Recklessness: Report

12. Should a definition of recklessness be legislated?

Overview

• We heard different views about whether a definition of recklessness should be included in the Crimes Act 1958 (Vic) for offences against the person.

• Some contributors told us that legislating the current recklessness test could improve clarity and certainty. But we also heard that legislating the current definition could increase complexity.

• The current test is clear, accessible, and consistently applied. Legislating a definition is unnecessary and carries risk.

• The Commission does not support including a definition of recklessness in the Crimes Act.

The state of the law

12.1 Our terms of reference ask us to consider if a definition of recklessness should be included in the Crimes Act 1958 (Vic) for offences against the person.

12.2 In Chapter 11, we recommend keeping the current test. Here, we discuss whether the definition of recklessness should be legislated. Our analysis is guided by three key considerations:

• clarity

• accessibility

• certainty (see Chapter 13).^[1]

12.3 The law is clear if it can be easily understood and applied, including by people without legal training.

12.4 The law is accessible if:

• it is clear

• it is easy to find

• its protections are equally available to all people.

12.5 Clear and accessible laws allow people to understand their rights and obligations and to behave accordingly.^[2] Clarity, accessibility and certainty are also important for the effective operation of the law.

The law is clear

12.6 We were told that the current common law definition of recklessness is:

• simple^[3]

• clear^[4]

• well understood^[5]

• easy to apply.^[6]

12.7 The Criminal Bar Association (CBA) told us, ‘there isn’t currently any lack of clarity, so legislating a definition for that benefit is illusory.’^[7]

12.8 The clarity of the definition can be seen in the Judicial College of Victoria (JCV)’s Criminal Charge Book. The Criminal Charge Book contains concise information for the legal profession, magistrates and judges about the meaning of recklessness. Importantly, it makes clear that the threshold for recklessness is probability and sets out the meaning of ‘probable’.^[8] A judge told us:

We have good resources from the Judicial College of Victoria … the language in the direction [for reckless offences] is clear … It’s a combination of a working definition and good judicial resources which has led to good consistency of approach.^[9]

The law is accessible

12.9 Guidance on the common law definition of recklessness is readily available. The JCV’s Criminal Charge Book is user-friendly and easily accessible. Victoria Legal Aid (VLA) also provides information on its website.^[10]

12.10 Although not raised during our inquiry, general arguments in favour of legislating common law principles are sometimes made in the context of support for wholesale ‘codification’.^[11] Advocates of codification argue that legislated definitions improve accessibility. For example, Matthew Goode points out that it can be ‘very hard to find out what [the common law] says—even on fundamental matters’.^[12] In his view, legislation can enhance clarity and accessibility by helping to present the law:

in straightforward and easily comprehensible terms so that the ordinary [person] will be able to … know what [they are] sometimes presumed to know, namely what is the law.^[13]

12.11 A broad and cohesive codification project might make the law clearer,^[14] but legislating definitions in a piecemeal way does not. This is especially so where existing definitions are relatively easy to find, understand and apply, as is the case with recklessness.

The law is settled

12.12 In the DPP Reference the High Court held that the foresight of probability test in Campbell should stand unless addressed by the legislature in Victoria.^[15]

12.13 A recent version of Indictable Offences in Victoria said that ‘for the present, the law in Victoria should be regarded as to some degree uncertain.’^[16] Victoria Police told us that case law has ‘cast doubt over the correctness’ of Campbell and ‘this needs to be clarified by the legislature.’^[17] Although members of the High Court determined that Campbell was wrong,^[18] and Justice Edelman questioned the extension of Campbell ‘for all other offences in the Crimes Act’,^[19] the DPP Reference case was conclusive that Campbell continues to apply in Victoria.^[20]

12.14 Justices Gageler, Gordon and Steward emphasised that the current test has been consistently applied for a long time.^[21] This was also the view of Justices Priest and Kaye in the Court of Appeal.^[22]

12.15 A judge of the Supreme Court told us ‘that in Victoria the authority is settled’.^[23] The JCV told us ‘the DPP Reference case has settled [the law] in Victoria’.^[24] The CBA submitted ‘that following the DPP Reference case, the definition of recklessness in Victoria as it applies to crimes against the person is settled’, and so legislating the definition is ‘neither necessary nor desirable’.^[25]

