6.1 Strict liability
Commonwealth Criminal Code: Guide for practitioners
6.1 Strict liability
(1) If a law that creates an offence provides that the offence is an offence of strict liability:
- (a) there are no fault elements for any of the physical elements of the offence; and
- (b) the defence of mistake of fact under section 9.2 is available.
(2) If a law that creates an offence provides that strict liability applies to a particular physical element of the offence:
- (a) there are no fault elements for that physical element; and
- (b) the defence of mistake of fact under section 9.2 is available in relation to that physical element.
(3) The existence of strict liability does not make any other defence unavailable.
Strict liability is a mode of criminal responsibility defined by the absence of any requirement of fault, coupled with the availability of the defence of reasonable mistake of fact, in addition to the general defences. The Code implicitly rejects attempts to rationalise strict liability as a form of liability for negligence, which might require the prosecution to prove a generalised absence of care or due diligence.132 The defining features of strict liability are the absence of any requirement of fault, whether for all or some of the physical elements of an offence, coupled with the provision of the defence of reasonable mistake of fact. Most of the general defences in Chapter 2, Part 2.3 - Circumstances in which there is no criminal liability are also available.133
6.1-A Specific provision is necessary before strict liability can be imposed with respect to physical elements of an offence
When liability is strict with respect to an element of an offence, the prosecution is not required to prove intention, knowledge, recklessness or negligence with respect to that element. An offence does not impose strict liability unless the “law that creates the offence provides” that liability is strict. This requirement of express provision is reinforced by 5.6 Offences that do not specify fault elements, which requires proof of fault when the law creating an offence fails to specify fault elements.
6.1-B Reasonable mistake of fact is a defence when liability is strict
Since strict liability is defined by the range of possible defences, and the defence of reasonable mistake of fact in particular, rather than any positive requirement of fault, further discussion is deferred to: 9.2 Mistake of fact (strict liability).
Compare He Kaw Teh (1985) 15 A Crim R 203 at 243-244 per Brennan J and at 253 per Dawson JJ. For the contrary view, see B Fisse, ibid, 512: “for practical purposes, liability to conviction subject to a defence of reasonable mistake of fact may be equated with liability based on negligence.” See, in addition, ibid, 504, 522, 616 on “due diligence” or “reasonable precautions”. Compare Wilson (1992) 61 A Crim R 63 at 66-67, per Mason CJ, Toohey, Gaudron and McHugh JJ on the development of negligence as a fault element in manslaughter.
Some of the provisions in Part 2.3 – Circumstances In Which There Is No Criminal Liability are not, in fact “defences”. See, in particular: 9.1 Mistake or ignorance of fact and 9.5 Claim of right. When liability is strict or absolute, the application of these “defences” will be barred or restricted.