Use of the term ‘good faith’ in civil penalty and criminal offence provisions in Commonwealth legislation
The submission to the Attorney-General’s Department in response to its inquiry into the use of the term ‘good faith’ in civil penalty and criminal offence provisions in Commonwealth legislation was prepared by the Law Council of Australia. The Law Council acknowledges the contribution of the Law Society of South Australia in the development of this submission.
Context of the inquiry
The Law Council notes the contextual background to the inquiry, in particular earlier comments of the Senate Scrutiny of Delegated Legislation Committee (Scrutiny Committee) regarding the good faith conduct standard contained in the Competition and Consumer (Industry Codes—Dairy) Regulations 2019 (Cth) (Dairy Code).1
In its analysis of the Dairy Code, the Scrutiny Committee raised concerns that the drafting of a good faith obligation in the legislative scheme lacked clarity and made it difficult for those seeking to rely on the provision to understand their obligations and the consequences of non-compliance. The Scrutiny Committee had also highlighted its ‘broader, systemic concerns about the pursuit of regulatory flexibility via the imposition of broadly drafted good faith provisions at the expense of legal clarity and certainty’.2
In response to the Committee’s concerns, the AGD released a Consultation Paper in June 2021 which poses a number of questions for individuals, industry, regulators and government bodies, and lists the various civil penalty and offence provisions on the Commonwealth statute book which use the term ‘good faith’.
Noting the high-level at which the Consultation Paper has been prepared, the Law Council has not focussed on any one specific legislative scheme or jurisdiction where a ‘good faith’threshold is utilised. Instead, principle-based feedback has been provided as to the appropriateness of the term across a broad range of civil and criminal frameworks.
You can read the full submission below.
1 Senate Standing Committee for the Scrutiny of Delegated Legislation, Parliament of Australia, Delegated Legislation Monitor (Monitor No 10 of 2020, 2 September 2020).
2 Ibid, 10.