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1998-1999-2000-2001
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF REPRESENTATIVES
AGRICULTURE, FISHERIES AND FORESTRY LEGISLATION AMENDMENT (APPLICATION OF CRIMINAL CODE) BILL 2001
EXPLANATORY MEMORANDUM
(Circulated by authority of the Minister for Agriculture, Fisheries and Forestry, the Hon Warren Truss, MP)
AGRICULTURE, FISHERIES AND FORESTRY LEGISLATION
AMENDMENT (APPLICATION OF CRIMINAL CODE) BILL 2001
The purpose of this Bill is to make consequential amendments to offence
provisions in Agriculture, Fisheries and Forestry portfolio legislation to
reflect the application of the Criminal Code Act 1995.
The
Criminal Code contains a standard approach to the formulation of criminal
offences. The Code will alter the way in which criminal offence provisions
(including offence provisions contained in Agriculture, Fisheries and Fisheries
portfolio legislation) are interpreted. The Code will apply to all Commonwealth
offences from 15 December 2001. The application of the Code to all offences will
improve Commonwealth criminal law by clarifying important elements of offences,
in particular, the fault elements.
This Bill amends Agriculture,
Fisheries and Fisheries portfolio legislation to harmonise offence-creating and
related provisions with the general principles of criminal responsibility as
codified in Chapter 2 of the Criminal Code. The amendments will ensure
that the relevant offences continue to have much the same meaning and operate in
much the same way as they do at present. The Bill is consistent with a number of
other Bills being prepared in relation to criminal offence provisions
administered by other Ministers.
The major kinds of amendment made by the
Bill are:
Ø Applying the Criminal Code to all
offence-creating and related provisions in the Agriculture, Fisheries and
Forestry portfolio legislation;
Ø Deleting references in Agriculture,
Fisheries and Forestry portfolio legislation to some Crimes Act 1914
general offence provisions (sections 7, 7A and 86) which duplicate provisions of
the Criminal Code and replacing them with references to equivalent
Criminal Code provisions where
appropriate;
Ø Applying strict liability to individual
offences or specified physical elements of offences where
appropriate;
Ø Reconstructing provisions in order to
clarify physical elements of conduct, circumstance and result and to clarify
defences;
Ø
Removing or replacing inappropriate fault elements; and
Ø Repealing
some offence-creating provisions, which duplicate general offence provisions in
the Criminal Code.
As the Bill makes consequential amendments to the criminal law there is
no financial impact.
NOTES ON CLAUSES
This clause sets out the short title by which the Act may be
cited.
This clause provides that the Act commences on the 28th day after the day on which the Act receives Royal Assent.
Clause 3: Schedule of amendments
This clause has the effect that any Act that is specified in the Schedule is amended or repealed as provided in the Schedule.
Clause 4: Application of amendments
Clause 4(1) provides that amendments made by the Bill apply only to acts and omissions that take place after the Bill commences. To provide further clarity, clause 4(2) provides that if an act or omission is alleged to have taken place between two dates – one before the Bill commences, and one on or after the day on which the Bill commences – the act or omission is alleged to have taken place before the Bill commences. Hence the amendments made by the Bill only apply to conduct occurring wholly after the Bill commences.
SCHEDULE 1
The proposed amendments are as follows:
Agricultural and Veterinary
Chemical Products (Collection of Interim Levy) Act 1994
Certain Crimes Act 1914 provisions, including sections 7, 7A and
86, are scheduled for progressive disapplication in relation to offence
provisions to which the Criminal Code applies, and ultimately for repeal
on 15 December 2001. It is necessary to replace references to those Crimes
Act provisions with references to relevant Criminal Code provisions.
This item replaces the references in the definition of offence against this
Act in section 3 to sections 7, 7A and 86 of the Crimes Act 1914
(which concern attempting to commit primary offences, incitement to commit
primary offences, and conspiring to commit primary offences) with references to
the Criminal Code provisions which deal with attempt, incitement and
conspiracy (sections 11.1, 11.4 and 11.5).
This item inserts a new section 6A which applies Chapter 2 of the
Criminal Code to all offences against the Act. Chapter 2 establishes the
codified general principles of criminal responsibility.
These items remove the defence of reasonable excuse from subsection 12(2)
and recreate it in a new subsection 12(2A). The rationale for this amendment is
to prevent the provision from being interpreted in such a way as to include the
reasonable excuse element of the provision as an element of the offence, which
would have to be disproved by the prosecution. The amendment makes it clear
that reasonable excuse is a defence to the offence.
A standard note is
added after the new subsection referring to the fact that under subsection
13.3(3) of the Criminal Code a defendant seeking to rely on the
reasonable excuse defence carries an evidential burden.
Item 4 also
inserts a new subsection 12(2B), which specifies that the offence in subsection
12(2) is an offence of strict liability. Where strict liability applies to an
offence the prosecution does not have to prove fault on the part of the
defendant. The prosecution need only prove that the physical elements of the
offence did occur. A defence of mistake of fact is open to the defendant under
section 9.2 of the Criminal Code. This defence is available if a person
is under a mistaken but reasonable belief about a fact and, had that fact
existed, the conduct would not constitute an offence. Under the Criminal
Code, any legislative provision that attracts strict liability must
expressly state that it is an offence of strict liability (see Section 6.1 of
the Code).
Subsection 12(2) provides that a person must not fail to
comply with a requirement under subsection 12(1) to calculate the total leviable
value in respect of a product for a year and the amount of levy payable, and to
notify the NRA of the results and basis of the calculations. The maximum penalty
is 30 penalty units. The obligation the subject of the offence is of an
administrative nature and the offence carries a relatively low penalty and
permits a defence of reasonable excuse. These factors indicate that the offence
is one where strict liability would apply under the existing law.
These items remove the defence of reasonable excuse from subsection 17(2)
and recreate it in a new subsection 17(3). The rationale for this amendment is
to prevent the provision from being interpreted in such a way as to include the
reasonable excuse element of the provision as an element of the offence, which
would have to be disproved by the prosecution. The amendment makes it clear
that reasonable excuse is a defence to the offence.
A standard note is
added after the new subsection referring to the fact that under subsection
13.3(3) of the Criminal Code a defendant seeking to rely on the
reasonable excuse defence carries an evidential burden.
Item 6 also
inserts a new subsection 17(4), which specifies that the offence in subsection
17(2) is an offence of strict liability. Where strict liability applies to an
offence the prosecution does not have to prove fault on the part of the
defendant. The prosecution need only prove that the physical elements of the
offence did occur. A defence of mistake of fact is open to the defendant under
section 9.2 of the Criminal Code. This defence is available if a person
is under a mistaken but reasonable belief about a fact and, had that fact
existed, the conduct would not constitute an offence. Under the Criminal
Code, any legislative provision that attracts strict liability must
expressly state that it is an offence of strict liability (see Section 6.1 of
the Code).
Subsection 17(2) provides a person must not fail to comply
with a requirement under subsection 17(1) to provide information relating to the
importation, manufacturer or disposal of a product that is necessary to work out
the total leviable value in respect of the product for a calendar year. The
maximum penalty is 30 penalty units. The obligation the subject of the offence
is of an administrative nature and the offence carries a relatively low penalty
and permits a defence of reasonable excuse. These factors indicate that the
offence is one where strict liability would apply under the existing
law.
These items remove the defence of reasonable excuse from subsection 18(4)
and recreate it in a new subsection 18(5). The rationale for this amendment is
to prevent the provision from being interpreted in such a way as to include the
reasonable excuse element of the provision as an element of the offence, which
would have to be disproved by the prosecution. The amendment makes it clear
that reasonable excuse is a defence to the offence.
A standard note is
added after the new subsection referring to the fact that under subsection
13.3(3) of the Criminal Code a defendant seeking to rely on the
reasonable excuse defence carries an evidential burden.
Item 8 also
inserts a new subsection 18(6), which specifies that the offence in subsection
18(4) of the Act is an offence of strict liability. Where strict liability
applies to an offence the prosecution does not have to prove fault on the part
of the defendant. The prosecution need only prove that the physical elements of
the offence did occur. A defence of mistake of fact is open to the defendant
under section 9.2 of the Criminal Code. This defence is available if a
person is under a mistaken but reasonable belief about a fact and, had that fact
existed, the conduct would not constitute an offence. Under the Criminal
Code, any legislative provision that attracts strict liability must
expressly state that it is an offence of strict liability (see Section 6.1 of
the Code).
Subsection 18(4) provides that a person who has ceased to be
an inspector must, as soon as practicable, return his or her identity card. The
maximum penalty is 1 penalty unit. The obligation the subject of the offence is
of an administrative nature and the offence carries a low penalty and permits a
defence of reasonable excuse. These factors indicate that the offence is one
where strict liability would apply under the existing law.
These items remove the defence of reasonable excuse from subsection 21(3)
and recreate it in a new subsection 21(4). The rationale for this amendment is
to prevent the provision from being interpreted in such a way as to include the
reasonable excuse element of the provision as an element of the offence, which
would have to be disproved by the prosecution. The amendment makes it clear
that reasonable excuse is a defence to the offence.
A standard note is
added after the new subsection referring to the fact that under subsection
13.3(3) of the Criminal Code a defendant seeking to rely on the
reasonable excuse defence carries an evidential burden.
Item 10 also
inserts a new subsection 21(5), which specifies that the offence in subsection
21(3) of the Act is an offence of strict liability. Where strict liability
applies to an offence the prosecution does not have to prove fault on the part
of the defendant. The prosecution need only prove that the physical elements of
the offence did occur. A defence of mistake of fact is open to the defendant
under section 9.2 of the Criminal Code. This defence is available if a
person is under a mistaken but reasonable belief about a fact and, had that fact
existed, the conduct would not constitute an offence. Under the Criminal
Code, any legislative provision that attracts strict liability must
expressly state that it is an offence of strict liability (see Section 6.1 of
the Code).
Subsection 21(3) provides that a person must not refuse or
fail to comply with a requirement under subsection 21(1) to give information or
produce documents requested by an inspector. The maximum penalty is 30 penalty
units. This is a relatively low penalty and a defence of reasonable excuse is
available. These factors indicate that the offence is one where strict
liability would apply under the existing law.
Item 11 - Applying
strict liability
Item 11 inserts a new subsection 34(2), which
specifies that the offence in subsection 34(1) of the Act is an offence of
strict liability. Where strict liability applies to an offence the prosecution
does not have to prove fault on the part of the defendant. The prosecution need
only prove that the physical elements of the offence did occur. A defence of
mistake of fact is open to the defendant under section 9.2 of the Criminal
Code. This defence is available if a person is under a mistaken but
reasonable belief about a fact and, had that fact existed, the conduct would not
constitute an offence. Under the Criminal Code, any legislative provision
that attracts strict liability must expressly state that it is an offence of
strict liability (see Section 6.1 of the Code).
Subsection 34(1) provides
that a person must keep certain records and retain them for 6 years. The maximum
penalty is 30 penalty units. The obligation the subject of the offence is of an
administrative nature and the offence carries a relatively low penalty. These
factors indicate that the offence is one where strict liability would apply
under the existing law.
Certain Crimes Act 1914 provisions, including sections 7, 7A and
86, are scheduled for progressive disapplication in relation to offence
provisions to which the Criminal Code applies, and ultimately for repeal
on 15 December 2001. It is necessary to replace references to those Crimes
Act provisions with references to relevant Criminal Code provisions.
This item replaces the references in the definition of offence against this
Act in section 3 to sections 7, 7A and 86 of the Crimes Act 1914
(which concern attempting to commit primary offences, incitement to commit
primary offences, and conspiring to commit primary offences) with references to
the Criminal Code provisions which deal with attempt, incitement and
conspiracy (sections 11.1, 11.4 and 11.5).
This item inserts a new section 5A which applies Chapter 2 of the
Criminal Code to all offences against the Act. Chapter 2 establishes the
codified general principles of criminal responsibility.
These items remove the defence of reasonable excuse from subsection 15(2)
and recreate it in a new subsection 15(2A). The rationale for this amendment is
to prevent the provision from being interpreted in such a way as to include the
reasonable excuse element of the provision as an element of the offence, which
would have to be disproved by the prosecution. The amendment makes it clear
that reasonable excuse is a defence to the offence.
A standard note is
added after the new subsection referring to the fact that under subsection
13.3(3) of the Criminal Code a defendant seeking to rely on the
reasonable excuse defence carries an evidential burden.
Item 15 also
inserts a new subsection 15(2B), which specifies that the offence in subsection
15(2) of the Act is an offence of strict liability. Where strict liability
applies to an offence the prosecution does not have to prove fault on the part
of the defendant. The prosecution need only prove that the physical elements of
the offence did occur. A defence of mistake of fact is open to the defendant
under section 9.2 of the Criminal Code. This defence is available if a
person is under a mistaken but reasonable belief about a fact and, had that fact
existed, the conduct would not constitute an offence. Under the Criminal
Code, any legislative provision that attracts strict liability must
expressly state that it is an offence of strict liability (see Section 6.1 of
the Code).
Subsection 15(2) provides that a person must not fail to
comply with a requirement under subsection 15(1) to calculate the total leviable
value in respect of a product for a year and the amount of levy payable, and to
notify the NRA of the results and basis of the calculations. The maximum penalty
is 30 penalty units. The obligation the subject of the offence is of an
administrative nature and the offence carries a relatively low penalty and
permits a defence of reasonable excuse. These factors indicate that the offence
is one where strict liability would apply under the existing law.
These items remove the defence of reasonable excuse from subsection 20(3)
and recreate it in a new subsection 20(4). The rationale for this amendment is
to prevent the provision from being interpreted in such a way as to include the
reasonable excuse element of the provision as an element of the offence, which
would have to be disproved by the prosecution. The amendment makes it clear
that reasonable excuse is a defence to the offence.
A standard note is
added after the new subsection referring to the fact that under subsection
13.3(3) of the Criminal Code a defendant seeking to rely on the
reasonable excuse defence carries an evidential burden.
Item 17 also
inserts a new subsection 20(5), which specifies that the offence in subsection
20(3) of the Act is an offence of strict liability. Where strict liability
applies to an offence the prosecution does not have to prove fault on the part
of the defendant. The prosecution need only prove that the physical elements of
the offence did occur. A defence of mistake of fact is open to the defendant
under section 9.2 of the Criminal Code. This defence is available if a
person is under a mistaken but reasonable belief about a fact and, had that fact
existed, the conduct would not constitute an offence. Under the Criminal
Code, any legislative provision that attracts strict liability must
expressly state that it is an offence of strict liability (see Section 6.1 of
the Code).
Subsection 20(3) provides that a person must not fail to
comply with a requirement under subsection 20(1) or 20(2) to provide information
relating to the importation, manufacturer or disposal of a product that is
necessary to work out the total leviable value in respect of the product. The
maximum penalty is 30 penalty units. The obligation the subject of the offence
is of an administrative nature and the offence carries a relatively low penalty
and permits a defence of reasonable excuse. These factors indicate that the
offence is one where strict liability would apply under the existing
law.
These items remove the defence of reasonable excuse from subsection 23(3)
and recreate it in a new subsection 23(4). The rationale for this amendment is
to prevent the provision from being interpreted in such a way as to include the
reasonable excuse element of the provision as an element of the offence, which
would have to be disproved by the prosecution. The amendment makes it clear
that reasonable excuse is a defence to the offence.
A standard note is
added after the new subsection referring to the fact that under subsection
13.3(3) of the Criminal Code a defendant seeking to rely on the
reasonable excuse defence carries an evidential burden.
Item 19 also
inserts a new subsection 23(5), which specifies that the offence in subsection
23(3) of the Act is an offence of strict liability. Where strict liability
applies to an offence the prosecution does not have to prove fault on the part
of the defendant. The prosecution need only prove that the physical elements of
the offence did occur. A defence of mistake of fact is open to the defendant
under section 9.2 of the Criminal Code. This defence is available if a
person is under a mistaken but reasonable belief about a fact and, had that fact
existed, the conduct would not constitute an offence. Under the Criminal
Code, any legislative provision that attracts strict liability must
expressly state that it is an offence of strict liability (see Section 6.1 of
the Code).
Subsection 23(3) provides that a person must not refuse or
fail to comply with a requirement under subsection 23(1) to give information or
produce documents requested by an inspector. The maximum penalty is 30 penalty
units. The obligation the subject of the offence is of an administrative nature
and the offence carries a relatively low penalty and permits a defence of
reasonable excuse. These factors indicate that the offence is one where strict
liability would apply under the existing law.
Item 20 - Applying
strict liability
Item 20 inserts a new subsection 36(2), which
specifies that the offence in subsection 36(1) of the Act is an offence of
strict liability. Where strict liability applies to an offence the prosecution
does not have to prove fault on the part of the defendant. The prosecution need
only prove that the physical elements of the offence did occur. A defence of
mistake of fact is open to the defendant under section 9.2 of the Criminal
Code. This defence is available if a person is under a mistaken but
reasonable belief about a fact and, had that fact existed, the conduct would not
constitute an offence. Under the Criminal Code, any legislative provision
that attracts strict liability must expressly state that it is an offence of
strict liability (see Section 6.1 of the Code).
Subsection 36(1) provides
that a person must keep certain records and retain them for 6 years. The maximum
penalty is 30 penalty units. The obligation the subject of the offence is of an
administrative nature and the offence carries a relatively low penalty. These
factors indicate that the offence is one where strict liability would apply
under the existing law.
This item inserts a new section 5A which applies Chapter 2 (other than Part
2.5) of the Criminal Code to all offences against the Act. Chapter 2
establishes the codified general principles of criminal responsibility.
Part 2.5 contains general principles of corporate criminal
responsibility. When the Criminal Code was introduced, it was recognised
that the general principles of corporate criminal responsibility in Part 2.5
might need to be supplemented with more specific provisions in appropriate
cases. This Act is one which contains specific provisions relating to corporate
criminal responsibility (see section 69EU). As the
Bill is intended to ensure that agriculture, fisheries and forestry portfolio
legislation continues to operate in the same way after the Criminal Code
applies to it, the specific corporate criminal responsibility provisions in the
Act are retained by excluding the application of Part 2.5 of the Criminal
Code.
Items 22 and 23 –Clarifying defences and
applying strict liability
These items remove the defences of
reasonable excuse and "with the consent in writing of the NRA" from subsection
69B(1) and recreate them in new subsections 69B(1A) and 69B(1B). The rationale
for these amendments is to prevent the provision from being interpreted in such
a way as to include the reasonable excuse and consent elements of the provision
as elements of the offence, which would have to be disproved by the prosecution.
The amendment makes it clear that they are defences to the offence.
A
standard note is added after the new subsections referring to the fact that
under subsection 13.3(3) of the Criminal Code a defendant seeking to rely
on the defences in the new subsections carries an evidential burden.
Item
23 also inserts new subsections 69B(1C) and 69B(1D) which provide that strict
liability applies to the physical elements of circumstance in the offence in
subsection 69B(1), that the active constituent is not approved or exempt and the
chemical product is not registered or exempt. The result of specifying that
strict liability applies to those physical elements of circumstance is that the
prosecution does not have to prove fault on the part of the defendant in
relation to those physical elements. The prosecution need only prove that the
physical elements of the offence did occur – in this case that the active
constituent was not approved or exempt and the chemical product was not
registered or exempt.
These items remove the defence of reasonable excuse from subsection
69C(5) and recreate it in a new subsection 69C(5A). The rationale for this
amendment is to prevent the provision from being interpreted in such a way as to
include the reasonable excuse element of this provision as an element of the
offence, which would have to be disproved by the prosecution. The amendment
makes it clear that reasonable excuse is a defence to the offence.
A
standard note is added after the new subsection referring to the fact that under
subsection 13.3(3) of the Criminal Code a defendant seeking to rely on
the reasonable excuse defence carries an evidential burden.
Item 25 also
inserts a new subclause 69C(5B) which provides that strict liability applies to
the physical element of circumstance in the offence in subclause 69C(5), that
the condition or restriction that the conduct contravenes is a condition or
restriction prescribed by a regulation made for the purposes of subsection (1).
The result of specifying that strict liability applies to that physical element
of circumstance is that the prosecution does not have to prove fault on the part
of the defendant in relation to that physical element. The prosecution need
only prove that the physical element of the offence did occur – in this
case that the condition or restriction that the conduct contravened is a
condition or restriction prescribed by a regulation made for the purposes of
subsection (1).
This item inserts a new subsection 69E(2A), which specifies that the
offence in subsection 69E(1) of the Act is an offence of strict liability. Where
strict liability applies to an offence the prosecution does not have to prove
fault on the part of the defendant. The prosecution need only prove that the
physical elements of the offence did occur. A defence of mistake of fact is open
to the defendant under section 9.2 of the Criminal Code. This defence is
available if a person is under a mistaken but reasonable belief about a fact
and, had that fact existed, the conduct would not constitute an offence. Under
the Criminal Code, any legislative provision that attracts strict
liability must expressly state that it is an offence of strict liability (see
Section 6.1 of the Code).
