Robert Ray (Victoria, Australian Labor Party) Share this | Link to this | Hansard source

I present the sixth 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. 6 of 2007, dated 13 June 2007.

Ordered that the report be printed.

I move:

That the Senate take note of the report.

In tabling the committee’s Alert Digest No. 6 of 2007, I would like to draw the Senate’s attention to two bills that seek to establish offences of strict liability, the Fisheries Legislation Amendment Bill 2007 and the Corporations Amendment (Insolvency) Bill 2007.

Proposed new subsection 100B(1A) of the Fisheries Management Act 1991, to be inserted by item 5 of schedule 2 of the Fisheries Legislation Amendment Bill 2007, and proposed new subsection 101AA(1A) of the same act, to be inserted by item 7 of schedule 2 of the bill, apply strict liability to the element of the location of a foreign fishing boat in the Australian fishing zone, contained in the offences in sections 100B and 101AA of that act. The result of these proposed amendments is that, in a prosecution under either of those sections, the prosecution will only have to establish that fishers were in the territorial sea of Australia, not that they intended to be in such waters.

The Guide to Framing Commonwealth Offences, Civil Penalties and Enforcement Powers states that applying strict liability to a particular physical element of an offence, as is proposed in this instance, may be considered appropriate where there is ‘demonstrated evidence that the requirement to prove fault of that particular element is undermining or will undermine the deterrent effect of the offence, and there are legitimate grounds for penalising persons lacking “fault” in respect of that element.’

The explanatory memorandum to the bill seeks to justify the imposition of strict liability on the basis that the ‘Commonwealth Director of Public Prosecutions has not been able to prosecute people for these offences because there have been difficulties collecting sufficient evidence to prove that the people intended to be in the territorial sea.’ However, the explanatory memorandum does not outline what ‘demonstrated evidence’ there is to support this assertion and the committee remains unclear about the extent to which the imposition of strict liability in these instances is consistent with the guide.

Proposed new subsection 161A(4) of the Corporations Act 2001, to be inserted by item 50 of schedule 1 of the Corporations Amendment (Insolvency) Bill 2007, creates an offence of strict liability in respect of certain companies which fail to set out their former name on all of their public documents and negotiable instruments. The explanatory memorandum states only that these offence provisions are ‘comparable to existing subsection 541(2)’ of the Corporations Act 2001, and that ‘several other offence provisions in the [Corporations] Act have similar penalties’.

The explanatory memorandum does not indicate whether the Guide to Framing Commonwealth Offences, Civil Penalties and Enforcement Powers has been taken into account in framing these offences. The guide states that the application of strict liability to all physical elements of an offence is generally only considered appropriate where, among other matters, the offence is not punishable by imprisonment. However, item 121 of schedule 1 of this bill would increase the penalty for an offence against which these strict liability provisions apply to 10 penalty units or imprisonment for three months or both. The explanatory memorandum provides no explanation for this apparent deviation from the guide.

The committee recognises that the imposition of strict liability offences may be warranted by a range of circumstances; however, fault liability is one of the most fundamental protections of criminal law and to exclude this protection is a serious matter. Where a bill seeks to impose an offence of strict liability, the committee expects that the explanatory memorandum will clearly demonstrate that the Guide to Framing Commonwealth Offences, Civil Penalties and Enforcement Powers has been consulted by documenting the evidence supporting the imposition of these offences and providing a clear rationale for any deviation from the guide. The committee has sought advice from the relevant ministers with respect to each of these bills. Pending the receipt of this advice, I draw the Senate’s attention to these bills.

Ian Macdonald (Queensland, Liberal Party) Share this | Link to this | Hansard source

I am not a member of this committee but used to be at one stage. Fortuitously, I am in the chamber dealing with the next report. In response to Senator Ray’s comments about the fisheries bill and his seeking some advice as to why the strict liability offences were included, I refer Senator Ray to and remind him of the chase of the Viarsa. That incident occurred when the Australian patrol vessel the Southern Supporter came across the Viarsa in Australian territory and then proceeded to chase it all the way across three oceans through 30-metre seas and ice floes and apprehended it, with the assistance of the South African Navy and the British fisheries vessel out of the Falklands, not far from Montevideo, where the Viarsa was running to.

We brought the vessel back to Australia and then a couple of years of legal procedures transpired. The jury were hung in the first instance and were discharged, and the second jury trial went for quite a number of weeks. There were a lot of returns for directions by the judge, and there appeared to be one juror holding out but eventually all of the jurors found that the offences were not proved beyond a reasonable doubt under the standard of proof required.

I only relate this to say that it is very difficult in these types of areas to pinpoint on a map exactly where a vessel was and what its intention was. Obviously, the Commonwealth and the DPP thought they had sufficient evidence for the jury to convict—hence the two trials—but in the end result the jury were not convinced. I, of course, was not on the jury. But it was very difficult to prove the point and to get the conviction. As it turned out, we were able to forfeit the boat and the fuel and the patagonian toothfish on board, but that was under another element of the same act.

So it was following those instances and a couple of others like it—where the difficulty in pinpointing particular locations in a vast ocean away from the normal support you would get to do that sort of pinpointing was evident—that instructions were given to the department to try and come up with some way that we could get convictions for people who quite clearly were, although it could not be proved to the jury, fishing illegally in Australian waters.

As a former lawyer, I understand Senator Ray’s hesitation about strict liability offences. They are offences that should only ever be legislated for in extreme circumstances. But I think this instance is one where those strict liability offences are very appropriate. No doubt, when the bill comes before the chamber, these matters will be gone into at greater length. But I thought it might be helpful to advise the chamber, at least in that instance and the instance of the fisheries amendment bill, of the background to why those strict liability offences have been included.

Question agreed to.