Wednesday, 19 September 2007
Scrutiny of Bills Committee; Report
I present the 10th report of 2007 of the Senate Standing Committee for the Scrutiny of Bills. I also lay on the table Scrutiny of Bills Alert Digest No. 12 of 2007, dated 19 September 2007.
Ordered that the report be printed.
That the Senate take note of the report.
In tabling the committee’s Alert Digest No. 12 of 2007 and the 10th report of 2007, I would like to advise the Senate that the committee has not had the opportunity to consider the Australian Crime Commission Amendment Bill 2007, which was introduced in and passed by the Senate yesterday. While, pending the election, any comments that the committee may have on the bill will be included in a future Alert Digest, this will obviously be too late to inform the Senate debate on this bill, which is unfortunate.
I would, however, like to draw the Senate’s attention to a bill that has been reported on in Alert Digest No. 12 of 2007—the Financial Sector Legislation Amendment (Review of Prudential Decisions) Bill 2007. This bill includes numerous provisions that create offences of strict liability. Under the Criminal Code, if a law that creates an offence provides that the offence is one of strict liability, there are no fault elements for any of the physical elements of the offence. This means that, for example, the prosecution has to prove only that the person committed the act in question, not that they intended to do so.
The committee recognises that strict liability offences are appropriate in some circumstances. In particular, strict liability may be appropriate where it is necessary to ensure the integrity of a regulatory regime such as public health or financial or corporate regulation. The committee is of the view, however, that fault liability is one of the most fundamental protections of criminal law and that to exclude this protection is a serious matter. Where legislation seeks to apply strict liability to an offence, the explanatory memorandum to the bill should clearly explain, on a case by case basis, why strict liability is considered appropriate in the particular circumstances of that offence.
Such explanations should clearly demonstrate that the principles outlined in the Guide to the Framing of Commonwealth Offences, Civil Penalties and Enforcement Powers have been taken into account. The committee’s sixth report of 2002, Application of absolute and strict liability offences in Commonwealth legislation, also outlines a number of principles that the committee considers important to the application of strict liability. Under no circumstances should the imposition of strict liability be justified by reference to broad, uncertain criteria such as the ‘public good’.
In the case of the Financial Sector Legislation Amendment (Review of Prudential Decisions) Bill 2007, the explanatory memorandum seeks to justify the application of strict liability on the basis that these are:
… offences for non-compliance with basic regulatory requirements that should be complied with by all persons.
The committee’s view is that one could argue that all laws, by their very nature, should be ‘complied with by all persons’ and that this is not, therefore, a justification for applying strict liability to these particular offences.
It is also of concern to the committee that this is not the first time that we have seen this justification for the application of strict liability. The explanatory memorandum to the Financial Sector Legislation Amendment (Simplifying Regulations and Review) Bill 2007 also sought to justify strict liability offences on the same basis. The committee commented on that bill in its 8th report and is awaiting advice from the Treasurer.
The committee has written in similar terms to the Treasurer about the Financial Sector Legislation Amendment (Review of Prudential Decisions) Bill. Pending receipt of that advice, I draw these provisions to the attention of senators.
Question agreed to.