Subsection 69E(1) provides that an importer,
exporter or manufacturer of chemical products or their active constituents must
file an annual return setting out the quantities exported, imported or
manufactured . The maximum penalty is 30 penalty units. The obligation the
subject of the offence is of an administrative nature and the offence carries a
relatively low penalty. These factors indicate that the offence is one where
strict liability would apply under the existing law.
This item inserts a new subsection 69EA(2), which specifies that the
offence in subsection 69EA(1) of the Act is an offence of strict liability.
Where strict liability applies to an offence the prosecution does not have to
prove fault on the part of the defendant. The prosecution need only prove that
the physical elements of the offence did occur. A defence of mistake of fact is
open to the defendant under section 9.2 of the Criminal Code. This
defence is available if a person is under a mistaken but reasonable belief about
a fact and, had that fact existed, the conduct would not constitute an offence.
Under the Criminal Code, any legislative provision that attracts strict
liability must expressly state that it is an offence of strict liability (see
Section 6.1 of the Code).
Subsection 69EA(1) provides that an importer,
exporter or manufacturer of chemical products or their active constituents must
keep records relating to the export, import or manufacture and retain the
records for 6 years. The maximum penalty is 30 penalty units. The obligation the
subject of the offence is of an administrative nature and the offence carries a
relatively low penalty. These factors indicate that the offence is one where
strict liability would apply under the existing law.
These items remove the defence of reasonable excuse from subsection
69EB(6) and recreate it in a new subsection 69EB(7). The rationale for this
amendment is to prevent the provision from being interpreted in such a way as to
include the reasonable excuse element of this provision as an element of the
offence, which would have to be disproved by the prosecution. The amendment
makes it clear that reasonable excuse is a defence to the offence.
A
standard note is added after the new subsection referring to the fact that under
subsection 13.3(3) of the Criminal Code a defendant seeking to rely on
the reasonable excuse defence carries an evidential burden.
Item 29 also
inserts a new subsection 69EB(8), which specifies that the offence in subsection
69EB(6) of the Act is an offence of strict liability. Where strict liability
applies to an offence the prosecution does not have to prove fault on the part
of the defendant. The prosecution need only prove that the physical elements of
the offence did occur. A defence of mistake of fact is open to the defendant
under section 9.2 of the Criminal Code. This defence is available if a
person is under a mistaken but reasonable belief about a fact and, had that fact
existed, the conduct would not constitute an offence. Under the Criminal
Code, any legislative provision that attracts strict liability must
expressly state that it is an offence of strict liability (see Section 6.1 of
the Code).
Subsection 69EB(6) provides that person must not refuse or
fail to comply with a direction given by an inspector under section 69EB. The
maximum penalty is 30 penalty units. This is a relatively low penalty and a
defence of reasonable excuse is available. These factors indicate that the
offence is one where strict liability would apply under the existing
law.
These items remove the defence of reasonable excuse from subsection
69EN(3) and recreate it in a new subsection 69EN(4). The rationale for this
amendment is to prevent the provision from being interpreted in such a way as to
include the reasonable excuse element of the provision as an element of the
offence, which would have to be disproved by the prosecution. The amendment
makes it clear that reasonable excuse is a defence to the offence.
A
standard note is added after the new subsection referring to the fact that under
subsection 13.3(3) of the Criminal Code a defendant seeking to rely on
the reasonable excuse defence carries an evidential burden.
Item 31 also
inserts a new subsection 69EN(5), which specifies that the offence in subsection
69EN(3) of the Act is an offence of strict liability. Where strict liability
applies to an offence the prosecution does not have to prove fault on the part
of the defendant. The prosecution need only prove that the physical elements of
the offence did occur. A defence of mistake of fact is open to the defendant
under section 9.2 of the Criminal Code. This defence is available if a
person is under a mistaken but reasonable belief about a fact and, had that fact
existed, the conduct would not constitute an offence. Under the Criminal
Code, any legislative provision that attracts strict liability must
expressly state that it is an offence of strict liability (see Section 6.1 of
the Code).
Subsection 69EN(3) provides that person must not refuse or
fail to comply with a requirement under subsection 69EN(1) to give information
or produce documents. The maximum penalty is 30 penalty units. This is a
relatively low penalty and a defence of reasonable excuse is available. These
factors indicate that the offence is one where strict liability would apply
under the existing law.
These items remove the defence of reasonable excuse from subsection
69EP(6) and recreate it in a new subsection 69EP(6A). The rationale for this
amendment is to prevent the provision from being interpreted in such a way as to
include the reasonable excuse element of the provision as an element of the
offence, which would have to be disproved by the prosecution. The amendment
makes it clear that reasonable excuse is a defence to the offence.
A
standard note is added after the new subsection referring to the fact that under
subsection 13.3(3) of the Criminal Code a defendant seeking to rely on
the reasonable excuse defence carries an evidential burden.
Item 33 also
inserts a new subsection 69EP(6B), which specifies that the offence in
subsection 69EP(6) of the Act is an offence of strict liability. Where strict
liability applies to an offence the prosecution does not have to prove fault on
the part of the defendant. The prosecution need only prove that the physical
elements of the offence did occur. A defence of mistake of fact is open to the
defendant under section 9.2 of the Criminal Code. This defence is
available if a person is under a mistaken but reasonable belief about a fact
and, had that fact existed, the conduct would not constitute an offence. Under
the Criminal Code, any legislative provision that attracts strict
liability must expressly state that it is an offence of strict liability (see
Section 6.1 of the Code).
Subsection 69EP(6) provides that person must
not must not contravene a direction given under subsection (5) prohibiting or
restricting the publication of submissions or evidence given at a hearing. The
maximum penalty is 20 penalty units. This is a relatively low penalty and a
defence of reasonable excuse is available. These factors indicate that the
offence is one where strict liability would apply under the existing
law.
These items remove the defence of reasonable excuse from subsection
69EP(7) and recreate it in a new subsection 69EP(7A). The rationale for this
amendment is to prevent the provision from being interpreted in such a way as to
include the reasonable excuse element of this provision as an element of the
offence, which would have to be disproved by the prosecution. The amendment
makes it clear that reasonable excuse is a defence to the offence.
A
standard note is added after the new subsection referring to the fact that under
subsection 13.3(3) of the Criminal Code a defendant seeking to rely on
the reasonable excuse defence carries an evidential burden.
These items remove the defence of reasonable excuse from subsection
69F(5) and recreate it in a new subsection 69F(5A). The rationale for this
amendment is to prevent the provision from being interpreted in such a way as to
include the reasonable excuse element of the provision as an element of the
offence, which would have to be disproved by the prosecution. The amendment
makes it clear that reasonable excuse is a defence to the offence.
A
standard note is added after the new subsection referring to the fact that under
subsection 13.3(3) of the Criminal Code a defendant seeking to rely on
the reasonable excuse defence carries an evidential burden.
Item 37 also
inserts a new subsection 69F(5B), which specifies that the offence in subsection
69F(5) of the Act is an offence of strict liability. Where strict liability
applies to an offence the prosecution does not have to prove fault on the part
of the defendant. The prosecution need only prove that the physical elements of
the offence did occur. A defence of mistake of fact is open to the defendant
under section 9.2 of the Criminal Code. This defence is available if a
person is under a mistaken but reasonable belief about a fact and, had that fact
existed, the conduct would not constitute an offence. Under the Criminal
Code, any legislative provision that attracts strict liability must
expressly state that it is an offence of strict liability (see Section 6.1 of
the Code).
Subsection 69F(5) provides that a person who has ceased to be
an inspector must return the identity card as soon as practicable. The maximum
penalty is 1 penalty unit. The obligation the subject of the offence is of an
administrative nature and the offence carries a low penalty and permits a
defence of reasonable excuse. These factors indicate that the offence is one
where strict liability would apply under the existing law.
Certain Crimes Act 1914 provisions, including sections 7, 7A and
86, are scheduled for progressive disapplication in relation to offence
provisions to which the Criminal Code applies, and ultimately for repeal
on 15 December 2001. It is necessary to replace references to those Crimes
Act provisions with references to relevant Criminal Code provisions.
This item replaces the references in paragraphs 5(4)(a) and (b) to sections 7,
7A and 86 of the Crimes Act 1914 (which concern attempting to commit
primary offences, incitement to commit primary offences, and conspiring to
commit primary offences) with references to the Criminal Code provisions
which deal with attempt, incitement and conspiracy (sections 11.1, 11.4 and
11.5).
This item inserts a new section 8A which applies Chapter 2 (other than Part
2.5) of the Criminal Code to all offences against the Act. Chapter 2
establishes the codified general principles of criminal responsibility.
Part 2.5 contains general principles of corporate criminal
responsibility. When the Criminal Code was introduced, it was recognised
that the general principles of corporate criminal responsibility in Part 2.5
might need to be supplemented with more specific provisions in appropriate
cases. This Act is one which contains specific provisions relating to corporate
criminal responsibility (see section 151 of the
Schedule). As the Bill is intended to ensure that
agriculture, fisheries and forestry portfolio legislation continues to operate
in the same way after the Criminal Code applies to it, the specific
corporate criminal responsibility provisions in the Act are retained by
excluding the application of Part 2.5 of the Criminal
Code.
Item 40 inserts a new subsection 26(1A), which specifies that the offence
in subsection 26(1) is an offence of strict liability. Where strict liability
applies to an offence the prosecution does not have to prove fault on the part
of the defendant. The prosecution need only prove that the physical elements of
the offence did occur. A defence of mistake of fact is open to the defendant
under section 9.2 of the Criminal Code. This defence is available if a
person is under a mistaken but reasonable belief about a fact and, had that fact
existed, the conduct would not constitute an offence. Under the Criminal
Code, any legislative provision that attracts strict liability must
expressly state that it is an offence of strict liability (see Section 6.1 of
the Code).
Subsection 26(1) provides that certain persons must inform the
NRA if they have reasonable cause to believe that a particular recorded in
certain registers and files is not correct in a material respect. The maximum
penalty is 60 penalty units. The obligation the subject of the offence is of an
administrative nature and the offence carries a relatively low penalty. These
factors indicate that the offence is one where strict liability would apply
under the existing law.
Item 41 – Applying strict
liability
Item 41 inserts a new subsection 32(3A), which
specifies that the offence in subsection 32(3) is an offence of strict
liability. Where strict liability applies to an offence the prosecution does not
have to prove fault on the part of the defendant. The prosecution need only
prove that the physical elements of the offence did occur. A defence of mistake
of fact is open to the defendant under section 9.2 of the Criminal Code.
This defence is available if a person is under a mistaken but reasonable belief
about a fact and, had that fact existed, the conduct would not constitute an
offence. Under the Criminal Code, any legislative provision that attracts
strict liability must expressly state that it is an offence of strict liability
(see Section 6.1 of the Code).
Subsection 32(3) provides that a person
must comply with a requirement under paragraph (2)(b) to give information
relevant to a reconsideration. The maximum penalty is 120 penalty units, which
is reasonably low in the commercial context, and no fault elements are
specified. These factors indicate that the offence is one where strict
liability would apply under the existing law.
Item 42 –
Applying strict liability
Item 42 inserts a new subsection
33(2A), which specifies that the offence in subsection 33(2) is an offence of
strict liability. Where strict liability applies to an offence the prosecution
does not have to prove fault on the part of the defendant. The prosecution need
only prove that the physical elements of the offence did occur. A defence of
mistake of fact is open to the defendant under section 9.2 of the Criminal
Code. This defence is available if a person is under a mistaken but
reasonable belief about a fact and, had that fact existed, the conduct would not
constitute an offence. Under the Criminal Code, any legislative provision
that attracts strict liability must expressly state that it is an offence of
strict liability (see Section 6.1 of the Code).
Subsection 33(2) provides
that a person must comply with a requirement under subsection 33(1) to conduct
necessary trials or laboratory experiments and give the results to the NRA
within a reasonable period. The maximum penalty is 120 penalty units, which is
reasonably low in the commercial context, and no fault elements are specified.
These factors indicate that the offence is one where strict liability would
apply under the existing law.
Item 43 – Clarifying fault
element
This item replaces the phrase "for the purpose" in
paragraph 55(4)(b) with the phrase "with the intention". The phrase "for the
purpose" is potentially confusing as to what the applicable fault element is. It
could be interpreted as a reference to the intention of the person when
performing the conduct (with the intention of supplying the product), or it
could refer to the result of the conduct (with the result that the product is
supplied).
To avoid this confusion the paragraph has been amended to
reflect the appropriate interpretation of the current offence, namely, "with the
intention" of supplying the product.
Item 44 – Applying
strict liability
This item inserts a new subsection 55(6A) which
provides that strict liability applies to the physical element of circumstance
in the offence in subsection 55(6A), that the publishing of the notice was under
section 55. The result of specifying that strict liability applies to that
physical element of circumstance is that the prosecution does not have to prove
fault on the part of the defendant in relation to that physical element. The
prosecution need only prove that the physical element of the offence did occur
– in this case that the publishing of the notice was under section
55.
Item 45 – Applying strict
liability
Item 45 inserts a new subsection 61(2), which specifies
that the offence in subsection 61(1) is an offence of strict liability. Where
strict liability applies to an offence the prosecution does not have to prove
fault on the part of the defendant. The prosecution need only prove that the
physical elements of the offence did occur. A defence of mistake of fact is open
to the defendant under section 9.2 of the Criminal Code. This defence is
available if a person is under a mistaken but reasonable belief about a fact
and, had that fact existed, the conduct would not constitute an offence. Under
the Criminal Code, any legislative provision that attracts strict
liability must expressly state that it is an offence of strict liability (see
Section 6.1 of the Code).
Subsection 61(1) provides that a primary
applicant must give a notice containing certain information to a secondary
applicant as soon as practicable after the primary applicant receives a notice
under section 60. The maximum penalty is 300 penalty units. The obligation the
subject of the offence is of an administrative nature and no fault elements are
specified. These factors indicate that the offence is one where strict
liability would apply under the existing law.
These items remove the defence of reasonable excuse from subsection 70(5)
and recreate it in a new subsection 70(5A). The rationale for this amendment is
to prevent the provision from being interpreted in such a way as to include the
reasonable excuse element of the provision as an element of the offence, which
would have to be disproved by the prosecution. The amendment makes it clear
that reasonable excuse is a defence to the offence.
A standard note is
added after the new subsection referring to the fact that under subsection
13.3(3) of the Criminal Code a defendant seeking to rely on the
reasonable excuse defence carries an evidential burden.
Item 47 also
inserts a new subsection 70(5B), which specifies that the offence in subsection
70(5) of the Act is an offence of strict liability. Where strict liability
applies to an offence the prosecution does not have to prove fault on the part
of the defendant. The prosecution need only prove that the physical elements of
the offence did occur. A defence of mistake of fact is open to the defendant
under section 9.2 of the Criminal Code. This defence is available if a
person is under a mistaken but reasonable belief about a fact and, had that fact
existed, the conduct would not constitute an offence. Under the Criminal
Code, any legislative provision that attracts strict liability must
expressly state that it is an offence of strict liability (see Section 6.1 of
the Code).
Subsection 70(5) provides that, if a secondary applicant gives
notice under subsection (3) or (4) to the primary applicant, that secondary
applicant must give a copy of the notice to the NRA. The maximum penalty is 10
penalty units. The obligation the subject of the offence is of an administrative
nature and the offence carries a relatively low penalty and permits a defence of
reasonable excuse. These factors indicate that the offence is one where strict
liability would apply under the existing law.
Item 48 –
Clarifying fault element
This item replaces the phrase "for the
purpose" in subsection 74(1) with the phrase "with the intention". The phrase
"for the purpose" is potentially confusing as to what the applicable fault
element is. It could be interpreted as a reference to the intention of the
person when performing the conduct (with the intention of supplying the
substance), or it could refer to the result of the conduct (with the result that
the substance is supplied).
To avoid this confusion the paragraph has
been amended to reflect the appropriate interpretation of the current offence,
namely, "with the intention" of supplying the
substance.
Item 49 – Note as to evidential
burden
This item adds a standard note after subsection 74(1)
referring to the fact that under subsection 13.3(3) of the Criminal Code
a defendant seeking to rely on the defences in the subsection 74(1) carries an
evidential burden.
Item 50 – Note as to legal
burden
This item adds a note after subsection 74(3) referring to
the fact that under subsection 13.4 of the Criminal Code a defendant
seeking to rely on the defence in subsection 74(3) carries a legal
burden.
Item 51 – Clarifying fault
element
This item replaces the phrase "for the purpose" in
subsection 75(1) with the phrase "with the intention". The phrase "for the
purpose" is potentially confusing as to what the applicable fault element is. It
could be interpreted as a reference to the intention of the person when
performing the conduct (with the intention of supplying the product), or it
could refer to the result of the conduct (with the result that the product is
supplied).
To avoid this confusion the paragraph has been amended to
reflect the appropriate interpretation of the current offence, namely, "with the
intention" of supplying the product.
Item 52 – Note as to
evidential burden
This item adds a note after subsection 75(1)
referring to the fact that under subsection 13.3(3) of the Criminal Code
a defendant seeking to rely on the defences in subsection 75(1) carries an
evidential burden.
This item adds a note after subsection 75(3) referring to the fact that
under subsection 13.4 of the Criminal Code a defendant seeking to rely on
the defence in subsection 75(3) carries a legal burden.
Item 54
– Note as to evidential burden
This item adds a note after
subsection 76(1) referring to the fact that under subsection 13.3(3) of the
Criminal Code a defendant seeking to rely on the defences in subsection
76(1) carries an evidential burden.
Item 55 – Note as to
legal burden
This item adds a note after subsection 76(3)
referring to the fact that under subsection 13.4 of the Criminal Code a
defendant seeking to rely on the defence in subsection 76(3) carries a legal
burden.
Item 56 – Note as to evidential
burden
This item adds a note after subsection 77(1) referring to
the fact that under subsection 13.3(3) of the Criminal Code a defendant
seeking to rely on the defence that the supply is in accordance with the
conditions or is authorised by a permit carries an evidential
burden.
Item 57 – Note as to legal burden
This
item adds a note after subsection 77(2) referring to the fact that under
subsection 13.4 of the Criminal Code a defendant seeking to rely on the
defence in subsection 77(2) carries a legal burden.
This item adds a note after subsection 78(1) referring to the fact that
under subsection 13.3(3) of the Criminal Code a defendant seeking to rely
on the defences in subsection 78(1) carries an evidential
burden.
Item 59 – Note as to legal burden
This
item adds a note after subsection 78(3) referring to the fact that under
subsection 13.4 of the Criminal Code a defendant seeking to rely on the
defence in subsection 78(3) carries a legal burden.
Item 60 –
Note as to evidential burden
This item adds a note after
subsection 79(1) referring to the fact that, under subsection 13.3(3) of the
Criminal Code, a defendant seeking to rely on the defence that the supply
is in accordance with the conditions or is authorised by a permit carries an
evidential burden.
Item 61 – Note as to legal
burden
This item adds a note after subsection 79(2) referring to
the fact that under subsection 13.4 of the Criminal Code a defendant
seeking to rely on the defence in subsection 79(2) carries a legal
burden.
Item 62 – Note as to evidential
burden
This item adds a note after subsection 80(1) referring to
the fact that under subsection 13.3(3) of the Criminal Code a defendant
seeking to rely on the defence that the supply is authorised by a permit carries
an evidential burden.
Item 63 – Note as to legal
burden
This item adds a note after subsection 80(2) referring to
the fact that under subsection 13.4 of the Criminal Code a defendant
seeking to rely on the defence in subsection 80(2) carries a legal
burden.
Item 64 – Note as to evidential
burden
This item adds a note after subsection 81(1) referring to
the fact that under subsection 13.3(3) of the Criminal Code a defendant
seeking to rely on the defence that the supply is authorised by a permit carries
an evidential burden.
Item 65 – Note as to legal
burden
This item adds a note after subsection 81(2) referring to
the fact that under subsection 13.4 of the Criminal Code a defendant
seeking to rely on the defence in subsection 81(2) carries a legal
burden.
These items remove the defence of written consent of an inspector from
subsection 82(1) and recreate it in a new subsection 82(1A). The rationale for
this amendment is to prevent the provision from being interpreted in such a way
as to include the "without written consent" element of the provision as an
element of the offence, which would have to be disproved by the prosecution.
The amendments make it clear that having written consent of an inspector is a
defence to the offence.
A standard note is added after the new subsection
82(1A) referring to the fact that under subsection 13.3(3) of the Criminal
Code a defendant seeking to rely on the defence established by subsection
82(1A) carries an evidential burden.
