Justifications for encroachments

12.14   Professor Richard Singer has written that defences of strict liability crimes essentially rest on four grounds:

(1)     only strict criminal liability can deter profit-driven manufacturers and capitalists from ignoring the well-being of the consuming public;

(2)     the inquiry into mens rea would exhaust courts, which have to deal with thousands of ‘minor’ infractions every day;

(3)     the imposition of strict liability is not inconsistent with the moral underpinnings of the criminal law generally because the penalties are small, and conviction carries no social stigma;

(4)     the legislature intended to create strict liability, and can constitutionally do so.[15]

12.15   Ashworth and Horder write:

The main argument [for strict liability offences] is a form of protectionism or ‘social defence’. It maintains that one of the primary aims of the criminal law is the protection of fundamental social interests. Why should this function be abandoned when the violation of those interests resulted from some accident or mistake by D?[16]

12.16   Strict liability offences began to be developed in the mid to late 19th century.[17] Regulatory offences were created that were designed to protect individuals from the risks that came with greater industrialisation and mass consumerism. For example, Professor Richard Singer highlights England’s Sale of Food and Drug Act 1860 as one of the first legislative moves towards strict liability.[18]

12.17   A landmark English strict liability case is R v Woodrow (1846)in which a tobacco supplier was convicted of selling adulterated tobacco despite having no knowledge of this fact.[19] On appeal, the Court of Exchequer held that while a conviction was appropriate, so too was a smaller penalty.[20]R v Woodrow and subsequent decisions marked the ‘conscious beginning in England of the movement to do away with the requirement of mens rea for petty police offences’.[21]

12.18   Some may argue that because it is easier to convict a person of a strict liability offence, strict liability offences are a more effective deterrent to criminal conduct.[22] For example, people may be less likely to drive dangerously if they know they can be convicted of a driving offence whether or not it can be shown that they intended to drive dangerously.[23]

12.19   Another reason sometimes given to justify strict liability offences is that it is onerous on the prosecution to prove the state of mind of the accused.[24] ‘The inquiry into mens rea would exhaust courts, which have to deal with thousands of “minor” infractions every day.’[25]

12.20   In some cases strict or absolute liability offences may also assist prosecuting agencies where offences need to be dealt with expeditiously to ensure public confidence in the regulatory regime.[26]

12.21   The Commonwealth Guide to Framing Offences 2011 provides that the application of strict and absolute liability to all physical elements of a criminal offence should only be considered appropriate where:

The punishment of offences not involving fault is likely to significantly enhance the effectiveness of the enforcement regime in deterring offences.

There are legitimate grounds for penalising persons lacking ‘fault’, for example because they will be placed on notice to guard against the possibility of any contravention. In the case of absolute liability, there should also be legitimate grounds for penalising a person who made an honest and reasonable mistake of fact.[27]

12.22   Although some laws that apply strict or absolute liability to all physical elements of a criminal offence may be justified, the ALRC invites submissions identifying laws that are not justified, and explaining why these laws are not justified.