12.16 Although a magistrate told us there is ‘never a harm’ in legislating a definition, she did not think there exists ‘any inconsistency or concerns [with the current definition] that call for clarification’:

we all know it and understand it and it’s pretty clear, if you are ever in doubt there is the Judicial College of Victoria’s charge book. [The current definition] is something we’ve known for so long, it’s been around for a long, long time. ^[26]

12.17 As discussed earlier, Parliament has repeatedly legislated in ways that are calibrated to and entrench the current test. Since the current definition was endorsed in Nuri and Campbell,^[27] Parliament has made changes to offences against the person and related penalties, including changing the definitions of ‘injury’ and ‘serious injury’.^[28] On all these occasions, Parliament has left the definition of recklessness to the common law.^[29]

12.18 We consistently heard that the current common law definition of recklessness has been operating well for a long time.^[30] Parliament’s decision to maintain the status quo accords with this view.

12.19 These arguments support the CBA’s view that ‘the definition of recklessness ought not be disturbed by legislation’.^[31]

The risks of a statutory definition

12.20 While we heard some support for legislating a definition of recklessness, we also heard that it would carry avoidable risks.

12.21 Among those who recognised potential benefits, the County Court suggested there would be value in a statutory definition of recklessness for offences against the person.^[32]

12.22 Other people told us that legislating a definition of recklessness could make the law clearer than it presently is.^[33] According to Youthlaw, ‘[a] statutory definition may assist self-represented young people to identify the appropriate test and may guide all court users in the correct application of the appropriate test.’^[34] Caterina Politi noted that ‘A clear definition of recklessness can aid in the consistent delivery of justice in the application of recklessness, reducing the risk of uncertainty or confusion in legal proceedings.’^[35]

12.23 The Law Institute of Victoria (LIV) acknowledged that a statutory definition ‘might provide more certainty’ but did not support amending the Crimes Act.^[36]

12.24 Other stakeholders identified avoidable risks of legislating a definition,^[37] noting that:

• The nuance of common law might be lost.

• It could lead to uncertainty.

• Appeals could increase.

• It could lead to inconsistency.

The nuance of common law might be lost

12.25 When Parliament reformed offences against the person in 1985, it chose to leave the definition of recklessness, along with other fault elements, to the common law (see Chapter 3). The common law has developed incrementally, taking on important nuance as to how recklessness should be understood. But legislating a statutory definition of recklessness could mean that this nuance is lost.

12.26 VLA noted the inherent risk of losing the common law’s nuance when translating common law to legislation, particularly when a common law definition has been applied for decades.^[38] Legislating could risk losing ‘a well-functioning definition that is capable of being understood.’^[39]

12.27 Dr Greg Byrne similarly noted the challenge of capturing the nuance of the common law in legislation and asked: ‘what level of detail do you include?’^[40] There is a risk that ‘imprecise terms may cause confusion’, or that ‘definitions that are drawn very broadly, or very narrowly, may be ambiguous.’^[41]

12.28 A virtue of the common law is that it is ‘grounded in the practicality of individual fact situations, [and] is the refined product of the wisdom of many minds’.^[42] The LIV told us that the common law provides:

an invaluable resource on the meaning of recklessness, comprising decades worth of cases on the highly complicated, circumstantially specific concept that have been decided … by some of Australia’s best legal minds. To do away with this resource would strip the concept of useful, in-depth analyses of what it means to be ‘reckless’ in circumstances where criticisms of the common law, as it stands, are largely absent.^[43]

12.29 In concisely setting down fundamental common law principles of recklessness, it would be difficult for a legislated definition to fully encapsulate all such matters.

12.30 Whether the common law’s nuance is lost will depend, however, on the specific definition adopted. A definition that excluded the common law and sought to explicitly define the concept would lose nuance. A definition that merely gave effect to the common law would not. For this reason, a range of contributors cautioned that if the Campbell recklessness test is retained and legislated, the continued operation of the common law should not be excluded.^[44]

It could lead to uncertainty

12.31 We were told that a legislated definition might have unintended consequences or be applied in unexpected ways.^[45] The CBA noted that:

There are risks in even attempting to codify the present test … there is potential for a lawyer to say the words used are slightly different, and therefore that there must be some nuance intended by Parliament.^[46]

12.32 On this view, even a definition that sought to capture the definition of recklessness as ‘probability’ could be argued to have diverged from the common law meaning.