Item 68 – Note as to
legal burden
This item adds a note after subsection 82(2)
referring to the fact that under subsection 13.4 of the Criminal Code a
defendant seeking to rely on the defence in subsection 82(2) carries a legal
burden.
This item inserts a new subsection 82(3) which provides that strict
liability applies to the physical element of circumstance in the offence in
subsection 82(1) that, in opening the container, the inspector was acting under
paragraph 131(1)(f). The result of specifying that
strict liability applies to that physical element of circumstance is that the
prosecution does not have to prove fault on the part of the defendant in
relation to that physical element. The prosecution need only prove that the
physical element of the offence did occur – in this case that, in the
opening the container, the inspector was acting under paragraph
131(1)(f).
These items remove the defence of reasonable excuse from subsection 83(1)
and recreate it in a new subsection 83(2). The rationale for this amendment is
to prevent the provision from being interpreted in such a way as to include the
reasonable excuse element of the provision as an element of the offence, which
would have to be disproved by the prosecution. The amendment makes it clear
that reasonable excuse is a defence to the offence.
A standard note is
added after the new subsection referring to the fact that under subsection
13.3(3) of the Criminal Code a defendant seeking to rely on the
reasonable excuse defence carries an evidential burden.
Items 72
and 73 – Clarifying defences
These items remove the
defences of authorised by a permit and reasonable excuse from subsection 84(1)
and recreate them in new subsections 84(3) and 84(4). The rationale for these
amendments is to prevent the provision from being interpreted in such a way as
to include the reasonable excuse and authorised by a permit elements of the
provision as elements of the offence, which would have to be disproved by the
prosecution. The amendments make it clear that having authorisation under a
permit or a reasonable excuse is a defence to the offence.
A standard
note is added after the new subsections referring to the fact that under
subsection 13.3(3) of the Criminal Code a defendant seeking to rely on
the defences in the new subsections carries an evidential
burden.
Items 74, 75 and 76 – Clarifying defences and
applying strict liability
These items remove the defences of
authorised by a permit and reasonable excuse from subsection 85(1) and recreate
them in new subsections 85(3) and 85(4). The rationale for these amendments is
to prevent the provision from being interpreted in such a way as to include the
reasonable excuse and authorised by a permit elements of the provision as
elements of the offence, which would have to be disproved by the prosecution.
The amendments make it clear that having authorisation under a permit or a
reasonable excuse is a defence to the offence.
A standard note is added
after the new subsections referring to the fact that under subsection 13.3(3) of
the Criminal Code a defendant seeking to rely on the defences in the new
subsections carries an evidential burden.
Item 76 also inserts a new
subsection 85(5) which provides that strict liability applies to the physical
element of circumstance in the offence in subsection 85(1) that it is the
regulations that require an expiry date to be contained on a label attached to a
container of the product. The result of specifying
that strict liability applies to that physical element of circumstance is that
the prosecution does not have to prove fault on the part of the defendant in
relation to that physical element. The prosecution need only prove that the
physical element of the offence did occur – in this case that it is the
regulations that require an expiry date to be contained on a label attached to a
container of the product.
These items remove the defence of reasonable excuse from subsection 86(1)
and recreate it in a new subsection 86(3). The rationale for this amendment is
to prevent the provision from being interpreted in such a way as to include the
reasonable excuse element of the provision as an element of the offence, which
would have to be disproved by the prosecution. The amendment makes it clear
that reasonable excuse is a defence to the offence.
A standard note is
added after the new subsection referring to the fact that under subsection
13.3(3) of the Criminal Code a defendant seeking to rely on the
reasonable excuse defence carries an evidential burden.
These items remove the defences of "authorised by a permit" and
reasonable excuse from subsection 87(2) and recreate them in new subsections
87(3) and (4). The rationale for these amendments is to prevent the provision
from being interpreted in such a way as to include the reasonable excuse and
authorised by a permit elements of the provision as elements of the offence,
which would have to be disproved by the prosecution. The amendments make it
clear that having authorisation under a permit or a reasonable excuse is a
defence to the offence.
A standard note is added after each of the new
subsections referring to the fact that under subsection 13.3(3) of the
Criminal Code a defendant seeking to rely on the defences in the new
subsections carries an evidential burden.
Item 81 – Note as
to evidential burden
This item adds a note after subsection 88(2)
referring to the fact that under subsection 13.3(3) of the Criminal Code
a defendant seeking to rely on the defences in subsection 88(2) carries an
evidential burden.
This item adds a note after subsection 88(3) referring to the fact that
under subsection 13.4 of the Criminal Code a defendant seeking to rely on
the defence in subsection 88(3) carries a legal burden.
Items 83
and 84 – Clarifying defence of reasonable excuse and applying strict
liability
These items remove the defence of reasonable excuse
from subsection 89(1) and recreate it in a new subsection 89(6). The rationale
for this amendment is to prevent the provision from being interpreted in such a
way as to include the reasonable excuse element of the provision as an element
of the offence, which would have to be disproved by the prosecution. The
amendment makes it clear that reasonable excuse is a defence to the
offence.
A standard note is added after the new subsection referring to
the fact that under subsection 13.3(3) of the Criminal Code a defendant
seeking to rely on the reasonable excuse defence carries an evidential
burden.
Item 84 also inserts a new subsection 89(7) which provides that
strict liability applies to the physical element of circumstance in the offence
in paragraph 89(1)(f), that the particular quantities concerned were prescribed
by the regulations for the purposes of that paragraph.
The result of specifying that strict liability applies to that physical
element of circumstance is that the prosecution does not have to prove fault on
the part of the defendant in relation to that physical element. The prosecution
need only prove that the physical element of the offence did occur – in
this case that the particular quantities concerned were prescribed by the
regulations for the purposes of that paragraph.
Items 85 and 86
– Clarifying defence of reasonable excuse and applying strict
liability
These items remove the defence of reasonable excuse
from subsection 90(1) and recreate it in a new subsection 90(2). The rationale
for this amendment is to prevent the provision from being interpreted in such a
way as to include the reasonable excuse element of the provision as an element
of the offence, which would have to be disproved by the prosecution. The
amendment makes it clear that reasonable excuse is a defence to the
offence.
A standard note is added after the new subsection referring to
the fact that under subsection 13.3(3) of the Criminal Code a defendant
seeking to rely on the reasonable excuse defence carries an evidential
burden.
Item 86 also inserts a new subsection 90(3) which provides that
strict liability applies to the physical element of circumstance in the offence
in subsection 90(1), that the relevant matter is prescribed by the
regulations. The result of specifying that strict
liability applies to that physical element of circumstance is that the
prosecution does not have to prove fault on the part of the defendant in
relation to that physical element. The prosecution need only prove that the
physical element of the offence did occur – in this case that the relevant
matter was prescribed by the regulations.
Items 87 and 88 –
Clarifying defences and applying strict liability
These items
remove the defences of authorised by a permit and reasonable excuse from
subsection 91(1) and recreate them in new subsections 91(1A) and 91(1B). The
rationale for these amendments is to prevent the provision from being
interpreted in such a way as to include the reasonable excuse and authorised by
a permit elements of this provision as elements of the offence, which would have
to be disproved by the prosecution. The amendments make it clear that having
authorisation under a permit or a reasonable excuse is a defence to the
offence.
A standard note is added after the new subsections referring to
the fact that under subsection 13.3(3) of the Criminal Code a defendant
seeking to rely on the defences in the new subsections carries an evidential
burden.
Item 88 also inserts a new subsection 91(1C) which provides that
strict liability applies to the physical element of circumstance in the offence
in subsection 91(1) that the NRA has not approved the relevant matter and that
an expiry date was required as a condition of registration.
The result of specifying that strict liability applies to those physical
elements of circumstance is that the prosecution does not have to prove fault on
the part of the defendant in relation to those physical elements. The
prosecution need only prove that those physical elements of the offence did
occur – in this case that the NRA had not approved the relevant matter and
that an expiry date was required as a condition of registration.
These items remove the defence of reasonable excuse from subsection 91(2)
and recreate it in a new subsection 91(3). The rationale for this amendment is
to prevent the provision from being interpreted in such a way as to include the
reasonable excuse element of the provision as an element of the offence, which
would have to be disproved by the prosecution. The amendment makes it clear
that reasonable excuse is a defence to the offence.
A standard note is
added after the new subsection referring to the fact that under subsection
13.3(3) of the Criminal Code a defendant seeking to rely on the
reasonable excuse defence carries an evidential burden.
These items remove the defence of reasonable excuse from subsection 92(1)
and recreate it in a new subsection 92(3). The rationale for this amendment is
to prevent the provision from being interpreted in such a way as to include the
reasonable excuse element of the provision as an element of the offence, which
would have to be disproved by the prosecution. The amendment makes it clear
that reasonable excuse is a defence to the offence.
A standard note is
added after the new subsection referring to the fact that under subsection
13.3(3) of the Criminal Code a defendant seeking to rely on the
reasonable excuse defence carries an evidential burden.
Items 93
and 94 – Clarifying defence of reasonable excuse
These
items remove the defence of reasonable excuse from subsection 94(1) and recreate
it in a new subsection 94(2). The rationale for this amendment is to prevent
the provision from being interpreted in such a way as to include the reasonable
excuse element of the provision as an element of the offence, which would have
to be disproved by the prosecution. The amendment makes it clear that
reasonable excuse is a defence to the offence.
A standard note is added
after the new subsection referring to the fact that under subsection 13.3(3) of
the Criminal Code a defendant seeking to rely on the reasonable excuse
defence carries an evidential burden.
These items remove the defence of reasonable excuse from subsection 95(1)
and recreate it in a new subsection 95(2). The rationale for this amendment is
to prevent the provision from being interpreted in such a way as to include the
reasonable excuse element of the provision as an element of the offence, which
would have to be disproved by the prosecution. The amendment makes it clear
that reasonable excuse is a defence to the offence.
A standard note is
added after the new subsection referring to the fact that under subsection
13.3(3) of the Criminal Code a defendant seeking to rely on the
reasonable excuse defence carries an evidential burden.
Item 97
– Applying strict liability
This item inserts a new
subsection 97(2A), which specifies that the offence in subsection 97(2) is an
offence of strict liability. Where strict liability applies to an offence the
prosecution does not have to prove fault on the part of the defendant. The
prosecution need only prove that the physical elements of the offence did occur.
A defence of mistake of fact is open to the defendant under section 9.2 of the
Criminal Code. This defence is available if a person is under a mistaken
but reasonable belief about a fact and, had that fact existed, the conduct would
not constitute an offence. Under the Criminal Code, any legislative
provision that attracts strict liability must expressly state that it is an
offence of strict liability (see Section 6.1 of the Code).
Subsection
97(2) provides that an analyst must give the NRA a certificate after an
analysis. The penalty is 10 penalty units. The obligation the subject of the
offence is of an administrative nature and the offence carries a relatively low
penalty. These factors indicate that the offence is one where strict liability
would apply under the existing law.
These items remove the defence of reasonable excuse from subsection 97(6)
and recreate it in a new subsection 97(6A). The rationale for this amendment is
to prevent the provision from being interpreted in such a way as to include the
reasonable excuse element of the provision as an element of the offence, which
would have to be disproved by the prosecution. The amendment makes it clear
that reasonable excuse is a defence to the offence.
A standard note is
added after the new subsection referring to the fact that under subsection
13.3(3) of the Criminal Code a defendant seeking to rely on the
reasonable excuse defence carries an evidential burden.
Item 99 also
inserts a new subsection 97(6B), which specifies that the offence in subsection
97(6) of the Act is an offence of strict liability. Where strict liability
applies to an offence the prosecution does not have to prove fault on the part
of the defendant. The prosecution need only prove that the physical elements of
the offence did occur. A defence of mistake of fact is open to the defendant
under section 9.2 of the Criminal Code. This defence is available if a
person is under a mistaken but reasonable belief about a fact and, had that fact
existed, the conduct would not constitute an offence. Under the Criminal
Code, any legislative provision that attracts strict liability must
expressly state that it is an offence of strict liability (see Section 6.1 of
the Code).
Subsection 97(6) provides that a person must not, for trade
purposes or for advertisement, use a certificate given under subsection (2) or
any matter contained in it. The maximum penalty is 60 penalty units, which is
relatively low, and a defence of reasonable excuse is available. These factors
indicate that the offence is one where strict liability would apply under the
existing law.
These items remove the defence of reasonable excuse from subsection 99(5)
and recreate it in a new subsection 99(5A). The rationale for this amendment is
to prevent the provision from being interpreted in such a way as to include the
reasonable excuse element of the provision as an element of the offence, which
would have to be disproved by the prosecution. The amendment makes it clear
that reasonable excuse is a defence to the offence.
A standard note is
added after the new subsection referring to the fact that under subsection
13.3(3) of the Criminal Code a defendant seeking to rely on the
reasonable excuse defence carries an evidential burden.
Item 101 also
inserts a new subsection 99(5B), which specifies that the offence in subsection
99(5) of the Act is an offence of strict liability. Where strict liability
applies to an offence the prosecution does not have to prove fault on the part
of the defendant. The prosecution need only prove that the physical elements of
the offence did occur. A defence of mistake of fact is open to the defendant
under section 9.2 of the Criminal Code. This defence is available if a
person is under a mistaken but reasonable belief about a fact and, had that fact
existed, the conduct would not constitute an offence. Under the Criminal
Code, any legislative provision that attracts strict liability must
expressly state that it is an offence of strict liability (see Section 6.1 of
the Code).
Subsection 99(5) provides that a person must comply with a
notice given under subsection (2) or (3) and must give the NRA the analyst's
certificate within 5 days after the person receives it. The penalty is 120
penalty units. The obligation the subject of the offence is of an administrative
nature and the defence of reasonable excuse is available. These factors
indicate that the offence is one where strict liability would apply under the
existing law.
These items remove the defence of reasonable excuse from subsection
105(1) and recreate it in a new subsection 105(2). The rationale for this
amendment is to prevent the provision from being interpreted in such a way as to
include the reasonable excuse element of the provision as an element of the
offence, which would have to be disproved by the prosecution. The amendment
makes it clear that reasonable excuse is a defence to the offence.
A
standard note is added after the new subsection referring to the fact that under
subsection 13.3(3) of the Criminal Code a defendant seeking to rely on
the reasonable excuse defence carries an evidential burden.
Item 103 also
inserts a new subsection 105(3), which specifies that the offence in subsection
105(1) of the Act is an offence of strict liability. Where strict liability
applies to an offence the prosecution does not have to prove fault on the part
of the defendant. The prosecution need only prove that the physical elements of
the offence did occur. A defence of mistake of fact is open to the defendant
under section 9.2 of the Criminal Code. This defence is available if a
person is under a mistaken but reasonable belief about a fact and, had that fact
existed, the conduct would not constitute an offence. Under the Criminal
Code, any legislative provision that attracts strict liability must
expressly state that it is an offence of strict liability (see Section 6.1 of
the Code).
Subsection 105(1) provides that a person to whom a recall
notice is given must comply with it. The penalty is 120 penalty units. The
obligation the subject of the offence is of an administrative nature and the
defence of reasonable excuse is available. These factors indicate that the
offence is one where strict liability would apply under the existing
law.
These items remove the defence of reasonable excuse from subsections
121(3), (4) and (5) and recreate it in a new subsection 121(6). The rationale
for this amendment is to prevent the provisions from being interpreted in such a
way as to include the reasonable excuse element of the provisions as an element
of the offences, which would have to be disproved by the prosecution. The
amendment makes it clear that reasonable excuse is a defence to the offences in
subsections 121(3), (4) and (5).
A standard note is added after the new
subsection referring to the fact that under subsection 13.3(3) of the
Criminal Code a defendant seeking to rely on the reasonable excuse
defence carries an evidential burden.
Item 105 also inserts a new
subsection 121(7), which specifies that the offences in subsections 121(3),(4)
and (5) of the Act are offences of strict liability. Where strict liability
applies to an offence the prosecution does not have to prove fault on the part
of the defendant. The prosecution need only prove that the physical element of
the offence did occur. A defence of mistake of fact is open to the defendant
under section 9.2 of the Criminal Code. This defence is available if a
person is under a mistaken but reasonable belief about a fact and, had that fact
existed, the conduct would not constitute an offence. Under the Criminal
Code, any legislative provision that attracts strict liability must
expressly state that it is an offence of strict liability (see Section 6.1 of
the Code).
Subsection 121(3) provides that a person must not carry out a
step in the manufacture of a prohibited chemical product at premises in this
jurisdiction. Subsection 121(4) provides that a person must not carry out a step
in the manufacture of other chemical products at premises in this jurisdiction
unless certain of the exceptions listed in the subsection apply. Subsection
121(5) provides that the holder of a licence must not contravene a condition of
the licence. The maximum penalty is 240 penalty units for subsections 121(3) and
(4) and 120 penalty units for subsection 121(5). The offences permit a defence
of reasonable excuse. This suggests that the offences would have been
interpreted under the existing law as strict liability offences.
These items remove the defence of reasonable excuse from subsection
131(8) and recreate it in a new subsection 131(9). The rationale for this
amendment is to prevent the provision from being interpreted in such a way as to
include the reasonable excuse element of the provision as an element of the
offence, which would have to be disproved by the prosecution. The amendment
makes it clear that reasonable excuse is a defence to the offence.
A
standard note is added after the new subsection referring to the fact that under
subsection 13.3(3) of the Criminal Code a defendant seeking to rely on
the reasonable excuse defence carries an evidential burden.
Item 107 also
inserts a new subsection 131(10), which specifies that the offence in subsection
131(8) of the Act is an offence of strict liability. Where strict liability
applies to an offence the prosecution does not have to prove fault on the part
of the defendant. The prosecution need only prove that the physical elements of
the offence did occur. A defence of mistake of fact is open to the defendant
under section 9.2 of the Criminal Code. This defence is available if a
person is under a mistaken but reasonable belief about a fact and, had that fact
existed, the conduct would not constitute an offence. Under the Criminal
Code, any legislative provision that attracts strict liability must
expressly state that it is an offence of strict liability (see Section 6.1 of
the Code).
Subsection 131(8) provides that a person must comply with a
direction given by an inspector under section 131. The maximum penalty is 30
penalty units. The offence carries a relatively low penalty and permits a
defence of reasonable excuse. These factors indicate that the offence is one
where strict liability would apply under the existing law.
These items remove the defence of reasonable excuse from subsection
144(3) and recreate it in a new subsection 144(4). The rationale for this
amendment is to prevent the provision from being interpreted in such a way as to
include the reasonable excuse element of the provision as an element of the
offence, which would have to be disproved by the prosecution. The amendment
makes it clear that reasonable excuse is a defence to the offence.
A
standard note is added after the new subsection referring to the fact that under
subsection 13.3(3) of the Criminal Code a defendant seeking to rely on
the reasonable excuse defence carries an evidential burden.
Item 109 also
inserts a new subsection 144(5), which specifies that the offence in subsection
144(3) of the Act is an offence of strict liability. Where strict liability
applies to an offence the prosecution does not have to prove fault on the part
of the defendant. The prosecution need only prove that the physical elements of
the offence did occur. A defence of mistake of fact is open to the defendant
under section 9.2 of the Criminal Code. This defence is available if a
person is under a mistaken but reasonable belief about a fact and, had that fact
existed, the conduct would not constitute an offence. Under the Criminal
Code, any legislative provision that attracts strict liability must
expressly state that it is an offence of strict liability (see Section 6.1 of
the Code).
Subsection 144(3) provides that a person must comply with a
requirement given by an inspector under section 144(1) to give information or
produce documents. The maximum penalty is 30 penalty units. The offence carries
a relatively low penalty and permits a defence of reasonable excuse. These
factors indicate that the offence is one where strict liability would apply
under the existing law.
Item 110 – Applying strict liability
This item inserts a new subsection 152(3), which specifies that
where an offence arises because of subsection 152(2), strict liability applies
to paragraphs 152(2)(a) and (b). Where strict liability applies to an offence
the prosecution does not have to prove fault on the part of the defendant. The
prosecution need only prove that the physical elements of the offence did occur.
A defence of mistake of fact is open to the defendant under section 9.2 of the
Criminal Code. This defence is available if a person is under a mistaken
but reasonable belief about a fact and, had that fact existed, the conduct would
not constitute an offence. Under the Criminal Code, any legislative
provision that attracts strict liability must expressly state that it is an
offence of strict liability (see Section 6.1 of the Code).
Paragraphs
152(2)(a) and (b) apply where a person who is not a resident of, and does not
carry on business in, Australia fails to do a thing in relation to a chemical
product for which the person is the interested person, and that failure is an
offence against the Code. In that case the authorised person will be responsible
for the breach. This section imposes criminal responsibility on a person for the
omissions of another person, that is, it applies vicarious liability. Vicarious
liability is a type of strict liability and, under the Criminal Code, any
legislative provision that attracts strict liability must expressly state that
(see Section 6.1). Therefore, this amendment is necessary to ensure that the
provision will continue to operate in the same way.
