Competition and Consumer Amendment (Misleading Representations About Broadband Speeds) Bill 2018 [2018] AUSStaCSBSD 51 (21 March 2018)

• Competition and Consumer Amendment (Misleading Representations About Broadband Speeds) Bill 2018
• Strict liability offence 12

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Competition and Consumer Amendment (Misleading Representations About Broadband Speeds) Bill 2018

Purpose	This bill seeks to amend the Competition and Consumer Act 2010 to ensure that, when a representation is made about the speed, quality or price of a broadband service in trade or commerce, that representation also includes all information that might affect the performance of the service
Sponsor	Mr Andrew Wilkie MP
Introduced	House of Representatives on 26 February 2018

Strict liability offence ^[12]

1.13 Proposed section 159A(1) seeks to make it an offence for a person, in trade or commerce, to make misleading representations in connection with supply or possible supply of broadband services. This offence is subject to a maximum penalty of $1,100,000 for a body corporate or $220,000 for individuals. Proposed subsection (2) seeks to make the offence in subsection (1) an offence of strict liability.

1.14 Under general principles of the criminal law, fault is required to be proved before a person can be found guilty of a criminal offence (ensuring that criminal liability is imposed only on persons who are sufficiently aware of what they are doing and the consequences it may have). When a bill states that an offence is one of strict liability, this removes the requirement for the prosecution to prove the defendant's fault. In such cases, an offence will be made out if it can be proven that the defendant engaged in certain conduct, without the prosecution having to prove that the defendant intended this, or was reckless or negligent. As the imposition of strict liability undermines fundamental criminal law principles, the committee expects the explanatory memorandum to provide a clear justification for any imposition of strict liability, including outlining whether the approach is consistent with the Guide to Framing Commonwealth Offences.^[13]

1.15 In this instance, the explanatory memorandum states that 'strict liability is appropriate because it is consistent with other similar provisions in this part of the Act'.^[14] Further, the explanatory memorandum states that strict liability is also appropriate in this context because of the nature of the loss or damage that may be suffered when a misleading representation is made. However, the explanatory memorandum does not provide justification for the significant penalty proposed. The committee notes that the Guide to Framing Commonwealth Offences states that the application of strict liability is only considered appropriate where the offence is not punishable by imprisonment and only punishable by a fine of up to 60 penalty units (currently $12,600)^[15] for an individual.^[16] However, the offence in proposed section 159A is subject to a penalty of $220,000 for an individual.

1.16 The committee draws its scrutiny concerns to the attention of senators and leaves to the Senate as a whole the appropriateness of applying strict liability to an offence which is subject to a maximum penalty of $220,000 for individuals.

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[12] Schedule 1, item 2, proposed section 159A. The committee draws Senators’ attention to this provision pursuant to Senate Standing Order 24(1)(a)(i).

[13] Attorney-General's Department, A Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers, September 2011, pp 22–25.

[14] Explanatory memorandum p. 2.

[15] Pursuant to section 4AA of the Crimes Act 1914, a penalty unit is currently set at $210. This amount is subject to indexation on a triennial basis.

[16] Attorney-General's Department, A Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers, September 2011, p. 23.