12.33 Such arguments are not new. Dennis Pearce, an authority on statutory interpretation in Australia, has stated:

a drafter [of legislation] cannot assume that a reader will approach legislation sympathetically. In fact, the reader will often try to place a possible meaning on legislation that suits the reader, regardless of what the drafter intended.^[47]

12.34 Noting this tendency and the ‘inherent uncertainties associated with the use of language’, Pearce argues that drafters ‘must try to forestall destructive arguments as to [legislation’s] meaning’.^[48] Professor Pamela Ferguson says this applies particularly in the case of the defence, ‘who will strive to construe any ambiguities in drafting in a manner which is most favourable to their clients’.^[49]

12.35 A definition that was applied in unexpected ways could undermine the existing clarity of the law, which would defeat the very purpose of legislating a definition.

Appeals could increase

12.36 We heard that appeals about recklessness are rare,^[50] but legislating a definition of recklessness could increase their number.

12.37 The Supreme Court stated that ‘complexity of any legislative amendments may … contribute to an increase in appeals and, in turn, retrials. Complexity can lead to error when directing juries’.^[51]

12.38 A legislated definition would require the JCV to write new model jury directions.^[52] The JCV told us that a ‘clear legislated definition can make things easier for the JCV [in its tasks of drafting model jury directions and updating the Criminal Charge Book] and reduce the risk of appeals’,^[53] but:

There are always risks where judges depart from the words of the Act, and then there is a debate about whether they accurately conveyed the test set out in the Act. If you introduced a legislative definition that was poorly expressed that would be worse than the current [common law] situation.^[54]

It could lead to inconsistency between offences

12.39 The focus of our report is offences against the person. However, recklessness offences exist in other parts of the Crimes Act and in other Victorian Acts (see Chapter 5 and Appendix E). A legislated definition for offences against the person could create inconsistency, or the appearance of inconsistency, with other recklessness offences.

12.40 We should be cautious about adopting a piecemeal approach where the definition of recklessness is legislated for only a subset of offences in the Crimes Act. This could create doubt about the definition to be applied to offences outside the terms of this reference.

12.41 A wholesale review or codification of Victoria’s criminal law might consider new, statutory definitions for fundamental criminal law concepts like the fault element of recklessness. But our task is to consider if a definition of recklessness should be included in the Crimes Act for offences against the person. We have considered the existing criminal law context, including consistency with other offences and established jurisprudence.

12.42 The risk of legislating a definition of recklessness for a subset of offences was highlighted in England and Wales. The Law Commission of England and Wales acknowledged the benefits of a wholesale codification of its criminal law, which would include definitions of all criminal fault elements. But the Commission opposed legislating a definition of recklessness only for offences against the person. It noted that ‘enacting [a definition] separately in statutes dealing with different groups of offences creates an impression of fragmentation, even if the definitions are in fact identical.’^[55]

12.43 There is a risk that a jury could be directed on two definitions of recklessness, one statutory and one common law. This situation was described by the Law Commission of England and Wales as ‘awkward … even if [the definitions] largely coincided.’^[56] The JCV noted that ‘having [a] statutory definition only apply to certain offences … is a recipe for juror confusion.’^[57] This risk could be partially mitigated, however, if the legislated definition were extended to the entire Crimes Act.

12.44 Also problematic in Victoria, particularly for recklessness offences beyond the Crimes Act, is another concern raised by the Law Commission of England and Wales, that:

common law meanings sometimes change; this means that, in the future, a difference may open up between those offences where the meaning of recklessness has been restated in statute and those where it is governed by the common law.^[58]

12.45 The CBA noted that section 32 of the Occupational Health and Safety Act 2004 (Vic) created a recklessness offence ‘identical’ to the endangerment offence in section 23 of the Crimes Act.^[59] The CBA questioned:

If you legislate a definition of recklessness, how does that definition fit with the different contexts it might be used in? It will potentially give rise to inconsistency with other offences … if you try and change the definition in the division of the Crimes Act that contains the offences against the person it has a flow-on effect—does it cast doubt over what everyone assumes other provisions mean? It creates inconsistency between these identical offences … It’s not easy to disentangle.^[60]

12.46 This risk of inconsistency could be avoided by leaving the definition to the common law.

Conclusion: a legislated definition is unnecessary

12.47 The current definition of recklessness is relatively easy to find, understand and apply. There may be some benefit to legislating a definition, but this does not outweigh the potential risks. In addition, legislating a definition of recklessness while leaving aside the other fault elements ‘would look distinctly lopsided’.^[61]

12.48 Policy makers should be cautious about legislating without the expectation of a tangible improvement. According to the Commonwealth Attorney-General’s Department, the first principle for making laws clearer is ‘don’t legislate if you don’t have to’.^[62]

12.49 In this inquiry, we have not found uncertainty or a lack of clarity about the application of recklessness that requires a legislated definition.. It is therefore unnecessary to amend the Crimes Act to include a definition of recklessness.