Item 111 removes the defence that the conduct was "in the performance of
functions or duties, or the exercise of powers under this Code" from subsection
162(1). Item 78 recreates it in a new subsection 162(1A). The rationale for
this amendment is to prevent the provision from being interpreted in such a way
as to include this matter as an element of the offence, which would have to be
disproved by the prosecution. The amendment makes it clear that the conduct
being in the performance of functions or duties, or the exercise of powers under
the Code is a defence to the offence.
Subsection 162(1) contains the offence of disclosing confidential
commercial information about a chemical product or constituent that a person
acquired when exercising powers or performing functions under the Code.
Subsection 162(1) applies the fault elements of intention and recklessness in
relation to the physical element of conduct, namely disclosing the information
to another person.
Following application of the Criminal Code,
it will not be possible to apply the fault element of recklessness to a physical
element consisting of conduct. Section 5.4 of the Criminal Code
restricts the application of recklessness to the physical elements of
circumstance or result, and the only fault element that may be applied to a
physical element of conduct is intention (section 5.2 of the Criminal
Code). Accordingly this item deletes “recklessly” from
subsection 162(1).
"Intentionally" is also deleted. In the absence of
any stated fault elements, the default fault elements will apply because of
Section 5.6 of the Criminal Code. The result of this is that intention
will be the applicable fault element for any physical elements of conduct, and
recklessness will be the applicable fault element for any physical elements of
result or circumstance. This will mean that the subsection will continue to
operate in the same manner as at present.
Item 113 recreates in a new subsection 162(1A) the defence removed from
subsection 162(1) by item 76, that is, that conduct was "in the performance of
functions or duties, or the exercise of powers under this Code". The rationale
for this amendment is to prevent the provision from being interpreted in such a
way as to include this matter as an element of the offence, which would have to
be disproved by the prosecution. The amendment makes it clear that a disclosure
of information being in the performance of functions or duties or in the
exercise of powers under the Code is a defence to the offence.
A standard
note is added after the new subsection referring to the fact that under
subsection 13.3(3) of the Criminal Code a defendant seeking to rely on
the defence in the new subsection carries an evidential
burden.
Item 114 – Note as to evidential
burden
This item adds a note after subsection 162(7) referring to
the fact that under subsection 13.3(3) of the Criminal Code a defendant
seeking to rely on the defence in subsection 162(7) carries an evidential
burden.
Item 115 removes from subsection 162(8) the defence that the conduct was
for the purpose of providing advice or making a recommendation to the NRA in
accordance with certain legislative provisions. Item 117 recreates it in a new
subsection 162(8A). The rationale for this amendment is to prevent the provision
from being interpreted in such a way as to include this matter as an element of
the offence, which would have to be disproved by the prosecution. The amendment
makes it clear that it is a defence to the offence that the conduct was for the
purpose of providing advice or making a recommendation to the NRA.
Subsection 162(8) contains the offence of disclosing confidential
commercial information acquired because of a disclosure under subsection 162(7).
Subsection 162(8) applies the fault elements of intention and recklessness in
relation to the physical element of conduct, namely disclosing the information
to another person.
Following application of the Criminal Code,
it will not be possible to apply the fault element of recklessness to a physical
element consisting of conduct. Section 5.4 of the Criminal Code
restricts the application of recklessness to the physical elements of
circumstance or result, and the only fault element that may be applied to a
physical element of conduct is intention (section 5.2 of the Criminal
Code). Accordingly this item deletes “recklessly” from
subsection 162(8).
"Intentionally" is also deleted. In the absence of
any stated fault elements, the default fault elements will apply because of
Section 5.6 of the Criminal Code. The result of this is that intention
will be the applicable fault element for any physical elements of conduct, and
recklessness will be the applicable fault element for any physical elements of
result or circumstance. This will mean that the subsection will continue to
operate in the same manner as at present.
Item 117 recreates in a new subsection 162(8A) the defence removed from
subsection 162(8) by item 115, that is, that the conduct was for the purpose of
providing advice or making a recommendation to the NRA in accordance with
certain legislative provisions. The rationale for this amendment is to prevent
the provision from being interpreted in such a way as to include this matter as
an element of the offence, which would have to be disproved by the prosecution.
The amendment makes it clear that it is a defence to the offence that the
conduct was for the purpose of providing advice or making a recommendation to
the NRA.
A standard note is added after the new subsection referring to
the fact that under subsection 13.3(3) of the Criminal Code a defendant
seeking to rely on the defence in the new subsection carries an evidential
burden.
Item 117 also inserts a new subsection 162(8B) which provides
that strict liability applies to the physical element of circumstance in the
offence in subsection 162(8), that the disclosure was under subsection
(7). The result of specifying that strict liability
applies to that physical element of circumstance is that the prosecution does
not have to prove fault on the part of the defendant in relation to that
physical element. The prosecution need only prove that the physical element of
the offence did occur – in this case that the disclosure was under
subsection (7).
Subsection 162(9) contains the offence of disclosing confidential
commercial information acquired from a person carrying out a function under the
Code. Subsection 162(9) applies the fault elements of intention and
recklessness in relation to the physical elements of conduct, namely disclosing
the information to another person.
Following application of the
Criminal Code, it will not be possible to apply the fault element of
recklessness to a physical element consisting of conduct. Section 5.4 of the
Criminal Code restricts the application of recklessness to the physical
elements of circumstance or result, and the only fault element that may be
applied to a physical element of conduct is intention (section 5.2 of the
Criminal Code). Accordingly this item deletes “recklessly”
from subsection 162(9).
"Intentionally" is also deleted. In the absence
of any stated fault elements, the default fault elements will apply because of
Section 5.6 of the Criminal Code. The result of this is that intention
will be the applicable fault element for any physical elements of conduct, and
recklessness will be the applicable fault element for any physical elements of
result or circumstance. This will mean that the subsection will continue to
operate in the same manner as at present.
This item inserts a new subsection 162(9A) which provides that strict
liability applies to the physical elements of circumstance in the offence in
subsection 162(9), that the acquisition of the information by the
first-mentioned person was in the performance of functions or duties, or the
exercise of powers, under the Code, and that the disclosure mentioned first in
subsection 162(9) was made other than under subsection (3) or (7).
The
result of specifying that strict liability applies to those physical elements of
circumstance is that the prosecution does not have to prove fault on the part of
the defendant in relation to those physical elements. The prosecution need only
prove that those physical elements of the offence did occur – in this case
that the acquisition of the information by the first mentioned person was in the
performance of functions or duties, or the exercise of powers, under the Code,
and that the disclosure mentioned first in subsection 162(9) was made other than
under subsection (3) or (7).
This item inserts a new subsection 47(4), which specifies that the
offence in subsection 47(3) of the Act is an offence of strict liability. Where
strict liability applies to an offence the prosecution does not have to prove
fault on the part of the defendant. The prosecution need only prove that the
physical elements of the offence did occur. A defence of mistake of fact is open
to the defendant under section 9.2 of the Criminal Code. This defence is
available if a person is under a mistaken but reasonable belief about a fact
and, had that fact existed, the conduct would not constitute an offence. Under
the Criminal Code, any legislative provision that attracts strict
liability must expressly state that it is an offence of strict liability (see
Section 6.1 of the Code).
Subsection 47(3) provides a person must not
fail to comply with a requirement to give information or produce any documents
referred to by an authorised officer under subsection 47(1). The maximum penalty
is 30 penalty units, which is relatively low, and no fault elements are
specified. These factors indicate that the offence is one where strict
liability would apply under the existing law.
This item inserts a new subsection 49(4), which specifies that the
offence in subsection 49(3) of the Act is an offence of strict liability. Where
strict liability applies to an offence the prosecution does not have to prove
fault on the part of the defendant. The prosecution need only prove that the
physical elements of the offence did occur. A defence of mistake of fact is open
to the defendant under section 9.2 of the Criminal Code. This defence is
available if a person is under a mistaken but reasonable belief about a fact
and, had that fact existed, the conduct would not constitute an offence. Under
the Criminal Code, any legislative provision that attracts strict
liability must expressly state that it is an offence of strict liability (see
Section 6.1 of the Code).
Subsection 49(3) provides that as soon as
practicable after a person ceases to be an authorised officer under the Act the
person must return their identity card to the Secretary. The maximum penalty for
this offence is 1 penalty unit. The obligation the subject of the offence is of
an administrative nature and the offence carries a low penalty. These factors
indicate that the offence is one where strict liability would apply under the
existing law.
This item replaces the word ‘nature’, which was mistakenly
used, with the word ‘notice’.
This item inserts a new section 4B which applies Chapter 2 (other than
Part 2.5) of the Criminal Code to all offences against the Act. Chapter 2
establishes the codified general principles of criminal responsibility.
Part 2.5 contains general principles of corporate
criminal responsibility. When the Criminal Code was introduced, it was
recognised that the general principles of corporate criminal responsibility in
Part 2.5 might need to be supplemented with more specific provisions in
appropriate cases. The Australian Wine and Brandy Corporation Act is one
which contains specific provisions relating to corporate criminal responsibility
(section 44A). As the Bill is intended to ensure that agriculture, fisheries and
forestry portfolio legislation continues to operate in the same way after the
Criminal Code applies to it, the specific corporate criminal
responsibility provisions in the Act are retained by excluding the application
of Part 2.5 of the Criminal Code.
This item inserts a new subsection 9(5A) which specifies that the
offences in subsections 9(4) and 9(5) of the Act are offences of strict
liability. Where strict liability applies to an offence the prosecution does not
have to prove fault on the part of the defendant. The prosecution need only
prove that the physical elements of the offence did occur. A defence of mistake
of fact is open to the defendant under section 9.2 of the Criminal Code.
This defence is available if a person is under a mistaken but reasonable belief
about a fact and, had that fact existed, the conduct would not constitute an
offence. Under the Criminal Code, any legislative provision that attracts
strict liability must expressly state that it is an offence of strict liability
(see Section 6.1 of the Code).
Subsection 9(4) provides that a person
shall not enter a contract with another person for the carriage by that person
of a grape product to a place outside Australia unless that other person is also
approved as a carrier for that grape product and that place. The maximum penalty
is $6,000. Subsection 9(5) provides a person shall not enter a contract with
another person for the carriage by that person of a grape product except with
approval and in accordance with any conditions of the approval. The maximum
penalty is $6,000. In the commercial setting, these penalties are not large and
no fault elements are specified. This suggests that the offences would have
been interpreted under the existing law as strict liability offences.
Subsection 39ZAAA(1) contains offences of failing to make or keep a
record as required, or making or keeping a record that is false, misleading or
incomplete in a material particular. Paragraphs 39ZAAA(1)(a) and (b) apply the
fault elements of knowledge and recklessness (“knowingly or
recklessly”) in relation to the physical elements of conduct, namely the
making or keeping, or failure to make or keep, a record. Following application
of the Criminal Code, it will not be possible to apply fault elements of
knowledge or recklessness to a physical element consisting of conduct. Section
5.3 of the Criminal Code restricts the application of these fault
elements to physical elements of circumstance or result, and the only fault
element that may be applied to a physical element of conduct is intention
(section 5.2 of the Criminal Code). Accordingly these items delete
“knowingly or recklessly” from paragraphs 39ZAAA(1)(a) and (b) and
replace them with the appropriate fault element, namely intention. The fault
element of intention is the direct Criminal Code equivalent of
“knowingly” where the latter has been applied to physical elements
of conduct.
These items remove the defence of reasonable excuse from subsection
39ZAB(1) and recreate it in a new subsection 39ZAB(1A). The rationale for this
amendment is to prevent the provision from being interpreted in such a way as to
include the reasonable excuse element of the provision as an element of the
offence, which would have to be disproved by the prosecution. The amendment
makes it clear that reasonable excuse is a defence to the offence.
A
standard note is added after the new subsection referring to the fact that under
subsection 13.3(3) of the Criminal Code a defendant seeking to rely on
the reasonable excuse defence carries an evidential burden.
This item inserts a new subsection 39ZAB(3) which provides that strict
liability applies to the physical element of circumstance in the offence in
subsection 39ZAB(1) that the notice is under section 39ZAA. The result of
specifying that strict liability applies to that physical element of
circumstance is that the prosecution does not have to prove fault on the part of
the defendant in relation to that physical element. The prosecution need only
prove that the physical element of the offence did occur – in this case
that the notice was under section 39ZAA.
This item inserts subsection 39ZB(4) which specifies that the offence
contained in subsection 39ZB(3) is an offence of strict liability. Where strict
liability applies to an offence the prosecution does not have to prove fault on
the part of the defendant. The prosecution need only prove that the physical
elements of the offence did occur. A defence of mistake of fact is open to the
defendant under section 9.2 of the Criminal Code. This defence is
available if a person is under a mistaken but reasonable belief about a fact
and, had that fact existed, the conduct would not constitute an offence. Under
the Criminal Code, any legislative provision that attracts strict
liability must expressly state that it is an offence of strict liability (see
Section 6.1 of the Code).
Subsection 39ZB(3) provides that an inspector
must return his or her identity card as soon as practicable after his or her
appointment ceases. The maximum penalty for this offence is $100. The
obligation the subject of the offence is of an administrative nature and the
offence carries a low penalty. These factors indicate that the offence is one
where strict liability would apply under the existing law.
These items make two amendments to section 39ZH. First, they remove the
defence of reasonable excuse from subsection 39ZH(2) and recreate it in a new
subsection 39ZH(2A). The rationale for this amendment is to prevent the
provision from being interpreted in such a way as to include the reasonable
excuse element of the provision as an element of the offence, which would have
to be disproved by the prosecution. The amendment makes it clear that
reasonable excuse is a defence to the offence.
A standard note is added
after the new subsection referring to the fact that under subsection 13.3(3) of
the Criminal Code a defendant seeking to rely on the reasonable excuse
defence carries an evidential burden.
Item 131 also inserts a new
subsection 39ZH(2B), which specifies that the offence in subsection 39ZH(2) of
the Act is an offence of strict liability. Subsection 39ZH(2) provides that a
person must not refuse or fail to comply with a requirement under subsection (1)
to answer questions or produce documents. The offence carries a maximum penalty
of $3,000. This is a relatively low penalty and a defence of reasonable excuse
is available. These factors indicate that the offence is one where strict
liability would apply under the existing law.
Subsections 40C(1), (2) and (3) contain the offences, respectively, of
selling, exporting and importing wine with a false description and presentation.
Subsections 40C(1), (2) and (3) apply the fault element of knowledge
(“knowingly”) in relation to the physical elements of conduct,
namely, selling, exporting or importing the wine.
Following application of the Criminal Code, it will not be
possible to apply the fault element of knowledge to a physical element
consisting of conduct. Section 5.3 of the Criminal Code restricts the
application of these fault elements to physical elements of circumstance or
result, and the only fault element that may be applied to a physical element of
conduct is intention (section 5.2 of the Criminal Code). Accordingly
these items delete “knowingly” from subsections 40C(1), (2) and (3)
and replace it with the appropriate fault element, namely intention. The fault
element of intention is the direct Criminal Code equivalent of
“knowingly” where the latter is applied to physical elements of
conduct.
Subsections 40E(1), (2) and (3) contain the offences, respectively, of
selling, exporting and importing wine with a misleading description and
presentation. Subsections 40E(1), (2) and (3) apply the fault element of
knowledge (“knowingly”) in relation to the physical elements of
conduct, namely, selling, exporting or importing the wine. Following
application of the Criminal Code, it will not be possible to apply the
fault element of knowledge to a physical element consisting of conduct. Section
5.3 of the Criminal Code restricts the application of these fault
elements to physical elements of circumstance or result, and the only fault
element that may be applied to a physical element of conduct is intention
(section 5.2 of the Criminal Code). Accordingly these items delete
“knowingly” from subsections 40E(1), (2) and (3) and replace it with
the appropriate fault element, namely intention. The fault element of intention
is the direct Criminal Code equivalent of “knowingly” where
the latter is applied to physical elements of conduct.
Subsection 40H(2) contains an offence of exporting wine which the person
knows does not meet requirements specified in the regulations. Subsection
40H(2) applies the fault element of knowledge (“knowingly”) in
relation to the physical elements of conduct, namely, exporting the wine.
Following application of the Criminal Code, it will not be possible to
apply the fault element of knowledge to a physical element consisting of
conduct. Section 5.3 of the Criminal Code restricts the application of
these fault elements to physical elements of circumstance or result, and the
only fault element that may be applied to a physical element of conduct is
intention (section 5.2 of the Criminal Code). Accordingly these items
delete “knowingly” from subsection 40H(2) and replace it with the
appropriate fault element, namely intention. The fault element of intention is
the direct Criminal Code equivalent of “knowingly” where the
latter is applied to physical elements of conduct.
These items make two amendments to section 42. First, they remove the
defence of reasonable excuse from subsection 42(2) and recreate it in a new
subsection 42(2A). The rationale for this amendment is to prevent the provision
from being interpreted in such a way as to include the reasonable excuse element
of the provision as an element of the offence, which would have to be disproved
by the prosecution. The amendment makes it clear that reasonable excuse is a
defence to the offence.
A standard note is added after the new subsection
referring to the fact that under subsection 13.3(3) of the Criminal Code
a defendant seeking to rely on the reasonable excuse defence carries an
evidential burden.
Item 136 also inserts a new subsection 42(2B), which
specifies that the offence in subsection 42(2) is an offence of strict
liability. Where strict liability applies to an offence the prosecution does not
have to prove fault on the part of the defendant. The prosecution need only
prove that the physical elements of the offence did occur. A defence of mistake
of fact is open to the defendant under section 9.2 of the Criminal Code.
This defence is available if a person is under a mistaken but reasonable belief
about a fact and, had that fact existed, the conduct would not constitute an
offence. Under the Criminal Code, any legislative provision that attracts
strict liability must expressly state that it is an offence of strict liability
(see Section 6.1 of the Code).
Subsection 42(2) provides that a person
must not fail to furnish certain information that the Corporation has required
by notice. The maximum penalty is imprisonment for six months (or $5,000 for a
body corporate) and a person can rely on the defence of reasonable excuse. The
availability of the defence of reasonable excuse implies that fault need not be
proved. This indicates that the offence would have been interpreted under the
existing law as a strict liability offence.
This item inserts a new subsection 44(1A), which specifies that the
offence in subsection 44(1) of the Act is an offence of strict liability. Where
strict liability applies to an offence the prosecution does not have to prove
fault on the part of the defendant. The prosecution need only prove that the
physical elements of the offence did occur. A defence of mistake of fact is open
to the defendant under section 9.2 of the Criminal Code. This defence is
available if a person is under a mistaken but reasonable belief about a fact
and, had that fact existed, the conduct would not constitute an offence. Under
the Criminal Code, any legislative provision that attracts strict
liability must expressly state that it is an offence of strict liability (see
Section 6.1 of the Code).
Subsection 44(1) provides a person shall not
export a grape product from Australia in contravention of the regulations. The
maximum penalty is $6,000 for a natural person or $10,000 for a body corporate.
The offence does not specify any fault elements and the penalty is relatively
low in the commercial context. These factors indicate that the offence is one
where strict liability would apply under the existing law.
Certain Crimes Act 1914 provisions, including sections 7, 7A and
86, are scheduled for progressive disapplication in relation to offence
provisions to which the Criminal Code applies, and ultimately for repeal
on 15 December 2001. It is necessary to replace references to those Crimes
Act provisions with references to relevant Criminal Code provisions.
This item replaces the references in paragraph 44A(9)(b) to sections 7, 7A and
86 of the Crimes Act 1914 (which concern attempting to commit primary
offences, incitement to commit primary offences, and conspiring to commit
primary offences) with references to the Criminal Code provisions which
deal with attempt, incitement and conspiracy (sections 11.1, 11.4 and
11.5).
Biological Control Act 1984
This item inserts a new section 6A which applies Chapter 2 of the
Criminal Code to all offences against the Act. Chapter 2 establishes the
codified general principles of criminal responsibility.
These items make two amendments to section 43. First, they remove the
defence of reasonable excuse from section 43(1) and recreate it in a new
subsection 43(2). The rationale for this amendment is to prevent the provision
from being interpreted in such a way as to include the reasonable excuse element
of the provision as an element of the offence, which would have to be disproved
by the prosecution. The amendment makes it clear that reasonable excuse is a
defence to the offence.
A standard note is added after the new subsection
referring to the fact that under subsection 13.3(3) of the Criminal Code
a defendant seeking to rely on the reasonable excuse defence carries an
evidential burden.
Item 141 also inserts a new subsection 43(3), which
specifies that the offence in subsection 43(1) of the Act is an offence of
strict liability. Where strict liability applies to an offence the prosecution
does not have to prove fault on the part of the defendant. The prosecution need
only prove that the physical elements of the offence did occur. A defence of
mistake of fact is open to the defendant under section 9.2 of the Criminal
Code. This defence is available if a person is under a mistaken but
reasonable belief about a fact and, had that fact existed, the conduct would not
constitute an offence. Under the Criminal Code, any legislative provision
that attracts strict liability must expressly state that it is an offence of
strict liability (see Section 6.1 of the Code).
