6.2 Absolute liability

Commonwealth Criminal Code: Guide for practitioners 

6.2 Absolute liability

(1) If a law that creates an offence provides that the offence is an offence of absolute liability:

  1. (a) there are no fault elements for any of the physical elements of the offence; and
  2. (b) the defence of mistake of fact under section 9.2 is unavailable.

(2) If a law that creates an offence provides that absolute liability applies to a particular physical element of the offence:

  1. (a) there are no fault elements for that physical element; and
  2. (b) the defence of mistake of fact under section 9.2 is unavailable in relation to that physical element.

(3) The existence of absolute liability does not make any other defence unavailable.

Overview

Absolute liability and strict liability are alike in the absence of any requirement that the prosecution prove intention, knowledge, recklessness, negligence or any other variety of fault. The sole difference between these modes of criminal responsibility is that absolute liability does not even permit a defence of reasonable mistake of fact. Absolute liability is comparatively uncommon in state and territorial law. Instances commonly involve displacement of the common law defence of reasonable mistake of fact by specialised statutory defences which may narrow the scope of the common law defence or place the burden of proof on the accused.134 In Commonwealth law the imposition of absolute liability, though frequently encountered, is usually restricted to those elements of offences which mark the constitutional or conventional limits of Commonwealth criminal jurisdiction. So, for example, CC 147.2 - Threatening to cause harm to a Commonwealth public official, requires proof of a threat to a person whom the offender knew to be a public official.  Liability is absolute, however,   with respect to the circumstance that the official is employed by the Commonwealth, rather than a state or territory. It  may often be the case  that offenders against provisions of this kind act in complete ignorance of  the fact that their conduct causes injury to Commonwealth  rather  than state or territorial interests. But ignorance or mistake on this score, however rational or however common, ordinary, expected or “reasonable”, is no excuse at all. The fact that the victim of criminal conduct was a Commonwealth rather than state or territorial official marks a jurisdictional boundary; it is not a distinction which bears on culpability.

When liability is absolute 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. Liability is not absolute unless the “law that creates the offence provides” that liability is absolute:   s6.2(1),   (2). 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.

Liability without fault and without even the possibility of a defence of reasonable mistake of fact is occasionally imposed when legislatures seek the deterrent effect of automatic penalties for breach of statutory offences dealing with safety hazards. Sometimes absolute liability is imposed in legislation which then goes on to provide a set of specialised defences, which usually cast the burden of proof on the defendant.135 In Commonwealth law, provisions which impose absolute liability usually do so with respect to a physical element which marks a jurisdictional boundary between matters of Commonwealth and state or territorial competence.  There is no necessity   or justification for a requirement of proof of fault or the provision of a defence of reasonable mistake with respect to matters of this kind.

  1. See, for example, Allen v United Carpet Mills PL (1989) VR 323; Holloway v Gilport PL (1995) 79 A Crim R 76. For references on defences of “due diligence” which often accompany the imposition of “absolute liability”, see S Bronitt & B McSherry, Principles of Criminal Law (2001) 351-352.

  2. For an instance in pre-Code law, see Chief of the General Staff v Stuart (1995) A Crim R 529 (defence of “reasonable steps”).