Zed Seselja (ACT, Liberal Party, Assistant Minister for Treasury and Finance) Share this | Hansard source

I might just briefly respond to Senator Anning's contribution. Senator Anning, the government and I obviously disagree with a number of the points that you are making. It is disappointing that you won't be supporting what I think is a very important piece of legislation.

What you are seeking to address, as I understand it, is in relation to particularly the strict liability offences that are contained within the bill. Senator Anning, you would be well aware that strict liability is used in a number of cases where it is reasonable to assume that a person has a duty, and knows that they have a duty, to comply with the law. For instance, it's used in all sorts of offences. It's used in things like traffic offences where, even though we may not have meant to go 90 in that 80 zone, we had a responsibility to make sure we stayed under the speed limit. It is used in a range of key regulatory areas where the idea of proving the mental or default element would be particularly difficult. If you look at the black economy and what is identified, there are some existing provisions about tax avoidance and the like. However, in many cases being able to prove the mental or the fault element, as it's known, is actually quite challenging. So, if we look at things like sales suppression software, it is difficult to mount an argument as to why someone would have sales suppression software installed for any other purpose other than to avoid paying their fair share of tax.

So, while I understand the arguments you are making, Senator Anning, I think it is an incorrect conclusion, and to use some of the language that you used in your contribution, when what we are talking about is getting to the heart of what is a very, very dangerous thing and a growing part of the economy, the black economy. We're talking estimates of around $50 billion. Things like sales suppression software could potentially facilitate a significant expansion of the black economy. The government's view is that, where it is very, very difficult to mount an argument as to what possible circumstances—other than for the purposes of avoiding tax—anyone would have for possessing or distributing this kind of technology, a strict liability offence isn't reasonable in those circumstances.

I would also make the point, Senator Anning, that strict liability offences of course are not absolute liability. There are defences where there is a reasonable excuse—for example, where software was uploaded without someone's knowledge or consent—but strict liability offences place an evidentiary burden on the individual who is faced with the claims or the charges being brought against them, and if that evidentiary burden can be met then the prosecution has to respond to that.

I understand, philosophically, strict liability offences have been with us for a long time. I think they are used cautiously, but in this case, where we are looking at the proliferation of technology which has the potential to rip off Australian taxpayers to the tune of billions—perhaps tens of billions of dollars—over time and dealing with technology where it would be very difficult to design a circumstance where someone would have it innocently other than in circumstances where there is some form of sabotage which, of course, strict liability offences enable someone to make that argument, I think that this is a very reasonable use of strict liability offences. I don't agree with your assertions, and I think that what this will fundamentally be doing is ensuring that a class of people who are very difficult to prosecute at the moment—those who are deliberately and systematically rorting the tax system—would be captured in this net. Strict liability offences are one very legitimate way of doing that.