Subsection 43(1) provides
that a person served with a summons to appear as a witness at an inquiry must
not fail to attend, appear and to report from day to day as
required. The offence carries a maximum penalty of
$1,000 or imprisonment for 6 months, or both, and the person can rely on the
defence of reasonable excuse. The availability of the defence of reasonable
excuse implies that fault need not be proved. This indicates that the offence
would have been interpreted under the existing law as a strict liability
offence.
These items make two amendments to section 45. First, they remove the
defence of reasonable excuse from section 45(1) and recreate it in a new
subsection 45(2). The rationale for this amendment is to prevent the provision
from being interpreted in such a way as to include the reasonable excuse element
of the provision as an element of the offence, which would have to be disproved
by the prosecution. The amendment makes it clear that reasonable excuse is a
defence to the offence.
A standard note is added after the new subsection
referring to the fact that under subsection 13.3(3) of the Criminal Code
a defendant seeking to rely on the reasonable excuse defence carries an
evidential burden.
Item 143 also inserts a new subsection 45(3), which
specifies that the offence in subsection 45(1) of the Act is an offence of
strict liability. Where strict liability applies to an offence the prosecution
does not have to prove fault on the part of the defendant. The prosecution need
only prove that the physical elements of the offence did occur. A defence of
mistake of fact is open to the defendant under section 9.2 of the Criminal
Code. This defence is available if a person is under a mistaken but
reasonable belief about a fact and, had that fact existed, the conduct would not
constitute an offence. Under the Criminal Code, any legislative provision
that attracts strict liability must expressly state that it is an offence of
strict liability (see Section 6.1 of the Code).
Subsection 45(1) provides
that a person must not refuse or fail to be sworn or make an affirmation, answer
a question, or produce a document as required. The offence carries a maximum
penalty of $1,000 or imprisonment for 6 months, or both, and the person can rely
on the defence of reasonable excuse. The availability of the defence of
reasonable excuse implies that fault need not be proved. This indicates that
the offence would have been interpreted under the existing law as a strict
liability offence.
Dairy Produce Act 1986
This item inserts a new section 4A which applies Chapter 2 of the
Criminal Code to all offences against the Act. Chapter 2 establishes the
codified general principles of criminal responsibility.
These items remove the exception “unless the person is a
licensee” from subsection 54(1) and recreate it as subsection 54(1A). The
rationale for this amendment is to prevent the provision from being interpreted
in such a way as to include the 'unless the person is a licensee' element of
this provision as an element of the offence, which would have to be disproved by
the prosecution. The amendment makes it clear that being a licensee is a
defence to the offence.
A standard note is added after the new subsection
referring to the fact that under subsection 13.3(3) of the Criminal Code
a defendant seeking to rely on the defence in the new subsection carries an
evidential burden.
This item inserts a new subsection 54(3) which provides that strict
liability applies to the physical element of circumstance in the offence in
subsection 54(2) that the regulations were made under subsection 52(1). The
result of specifying that strict liability applies to that physical element of
circumstance is that the prosecution does not have to prove fault on the part of
the defendant in relation to that physical element. The prosecution need only
prove that the physical element of the offence did occur – in this case
that the regulations were made under subsection 52(1).
These items remove the defence of reasonable excuse from subsection 55(3)
and recreate it in a new subsection 55(4). The rationale for this amendment is
to prevent the provision from being interpreted in such a way as to include the
reasonable excuse element of the provision as an element of the offence, which
would have to be disproved by the prosecution. The amendment makes it clear
that reasonable excuse is a defence to the offence.
A standard note is
added after the new subsection referring to the fact that under subsection
13.3(3) of the Criminal Code a defendant seeking to rely on the
reasonable excuse defence carries an evidential burden.
These items remove the defence of reasonable excuse from subsection
113(1) and recreate it in a new subsection 113(1B). The rationale for this
amendment is to prevent the provision from being interpreted in such a way as to
include the reasonable excuse element of the provision as an element of the
offence, which would have to be disproved by the prosecution. The amendment
makes it clear that reasonable excuse is a defence to the offence.
A
standard note is added after the new subsection referring to the fact that under
subsection 13.3(3) of the Criminal Code a defendant seeking to rely on
the reasonable excuse defence carries an evidential burden.
Items
152 and 153 –Amendment of inappropriate fault
element
Subsection 113(3) makes it an offence to present a
document, make a statement or submit a return that is false or misleading in a
material particular to a person performing duties in relation to the Act.
Subsection 113(3) applies the fault element of knowledge
(“knowingly”) in relation to the physical elements of conduct,
namely presenting a document, making a statement or submitting a return.
Following application of the Criminal Code, it will not be possible to
apply the fault element of knowledge to a physical element consisting of
conduct. Section 5.3 of the Criminal Code restricts the application of
these fault elements to physical elements of circumstance or result, and the
only fault element that may be applied to a physical element of conduct is
intention (section 5.2 of the Criminal Code). Accordingly these items
delete “knowingly” from subsection 113(3) and replace it with the
appropriate fault element, namely intention. The fault element of intention is
the direct Criminal Code equivalent of “knowingly” where the
latter is applied to physical elements of conduct.
Item 153 applies the
fault element of knowledge to the physical element of circumstance, namely that
the document statement or return is false or misleading in a material
particular. Hence, the fault element of knowledge will continue to apply to the
physical element of circumstance, as before.
Items 154 and 155
– Clarifying defence
These items remove the exception "for
the purposes of this Act or as otherwise required by law" from subsection 119(2)
and recreate it in a new subsection 119(4A). The rationale for this amendment
is to prevent the provision from being interpreted in such a way as to include
the "except for the purposes of this Act or as otherwise required by law"
element of the provision as an element of the offence, which would have to be
disproved by the prosecution. The amendment makes it clear that engaging in
conduct for the purposes of the Act or as required by law is a defence to the
offence.
A standard note is added after the new subsection referring to
the fact that under subsection 13.3(3) of the Criminal Code a defendant
seeking to rely on the defence in the new subsection (or the existing defences
in subsections 119(2A), (2B), (3) and (4)) carries an evidential
burden.
Items 156, 157, 158, 159, 160, 161 and 162 –
Consequential amendments
The amendments made by these items are
consequential to the amendments made by item 165 of the Bill. Item 165 repeals
the clauses in Schedule 2 relating to false or misleading statements in claims,
false or misleading information and false or misleading documents (clauses 134,
135 and 136). After the commencement of the Criminal Code Amendment (Theft,
Fraud, Bribery and Related Offences) Act 2000 (which commenced on 24 May
2001), the Criminal Code contains equivalent provisions relating to false
or misleading statements in claims and false or misleading information or
documents. Reliance will now be placed on these Criminal Code provisions
rather than the specific provisions in the Act.
These items replace
references to clauses 134, 135 and 136 of Schedule 2 with references to the
equivalent Criminal Code provisions – sections 136.1, 137.1 and
137.2
This item inserts new subclauses 116(2) and 116(3) which provide that
strict liability applies to the physical elements of circumstance in the offence
in subclause 116(1) that the authorised person's power is under clause 115 and
that the warrant was issued under clause 118. The result of specifying that
strict liability applies to those physical elements of circumstance is that the
prosecution does not have to prove fault on the part of the defendant in
relation to those physical elements. The prosecution need only prove that those
physical elements of the offence did occur – in this case that the
authorised person's power was under clause 115 and that the warrant was issued
under clause 118.
This item inserts a new subclause 117(1A) which provides that strict
liability applies to the physical elements of circumstance in the offence in
subclause 117(1), that the authorised person's power is under clause 115 and the
warrant was issued under clause 118. The result of specifying that strict
liability applies to those physical elements of circumstance is that the
prosecution does not have to prove fault on the part of the defendant in
relation to those physical elements. The prosecution need only prove that those
physical elements of the offence did occur – in this case that the
authorised person's power was under clause 115 and the warrant was issued under
clause 118.
This item repeals the clauses in Schedule 2 relating to false or
misleading statements in claims, false or misleading information and false or
misleading documents. After the commencement of the Criminal Code Amendment
(Theft, Fraud, Bribery and Related Offences) Act 2000 (which commenced on 24
May 2001), the Criminal Code contains equivalent provisions relating to
false or misleading statements in claims and false or misleading information or
documents. Reliance will now be placed on these Criminal Code provisions
rather than the specific provisions in the Act.
It is expected that
investigation of offences against the Criminal Code and involving
Schedule 2 of the Act relating to the collection and declaration of levy
liability may be carried out by authorised officers appointed under clause 127
of Schedule 2 of the Act.
The item also repeals clause 132 which
specifies that Chapter 2 of the Criminal Code applies to offences against
the Schedule. This clause is unnecessary because item 109 of this Bill inserts a
new section 4A to the Act which provides that Chapter 2 of the Criminal
Code applies to all offences against the Act.
Export Control
Act 1982
Certain Crimes Act 1914 provisions, including sections 7, 7A and
86, are scheduled for progressive disapplication in relation to offence
provisions to which the Criminal Code applies, and ultimately for repeal
on 15 December 2001. It is necessary to replace references to those Crimes
Act provisions with references to relevant Criminal Code provisions.
This item replaces the references in the definition of offence against this
Act in section 3 to sections 7, 7A and 86 of the Crimes Act 1914
(which concern attempting to commit primary offences, incitement to commit
primary offences, and conspiring to commit primary offences) with references to
the Criminal Code provisions that deal with attempt, incitement and
conspiracy (sections 11.1, 11.4 and 11.5).
This item inserts proposed section 4AA which applies Chapter 2 of the
Criminal Code to all offences against the Act. Chapter 2 establishes the
codified general principles of criminal responsibility.
This item inserts a new subsection 6(4) which provides that strict
liability applies to the physical element of circumstance in the offence in
subsection 6(1) that the requirement to give notice is under the regulations.
The result of specifying that strict liability applies to that physical element
of circumstance is that the prosecution does not have to prove fault on the part
of the defendant in relation to that physical element. The prosecution need
only prove that the physical element of the offence did occur – in this
case that the requirement to give notice was under the regulations.
This item inserts a new subsection 7A(3) which provides that strict
liability applies to the physical element of circumstance in the offences in
subsections 7A(1) and 7A(2) that the relevant prohibition is under the
regulations. The result of specifying that strict liability applies to that
physical element of circumstance is that the prosecution does not have to prove
fault on the part of the defendant in relation to that physical element. The
prosecution need only prove that the physical element of the offence did occur
– in this case that the relevant prohibition was under the regulations.
This item inserts a new subsection 8(7) which provides that strict
liability applies to the physical element of circumstance in the offences in
subsections 8(1),(2),(3) and (4) that the relevant prohibition is under the
regulations. The result of specifying that strict liability applies to that
physical element of circumstance is that the prosecution does not have to prove
fault on the part of the defendant in relation to that physical element. The
prosecution need only prove that the physical element of the offence did occur
– in this case that the relevant prohibition was under the
regulations.
This item inserts a new subsection 9(2), which specifies that the offence
in subsection 9(1) of the Act is an offence of strict liability. Where strict
liability applies to an offence the prosecution does not have to prove fault on
the part of the defendant. The prosecution need only prove that the physical
elements of the offence did occur. A defence of mistake of fact is open to the
defendant under section 9.2 of the Criminal Code. This defence is
available if a person is under a mistaken but reasonable belief about a fact
and, had that fact existed, the conduct would not constitute an offence. Under
the Criminal Code, any legislative provision that attracts strict
liability must expressly state that it is an offence of strict liability (see
Section 6.1 of the Code).
Subsection 9(1) provides that a person must
comply with any conditions or restrictions on a licence or permit issued under
the regulations. The maximum penalty is $50,000. The obligation the subject of
the offence is of an administrative nature and no fault elements are specified.
Although the maximum penalty is relatively high, it is likely that this offence
would have been interpreted under the existing law as a strict liability
offence.
This item inserts a new subsection 11P(5), which specifies that the
offence in subsection 11P(4) of the Act is an offence of strict liability. Where
strict liability applies to an offence the prosecution does not have to prove
fault on the part of the defendant. The prosecution need only prove that the
physical elements of the offence did occur. A defence of mistake of fact is open
to the defendant under section 9.2 of the Criminal Code. This defence is
available if a person is under a mistaken but reasonable belief about a fact
and, had that fact existed, the conduct would not constitute an offence. Under
the Criminal Code, any legislative provision that attracts strict
liability must expressly state that it is an offence of strict liability (see
Section 6.1 of the Code).
Subsection 11P(4) provides that a person must
comply with a requirement under section (1) to give information or produce
documents. The maximum penalty is 30 penalty units. The obligation the subject
of the offence is of an administrative nature and the offence carries a
relatively low penalty. These factors indicate that the offence is one where
strict liability would apply under the existing law.
This item inserts a new subsection 14(2) which provides that strict
liability applies to the physical element of circumstance in the offence in
subsection 14(1), that the person's conduct in relation to the official mark or
marking device contravenes the regulations. The result of specifying that strict
liability applies to that physical element of circumstance is that the
prosecution does not have to prove fault on the part of the defendant in
relation to that physical element. The prosecution need only prove that the
physical element of the offence did occur – in this case that the person's
conduct in relation to the official mark or marking device contravened the
regulations.
This item inserts new subsections 15(1B) and 15(1C). Subsection 15(1B)
provides that strict liability applies to the physical element of circumstance
in the offences in subsections 15(1) and (1A) that the relevant goods are
prescribed goods. Subsection 15(1C) provides that strict liability applies to
the physical element of circumstance in the offence in subsection 15(1A) that
the giving of the notice was under section 6(1). The result of specifying that
strict liability applies to those physical elements of circumstance is that the
prosecution does not have to prove fault on the part of the defendant in
relation to those physical elements. The prosecution need only prove that the
physical elements of the offence did occur – in this case that the
relevant goods were prescribed goods and that the giving of the notice was under
section 6(1).
This item inserts a new subsection 21(3), which specifies that the
offence in subsection 21(2) of the Act is an offence of strict liability. Where
strict liability applies to an offence the prosecution does not have to prove
fault on the part of the defendant. The prosecution need only prove that the
physical elements of the offence did occur. A defence of mistake of fact is open
to the defendant under section 9.2 of the Criminal Code. This defence is
available if a person is under a mistaken but reasonable belief about a fact
and, had that fact existed, the conduct would not constitute an offence. Under
the Criminal Code, any legislative provision that attracts strict
liability must expressly state that it is an offence of strict liability (see
Section 6.1 of the Code).
Subsection 21(2) provides that a person who
ceases to be an authorized officer must return his or her identity card to the
Secretary. The penalty is $100. The obligation the subject of the offence is of
an administrative nature and the offence carries a low penalty. These factors
indicate that the offence is one where strict liability would apply under the
existing law.
Items 176 and 177 –Clarifying
defence
These items remove the exception that the conduct is
approved in writing by the Secretary from subsection 24(1) and recreate it in a
new subsection 24(1AA). The rationale for this amendment is to prevent the
provision from being interpreted in such a way as to include the "except as
approved in writing by the Secretary" element of the provision as an element of
the offence, which would have to be disproved by the prosecution. The amendment
makes it clear that approval in writing by the Secretary is a defence to the
offence.
A standard note is added after the new subsection referring to
the fact that under subsection 13.3(3) of the Criminal Code a defendant
seeking to rely on the defence in the new subsection carries an evidential
burden.
Items 178 and 179 – Clarifying
defence
These items remove the exception that the supply has been
approved in writing by the Secretary from subsection 24(1A) and recreate it in a
new subsection 24(1B). The rationale for this amendment is to prevent the
provision from being interpreted in such a way as to include the "except as
approved in writing by the Secretary" element of the provision as an element of
the offence, which would have to be disproved by the prosecution. The amendment
makes it clear that approval in writing by the Secretary is a defence to the
offence.
A standard note is added after the new subsection referring to
the fact that under subsection 13.3(3) of the Criminal Code a defendant
seeking to rely on the defence in the new subsection carries an evidential
burden.
Export Inspection and Meat Charges Collection Act
1985
This item inserts a new section 3C which applies Chapter 2 of the
Criminal Code to all offences against the Act. Chapter 2 establishes the
codified general principles of criminal responsibility.
Item 181
– Clarifying penalty
This item makes it clear that the
offences in each of subsections 9(1), (1A) and (2) attract a maximum penalty of
$1,000 for a natural person and $5,000 for a body corporate.
This item inserts a new subsection 9(3), which specifies that the
offences in section 9 are offences of strict liability. Where strict liability
applies to an offence the prosecution does not have to prove fault on the part
of the defendant. The prosecution need only prove that the physical elements of
the offence did occur. A defence of mistake of fact is open to the defendant
under section 9.2 of the Criminal Code. This defence is available if a
person is under a mistaken but reasonable belief about a fact and, had that fact
existed, the conduct would not constitute an offence. Under the Criminal
Code, any legislative provision that attracts strict liability must
expressly state that it is an offence of strict liability (see Section 6.1 of
the Code).
The offences in section 9 are offences of failing to keep
certain records and failing to retain them for 3 years. The maximum penalty is
$1,000 (or $5,000 for a body corporate). The obligations the subject of the
offences are of an administrative nature and the offences carry a relatively low
penalty. This suggests that the offences would have been interpreted under the
existing law as strict liability offences.
These items make two amendments to subsection 10(1). First, they remove
the defence of reasonable excuse from subsection 10(1) and recreate it in a new
subsection 10(1A). The rationale for this amendment is to prevent the provision
from being interpreted in such a way as to include the reasonable excuse element
of the provision as an element of the offence, which would have to be disproved
by the prosecution. The amendment makes it clear that reasonable excuse is a
defence to the offence.
A standard note is added after the new subsection
referring to the fact that under subsection 13.3(3) of the Criminal Code
a defendant seeking to rely on the reasonable excuse defence carries an
evidential burden.
Item 184 also inserts a new subsection 10(1B), which
specifies that the offence in subsection 10(1) of the Act is an offence of
strict liability. Where strict liability applies to an offence the prosecution
does not have to prove fault on the part of the defendant. The prosecution need
only prove that the physical elements of the offence did occur. A defence of
mistake of fact is open to the defendant under section 9.2 of the Criminal
Code. This defence is available if a person is under a mistaken but
reasonable belief about a fact and, had that fact existed, the conduct would not
constitute an offence. Under the Criminal Code, any legislative provision
that attracts strict liability must expressly state that it is an offence of
strict liability (see Section 6.1 of the Code).
Subsection 10(1) provides
that a person must not fail to submit a return or provide information required
under the Act or regulations. The offence carries a maximum penalty of $1,000 or
imprisonment for 6 months, or both, for a natural person or $5,000 for a body
corporate, and the defence of reasonable excuse is available. The availability
of the defence of reasonable excuse implies that fault need not be proved. This
indicates that the offence would have been interpreted under the existing law as
a strict liability offence.
These items make two amendments to subsection 15(8). First, they remove
the defence of reasonable excuse from subsection 15(8) and recreate it in a new
subsection 15(8A). The rationale for this amendment is to prevent the provision
from being interpreted in such a way as to include the reasonable excuse element
of the provision as an element of the offence, which would have to be disproved
by the prosecution. The amendment makes it clear that reasonable excuse is a
defence to the offence.
A standard note is added after the new subsection
referring to the fact that under subsection 13.3(3) of the Criminal Code
a defendant seeking to rely on the reasonable excuse defence carries an
evidential burden.
Item 186 also inserts a new subsection 15(8B) which
provides that strict liability applies to the physical element of circumstance
in the offence in subsection 15(8), that the authorized person is acting
pursuant to subsection (1) or (7) or to a warrant issued under subsection (3).
The result of specifying that strict liability applies to that physical element
of circumstance is that the prosecution does not have to prove fault on the part
of the defendant in relation to that physical element. The prosecution need
only prove that the physical element of the offence did occur – in this
case that the authorised person was acting pursuant to subsection (1) or (7) or
pursuant to a warrant issued under subsection
(3).
Farm Household Support Act
1992
This item inserts a new section 6AA which applies Chapter 2 of the
Criminal Code to all offences against the Act. Chapter 2 establishes the
codified general principles of criminal responsibility.
Items 188
and 189 – Clarifying defences and applying strict
liability
These items remove the defences of reasonable excuse
and "not capable of complying with the notice" from subsection 41(5) and
recreate them in new subsections 41(5A) and 41(5B). The rationale for these
amendments is to prevent subsection 41(5) from being interpreted in such a way
as to include the reasonable excuse and capable of complying elements of the
provision as elements of the offence, which would have to be disproved by the
prosecution. The amendments make it clear that reasonable excuse and an
incapacity to comply with the notice are defences to the offence.