1. See, eg, the first key principle of the Law Council of Australia’s Policy Statement on Rule of Law Principles that ‘The law must be both readily known and available, and certain and clear’: Law Council of Australia, Policy Statement on Rule of Law Principles (Report, 19 March 2011) <https://lawcouncil.au/publicassets/046c7bd7-e1d6-e611-80d2-005056be66b1/1103-Policy-Statement-Rule-of-Law-Principles.pdf>.

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2. Matthew Goode, ‘Codification of the Australian Criminal Law’ (1992) 16(1) Criminal Law Journal 5, 11 citing Law Reform Commission of Canada, Criminal Law: Towards a Codification (Study Paper, 1976) 21–22.

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3. Submissions 6 (Criminal Bar Association), 9 (Liberty Victoria). The Supreme Court submitted that consistent with jury directions on the Campbell test being ‘simple, logical and straightforward’, it has been extremely rare for appeals to include a ground alleging error in the trial judge’s charge on recklessness: Submission 13 (Supreme Court of Victoria). Consultation 11 (County Court of Victoria).

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4. Submission 17 (Victoria Legal Aid). Consultations 1 (Victorian Aboriginal Legal Service), 3 (Law Institute of Victoria), 4 (Criminal Bar Association), 11 (County Court of Victoria), 12 (Magistrates’ Court of Victoria).

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5. Submissions 9 (Liberty Victoria), 12 (Dermot Dann KC and Felix Ralph), 17 (Victoria Legal Aid). Consultations 3 (Law Institute of Victoria), 4 (Criminal Bar Association), 6 (Victoria Legal Aid), 8 (Supreme Court of Victoria), 12 (Magistrates’ Court of Victoria).

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6. Submissions 6 (Criminal Bar Association), 17 (Victoria Legal Aid). See also Submission 14 (Law Institute of Victoria) citing Director of Public Prosecutions Reference (No 1 of 2019) [2020] VSCA 181 [124]; (2020) 284 A Crim R 19, 51 [124] (Priest JA). The Judicial College of Victoria told us it hadn’t ‘heard anything to the effect that jurors have trouble with applying the charge in relation to recklessness’: Consultation 5 (Judicial College of Victoria). A Supreme Court judge told us ‘in terms of the practical application of the current law of recklessness, it is seamless’: Consultation 8 (Supreme Court of Victoria). See also Consultation 11 (County Court of Victoria).

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7. Consultation 4 (Criminal Bar Association).

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8. Judicial College of Victoria, ‘7.1.3 Recklessness’, Victorian Criminal Charge Book (Online Manual, 28 October 2022) <https://www.judicialcollege.vic.edu.au/eManuals/CCB/index.htm#4469.htm>.

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9. Consultation 11 (County Court of Victoria).

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10. Victoria Legal Aid has published offence snapshots for duty lawyers on its website, providing an overview of individual offences including the injury and endangerment offences: Victoria Legal Aid, Criminal Law Resources (Web Page, 19 April 2023) <https://www.legalaid.vic.gov.au/criminal-law-resources>. In the Criminal Law Offence Snapshot for Causing injury intentionally or recklessly and causing serious injury recklessly, VLA explains that to be reckless about causing injury, the accused person must have been aware that their conduct would probably cause injury. It is not sufficient that injury was merely ‘possible’ or ‘might’ result: Victoria Legal Aid, Causing injury intentionally or recklessly and causing serious injury recklessly (Criminal Law Offence Snapshot, 1 May 2015).

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11. A criminal code refers to ‘A comprehensive piece of legislation that attempts to exhaustively define the elements of crimes within a jurisdiction … [A] code is considered to be a systematic and integrated statement of law…’: Australian Law Dictionary (Oxford University Press, 1st ed, 2010) ‘criminal code’.

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12. Matthew Goode, ‘Codification of the Australian Criminal Law’ (1992) 16(1) Criminal Law Journal 5, 9.

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13. Ibid 12 quoting the Criminal Law and Penal Methods Reform Committee of South Australia, The Substantive Criminal Law (Fourth Report, 1977), 379–380.

