Scope of Section 165(2), National Law: Strict Liability v Absolute Liability

The NSW Supreme Court (Court of Criminal Appeal) in the recent case of Department of Education v Trad was required to determine the scope of 165(2). By way of background, on 4 March 2019, Ms Helen Rataeu, a registered family day care educator, who worked for an approved provider of an approved family day care service was responsible for the care of a baby. Due to Ms Rataeu not following safe sleep practices, the baby died whilst under her supervision (see my previous post on the Coronial findings). Ms Faten Trad (the respondent in this case), the nominated supervisor for the Service, was charged on 15 November 2019 with three offences under the Children (Education and Care Services) National Law 2010 (NSW) (the National Law). The respondent was convicted of the offences in the Local Court, but was successful in having the convictions quashed in the District Court. After the quashing of the respondent’s convictions, the applicant (Department of Education) requested that a question of law be stated to the Supreme Court, submitting that the offence under section 165 of the National Law was one of absolute liability (rather than, as submitted in the District Court appeal, a strict liability offence). The following question of law was submitted for consideration by the Court:

…does s 165(2) of the [National] Law impose absolute liability on a nominated supervisor of an approved family day care service when the nominated supervisor is not physically present, if it is proved that a child being educated and cared for by the service was not adequately supervised at all times that the child was in the care of the service?

It should be noted that, in essence, the difference between a strict liability and absolute liability offence is that in the former the defence of honest and reasonable mistake of fact is available. In both types of offences the prosecution does not have to prove fault. The Court considered the wording of section 165(2) carefully, noting the use of the word "ensure" in the provision. As observed by the Court (para 103):

On a literal reading of s 165(2), the Secretary’s [Department] position must be accepted. To “ensure” something is to “make certain” of (or guarantee) that outcome.  Read as a whole, the impugned provision focuses on the outcome of affairs; it does not indicate scope for fault in supervision on the part of the nominated supervisor himself or herself, as such. What makes s 165(2) difficult is that it does not identify any offending conduct on the part of the nominated supervisor; there is nothing to which mens rea can sensibly attach.  Rather, it deems that a nominated supervisor is liable where the state of affairs (being inadequate supervision of children) is established.  As a result, s 165(2) in its terms appears to attach liability to a finding of fact, not dependent on the knowledge or intention of the nominated supervisor.

The Court concluded section 165(2) was an absolute liability offence (paras; 120-1):

....On the one hand, the text of s 165 (compared with other sections in the legislation) points clearly to this being an offence of absolute liability. On the other hand, the unfairness of imposition of criminal liability on a person who is found to have taken all reasonable steps to ensure that the properly qualified person supervising children at a day care would provide “adequate supervision” points to the caution that must be exercised before construing a statutory offence as one of strict liability. That last concern would support a conclusion that the offence should properly be construed as one of strict liability (to which a Proudman v Dayman defence would lie in an appropriate case), as was the basis on which the Secretary argued the matter before McHugh SC DCJ...

Ultimately, having regard to the text of the legislation, I consider it difficult to conclude otherwise than that the legislature has made it clear that the nominated supervisor is to be held liable for any transgression from circumstances which satisfy “adequate supervision” irrespective of his or her mens rea.

In addition, the Court cited the Victorian case of ABC Developmental Learning Centres Pty Ltd v Wallace in which the Court of Appeal considered a similar provision and held it to be an absolute liability provision, commenting (para. 128):

It follows, in light of what was explored by the Victorian Court of Appeal, alongside my own analysis, that the decision in ABC Developmental Learning cannot be said to be plainly wrong and, given that the National Law follows the equivalent Victorian legislation, it compels the conclusion that the s 165(2) offence is one of absolute liability.

However, the Court rejected the submission of the Department that the case against Trad should be referred back to the District Court (paras 130-1):

....I would not exercise the discretion under s 5B of the Criminal Appeal Act to grant the relief sought by the Secretary (i.e., to quash orders and to remit the matter to the District Court for determination). While I do not accept the respondent’s submission that the stated case is simply an attempt to appeal the decision, it is in my opinion significant that the case was not conducted in the District Court by the prosecutor on the basis that it was an absolute liability offence (even though there was emphasis in the written submissions to the language of “must ensure”). I accept that, in the absence of evidence from the respondent to establish a Proudman v Dayman defence, the distinction between absolute and strict liability would not have been significant in the end result had the proper construction of s 165(2) been adopted. That said, the respondent has been subjected to criminal prosecution (and the spectre of further criminal prosecution) for some time. There was a finding that the respondent had taken all reasonable precautions. Although that finding would not assist her on prosecution for an absolute liability offence, it is relevant to take into account when considering the impact of delay on her position; and it is relevant that this is not an appeal – rather, it is a stated case brought by the Secretary to establish a question of public interest as to the nature of the offence itself.

Accordingly, I would not disturb the acquittals and would not remit the matter to the District Court. In circumstances where the Secretary argued this as a matter of importance in the public interest, and the conclusion reached as to the non-remittal of the matter, I consider it appropriate that the Secretary should bear the respondent’s costs. The arguments put to this Court could not be said as improper or baseless, despite the Secretary’s success on appeal on the stated question (Clyne v Wrigley [1980] 1 NSWLR 499; R v Hookham (No 2) (1993) 32 NSWLR 345 at 46 per Priestley JA, with whom Wood and Sully JJ agreed).