188 Nevertheless, Brennan J did not dispute the English line of authority regarding "regulatory offences" that such offences, where they may involve contravention of a statute regulating public safety, for example, have been regarded as absolute. Other members of the Court in He Kaw Teh also recognised the existence of regulatory offences: see Gibbs CJ (with whom Mason J agreed) at 533, 535 and Dawson J at 594 - 595 where his Honour stated:
Resort must then be had to the subject-matter or character of the legislation. Attempts have been made to categorize those offences which have been regarded as absolute, but the result is only helpful in a broad sense and the recognized categories cannot be regarded as exhaustive. It is generally accepted that statutes which create offences for the purpose of regulating social or industrial conditions or to protect the revenue, particularly if the penalty is monetary and not too large, may more easily be regarded as imposing absolute liability. This approach may be displaced if to regard an offence as one of absolute liability could not promote the object of the legislation by making people govern their behaviour accordingly. See Lim Chin Aik v. The Queen (1963) AC 160. Conduct prohibited by legislation which is of a regulatory nature is sometimes said not to be criminal in any real sense, the prohibition being imposed in the public interest rather than as a condemnation of individual behaviour. On the other hand, if a prohibition is directed at a grave social evil, the absolute nature of the offence may more readily be seen, particularly if proof of intent would be difficult and would represent a real impediment to the successful prosecution of offenders.
189 The question of what constituted a regulatory offence was considered in R v Davies at 591 - 593. The UK health and safety laws and the English authorities have a particular relevance here. As I shall later explain, the New South Wales 1983 OHS Act was modelled on the Health and Safety at Work etc Act 1974 (UK), which provides in s 3(1):
It shall be the duty of every employer to conduct his undertaking in such a way as to ensure, so far as is reasonably practicable, that persons not in his employment who may be affected thereby are not thereby exposed to risks to their health and safety.
190 In explaining the notion of regulatory offences, and after considering the nature of the Health and Safety at Work etc Act, the Court in Davies stated:
[15] The first point to be noted about the legislation is that it is regulatory rather than prescriptive. This is important in the balancing exercise. Lord Clyde in R v Lambert [2002] 2 AC 545, 609, para 154, having said that the statutory provision in question (section 28 of the Misuse of Drugs Act 1971) could not be justified because the offence carried a sentence of life imprisonment, continued:
"A strict responsibility may be acceptable in the case of statutory offences which are concerned to regulate the conduct of some particular activity in the public interest. The requirement to have a licence in order to carry on certain kinds of activity is an obvious example. The promotion of health and safety and the avoidance of pollution are among the purposes to be served by such controls. These kinds of cases may properly be seen as not truly criminal. Many may be relatively trivial and only involve a monetary penalty. Many may carry with them no real social disgrace or infamy."
[16] The reasons for the distinction between truly criminal and regulatory offences were spelt out cogently by Cory J in the Canadian Supreme Court in R v Wholesale Travel Group Inc [1991] 3 SCR. He expressed the rationale for the distinction as follows, at p 219:
"The objective of regulatory legislation is to protect the public or broad segments of the public (such as employees, consumers and motorists, to name but a few) from the potentially adverse effects of otherwise lawful activity. Regulatory legislation involves a shift of emphasis from the protection of individual interests and the deterrence and punishment of acts involving moral fault to the protection of public and societal interests. While criminal offences are usually designed to condemn and punish past, inherently wrongful conduct, regulatory measures are generally directed to the prevention of future harm through the enforcement of minimum standards of conduct and care.
"It follows that regulatory offences and crimes embody different concepts of fault. Since regulatory offences are directed primarily not to conduct itself but to the consequences of conduct, conviction of a regulatory offence may be thought to import a significantly lesser degree of culpability than conviction of a true crime. The concept of fault in regulatory offences is based upon a reasonable care standard and, as such, does not imply moral blameworthiness in the same manner as criminal fault. Conviction for breach of a regulatory offence suggests nothing more than that the defendant has failed to meet a prescribed standard of care."
This distinction could be justified by what he called the licensing argument, at pp 228 - 229:
"while in the criminal context, the essential question to be determined is whether the accused has made the choice to act in the manner alleged in the indictment, the regulated defendant is, by virtue of the licensing argument, assumed to have made the choice to engage in the regulated activity ... those who choose to participate in regulated activities have, in doing so, placed themselves in a responsible relationship to the public generally and must accept the consequences of that responsibility ... those persons who enter a regulated field are in the best position to control the harm which may result, and that they should therefore be held responsible for it.
and the vulnerability justification, at p 234:
"Regulatory legislation is essential to the operation of our complex industrial society; it plays a legitimate and vital role in protecting those who are most vulnerable and least able to protect themselves. The extent and importance of that role has increased continuously since the outset of the Industrial Revolution. Before effective workplace legislation was enacted, labourers-- including children-worked unconscionably long hours in dangerous and unhealthy surroundings that evoke visions of Dante's Inferno. It was regulatory legislation with its enforcement provisions which brought to an end the shameful situation that existed in mines, factories and workshops in the nineteenth century."
This analysis led him to conclude that the legislation in question which required the defendant to prove that he had exercised due diligence to prevent false and misleading advertising was not incompatible with the presumption of innocence in the Canadian Charter saying, at pp 244-245:
"Criminal offences have always required proof of guilt beyond a reasonable doubt; the accused cannot, therefore, be convicted where there is a reasonable doubt as to guilt. This is not so with regulatory offences, where a conviction will lie if the accused has failed to meet the standard of care required. Thus, the question is not whether the accused has exercise some care, but whether the degree of care exercised was sufficient to meet the standard imposed. If the false advertiser, the corporate polluter and manufacturer of noxious goods are to be effectively controlled, it is necessary to require them to show on a balance of probabilities that they took reasonable precautions to avoid the harm which actually resulted. In the regulatory context, there is nothing unfair about imposing that onus; indeed, it is essential for the protection of our vulnerable society."
[17] We are conscious of the difference of approach by the Canadian Supreme Court to their Charter to that of courts in this and other jurisdictions (see Attorney General of Hong Kong v Lee Kwong-kut [1993] AC 951, 970B - 973A), but we find Cory J's analysis convincing and extremely helpful.
191 In another significant Canadian case, R v Sault Ste Marie (1978) 2 SCR 1299, which concerned the interpretation of s 32(1) of the Ontario Water Resources Act 1970, the Supreme Court considered the distinction between what it described as a "true criminal offence" and "the public welfare offence". At [22] - [26] Dickson J, delivering the judgment of the Court, stated:
[22] The distinction between the true criminal offence and the public welfare offence is one of prime importance. Where the offence is criminal, the Crown must establish a mental element, namely, that the accused who committed the prohibited act did so intentionally or recklessly, with knowledge of the facts constituting the offence, or with wilful blindness toward them. Mere negligence is excluded from the concept of the mental element required for conviction. Within the context of a criminal prosecution a person who fails to make such inquiries as a reasonable and prudent person would make, or who fails to know facts he should have known, is innocent in the eyes of the law.