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14. But see Dennis Pearce, Statutory Interpretation in Australia (LexisNexis Butterworths, 9th ed, 2019) 311 (describing the promise of accessibility as an ‘idealised view [that] is no longer strongly asserted by proponents [of codification]’); Virginia Bell, ‘Paul Byrne SC Memorial Lecture – Keeping the Criminal Law in “Serviceable Condition”: A Task for the Courts or the Parliament?’ (2016) 27(3) Current Issues in Criminal Justice 335, 338 (‘The notion that [an] interested citizen might acquire a meaningful understanding of the reach of the criminal law by reading [a criminal code] has an air of unreality to it’).

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15. Director of Public Prosecutions Reference No 1 of 2019 [2021] HCA 26, [59]; (2021) 274 CLR 177, 202 [59] (Gageler. Gordon and Steward JJ, Edelman J agreeing at 217 [99] that ‘Unless and until it is altered by legislation, the meaning of “recklessly” in s 17 of the Crimes Act 1958 is that stated by the Court of Appeal in R v Campbell’, Kiefel CJ, Keane and Gleeson JJ dissenting at 184 [7], 192 [35]).

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16. Ian Freckelton and Mirko Bagaric, Thomson Reuters, Indictable Offences in Victoria (online at 22 November 2023) [18.100].

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17. Submission 7 (Victoria Police).

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18. Director of Public Prosecutions Reference No 1 of 2019 [2021] HCA 26, [35] (Kiefel CJ, Keane and Gleeson JJ).

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19. Ibid [100] (Edelman J). Justice Edelman said that the Campbell test ‘has not necessarily entrenched this meaning of recklessness for all other offences in the Crimes Act’ (see Chapter 5).

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20. Ibid [59] (Gageler. Gordon and Steward JJ, Edelman J agreeing at [99], Kiefel CJ, Keane and Gleeson JJ dissenting at [7], [35]).

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21. Ibid (Gageler, Gordon and Steward JJ) (citations omitted).

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22. Director of Public Prosecutions Reference (No 1 of 2019) [2020] VSCA 181, [52]–[53], [122]; (2020) 284 A Crim R 19, 32 [52]-[53], 49 [122] (Priest JA, Kaye JA agreeing at 55 [144]).

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23. Consultation 8 (Supreme Court of Victoria).

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24. Consultation 5 (Judicial College of Victoria).

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25. Submission 6 (Criminal Bar Association).

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26. Consultation 12 (Magistrates’ Court of Victoria).

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27. R v Nuri [1990] VR 641; R v Campbell [1995] VSC 186; (1997) 2 VR 585.

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28. Sentencing Act 1991 (Vic); Sentencing and Other Acts (Amendment) Act 1997 (Vic); Crimes Amendment (Gross Violence Offences) Act 2013 (Vic); Sentencing Amendment (Emergency Workers) Act 2014 (Vic); Sentencing (Community Correction Order) and Other Acts Amendment Act 2016 (Vic); Children and Justice Legislation Amendment (Youth Justice Reform) Act 2017 (Vic); Justice Legislation Miscellaneous Amendment Act 2018 (Vic).

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29. See Director of Public Prosecutions Reference (No 1 of 2019) [2020] VSCA 181, [26] (Maxwell P, McLeish and Emerton JJA) noting that ‘[g]iven the significance of “recklessness” as a concept in criminal law and the frequency of its use in the creation of … criminal offences, it is certainly “no fiction” to attribute knowledge of the settled meaning of “recklessness” to the responsible Ministers and their Departments “and, through them, the Parliament’”, citing Electrolux Home Products Pty Ltd v Australian Workers’ Union (2004) 221 CLR 309, [81] (McHugh J).

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30. Submissions 6 (Criminal Bar Association), 9 (Liberty Victoria), 12 (Dermot Dann KC and Felix Ralph) citing Director of Public Prosecutions Reference (No 1 of 2019) [2020] VSCA 181; (2020) 284 A Crim R 19, 32 [52]–[53], 49 [122] (Priest JA, Kaye JA agreeing at 55 [144]; 14 (Law Institute of Victoria). Consultations 2 (Liberty Victoria), 3 (Law Institute of Victoria), 4 (Criminal Bar Association), 6 (Victoria Legal Aid), 11 (County Court of Victoria).

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31. Submission 6 (Criminal Bar Association).

