12.01.2016
10.1 It is an important principle of the common law that a person generally should not be criminalised for committing a physical act (actus reus) without an accompanying ‘guilty mind’ (mens rea). However, some statutes impose strict or absolute liability on one or more physical acts, meaning that proof of mens rea is not required.
10.2 This chapter considers examples of offences where strict or absolute liability is imposed on anyphysical element of an offence. It discusses the source and rationale of the common law principle; how it is protected from statutory encroachment; and when Commonwealth laws that impose strict or absolute liability may be justified.
10.3 Strict liability offences do not require proof of fault, and provide for a defence of an honest and reasonable mistake of fact. It is generally considered justified to impose strict liability to protect public health, safety and the environment. It may also be imposed for regulatory offences. The general principle is that strict liability may be imposed where a person is placed on notice to guard against the possibility of inadvertent contravention.
10.4 A defence of an honest and reasonable mistake of fact is not available for absolute liability offences. Such offences usually arise when an element is essentially a pre-condition of the offence, and the state of mind of the defendant is not relevant.
10.5 There are strict and absolute liability offences across many areas of law, including corporate and commercial regulation, environmental regulation, work health and safety, customs and border protection, counter-terrorism and national security, and copyright.
10.6 Some areas of particular concern have been identified. These include:
various counter-terrorism offences provided under sch 1 of the Criminal Code Act 1995 (Cth) (Criminal Code) and ss 20 and 21 of the Charter of the United Nations Act 1945 (Cth);
reporting requirements under customs legislation; and
the imposition of strict liability in relation to commercial scale infringement offences in copyright law.
10.7 Counter-terrorism and national security laws, including those mentioned above, should be subject to further review to ensure that the laws do not unjustifiably impose strict or absolute liability, or encroach upon other rights and freedoms. Further review on this basis could be conducted by the Independent National Security Legislation Monitor (INSLM) and the Parliamentary Joint Committee on Intelligence and Security.
10.8 The Productivity Commission may wish to consider the imposition of strict liability in relation to commercial scale copyright infringement offences as part of its review of Intellectual Property arrangements.
10.9 Finally, strict and absolute liability provisions should be reviewed to ensure they provide a consistent and uniform standard of safeguards.