The Code recognises two forms of liability without fault. Liability is strict with respect to a particular physical element of an offence if it is unnecessary to prove fault, but a defence of reasonable mistake of fact with respect to that element bars liability for the offence: 9.2 Mistake of fact (strict liability). Liability is absolute with respect to that element when the prosecution is not required to prove fault and reasonable mistake of fact is no excuse. Terminology has varied in descriptions of these forms of liability. Chapter 2 resolves the terminological issue by stipulation.131 Liability is “strict” to the extent that the prosecution is absolved from the obligation to prove intention, knowledge, recklessness or negligence with respect to one or more elements of the offence. The defence of reasonable mistake of fact remains open, as do the other general defences “Absolute” liability is an accepted and conventional misnomer. Proof of fault is unnecessary of course. But apart from the defence of reasonable mistake of fact, which is barred, the full range of Code defences is available when liability is absolute.
Section 6.1 distinguishes between an offence of strict liability and offences in which strict liability is imposed with respect to some, though not all, physical elements. The same distinction appears in s6.2, which distinguishes between an offence of absolute liability and an offence which imposes absolute liability for some, though not all, physical elements. Though it has been common to ignore these distinctions in general references to “offences of strict liability” and “offences of absolute liability” there are comparatively few offences which fit the first of these descriptions and hardly any which fit the second. It is far more common to encounter offences which dispense with fault requirements for some, but not all, physical elements. Section 5.6(1) expresses a fundamental principle that the act, omission or state of affairs which lies at the core of the offence must be intentional. Most offences require proof that the offender did something and did it intentionally, though strict or absolute liability may be imposed for circumstances or results of that act of which the offender was completely and perhaps excusably ignorant. When Commonwealth legislation dispenses entirely with any requirement of proof of fault for each element of the offence, so creating an offence of strict or absolute liability, it does so by explicit provision.