A
standard note is added after the new subsections referring to the fact that
under subsection 13.3(3) of the Criminal Code a defendant seeking to rely
on the defences in the new subsections carries an evidential burden.
Item
189 also inserts a new subsection 41(5C), which specifies that the offence in
subsection 41(5) is an offence of strict liability. Where strict liability
applies to an offence the prosecution does not have to prove fault on the part
of the defendant. The prosecution need only prove that the physical elements of
the offence did occur. A defence of mistake of fact is open to the defendant
under section 9.2 of the Criminal Code. This defence is available if a
person is under a mistaken but reasonable belief about a fact and, had that fact
existed, the conduct would not constitute an offence. Under the Criminal
Code, any legislative provision that attracts strict liability must
expressly state that it is an offence of strict liability (see Section 6.1 of
the Code).
Subsection 41(5) provides that a person must comply with a
notice under subsection (1) requiring the person to inform the Department if a
specified event or change of circumstances occurs. The maximum penalty is 30
penalty units or imprisonment for 6 months, or both, and the defences of
reasonable excuse and inability to comply with the notice are available. The
availability of those defences implies that fault need not be proved as an
element of the offence. This indicates that the offence would have been
interpreted under the existing law as a strict liability
offence.
Items 190 and 191 – Clarifying defences and applying
strict liability
These items remove the defences of reasonable
excuse and "not capable of complying with the notice" from subsection 42(5) and
recreate them in new subsections 42(5A) and 42(5B). The rationale for these
amendments is to prevent subsection 42(5) from being interpreted in such a way
as to include the reasonable excuse and capable of complying elements of the
provision as elements of the offence, which would have to be disproved by the
prosecution. The amendments make it clear that reasonable excuse and an
incapacity to comply with the notice are defences to the offence.
A
standard note is added after the new subsections referring to the fact that
under subsection 13.3(3) of the Criminal Code a defendant seeking to rely
on the defences in the new subsections carries an evidential burden.
Item
191 also inserts a new subsection 42(5C), which specifies that the offence in
subsection 42(5) is an offence of strict liability. Where strict liability
applies to an offence the prosecution does not have to prove fault on the part
of the defendant. The prosecution need only prove that the physical elements of
the offence did occur. A defence of mistake of fact is open to the defendant
under section 9.2 of the Criminal Code. This defence is available if a
person is under a mistaken but reasonable belief about a fact and, had that fact
existed, the conduct would not constitute an offence. Under the Criminal
Code, any legislative provision that attracts strict liability must
expressly state that it is an offence of strict liability (see Section 6.1 of
the Code).
Subsection 42(5) provides that a person must comply with a
notice under subsection (1) requiring the person to give the Department a
statement about certain matters. The maximum penalty is 30 penalty units or
imprisonment for 6 months, or both, and the defences of reasonable excuse and
inability to comply with the notice are available. The availability of the
defences implies that fault need not be proved as an element of the offence.
This indicates that the offence would have been interpreted under the existing
law as a strict liability offence.
These items make two amendments to subsection 54(7). First, they remove
the defence of reasonable excuse from subsection 54(7) and recreate it in a new
subsection 54(7A). The rationale for this amendment is to prevent the provision
from being interpreted in such a way as to include the reasonable excuse element
of the provision as an element of the offence, which would have to be disproved
by the prosecution. The amendment makes it clear that reasonable excuse is a
defence to the offence.
A standard note is added after the new subsection
referring to the fact that under subsection 13.3(3) of the Criminal Code
a defendant seeking to rely on the reasonable excuse defence carries an
evidential burden.
Item 193 also inserts a new subsection 54(7B), which
specifies that the offence in subsection 54(7) is an offence of strict
liability. Where strict liability applies to an offence the prosecution does not
have to prove fault on the part of the defendant. The prosecution need only
prove that the physical elements of the offence did occur. A defence of mistake
of fact is open to the defendant under section 9.2 of the Criminal Code.
This defence is available if a person is under a mistaken but reasonable belief
about a fact and, had that fact existed, the conduct would not constitute an
offence. Under the Criminal Code, any legislative provision that attracts
strict liability must expressly state that it is an offence of strict liability
(see Section 6.1 of the Code).
Subsection 54(7) provides that a person
must not fail to comply with a notice under section 54 to give information or
produce documents. The penalty is 30 penalty units or imprisonment for 6
months, or both, and the defence of reasonable excuse is available. The
availability of the defence of reasonable excuse implies that fault need not be
proved. This indicates that the offence would have been interpreted under the
existing law as a strict liability offence.
Fisheries Management
Act 1991
This item inserts a new section 6A which applies Chapter 2 (other than Part
2.5) of the Criminal Code to all offences against the Act. Chapter 2
establishes the codified general principles of criminal responsibility.
Part 2.5 contains general principles of corporate criminal
responsibility. When the Criminal Code was introduced, it was recognised
that the general principles of corporate criminal responsibility in Part 2.5
might need to be supplemented with more specific provisions in appropriate
cases. This Act is one which contains specific provisions relating to corporate
criminal responsibility (see section 164). As the
Bill is intended to ensure that agriculture, fisheries and forestry portfolio
legislation continues to operate in the same way after the Criminal Code
applies to it, the specific corporate criminal responsibility provisions in the
Act are retained by excluding the application of Part 2.5 of the Criminal
Code.
Item 195 – Applying strict liability
This item inserts a new subsection 13(1A) which provides that
strict liability applies to the physical element of circumstance in the offence
in subsection 13(1), that the conduct is engaged in within the AFZ. The result
of specifying that strict liability applies to that physical element of
circumstance is that the prosecution does not have to prove fault on the part of
the defendant in relation to that physical element. The prosecution need only
prove that the physical element of the offence did occur – in this case
that the conduct was engaged in within the AFZ.
Item 196
– Applying strict liability
This item inserts a new
subclause 13(4A) which provides that strict liability applies to the physical
element of circumstance in the offence in subsections 13(2), (3) and (4), that
the conduct is engaged in outside the AFZ. The result of specifying that strict
liability applies to that physical element of circumstance is that the
prosecution does not have to prove fault on the part of the defendant in
relation to that physical element. The prosecution need only prove that the
physical element of the offence did occur – in this case that the conduct
was engaged in outside the AFZ.
Item 197 - Applying strict
liability
This item inserts a new subsection 15(4), which
specifies that the offences under section 15 are offences of strict liability.
Where strict liability applies to an offence the prosecution does not have to
prove fault on the part of the defendant. The prosecution need only prove that
the physical elements of the offence did occur. A defence of mistake of fact is
open to the defendant under section 9.2 of the Criminal Code. This
defence is available if a person is under a mistaken but reasonable belief about
a fact and, had that fact existed, the conduct would not constitute an offence.
Under the Criminal Code, any legislative provision that attracts strict
liability must expressly state that it is an offence of strict liability (see
Section 6.1 of the Code).
Subsection 15(1) provides that a person must
not take black cod or prescribed fish in the AFZ. Subsection 15(2) provides that
a person on an Australian boat outside the AFZ must not take prescribed fish.
The maximum penalty under each subsection is 125 penalty units. There is a
defence that the person took steps to return the fish to its environment on
becoming aware of taking the fish. The application of strict liability to this
offence reflects the most likely way in which the current offence would be
interpreted. The offence does not specify any fault elements. The availability
of an express defence also implies that fault need not be proved. These factors
indicate that the offence is one where strict liability would apply under the
existing law.
Item 198 - Applying strict liability
This item inserts a new subsection 15A(3), which specifies that
the offence in section 15A is an offence of strict liability. Where strict
liability applies to an offence the prosecution does not have to prove fault on
the part of the defendant. The prosecution need only prove that the physical
elements of the offence did occur. A defence of mistake of fact is open to the
defendant under section 9.2 of the Criminal Code. This defence is
available if a person is under a mistaken but reasonable belief about a fact
and, had that fact existed, the conduct would not constitute an offence. Under
the Criminal Code, any legislative provision that attracts strict
liability must expressly state that it is an offence of strict liability (see
Section 6.1 of the Code).
Subsection 15(1) provides that a person must
not take blue or black marlin in the AFZ unless the person has a permit or takes
the marlin in the course of recreational or charter boat fishing. The penalty is
125 penalty units. There is a defence that the person took steps to return the
fish to its environment on becoming aware of taking the fish. The offence does
not specify any fault elements. The availability of an express defence also
implies that fault need not be proved. These factors indicate that the offence
is one where strict liability would apply under the existing
law.
Item 199 – Clarifying fault element
This
item amends section 57 by replacing the word "wilfully" with the word
"intentionally". Section 57 applies the fault element "wilfully" in relation to
the physical elements of making a false entry in the Register or tendering in
evidence a document falsely purporting to be an instrument lodged with AFMA or
an extract from the Register. "Wilfully" is not a fault element that is used in
the Criminal Code. The equivalent fault element in the Code is intention.
This item replaces "wilfully" with "intentionally" to remove any doubt that the
appropriate fault element for section 57 is intention, with its meaning as given
by the Code.
Certain Crimes Act 1914 provisions, including sections 7, 7A and
86, are scheduled for progressive disapplication in relation to offence
provisions to which the Criminal Code applies, and ultimately for repeal
on 15 December 2001. It is necessary to replace references to those Crimes
Act provisions with references to the equivalent Criminal Code
provisions. This item replaces the references in subsection 84(7) to sections 7,
7A and 86 of the Crimes Act 1914 (which concern attempting to commit
primary offences, incitement to commit primary offences, and conspiring to
commit primary offences) with references to the Criminal Code provisions
which deal with attempt, incitement and conspiracy (sections 11.1, 11.4 and
11.5).
These items make two amendments to subsection 89(4). First, they remove
the defence of reasonable excuse from subsection 89(4) and recreate it in a new
subsection 89(5). The rationale for this amendment is to prevent the provision
from being interpreted in such a way as to include the reasonable excuse element
of the provision as an element of the offence, which would have to be disproved
by the prosecution. The amendment makes it clear that reasonable excuse is a
defence to the offence.
A standard note is added after the new subsection
referring to the fact that under subsection 13.3(3) of the Criminal Code
a defendant seeking to rely on the reasonable excuse defence carries an
evidential burden.
Item 202 also inserts a new subsection 89(6), which
specifies that the offence in subsection 89(4) is an offence of strict
liability. Where strict liability applies to an offence the prosecution does not
have to prove fault on the part of the defendant. The prosecution need only
prove that the physical elements of the offence did occur. A defence of mistake
of fact is open to the defendant under section 9.2 of the Criminal Code.
This defence is available if a person is under a mistaken but reasonable belief
about a fact and, had that fact existed, the conduct would not constitute an
offence. Under the Criminal Code, any legislative provision that attracts
strict liability must expressly state that it is an offence of strict liability
(see Section 6.1 of the Code).
The offence in subsection 89(4) is failing
to return a an identity card as soon as practicable after a person ceases to be
an officer. The maximum penalty is 2 penalty units and the defence of reasonable
excuse is available. The obligation the subject of the offence is of an
administrative nature and the offence carries a low penalty and permits a
defence of reasonable excuse. These factors indicate that the offence is one
where strict liability would apply under the existing law.
These items make two amendments to subsection 93(1). First, they remove
the defence of reasonable excuse from subsection 93(1) and recreate it in a new
subsection 93(2). The rationale for this amendment is to prevent the provision
from being interpreted in such a way as to include the reasonable excuse element
of the provision as an element of the offence, which would have to be disproved
by the prosecution. The amendment makes it clear that reasonable excuse is a
defence to the offence.
A standard note is added after the new subsection
referring to the fact that under subsection 13.3(3) of the Criminal Code
a defendant seeking to rely on the reasonable excuse defence carries an
evidential burden.
Item 204 also inserts a new subclause 93(3) which
provides that strict liability applies to the physical element of circumstance
in the offence in subclause 93(1), that the requirement is under section 92 or
under regulations made for the purposes of section 92. The result of specifying
that strict liability applies to that physical element of circumstance is that
the prosecution does not have to prove fault on the part of the defendant in
relation to that physical element. The prosecution need only prove that the
physical element of the offence did occur – in this case that the
requirement was under section 92 or under regulations made for the purposes of
section 92.
Item 205 – Clarifying fault
element
This item replaces the phrase "for the purposes" in
subsection 98(1) with the phrase "with the intention". The phrase "for the
purposes" is potentially confusing as to what the applicable fault element is.
It could be interpreted as a reference to the intention of the person when
performing the conduct (with the intention of engaging in commercial fishing),
or it could refer to the result of the conduct (with the result that commercial
fishing takes place).
To avoid this confusion the paragraph has been
amended to reflect the appropriate interpretation of the current offence,
namely, "with the intention" of engaging in commercial
fishing.
Item 206 – Applying strict liability
This item inserts a new subsection 102(5A), which specifies that
an offence under section 102 is an offence of strict liability. Where strict
liability applies to an offence the prosecution does not have to prove fault on
the part of the defendant. The prosecution need only prove that the physical
elements of the offence did occur. A defence of mistake of fact is open to the
defendant under section 9.2 of the Criminal Code. This defence is
available if a person is under a mistaken but reasonable belief about a fact
and, had that fact existed, the conduct would not constitute an offence. Under
the Criminal Code, any legislative provision that attracts strict
liability must expressly state that it is an offence of strict liability (see
Section 6.1 of the Code).
Subsection 102(1) makes it an offence to bring
a foreign fishing boat into an Australian port, except in accordance with a
licence, a prescribed agreement, or the directions of an officer exercising
powers under an Australian law. Subsection 102(2) makes it an offence to keep a
foreign fishing boat in an Australian port in contravention of a licence
condition limiting the period during which the boat may remain in that port. The
maximum penalty for each offence is 500 penalty units (or 250 if dealt with by a
court of summary jurisdiction). A number of defences are available, including
unforeseen emergency for subsection (1) and reasonable excuse for subsection
(2). No fault elements are specified in the offences and the availability of
express defences implies that fault need not be proved. This suggests that the
offences would have been interpreted under the existing law as strict liability
offences.
These items remove the defence of reasonable excuse from subsection
103(1) and recreate it in a new subsection 103(1A). The rationale for this
amendment is to prevent the provision from being interpreted in such a way as to
include the reasonable excuse element of the provision as an element of the
offence, which would have to be disproved by the prosecution. The amendment
makes it clear that reasonable excuse is a defence to the offence.
A
standard note is added after the new subsection referring to the fact that under
subsection 13.3(3) of the Criminal Code a defendant seeking to rely on
the reasonable excuse defence carries an evidential burden.
Item
209 –Applying strict liability
This item inserts a new
subsection 103(4), which specifies that the offence in subsection 103(1) is an
offence of strict liability. Where strict liability applies to an offence the
prosecution does not have to prove fault on the part of the defendant. The
prosecution need only prove that the physical elements of the offence did occur.
A defence of mistake of fact is open to the defendant under section 9.2 of the
Criminal Code. This defence is available if a person is under a mistaken
but reasonable belief about a fact and, had that fact existed, the conduct would
not constitute an offence. Under the Criminal Code, any legislative
provision that attracts strict liability must expressly state that it is an
offence of strict liability (see Section 6.1 of the Code).
The offence in
subsection 103(1) is landing fish in Australia by a foreign fishing boat, except
in accordance with a foreign fishing licence or under the Torres Strait
Fisheries Act 1984. The maximum penalty is 500 penalty units (or 250 if
dealt with by a court of summary jurisdiction) and the defence of reasonable
excuse is available. No fault elements are specified and the availability of a
defence of reasonable excuse implies that fault need not be proved. These
factors indicate that the offence is one where strict liability would apply
under the existing law.
Item 210 – Applying strict liability
This item inserts a new subsection 104(4A), which specifies that
the offence in subsection 104(1) is an offence of strict liability. Where strict
liability applies to an offence the prosecution does not have to prove fault on
the part of the defendant. The prosecution need only prove that the physical
elements of the offence did occur. A defence of mistake of fact is open to the
defendant under section 9.2 of the Criminal Code. This defence is
available if a person is under a mistaken but reasonable belief about a fact
and, had that fact existed, the conduct would not constitute an offence. Under
the Criminal Code, any legislative provision that attracts strict
liability must expressly state that it is an offence of strict liability (see
Section 6.1 of the Code).
Subsection 104(1) provides that a person must
not use a Treaty boat in contravention of a condition of a Treaty licence that
is in force. The penalty is 500 penalty units (or 250 if dealt with by a court
of summary jurisdiction). No fault elements are specified. These factors
indicate that the offence is one where strict liability would apply under the
existing law.
Item 211 – Clarifying fault
element
This item replaces the phrase "for the purposes" in
subsection 104(6) with the phrase "with the intention". The phrase "for the
purposes" is potentially confusing as to what the applicable fault element is.
It could be interpreted as a reference to the intention of the person when
performing the conduct (with the intention of engaging in fishing), or it could
refer to the result of the conduct (with the result that fishing takes
place).
To avoid this confusion the paragraph has been amended to reflect
the appropriate interpretation of the current offence, namely, "with the
intention" of engaging in fishing.
These items make two amendments to subsection 108(1). First, they remove
the defence of reasonable excuse from paragraphs 108(1)(b) and (c) and recreate
it in a new subsection 108(2). The rationale for this amendment is to prevent
the provision from being interpreted in such a way as to include the reasonable
excuse elements of the provision as elements of the offences, which would have
to be disproved by the prosecution. The amendment makes it clear that
reasonable excuse is a defence to the offences.
A standard note is added
after the new subsection referring to the fact that under subsection 13.3(3) of
the Criminal Code a defendant seeking to rely on the reasonable excuse
defence carries an evidential burden.
Item 213 also inserts a new
subclause 108(3) which provides that strict liability applies to the physical
element of circumstance in the offence in paragraph 108(1)(c), that the
requirement is under section 84. The result of specifying that strict liability
applies to that physical element of circumstance is that the prosecution does
not have to prove fault on the part of the defendant in relation to that
physical element. The prosecution need only prove that the physical element of
the offence did occur – in this case that the requirement was under
section 84.
These items make two amendments to subsection 153(1). First, they remove
the defence of reasonable excuse from subsection 153(1) and recreate it in a new
subsection 153(1A). The rationale for this amendment is to prevent the
provision from being interpreted in such a way as to include the reasonable
excuse element of the provision as an element of the offence, which would have
to be disproved by the prosecution. The amendment makes it clear that
reasonable excuse is a defence to the offence.
A standard note is added
after the new subsection referring to the fact that under subsection 13.3(3) of
the Criminal Code a defendant seeking to rely on the reasonable excuse
defence carries an evidential burden.
Item 215 also inserts a new
subclause 153(1B) which provides that strict liability applies to the physical
element of circumstance in the offence in paragraph 153(1)(a), that the
requirement is under section 146. The result of specifying that strict liability
applies to that physical element of circumstance is that the prosecution does
not have to prove fault on the part of the defendant in relation to that
physical element. The prosecution need only prove that the physical element of
the offence did occur – in this case that the requirement was under
section 146.
These items make two amendments to subsection 153(2). First, they remove
the defence of reasonable excuse from subsection 153(2) and recreate it in a new
subsection 153(2A). The rationale for this amendment is to prevent the
provision from being interpreted in such a way as to include the reasonable
excuse element of the provision as an element of the offence, which would have
to be disproved by the prosecution. The amendment makes it clear that
reasonable excuse is a defence to the offence.
A standard note is added
after the new subsection referring to the fact that under subsection 13.3(3) of
the Criminal Code a defendant seeking to rely on the reasonable excuse
defence carries an evidential burden.
Item 217 also inserts a new
subclause 153(2B) which provides that strict liability applies to the physical
element of circumstance in the offence in subsection 153(2), that the
requirement is under section 146. The result of specifying that strict liability
applies to that physical element of circumstance is that the prosecution does
not have to prove fault on the part of the defendant in relation to that
physical element. The prosecution need only prove that the physical element of
the offence did occur – in this case that the requirement was under
section 146.
Item 218 – Amendment of inappropriate fault
element
Subsection 153(3) provides that a person appearing before
the Panel to give evidence must not knowingly give evidence that is false or
misleading in a material particular. Subsection 153(3) applies the fault element
of knowledge (“knowingly”) in relation to the physical element of
conduct, namely giving evidence. Following application of the Criminal
Code, it will not be possible to apply the fault element of knowledge to a
physical element consisting of conduct. Section 5.3 of the Criminal Code
restricts the application of this fault element to the physical elements of
circumstance or result, and the only fault element that may be applied to a
physical element of conduct is intention (section 5.2 of the Criminal
Code). Accordingly this item deletes “knowingly” from subsection
153(3) and replace it with the appropriate fault element, namely, intention.
The fault element of intention is the direct Criminal Code equivalent of
“knowingly” where the latter is applied to the physical element of
conduct.
