It seems to me that the tail that is wagging this particular dog is the Criminal Code and its divisions of kinds of liability. Which is something of a problem – for all the reasons we discussed back in 2006 when this first came up. Mostly to do with the fact that it might fit conduct/violent types of crimes but fares less well when the ‘circumstance’ about which there is some knowledge is a matter of law.

I can certainly see how it may make sense to engage in some tiering of offence levels on the basis of the nature of the offenders. I’m not an expert in the kinds of offenders that are out there: in discussing counterfeiters people have sometimes talked about different levels of the (suppliers vs sellers, not dissimilar to the way that drug offenders are discussed).

I really don’t know what the sensible way to engage in tiering might be here, however. In theory, strict liability could work. So you could tier, having strict liability and a serious offence, with the expectation that the big players and perhaps the repeat players would be subject to the more serious charge.

My concern with the strict liability approach is that it does have the potential to tar with the criminal brush (albeit in a pastel shade) a lot of behaviour that doesn’t fall in the counterfeiting category. The offence is for selling goods that have a mark which is the registered mark, or is substantially identical to the registered mark. So you don’t have to be selling counterfeits: total rip-offs. The mark doesn’t have to be famous. You could be a legit business and you stupidly (and ignorantly) applied an almost identical mark to a registered mark (that, for example, you’ve never heard of because you are over in Perth and they trade in Wollongong). The problem is overextension (which I know we’ve discussed before). Now, if you had a strict liability offence for counterfeiting or selling counterfeits, it would be easier to accept strict liability (with the option of being charged with a more serious offence in subsequent cases).

So I agree, I’m sure there are things you could do which would work. The point of my comment, of course, is to raise again the problem we debated a couple of years ago: that this kind of drafting involves an almost mindless tiering, without sitting down and thinking ‘what, exactly, are these standards we are applying and how do they fit with the kind of facts we see on the ground’.

The question is whether or not it’s appropriate to have tiered offences. And, if so, how to tier them. I think you’re totally right (naturally) that negligence is the wrong standard, for all the reasons you and I discussed in 2006. But there are other ways of tiering in criminal law that make more sense:
- strict liability (beware differing terminology in the UK. Their common law doesn’t acknowledge this middle ground, so the Trade Marks Act provision you found is basically a borrowing for Australia’s common law. Canada follows us too and has a more nuanced approach, allowing defences of either mistake or ‘due dilligence’ (e.g. I did all I reasonably could to prevent what happened.)
- defence of honest mistake (but without a reasonableness requirement)
- tiering based on the ‘know what you did was wrong’ approach. There’s a precedent in theft law with the test of dishonesty: knowing what you did would be regarded as wrong by other people…)
- tiering based on recidivism (like in many drug offences.)

My broad point is: just because some tiering is stupid doesn’t mean that all tiering is stupid. People drafting criminal offences should try to capture distinctions that occur in practice that are worth drawing, so long as doing so has a benefit in terms of regulation.

Are there two types of counterfeiters out there? The evil thieves and the silly ignoramuses? The slip-shod paperworkers and the incorrigible rogues? The ‘don’t ask; dont tell’ers and the professional frauds? If so, it may make sense to distinguish between them in an offence definition. Some ‘criminal law purists’ don’t like this sort of thing, but that’s because they are keen for every one of the thousand or so criminal offences to fit into their pet theory. Their tail shouldn’t wag your dog…