Ignorance or mistake as to the existence of subordinate legislation creating an offence is no excuse. The rule for subordinate legislation is cast in identical terms to the rule for statutes, but provision is made for a true defence in the exceptional case where the subordinate legislation has not been published. The defendant is excused if
- copies of the subordinate legislation have not been available, whether by sale or otherwise, to the public or to persons likely to be affected by it; and
- the defendant could not have become aware of the existence of the offence even if due diligence had been exercised.
The reference to “subordinate legislation” means an instrument of legislative character made under or in force under an Act. This will apply to regulations, orders, statutory instruments and the like.
Since this is a defence, not a denial of any fault element which the prosecution is bound to prove, the defendant bears the evidential burden: 13.3 Evidential burden of proof – defence. The defendant must adduce evidence both that the subordinate legislation was not published and that its content could not have been ascertained by the exercise of due diligence.
Section 22(3) of the Queensland Criminal Code provides a similar defence, though it is narrower in scope than the Code provision. Under the Queensland Criminal Code, ignorance or mistake relating to a statutory instrument is no excuse if it has been published in the Government Gazette. The Code provision, which applies when “copies of the subordinate legislation have not been made available to the public or persons likely to be affected,” would not bar the defence simply because the legislation has been published in the Government Gazette.231
