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

Thank you, Senator Anning. I will respond in a moment, but, if you go to the details of the bill, you find that if the person does produce, supply or provide a service providing such a tool, they will not commit an offence if they can show they have made an honest mistake of fact, satisfying the requirements under the defence under section 9.2 of the Criminal Code. That is the way that the Criminal Code is established.

But to respond specifically to your point, if we compare the baseball bat, as you say, which of course could be used to commit an offence—but in most cases a baseball bat of course has the very legitimate use of being used for baseball—that is a very different thing from technology that effectively only has one purpose, and the one purpose is to avoid Australia's taxation laws. If it were for simply the possession of something which, in and of itself is lawful and has a legitimate use—as per your example of the baseball bat, and I'm sure you could come up with many, many other examples—I think I would be in agreement with you, Senator Anning, on how this could be an unjust law.

But what we are talking about here is technology that is developed simply for the purposes of avoiding Australian law. Because of the very nature of the thing that is being possessed, the software in this case, we have to have laws against it because, if we don't, it will make it very, very difficult to deal with this problem. But, from a justice point, as I say, a person innocently possessing something which may or may not be used to breach other laws—such as your example of a baseball bat—is categorically different to something that is specifically designed to breach the law, to get around laws and to facilitate the rorting of potentially billions of dollars over time. I think that is categorically different and I think it should be seen as different. I think it's important that we have debates around things like strict liability, but I think this is a very clear-cut case of where strict liability is just and right—and, of course, there are legitimate defences for where a person has acted honestly and there is an honest mistake involved.