Offences and the Commonwealth—negligence
245BA Offences and the Commonwealth—negligence
The test of negligence for the Commonwealth is that set out in section 5.5 of the Criminal Code.
If:
negligence is a fault element in relation to a physical element of an offence; and
no individual employee, agent or officer of the Commonwealth has that fault element;
that fault element may exist on the part of the Commonwealth if the conduct of the Commonwealth is negligent when viewed as a whole (that is, by aggregating the conduct of any number of the employees, agents or officers of the Commonwealth).
Negligence may be evidenced by the fact that the prohibited conduct was substantially attributable to:
inadequate management, control or supervision of the conduct of one or more employees, agents or officers of the Commonwealth; or
failure to provide adequate systems for conveying relevant information to relevant persons in the Commonwealth.
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