The item restricts the application of the fault element of
knowledge to the physical element of circumstance, namely that the evidence is
false or misleading in a material particular. Hence, the fault element of
knowledge will continue to apply to the physical element of circumstance, as
before.
These items make two amendments to section 156. First, they remove the
defence of reasonable excuse from section 156(1) and recreate it in a new
subsection 156(2). The rationale for this amendment is to prevent the provision
from being interpreted in such a way as to include the reasonable excuse element
of the provision as an element of the offence, which would have to be disproved
by the prosecution. The amendment makes it clear that reasonable excuse is a
defence to the offence.
A standard note is added after the new subsection
referring to the fact that under subsection 13.3(3) of the Criminal Code
a defendant seeking to rely on the reasonable excuse defence carries an
evidential burden.
Item 220 also inserts a new subsection 156(3), which
specifies that the offence in subsection 156(1) is an offence of strict
liability. Where strict liability applies to an offence the prosecution does not
have to prove fault on the part of the defendant. The prosecution need only
prove that the physical elements of the offence did occur. A defence of mistake
of fact is open to the defendant under section 9.2 of the Criminal Code.
This defence is available if a person is under a mistaken but reasonable belief
about a fact and, had that fact existed, the conduct would not constitute an
offence. Under the Criminal Code, any legislative provision that attracts
strict liability must expressly state that it is an offence of strict liability
(see Section 6.1 of the Code).
Subsection 156(1) provides that a person
served with a summons to appear as a witness at an inquiry must not fail to
attend, appear and to report from day to day as required. The penalty is 30
penalty units. This is a relatively low penalty and a defence of reasonable
excuse is available. These factors indicate that the offence is one where
strict liability would apply under the existing law.
Certain Crimes Act 1914 provisions, including sections 7, 7A and
86, are scheduled for progressive disapplication in relation to offence
provisions to which the Criminal Code applies, and ultimately for repeal
on 15 December 2001. It is necessary to replace references to those Crimes
Act provisions with reference to the equivalent Criminal Code
provisions. This item replaces the references in paragraph 164(9)(b) to sections
7, 7A and 86 of the Crimes Act 1914 (which concern attempting to commit
primary offences, incitement to commit primary offences, and conspiring to
commit primary offences) with references to the Criminal Code provisions
which deal with attempt, incitement and conspiracy (sections 11.1, 11.4 and
11.5).
Horticulture Marketing and Research and Development
Services (Repeals and Consequential Provisions) Act 2000
This item inserts a new subsection 45(4) which applies Chapter 2 (other
than Part 2.5) of the Criminal Code to all offences against Part V of the
Australian Horticultural Corporation Act (as continued in force by
the Horticulture Marketing and Research and Development Services (Repeals and
Consequential Provisions) Act 2000). Chapter 2 of the Criminal Code
establishes the codified general principles of criminal responsibility. Part 2.5
contains general principles of corporate criminal responsibility. When the
Criminal Code was introduced, it was recognised that the general
principles of corporate criminal responsibility in Part 2.5 might need to be
supplemented with more specific provisions in appropriate cases. This Act is one
which contains specific provisions relating to corporate criminal responsibility
(see section 120). As the Bill is intended to ensure that agriculture, fisheries
and forestry portfolio legislation continues to operate in the same way after
the Criminal Code applies to it, the specific corporate criminal
responsibility provisions in the Act are retained by excluding the application
of Part 2.5 of the Criminal Code.
The
item also inserts a new subsection 45(5), which specifies that the offences in
subsections 118(1) and (2) of the Australian Horticultural Corporation
Act are offences of strict liability. Where strict liability applies to an
offence the prosecution does not have to prove fault on the part of the
defendant. The prosecution need only prove that the physical elements of the
offence did occur. A defence of mistake of fact is open to the defendant under
section 9.2 of the Criminal Code. This defence is available if a person
is under a mistaken but reasonable belief about a fact and, had that fact
existed, the conduct would not constitute an offence. Under the Criminal
Code, any legislative provision that attracts strict liability must
expressly state that it is an offence of strict liability (see Section 6.1 of
the Code).
Subsection 118(1) makes it an offence to contravene a
prohibition in the regulations with respect to exporting horticultural products
without a licence, permission, consent or approval. Subsection 118(2) makes it
an offence to contravene a condition in a licence, permission, consent or
approval. The penalty for each offence is $10,000. The defence of reasonable
excuse is available for subsection (2). No fault elements are specified and the
availability of a defence of reasonable excuse implies that fault need not be
proved. This suggests that the offences would have been interpreted under the
existing law as strict liability offences.
The item also inserts a new
subsection 45(6), which makes it clear that the defendant bears an evidential
burden in relation to the matter of whether the defendant has a reasonable
excuse.
Imported Food Control Act 1992
This item inserts a new section 6A which applies Chapter 2 (other than Part
2.5) of the Criminal Code to all offences against the Act. Chapter 2
establishes the codified general principles of criminal responsibility.
Part 2.5 contains general principles of corporate criminal
responsibility. When the Criminal Code was introduced, it was recognised
that the general principles of corporate criminal responsibility in Part 2.5
might need to be supplemented with more specific provisions in appropriate
cases. This Act is one which contains specific provisions relating to corporate
criminal responsibility (see section 33). As the Bill
is intended to ensure that agriculture, fisheries and forestry portfolio
legislation continues to operate in the same way after the Criminal Code
applies to it, the specific corporate criminal responsibility provisions in the
Act are retained by excluding the application of Part 2.5 of the Criminal
Code.
These items make two amendments to section 20. First, they remove the
defence of reasonable excuse from section 20(8) and recreate it in a new
subsection 20(8A). The rationale for this amendment is to prevent the provision
from being interpreted in such a way as to include the reasonable excuse element
of the provision as an element of the offence, which would have to be disproved
by the prosecution. The amendment makes it clear that reasonable excuse is a
defence to the offence.
A standard note is added after the new subsection
referring to the fact that under subsection 13.3(3) of the Criminal Code
a defendant seeking to rely on the reasonable excuse defence carries an
evidential burden.
Item 225 also replaces the fault element of knowledge
in subsection 20(8) with the fault element of intention. Subsection 20(8)
provides that the owner of food that is required in a notice under subsection
(2), (3) or (4) to be destroyed or re-exported must not knowingly refuse or fail
to comply with the requirement to destroy or re-export that food. Subsection
20(8) applies the fault element of knowledge (“knowingly”) in
relation to the physical element of conduct, namely complying with the
requirement. Following application of the Criminal Code, it will not be
possible to apply the fault element of knowledge to a physical element
consisting of conduct. Section 5.3 of the Criminal Code restricts the
application of this fault element to the physical elements of circumstance or
result, and the only fault element that may be applied to a physical element of
conduct is intention (section 5.2 of the Criminal Code). Accordingly this
item deletes “knowingly” from subsection 20(8) and replaces it with
the appropriate fault element, namely intention. The fault element of intention
is the direct Criminal Code equivalent of “knowingly” where
the latter is applied to the physical element of conduct.
These items make two amendments to section 22. First, they remove the
defence of reasonable excuse from section 22(4) and recreate it in a new
subsection 22(5). The rationale for this amendment is to prevent the provision
from being interpreted in such a way as to include the reasonable excuse element
of the provision as an element of the offence, which would have to be disproved
by the prosecution. The amendment makes it clear that reasonable excuse is a
defence to the offence.
A standard note is added after the new subsection
referring to the fact that under subsection 13.3(3) of the Criminal Code
a defendant seeking to rely on the reasonable excuse defence carries an
evidential burden.
Item 227 also inserts a new subsection 22(6), which
specifies that the offence in subsection 22(4) is an offence of strict
liability. Where strict liability applies to an offence the prosecution does not
have to prove fault on the part of the defendant. The prosecution need only
prove that the physical elements of the offence did occur. A defence of mistake
of fact is open to the defendant under section 9.2 of the Criminal Code.
This defence is available if a person is under a mistaken but reasonable belief
about a fact and, had that fact existed, the conduct would not constitute an
offence. Under the Criminal Code, any legislative provision that attracts
strict liability must expressly state that it is an offence of strict liability
(see Section 6.1 of the Code).
The offence in subsection 22(4) is failing
to return an identity card as soon as practicable after ceasing to be an
authorised officer. The maximum penalty is $100 and
the defence of reasonable excuse is available. The obligation the subject of the
offence is of an administrative nature and the offence carries a low penalty and
permits a defence of reasonable excuse. These factors indicate that the offence
is one where strict liability would apply under the existing law.
These items remove the defence of reasonable excuse from subsection 30(4)
and recreate it in a new subsection 30(4A). The rationale for this amendment is
to prevent the provision from being interpreted in such a way as to include the
reasonable excuse element of the provision as an element of the offence, which
would have to be disproved by the prosecution. The amendment makes it clear
that reasonable excuse is a defence to the offence.
A standard note is
added after the new subsection referring to the fact that under subsection
13.3(3) of the Criminal Code a defendant seeking to rely on the
reasonable excuse defence carries an evidential burden.
Item 230
– Applying strict liability
This item inserts a new
subsection 30(5A), which specifies that the offence in subsection 30(4) is an
offence of strict liability. Where strict liability applies to an offence the
prosecution does not have to prove fault on the part of the defendant. The
prosecution need only prove that the physical elements of the offence did occur.
A defence of mistake of fact is open to the defendant under section 9.2 of the
Criminal Code. This defence is available if a person is under a mistaken
but reasonable belief about a fact and, had that fact existed, the conduct would
not constitute an offence. Under the Criminal Code, any legislative
provision that attracts strict liability must expressly state that it is an
offence of strict liability (see Section 6.1 of the Code).
Subsection
30(4) provides that a person must not fail to comply with a requirement under
subsection (2) or (3) to answer questions or produce
documents. The maximum penalty is imprisonment for 6
months and the defence of reasonable excuse is available. The availability of
the defence of reasonable excuse implies that fault need not be proved. This
indicates that the offence would have been interpreted under the existing law as
a strict liability offence.
These items remove the defence of reasonable excuse from subsection 32(2)
and recreate it in a new subsection 32(2A). The rationale for this amendment is
to prevent the provision from being interpreted in such a way as to include the
reasonable excuse element of the provision as an element of the offence, which
would have to be disproved by the prosecution. The amendment makes it clear
that reasonable excuse is a defence to the offence.
A standard note is
added after the new subsection referring to the fact that under subsection
13.3(3) of the Criminal Code a defendant seeking to rely on the
reasonable excuse defence carries an evidential burden.
Item 233
– Applying strict liability
This item inserts a new
subsection 32(4), which specifies that the offence in subsection 32(2) is an
offence of strict liability. Where strict liability applies to an offence the
prosecution does not have to prove fault on the part of the defendant. The
prosecution need only prove that the physical elements of the offence did occur.
A defence of mistake of fact is open to the defendant under section 9.2 of the
Criminal Code. This defence is available if a person is under a mistaken
but reasonable belief about a fact and, had that fact existed, the conduct would
not constitute an offence. Under the Criminal Code, any legislative
provision that attracts strict liability must expressly state that it is an
offence of strict liability (see Section 6.1 of the Code).
Subsection
32(2) provides that a person must not fail to comply with an authorised
officer's request under subsection (1) to provide reasonable assistance to the
officer. The maximum penalty is $3,000. This is a
relatively low penalty and the defence of reasonable excuse is available. These
factors indicate that the offence is one where strict liability would apply
under the existing law.
Loan (Income Equalisation Deposits) Act
1976
This item inserts a new section 3A which applies Chapter 2 of the
Criminal Code to all offences against the Act. Chapter 2 establishes the
codified general principles of criminal responsibility.
Meat
Inspection Act 1983
Certain Crimes Act 1914 provisions, including sections 7, 7A and
86, are scheduled for progressive disapplication in relation to offence
provisions to which the Criminal Code applies, and ultimately for repeal
on 15 December 2001. It is necessary to replace references to those Crimes
Act provisions with references to the equivalent Criminal Code
provisions. This item replaces the references in the definition of offence
against this Act in subsection 3(1) to sections 7, 7A and 86 of the
Crimes Act 1914 (which concern attempting to commit primary offences,
incitement to commit primary offences, and conspiring to commit primary
offences) with references to the Criminal Code provisions which deal with
attempt, incitement and conspiracy (sections 11.1, 11.4 and 11.5).
This item inserts a new section 5A which applies Chapter 2 of the
Criminal Code to all offences against the Act. Chapter 2 establishes the
codified general principles of criminal responsibility.
Item 237
– Applying strict liability
This item inserts a new
subsection 28(1A) which specifies that strict liability applies to the physical
elements of circumstance in the offence in subclause 28(1), that the boarding or
entry takes place under section 25 and that the powers exercised by the
authorized officer are under section 25 or 26 (or both). The result of
specifying that strict liability applies to those physical elements of
circumstance is that the prosecution does not have to prove fault on the part of
the defendant in relation to those physical elements. The prosecution need only
prove that those physical elements of the offence did occur – in this case
that the boarding or entry took place under section 25 and that the powers
exercised by the authorised officer were under section 25 or 26 (or
both).
This item inserts a new subsection 29(5), which specifies that the
offences referred to in subsection 29(1) (other than offences under sections 22,
23 and 24) are offences of strict liability. Where strict liability applies to
an offence the prosecution does not have to prove fault on the part of the
defendant. The prosecution need only prove that the physical elements of the
offence did occur. A defence of mistake of fact is open to the defendant under
section 9.2 of the Criminal Code. This defence is available if a person
is under a mistaken but reasonable belief about a fact and, had that fact
existed, the conduct would not constitute an offence. Under the Criminal
Code, any legislative provision that attracts strict liability must
expressly state that it is an offence of strict liability (see Section 6.1 of
the Code).
The offences referred to in subsection 29(1) include bringing
prohibited meat into, or removing it from, abattoirs; slaughtering prohibited
animals; and processing prohibited meat. The maximum penalty is $20,000 (or
$5,000 if dealt with by a court of summary jurisdiction). In the commercial
context, the level of the penalties is not high and no fault elements are
specified. These factors indicate that the offence is one where strict
liability would apply under the existing law.
This item inserts a new subsection 33(2A), which specifies that the
offence in subsection 33(2) is an offence of strict liability. Where strict
liability applies to an offence the prosecution does not have to prove fault on
the part of the defendant. The prosecution need only prove that the physical
elements of the offence did occur. A defence of mistake of fact is open to the
defendant under section 9.2 of the Criminal Code. This defence is
available if a person is under a mistaken but reasonable belief about a fact
and, had that fact existed, the conduct would not constitute an offence. Under
the Criminal Code, any legislative provision that attracts strict
liability must expressly state that it is an offence of strict liability (see
Section 6.1 of the Code).
Subsection 33(2) provides that a person who
ceases to be an authorized officer must return his or her identity card to the
Secretary. The maximum penalty is $100. The
obligation the subject of the offence is of an administrative nature and the
offence carries a low penalty. These factors indicate that the offence is one
where strict liability would apply under the existing
law.
Items 240 and 241 – Clarifying
defence
These items remove the exception that the conduct is
approved in writing by the Secretary from subsection 35(1) and recreate it in a
new subsection 35(1AA). The rationale for this amendment is to prevent the
provision from being interpreted in such a way as to include the "except as
approved in writing by the Secretary" element of the provision as an element of
the offence, which would have to be disproved by the prosecution. The amendment
makes it clear that having written approval by the Secretary is a defence to the
offence.
A standard note is added after the new subsection referring to
the fact that under subsection 13.3(3) of the Criminal Code a defendant
seeking to rely on the defence in the new subsection carries an evidential
burden.
Items 242 and 243 – Clarifying
defence
These items remove the exception that the supply has been
approved in writing by the Secretary from subsection 35(1A) and recreate it in a
new subsection 35(1B). The rationale for this amendment is to prevent the
provision from being interpreted in such a way as to include the "except as
approved in writing by the Secretary" element of the provision as an element of
the offence, which would have to be disproved by the prosecution. The amendment
makes it clear that having written approval by the Secretary is a defence to the
offence.
A standard note is added after the new subsection referring to
the fact that under subsection 13.3(3) of the Criminal Code a defendant
seeking to rely on the defence in the new subsection carries an evidential
burden.
Plant Breeder’s Rights Act 1994
This item inserts a new section 9A which applies Chapter 2 (other than Part
2.5) of the Criminal Code to all offences against the Act. Chapter 2
establishes the codified general principles of criminal responsibility.
Part 2.5 contains general principles of corporate criminal
responsibility. When the Criminal Code was introduced, it was recognised
that the general principles of corporate criminal responsibility in Part 2.5
might need to be supplemented with more specific provisions in appropriate
cases. This Act is one which contains specific provisions relating to corporate
criminal responsibility (see section 76). As the Bill
is intended to ensure that agriculture, fisheries and forestry portfolio
legislation continues to operate in the same way after the Criminal Code
applies to it, the specific corporate criminal responsibility provisions in the
Act are retained by excluding the application of Part 2.5 of the Criminal
Code.
Subsection 74(1) provides that a person must not, in relation to
propagating material of a plant variety in which PBR has been granted,
intentionally or recklessly do any of the acts referred to in section 11 if such
an act would, under section 53, infringe the PBR in the variety. The acts in
section 11 include producing or reproducing the material, conditioning the
material for the purpose of propagation, selling the material or offering it for
sale, and importing or exporting the material. Subsection 74(1) applies the
fault elements of intention and recklessness in relation to the physical
elements of conduct, namely doing any of those acts.
Following
application of the Criminal Code, it will not be possible to apply the
fault element of recklessness to a physical element consisting of conduct.
Section 5.4 of the Criminal Code restricts the application of
recklessness to the physical elements of circumstance or result, and the only
fault element that may be applied to a physical element of conduct is intention
(section 5.2 of the Criminal Code). Accordingly this item deletes
“recklessly” from subsection 162(1).
"Intentionally" is also
deleted. In the absence of any stated fault elements, the default fault elements
will apply because of Section 5.6 of the Criminal Code. The result of
this is that intention will be the applicable fault element for any physical
elements of conduct, and recklessness will be the applicable fault element for
any physical elements of result or circumstance (except the physical element of
circumstance that the infringement of the PBR would be under section 53. Strict
liability will apply to this element because of item 205). This will mean that
the subsection will continue to operate in the same manner as at
present.
Item 246 – Applying strict
liability
This item inserts a new subsection 74(1A) which
provides that strict liability applies to the physical element of circumstance
in the offence in subsection 74(1), that the infringement of the PBR would be
under section 53. The result of specifying that strict liability applies to that
physical element of circumstance is that the prosecution does not have to prove
fault on the part of the defendant in relation to that physical element. The
prosecution need only prove that the physical element of the offence did occur
– in this case that the infringement of the PBR would have been under
section 53.
Subsection 75(1) provides that a person must not intentionally or
recklessly make a false statement in an application or other document for the
purposes of the Act Subsections 75(2), (3) and (4) provide that a person must
not intentionally or recklessly make certain false representations about PBR in
a plant variety. Subsections 75(1), (2), (3) and (4) apply the fault elements
of intention and recklessness in relation to the physical elements of conduct,
namely making the relevant statement or representation.
Following
application of the Criminal Code, it will not be possible to apply the
fault element of recklessness to a physical element consisting of conduct.
Section 5.4 of the Criminal Code restricts the application of
recklessness to the physical elements of circumstance or result, and the only
fault element that may be applied to a physical element of conduct is intention
(section 5.2 of the Criminal Code). Accordingly this item deletes
“recklessly” from subsections 75(1), (2), (3) and (4).
"Intentionally" is also deleted. In the absence of any stated fault
elements, the default fault elements will apply because of Section 5.6 of the
Criminal Code. The result of this is that intention will be the
applicable fault element for any physical elements of conduct, and recklessness
will be the applicable fault element for any physical elements of result or
circumstance. This will mean that the subsection will continue to operate in the
same manner as at present.
Primary Industries Levies and Charges
Collection Act 1991
Certain Crimes Act 1914 provisions, including sections 7, 7A and
86, are scheduled for progressive disapplication in relation to offence
provisions to which the Criminal Code applies, and ultimately for repeal
on 15 December 2001. It will be necessary to replace references to those
Crimes Act provisions with reference to the equivalent Criminal
Code provisions. This item replaces the references in subsection 4(3) to
sections 7, 7A and 86 of the Crimes Act 1914 (which concern attempting to
commit primary offences, incitement to commit primary offences, and conspiring
to commit primary offences) with references to the Criminal Code
provisions which deal with attempt, incitement and conspiracy (sections 11.1,
11.4 and 11.5).
This item inserts proposed section 5A which applies Chapter 2 (except Part
2.5) of the Criminal Code to all offences against the Act. Chapter 2
establishes the codified general principles of criminal responsibility.
