08.12.2014

Protections from statutory encroachments

Australian Constitution

12.11 The Australian Constitution does not expressly require that criminal offences include the element of mens rea.

Principle of legality

12.12 The principle of legality provides some protection to the principle of mens rea.^[12] When interpreting a statute, courts will presume that Parliament did not intend to create a strict liability offence, unless this intention was made unambiguously clear.^[13]

12.13 In He Kaw Teh (1985), a majority of the High Court interpreted a provision in the Customs Act 1901 (Cth), which made it an offence to import drugs, as requiring the prosecution to prove that the defendant had an intention to traffic the drugs. Gibbs CJ stated:

[i]t is unlikely that the Parliament intended that the consequences of committing an offence so serious should be visited on a person who had no intention to do anything wrong and no knowledge that he was doing so.^[14]

[12]
The principle of statutory interpretation now known as the ‘principle of legality’ is discussed more generally in Ch 1.
[13]
He Kaw Teh v R (1985) 157 CLR 523, 528 (Gibbs CJ); Sherras v De Rutzo [1895] 1 QB 918.
[14]
He Kaw Teh v R (1985) 157 CLR 523, 530 (Gibbs CJ).