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32. Submission 15 (County Court of Victoria).

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33. Submissions 2 (Peck, Borchard, Carlei, Ciampoli (students at the University of Melbourne)), 16 (Youthlaw). Consultation 1 (Victorian Aboriginal Legal Service).

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34. Submission 16 (Youthlaw).

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35. Submission 21 (Caterina Politi).

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36. Submission 14 (Law Institute of Victoria). Consultation 3 (Law Institute of Victoria).

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37. Submission 17 (Victoria Legal Aid). Consultations 2 (Liberty Victoria), 4 (Criminal Bar Association), 5 (Judicial College of Victoria), 6 (Victoria Legal Aid), 9 (Dr Greg Byrne PSM).

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38. Submission 17 (Victoria Legal Aid). Consultation 6 (Victoria Legal Aid).

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39. Consultation 6 (Victoria Legal Aid).

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40. Consultation 9 (Dr Greg Byrne PSM).

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41. Office of the Queensland Parliamentary Counsel, Principles of Good Legislation: OQPC Guide to FLPs, Clear Meaning (Report, 19 June 2013) 17 [47], 21 [59].

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42. John Burrows, ‘Common Law among the Statutes: The Lord Cooke Lecture 2007’ (2007) 39(3) Victoria University of Wellington Law Review 401, 411. See also Virginia Bell, ‘Paul Byrne SC Memorial Lecture—Keeping the Criminal Law in “Serviceable Condition”: A Task for the Courts or the Parliament?’ (2016) 27(3) Current Issues in Criminal Justice 335, 342 (arguing that the common law ‘has the … charm of developing the criminal law incrementally in the face of real factual controversies’).

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43. Submission 14 (Law Institute of Victoria).

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44. Submissions 6 (Criminal Bar Association), 14 (Law Institute of Victoria), 15 (County Court of Victoria), 16 (Youthlaw). In contrast Victoria Police’s position is that if the test of recklessness is modelled on Campbell the definition should operate to the exclusion of the common law: Submission 7 (Victoria Police).

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45. Submissions 16 (Youthlaw), 17 (Victoria Legal Aid). Consultations 2 (Liberty Victoria), 4 (Criminal Bar Association), 5 (Judicial College of Victoria).

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46. Consultation 4 (Criminal Bar Association).

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47. Dennis Pearce, Statutory Interpretation in Australia (LexisNexis Butterworths, 9th ed, 2019) 4.

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48. Ibid 4–5.

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49. Pamela R Ferguson, ‘Constructing a Criminal Code’ (2009) 20(1) Criminal Law Forum 139, 161 (citations omitted).

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50. Submissions 13 (Supreme Court of Victoria), 17 (Victoria Legal Aid). Consultations 5 (Judicial College of Victoria), 6 (Victoria Legal Aid), 8 (Supreme Court of Victoria).

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51. Submission 13 (Supreme Court of Victoria).

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52. Consultation 5 (Judicial College of Victoria).

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53. Ibid.

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54. Ibid.

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55. Law Commission of England and Wales, Reform of Offences Against the Person (Law Com Report No 361, November 2015) 81 [4.148] (citations omitted).

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56. Ibid 78 [4.139] (stated in the context of whether to include a statutory definition of intention, not recklessness).

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57. Consultation 5 (Judicial College of Victoria).

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58. Law Commission of England and Wales, Reform of Offences Against the Person (Law Com Report No 361, November 2015) 81 [4.148] (citations omitted).

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59. Consultation 4 (Criminal Bar Association). The endangerment offence created by section 31D of the Dangerous Goods Act 1958 (Vic) is also ‘modelled on section 22 of the Crimes Act 1958’: Explanatory Memorandum, Dangerous Goods Amendment (Penalty Reform) Bill 2019 (Vic) cl 8.

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60. Ibid.

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61. Law Commission of England and Wales, Reform of Offences Against the Person (Law Com Report No 361, November 2015) 81 [4.152] (this argument being made in the England and Wales context). The Children’s Court of Victoria noted that if Parliament decided to define the test, ‘consideration may need to be given to defining other elements alongside recklessness’: Submission 11 (Children’s Court of Victoria).

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62. Attorney-General’s Department (Cth), Causes of Complex Legislation and Strategies to Address These (Fact Sheet, 2020) 1 <https://www.ag.gov.au/sites/default/files/2020-03/causes-of-complex-legislation-and-strategies-to-address-these.pdf>.

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