Part 2.5 contains general principles of corporate criminal
responsibility. When the Criminal Code was introduced, it was recognised
that the general principles of corporate criminal responsibility in Part 2.5
might need to be supplemented with more specific provisions in appropriate
cases. This Act is one which contains specific provisions relating to corporate
criminal responsibility (see section 25). As the Bill
is intended to ensure that agriculture, fisheries and forestry portfolio
legislation continues to operate in the same way after the Criminal Code
applies to it, the specific corporate criminal responsibility provisions in the
Act are retained by excluding the application of Part 2.5 of the Criminal
Code.
Item 250 – Applying strict liability
This item inserts a new subsection 19A(2) which provides that
strict liability applies to the physical element of circumstance in the offence
in subsection 19A(1), that the power is exercised under section 19 in accordance
with a warrant issued under section 20. The result of specifying that strict
liability applies to that physical element of circumstance is that the
prosecution does not have to prove fault on the part of the defendant in
relation to that physical element. The prosecution need only prove that the
physical element of the offence did occur – in this case that the power
was exercised under section 19 in accordance with a warrant issued under section
20.
Item 251 – Applying strict liability
This item inserts a new subsection 19B(2), which specifies that
the offence in subsection 19B(1) is an offence of strict liability. Where strict
liability applies to an offence the prosecution does not have to prove fault on
the part of the defendant. The prosecution need only prove that the physical
elements of the offence did occur. A defence of mistake of fact is open to the
defendant under section 9.2 of the Criminal Code. This defence is
available if a person is under a mistaken but reasonable belief about a fact
and, had that fact existed, the conduct would not constitute an offence. Under
the Criminal Code, any legislative provision that attracts strict
liability must expressly state that it is an offence of strict liability (see
Section 6.1 of the Code).
Subsection 19B(1) provides that an occupier of
premises must provide reasonable assistance to an authorized officer who enters
the premises in accordance with a warrant under section 19.
The maximum penalty is 30 penalty units, which is relatively low, and no
fault elements are specified. These factors indicate that the offence is one
where strict liability would apply under the existing law.
These items make two amendments to section 22. First, they remove the
defence of reasonable excuse from section 22(4) and recreate it in a new
subsection 22(4A). The rationale for this amendment is to prevent the provision
from being interpreted in such a way as to include the reasonable excuse element
of the provision as an element of the offence, which would have to be disproved
by the prosecution. The amendment makes it clear that reasonable excuse is a
defence to the offence.
A standard note is added after the new subsection
referring to the fact that under subsection 13.3(3) of the Criminal Code
a defendant seeking to rely on the reasonable excuse defence carries an
evidential burden.
Item 253 also inserts a new subsection 22(4B), which
specifies that the offence in subsection 22(4) is an offence of strict
liability. Where strict liability applies to an offence the prosecution does not
have to prove fault on the part of the defendant. The prosecution need only
prove that the physical elements of the offence did occur. A defence of mistake
of fact is open to the defendant under section 9.2 of the Criminal Code.
This defence is available if a person is under a mistaken but reasonable belief
about a fact and, had that fact existed, the conduct would not constitute an
offence. Under the Criminal Code, any legislative provision that attracts
strict liability must expressly state that it is an offence of strict liability
(see Section 6.1 of the Code).
The offence in subsection 22(4) is failing
to return an identity card immediately after ceasing to be an authorised
officer. The maximum penalty is $100 and the defence
of reasonable excuse is available. The obligation the subject of the offence is
of an administrative nature and the offence carries a low penalty and permits a
defence of reasonable excuse. These factors indicate that the offence is one
where strict liability would apply under the existing law.
These items make two amendments to section 24. First, they remove the
defence of reasonable excuse from section 24(1) and recreate it in a new
subsection 24(1A). The rationale for this amendment is to prevent the provision
from being interpreted in such a way as to include the reasonable excuse element
of the provision as an element of the offence, which would have to be disproved
by the prosecution. The amendment makes it clear that reasonable excuse is a
defence to the offence.
A standard note is added after the new
subsection referring to the fact that under subsection 13.3(3) of the
Criminal Code a defendant seeking to rely on the reasonable excuse
defence carries an evidential burden.
Item 255 also inserts a new
subsection 24(1B), which specifies that the offence in subsection 24(1) is an
offence of strict liability. Where strict liability applies to an offence the
prosecution does not have to prove fault on the part of the defendant. The
prosecution need only prove that the physical elements of the offence did occur.
A defence of mistake of fact is open to the defendant under section 9.2 of the
Criminal Code. This defence is available if a person is under a mistaken
but reasonable belief about a fact and, had that fact existed, the conduct would
not constitute an offence. Under the Criminal Code, any legislative
provision that attracts strict liability must expressly state that it is an
offence of strict liability (see Section 6.1 of the Code).
The offence in
subsection 24(1) is failing to give a return or information that the person is
required to give under the Act. The maximum penalty
is 60 penalty units and the defence of reasonable excuse is available. These
factors indicate that the offence is one where strict liability would apply
under the existing law.
Subsections 24A(3) and (4) provide that the proprietor of an abattoir is
guilty of an offence if the abattoir fails to determine the hot or cold carcase
weight of a carcase because the proprietor intentionally or recklessly failed to
take reasonable steps to ensure that the relevant carcase weight was determined.
Subsections 24A(3) and (4) apply the fault elements of intention and
recklessness in relation to the physical element of conduct, namely failing to
take reasonable steps to ensure that the relevant carcase weight is determined.
Following application of the Criminal Code, it will not be
possible to apply the fault element of recklessness to a physical element
consisting of conduct. Section 5.4 of the Criminal Code restricts the
application of recklessness to the physical elements of circumstance or result,
and the only fault element that may be applied to a physical element of conduct
is intention (section 5.2 of the Criminal Code). Accordingly this item
deletes “recklessly” from subsections 24A(3) and (4).
"Intentionally" is also deleted. In the absence of any stated fault
elements, the default fault elements will apply because of Section 5.6 of the
Criminal Code. The result of this is that intention will be the
applicable fault element for any physical elements of conduct, and recklessness
will be the applicable fault element for any physical elements of result or
circumstance. This will mean that the subsection will continue to operate in the
same manner as at present.
Torres Strait Fisheries Act
1984
This item inserts a new section 4A which applies Chapter 2 (other than Part
2.5) of the Criminal Code to all offences against the Act. Chapter 2
establishes the codified general principles of criminal responsibility.
Part 2.5 contains general principles of corporate criminal
responsibility. When the Criminal Code was introduced, it was recognised
that the general principles of corporate criminal responsibility in Part 2.5
might need to be supplemented with more specific provisions in appropriate
cases. This Act is one which contains specific provisions relating to corporate
criminal responsibility (see section 53A). As the
Bill is intended to ensure that agriculture, fisheries and forestry portfolio
legislation continues to operate in the same way after the Criminal Code
applies to it, the specific corporate criminal responsibility provisions in the
Act are retained by excluding the application of Part 2.5 of the Criminal
Code.
Item 258 – Applying strict liability
This item inserts a new subsection 14(12A), which specifies that
the offence in subsection 14(12) is an offence of strict liability. Where strict
liability applies to an offence the prosecution does not have to prove fault on
the part of the defendant. The prosecution need only prove that the physical
elements of the offence did occur. A defence of mistake of fact is open to the
defendant under section 9.2 of the Criminal Code. This defence is
available if a person is under a mistaken but reasonable belief about a fact
and, had that fact existed, the conduct would not constitute an offence. Under
the Criminal Code, any legislative provision that attracts strict
liability must expressly state that it is an offence of strict liability (see
Section 6.1 of the Code).
Subsection 14(12) provides that a person who
fails to provide information required by a notice under subsection (1), (2),
(2A) or (3) is guilty of an offence. The maximum
penalty is $5,000, which is relatively low, and no fault elements are specified.
These factors indicate that the offence is one where strict liability would
apply under the existing law.
Item 259 – Applying strict
liability
This item inserts a new subsection 14(14AA), which
specifies that the offence in subsection 14(14) is an offence of strict
liability. Where strict liability applies to an offence the prosecution does not
have to prove fault on the part of the defendant. The prosecution need only
prove that the physical elements of the offence did occur. A defence of mistake
of fact is open to the defendant under section 9.2 of the Criminal Code.
This defence is available if a person is under a mistaken but reasonable belief
about a fact and, had that fact existed, the conduct would not constitute an
offence. Under the Criminal Code, any legislative provision that attracts
strict liability must expressly state that it is an offence of strict liability
(see Section 6.1 of the Code).
Subsection 14(14) provides that a person
who takes fish in contravention of a notice in force under subsection (6), (7)
or (8) is guilty of an offence. The maximum penalty
is $5,000 (or $25,000 for a body corporate). No fault elements are specified.
These factors indicate that the offence is one where strict liability would
apply under the existing law.
Certain Crimes Act 1914 provisions, including sections 7, 7A and
86, are scheduled for progressive disapplication in relation to offence
provisions to which the Criminal Code applies, and ultimately for repeal
on 15 December 2001. It is necessary to replace references to those Crimes
Act provisions with references to the equivalent Criminal Code
provisions. This item replaces the references in subsection 42(6A) to sections
7, 7A and 86 of the Crimes Act 1914 (which concern attempting to commit
primary offences, incitement to commit primary offences, and conspiring to
commit primary offences) with references to the Criminal Code provisions
which deal with attempt, incitement and conspiracy (sections 11.1, 11.4 and
11.5).
These items remove the defence of reasonable excuse from paragraphs
43(1)(b), (c) and (ca) and recreate it in a new subsection 43(1A). The
rationale for this amendment is to prevent the provisions from being interpreted
in such a way as to include the reasonable excuse element of the provisions as
an element of each of the offences, which would have to be disproved by the
prosecution. The amendment makes it clear that reasonable excuse is a defence
to each of the offences.
A standard note is added after the new
subsection referring to the fact that under subsection 13.3(3) of the
Criminal Code a defendant seeking to rely on the reasonable excuse
defence carries an evidential burden.
This item replaces the phrase "for the purpose" in paragraph 44(1)(c)
with the phrase "with the intention". The phrase "for the purpose" is
potentially confusing as to what the applicable fault element is. It could be
interpreted as a reference to the intention of the person when performing the
conduct (with the intention of engaging in commercial fishing), or it could
refer to the result of the conduct (with the result that commercial fishing
takes place).
To avoid this confusion the paragraph has been amended to
reflect the appropriate interpretation of the current offence, namely, "with the
intention" of engaging in commercial fishing.
Item 264 –
Applying strict liability
This item inserts a new subsection
44(3AA), which specifies that an offence under subsection 44(2) or (3)
consisting of a contravention of paragraph 44(1)(a) or (b) is an offence of
strict liability. Where strict liability applies to an offence the prosecution
does not have to prove fault on the part of the defendant. The prosecution need
only prove that the physical elements of the offence did occur. A defence of
mistake of fact is open to the defendant under section 9.2 of the Criminal
Code. This defence is available if a person is under a mistaken but
reasonable belief about a fact and, had that fact existed, the conduct would not
constitute an offence. Under the Criminal Code, any legislative provision
that attracts strict liability must expressly state that it is an offence of
strict liability (see Section 6.1 of the Code).
The relevant offences are
doing an act that the person is prohibited from doing by a notice in force under
section 16, and having in possession or control fish of a kind the taking of
which is prohibited by a notice in force under section 16.
The maximum penalty is $5,000 for a natural person and $25,000 for a body
corporate. If the relevant act is done with the aid of a foreign boat and the
person is convicted on indictment, the maximum penalty is $50,000 for a natural
person and $250,00 for a body corporate. No fault elements are specified for the
offence and it is considered that the offence would have been interpreted under
the existing law as a strict liability offence.
The item also inserts a
new subsection 44(3AB) which provides that, in the case of an offence under
subsection (2) or (3) consisting of a contravention of paragraph (1)(c), strict
liability applies to the physical elements of circumstance, that the relevant
conduct occurs in an area of Australian jurisdiction and that the relevant
notice is in force under section 16. The result of specifying that strict
liability applies to those physical elements of circumstance is that the
prosecution does not have to prove fault on the part of the defendant in
relation to those physical elements. The prosecution need only prove that those
physical elements of the offence did occur – in this case that the
relevant conduct occurred in an area of Australian jurisdiction and that the
relevant notice was in force under section 16.
Item 265 –
Applying strict liability
This item inserts a new subsection
45(4AA), which specifies that an offence under subsection 45(2), (3) or (4) is
an offence of strict liability. Where strict liability applies to an offence the
prosecution does not have to prove fault on the part of the defendant. The
prosecution need only prove that the physical elements of the offence did occur.
A defence of mistake of fact is open to the defendant under section 9.2 of the
Criminal Code. This defence is available if a person is under a mistaken
but reasonable belief about a fact and, had that fact existed, the conduct would
not constitute an offence. Under the Criminal Code, any legislative
provision that attracts strict liability must expressly state that it is an
offence of strict liability (see Section 6.1 of the Code).
The relevant
offences relate to using a boat for fishing otherwise than in accordance with a
licence or endorsement. The maximum penalties range
from $5,000 to $250,000, depending on whether the offence is committed by a
natural person or a body corporate, or by the master of the boat, and whether
the conviction is summary or on indictment. No fault elements are specified for
the offence and it is considered that the offence would have been interpreted
under the existing law as a strict liability offence.
Item 266
– Clarifying fault element
This item replaces the phrase
"for the purpose" in subsection 46(1) with the phrase "with the intention". The
phrase "for the purpose" is potentially confusing as to what the applicable
fault element is. It could be interpreted as a reference to the intention of the
person when performing the conduct (with the intention of engaging in commercial
fishing), or it could refer to the result of the conduct (with the result that
commercial fishing takes place).
To avoid this confusion the paragraph
has been amended to reflect the appropriate interpretation of the current
offence, namely "with the intention" of engaging in commercial
fishing.
Item 267 – Applying strict liability
This item inserts a new subsection 46(3) which provides that
strict liability applies to the physical element of circumstance in the offence
in subsection 46(2), that the boat is in an area of Australian jurisdiction. The
result of specifying that strict liability applies to that physical element of
circumstance is that the prosecution does not have to prove fault on the part of
the defendant in relation to that physical element. The prosecution need only
prove that the physical element of the offence did occur – in this case
that the boat is in an area of Australian jurisdiction.
Items 268
and 269 – Clarifying defence and applying strict liability
These items remove from subsection 47(1) the exception that the
person owns the equipment or is acting with the authority of the owner and
recreate it in a new subsection 47(2). The rationale for this amendment is to
prevent the provision from being interpreted in such a way as to include this
element of the provision as an element of the offence, which would have to be
disproved by the prosecution. The amendment makes it clear that the fact that
the person owns the equipment or is acting with the authority of the owner is a
defence to the offence.
A standard note is added after the new subsection
referring to the fact that under subsection 13.3(3) of the Criminal Code
a defendant seeking to rely on the defence in the new subsection carries an
evidential burden.
Item 269 also inserts a new subsection 47(3) which
provides that strict liability applies to the physical element of circumstance
in the offence in subsection 47(1), that the removal occurs in an area of
Australian jurisdiction. The result of specifying that strict liability applies
to that physical element of circumstance is that the prosecution does not have
to prove fault on the part of the defendant in relation to that physical
element. The prosecution need only prove that the physical element of the
offence did occur – in this case that the removal occurred in an area of
Australian jurisdiction.
This item inserts a new subsection 48(2), which specifies that the
offence in subsection 48(1) is an offence of strict liability. Where strict
liability applies to an offence the prosecution does not have to prove fault on
the part of the defendant. The prosecution need only prove that the physical
elements of the offence did occur. A defence of mistake of fact is open to the
defendant under section 9.2 of the Criminal Code. This defence is
available if a person is under a mistaken but reasonable belief about a fact
and, had that fact existed, the conduct would not constitute an offence. Under
the Criminal Code, any legislative provision that attracts strict
liability must expressly state that it is an offence of strict liability (see
Section 6.1 of the Code).
Subsection 48(1) provides that a person must
not, in an area of Australian jurisdiction, use a foreign boat for taking,
catching or capturing, fish for private purposes, or for processing or carrying
fish that have been taken, caught or captured for private
purposes. The maximum penalty is $5,000, which is
relatively low, and no fault elements are specified. These factors indicate
that the offence is one where strict liability would apply under the existing
law.
Item 271 – Applying strict liability
This item inserts a new subsection 49(2A), which specifies that
the offence in subsection 49(1) is an offence of strict liability. Where strict
liability applies to an offence the prosecution does not have to prove fault on
the part of the defendant. The prosecution need only prove that the physical
elements of the offence did occur. A defence of mistake of fact is open to the
defendant under section 9.2 of the Criminal Code. This defence is
available if a person is under a mistaken but reasonable belief about a fact
and, had that fact existed, the conduct would not constitute an offence. Under
the Criminal Code, any legislative provision that attracts strict
liability must expressly state that it is an offence of strict liability (see
Section 6.1 of the Code).
Subsection 49(1) provides that the master of a
foreign fishing boat, not being a boat that is being used in the course of
traditional fishing, who, otherwise than in accordance with an entry made in a
licence or in a Treaty endorsement under paragraph 21(2)(a) or (b), causes the
boat to be brought into a place in Australia that is within the Protected Zone,
is guilty of an offence. The maximum penalty is
$5,000 (or $50,000 if convicted on indictment). The defence of unforeseen
emergency is available. The offence carries a relatively low penalty in the
commercial context and the availability of an express defence implies that fault
need not be proved. These factors indicate that the offence is one where strict
liability would apply under the existing law.
Item 272 –
Applying strict liability
This item inserts a new subsection
50(3), which specifies that the offence in subsection 50(1) is an offence of
strict liability. Where strict liability applies to an offence the prosecution
does not have to prove fault on the part of the defendant. The prosecution need
only prove that the physical elements of the offence did occur. A defence of
mistake of fact is open to the defendant under section 9.2 of the Criminal
Code. This defence is available if a person is under a mistaken but
reasonable belief about a fact and, had that fact existed, the conduct would not
constitute an offence. Under the Criminal Code, any legislative provision
that attracts strict liability must expressly state that it is an offence of
strict liability (see Section 6.1 of the Code).
Subsection 50(1) provides
the master of a foreign boat or a Papua New Guinea boat who lands fish in
Australia is guilty of an offence, except if it is in accordance with an entry
made in a licence or in a Treaty endorsement or in the course of traditional
fishing. The maximum penalty is $5,000 (or $50,000 if
convicted on indictment) and some administrative defences are set out in
subsection (2). The offence carries a relatively low penalty in the commercial
context and the availability of express defences implies that fault need not be
proved. These factors indicate that the offence is one where strict liability
would apply under the existing law.
This item inserts a new subsection 51(4A), which specifies that an
offence under subsection 51(2) or (3) is an offence of strict liability. Where
strict liability applies to an offence the prosecution does not have to prove
fault on the part of the defendant. The prosecution need only prove that the
physical elements of the offence did occur. A defence of mistake of fact is open
to the defendant under section 9.2 of the Criminal Code. This defence is
available if a person is under a mistaken but reasonable belief about a fact
and, had that fact existed, the conduct would not constitute an offence. Under
the Criminal Code, any legislative provision that attracts strict
liability must expressly state that it is an offence of strict liability (see
Section 6.1 of the Code).
The relevant offences are having in possession
or control, in an area of Australian jurisdiction, an unlicensed boat equipped
with nets, traps or other equipment for taking fish.
The maximum penalties range from $5,000 to $250,000, depending on whether
the offence is committed by a natural person or a body corporate, whether the
offence is committed with a foreign boat, and whether the conviction is summary
or on indictment. No fault elements are specified for the offence and it is
considered that the offence would have been interpreted under the existing law
as a strict liability offence.
This item inserts a new subsection 54(5), which specifies that the
offence in subsection 54(2) is an offence of strict liability. Where strict
liability applies to an offence the prosecution does not have to prove fault on
the part of the defendant. The prosecution need only prove that the physical
elements of the offence did occur. A defence of mistake of fact is open to the
defendant under section 9.2 of the Criminal Code. This defence is
available if a person is under a mistaken but reasonable belief about a fact
and, had that fact existed, the conduct would not constitute an offence. Under
the Criminal Code, any legislative provision that attracts strict
liability must expressly state that it is an offence of strict liability (see
Section 6.1 of the Code).
Subsection 54(2) provides that an Australian
citizen or a person on an Australian boat or licensed foreign boat who, in an
area of Papua New Guinea jurisdiction, contravenes any Papua New Guinea fishing
law is guilty of an offence. The maximum penalty is
$5,000. It is a defence that the person has been prosecuted in Papua New Guinea
for that contravention. No fault elements are specified and the maximum penalty
is relatively low. These factors indicate that the offence is one where strict
liability would apply under the existing
law.
Wheat Marketing Act 1989
This item inserts a new section 3A which applies Chapter 2 of the
Criminal Code to all offences against the Act. Chapter 2 establishes the
codified general principles of criminal responsibility.