. If an offence is designated as a strict or absolute liability offence, no fault elements apply to all of the physical elements of the offence. If strict or absolute liability is designated to apply to a physical element of an offence, no fault elements apply to that physical element. A defence of an honest and reasonable mistake of fact applies only in relation to strict liability offences. Different fault elements may apply to different physical elements of an offence.
10.19 Where an offence is silent on the fault element that applies to one or more physical elements of the offence, s 5.6 operates to impose a default fault element. If the physical element relates to conduct, the prosecution must prove intention in relation to that conduct (that is, that the conduct was intended). If the physical element relates to a circumstance or result, the prosecution must prove recklessness in relation to that circumstance or result.
10.20 A number of Commonwealth laws expressly impose strict or absolute liability on some physical elements of an offence. Most commonly, these relate to technical or jurisdictional elements, and as such don’t offend the common law principle. However, problems arise when strict or absolute liability applies to physical elements that would normally require fault to render them culpable. Professor Jeremy Gans submitted:
Some physical elements of a criminal offence almost never lack subjective intent in practice (eg most conduct) and many others in Commonwealth legislation are technical/jurisdictional elements with no relevance to responsibility. The relevant question is whether or not absolute/strict liability applies to any element of a Commonwealth offence that may plausibly be committed without subjective intent or knowledge and that is relevant to criminal responsibility.
10.21 Accordingly, this chapter focuses on laws which impose strict or absolute liability on physical elements that would normally require fault to render them culpable.
Sherras v De Rutzo  1 QB 918, 921.
Attorney-General’s Department (Cth), A Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers (2011) [2.26].
Andrew Ashworth and Jeremy Horder, Principles of Criminal Law (Oxford University Press, 7th ed, 2013) 155.
He Kaw Teh v The Queen (1985) 157 CLR 523, 582.
Sir William Holdsworth, A History of English Law (Methuen, 2nd ed, 1937) vol 8, 432.
Williamson v Norris  1 QB 7, 14.
William Blackstone, Commentaries on the Laws of England, (Clarendon Press reprinted by Legal Classics Library, first published 1765–1769, 1983 ed) vol IV, bk IV, ch 2, 21.
At common law, strict liability does not extend to criminal conduct. However, Parliament may impose strict (or absolute) liability on an offence by statute.
Generally, an honest and reasonable mistake in a set of facts, which, if they had existed, would make the defendant’s act innocent, affords an excuse for doing what would otherwise be an offence: Proudman v Dayman (1941) 67 CLR 536, 541 (Dixon J).
Wampfler v The Queen (1987) 67 CLR 531. See further, Australian Law Reform Commission, Principled Regulation: Federal Civil and Administrative Penalties in Australia, Report No 95 (2003) [4.4].
Before this time, convictions for criminal offences without proof of intent were found ‘only occasionally, chiefly among the nuisance cases’: Francis Bowes Sayre, ‘Public Welfare Offenses’ (1933) 33 Columbia Law Review 55, 56. ‘Whereas at common law, it was generally true to say that to convict D, P had to prove actus reus and mens rea, in modern times a doctrine has grown up that in certain classes of statutory offences, which may be called for convenience ‘regulatory offences’, D can be convicted on proof by P of actus reus only’: Colin Howard, Strict Responsibility (Sweet & Maxwell, 1963) 1.
Criminal Code s 3.1(1).
Ibid ss 6.1(1), 6.2(1).
Ibid ss 6.1(2), 6.2(2).
Ibid ss 6.1, 6.2.
Ibid s 3.1(2).
Ibid s 5.6(1).
Ibid s 5.6(2).
See, eg, Corporations Act 2001 (Cth) ss 200B, 791A, 820A, 952J; Customs Act 1901 (Cth) ss 96A, 99–102A, 102CK, 102DE, 102FA, 105C, 112; Environment Protection and Biodiversity Conservation Act 1999 (Cth) ss 15A, 15C, 17B, 207B, 229; Great Barrier Reef Marine Park Act 1975 (Cth) ss 38BC, 38BD, 38EA, 61AAC, 61ACB.
For example, strict liability is imposed with respect to the fact that the conduct occurred within a protected zone: Environment Protection and Biodiversity Conservation Act 1999 (Cth) s 15A. Another example is, where a provision makes it an offence to give a defective disclosure document or statement, strict liability is imposed in relation to whether the person is a financial services licensee, and whether they gave or made the document available to another person: Corporations Act 2001 (Cth) s 952E. In relation to a provision that goods should not be transferred between certain vessels, strict liability is imposed on the circumstance that an aircraft is making an international or prescribed flight or voyage: Customs Act 1901 (Cth) s 175. Absolute liability is imposed in some corporate offences, in relation to whether an entity was a company at the time of the offence: Corporations Act 2001 (Cth) s 592. In relation to aggravated people smuggling offences, absolute liability applies to the circumstance that at least five of the persons entering a foreign country are not citizens or permanent residents of that country: Criminal Code s 73.3.
For example, in relation to theft and other property offences, absolute liability is imposed on the circumstance that the Commonwealth owned or occupied the property: Customs Act 1901 (Cth) s 33L; Criminal Code ss 131.1, 132.4, 134.1. Another example relates to offences relating to fraudulent conduct, where absolute liability is imposed on the circumstance that the person or entity (to whom the fraudulent statements were made) was a Commonwealth public official or Commonwealth entity: Ibid ss 134.2, 135.1, 135.2, 136.1, 137. These are referred to as jurisdictional elements, as a connection with the Commonwealth is necessary to demonstrate a connection with the Commonwealth’s power to legislate under the Constitution.
See, eg, Criminal Code s 102.5(2)(b).
J Gans, Submission 2.