Absolute liability and environment protection: is criminal liability without fault desirable in principle or in practice.

The purpose of this thesis is to examine criminal liability without fault, both the doctrine and the law in action in the context of environment protection in order to reach a conclusion as to whether liability of this nature is desirable either in principle or in practice. The imposition of criminal liability without fault, it is claimed, is necessary to ensure effective enforcement of public welfare offences. The circumstances in which such liability may be imposed are far from certain. Parliaments, in the past and at the present time, enact statutory provisions imposing criminal liability without expressly stating whether fault is, or is not, required to be proven, thus abdicating the task of determining that issue to our courts. Courts carry out that task using a process of statutory interpretation which is imprecise, open ended and susceptible to individual value judgment. Courts in Australia and elsewhere continue to impose criminal liability in it most absolute form, despite strong criticism, even where the offences involved are more than minor regulatory breaches. It is also claimed, by proponents of liability of this nature, that those empowered to administer the enforcement of criminal provisions of this kind arc endowed with discretionary decision making powers which are exercisable in a manner which mitigates the harshness of absolute liability laws, thereby, it is argued, meeting the most obvious criticism that liability without fault has the potential to punish all who commit a breach of the law, whether blameworthy or not.' An examination of both claims will be undertaken below. The dual focus of this diesis necessitates an examination in two parts. In Part One, liability without fault, as a matter of principle, will be considered. This will involve discussion of absolute liability and the alternatives to this most stringent form of criminal liability. Specific focus will be on the issue of whether absolute liability is a desirable basis for liability in the area of environment protection, or whether an alternative basis for liability would provide a sounder underpining upon which to develop the law and achieve compliance with its objectives. In Part Two, the nature of, and the manner in which, discretionary enforcement of environmental laws is carried out will be considered, in order to determine if objections raised against liability without fault are, in fact, in practice at least, rendered otiose.