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1998–1999-2000
THE PARLIAMENT OF THE
COMMONWEALTH OF AUSTRALIA
HOUSE OF
REPRESENTATIVES
COMMUNICATIONS AND THE ARTS
LEGISLATION AMENDMENT
(APPLICATION OF CRIMINAL CODE) BILL
2000
EXPLANATORY
MEMORANDUM
(Circulated
by authority of the Minister for Communications, Information Technology and the
Arts, Senator the Hon. Richard Alston)
ISBN: 0642 463816
COMMUNICATIONS AND THE ARTS LEGISLATION AMENDMENT
(APPLICATION OF CRIMINAL CODE) BILL 2000
OUTLINE
The Communications and the Arts Legislation Amendment (Application of
Criminal Code) Bill 2000 amends certain offence provisions in legislation
within the Communications, Information Technology and the Arts portfolio. The
amendments are intended to ensure that when Chapter 2 of the Criminal Code
Act 1995 (the Code) is applied to all Commonwealth criminal offences, from
15 December 2001, those provisions will continue to operate in the same manner
as they operated previously.
If legislation containing offence provisions
were not amended to have regard to the Code, the Code may have altered the
interpretation of existing offence provisions. The Criminal Code is
contained in Schedule 2 to the Criminal Code Act 1995. It sets out the
general principles of criminal responsibility that will apply to all
Commonwealth criminal offences once the Act comes into force, on and after 15
December 2001. Chapter 2 has been applied to new offences since 1 January 1997
and will apply to all Commonwealth offences from 15 December
2001.
Chapter 2 of the Criminal Code codifies the general
principles of criminal law and adopts the common law approach of subjective
fault based principles. It adopts the traditional distinction of dividing
offences into actus reus and mens rea but uses the plainer labels
of physical elements and fault elements. The general rule is that for each
physical element of an offence it is necessary to prove that the defendant had
the relevant fault element. The prosecution must prove every physical and fault
element of an offence. The physical elements are conduct, result of conduct and
circumstance of conduct and the fault elements specified in the Criminal
Code are intention, knowledge, recklessness and negligence. The default
fault elements which the Criminal Code provides will apply where a fault
element is not specified and where the offence (or an element of the offence) is
not specified to be a strict or absolute liability offence. The default fault
elements set out in the Criminal Code are intention for a physical
element of conduct and recklessness for a physical element of circumstance or
result. A fault element can only be dispensed with in relation to an offence
(or in relation to a particular element of an offence) if the offence specifies
that it is a strict or absolute liability offence (or that a particular element
is a strict or absolute liability element). The defence of mistake of fact is
available for a strict liability (or a strict liability element of an offence)
but not for an absolute liability offence (or absolute liability element of an
offence). The Criminal Code does not prevent an offence from specifying
an alternative fault element but this will rarely be done.
In addition,
the Communications and the Arts Legislation Amendment (Application of
Criminal Code) Bill 2000 will make other minor amendments to offence
provisions in the Communications, Information Technology and the Arts portfolio
which are consistent with the general criminal law policy to simplify offence
provisions and improve the operation of offence provisions.
The amendments
fall broadly into the following categories:
• amendments to
restructure provisions where part of the conduct element of the offence includes
‘breach of a condition of a licence, authorisation, permit, certificate or
declaration etc’;
• amendments to restructure offences relating
to non compliance with a notice, requirement, rule, direction or
order;
• amendments to restructure offence provisions which include an
inappropriate physical element of conduct;
• an amendment to alter a
legal burden of proof;
• creation of a new offence;
• creation
of offences of strict liability which could not currently be interpreted as
strict liability;
• extension of meaning of ‘engaging in
conduct’ to include omissions;
• amendment so as not to require
knowledge of the law;
• amendments to repeal false or misleading
statements or false or misleading documents provisions;
and
• amendments to convert dollar amounts to penalty
units.
FINANCIAL IMPACT STATEMENT
The Bill is not expected to have any significant financial impact on
Commonwealth expenditure or revenue.
NOTES ON CLAUSES
Clause 1 - Short title
Clause 1 provides for the citation of
the Communications and the Arts Legislation Amendment (Application of
Criminal Code) Act 2000 (the Act).
Clause 2 -
Commencement
Clause 2 of the Bill provides for the Act to commence on
whichever is the latest of:
a) immediately after the commencement of item 15
of Schedule 1 to the Criminal Code Amendment (Theft, Fraud, Bribery and
Related Offences) Act 2000;
b) the start of the 28th day after the day on
which the Law and Justice Legislation Amendment (Application of Criminal
Code) Act 2000 receives the Royal Assent;
c) the start of the
28th day after the day on which this Act receives the Royal
Assent.
The reason for this conditional commencement provision is because
certain amendments proposed in the Communications and the Arts Legislation
Amendment (Application of Criminal Code) Bill 2000 rely on amendments to be
made in the Criminal Code Amendment (Theft, Fraud, Bribery and Related
Offences) Act 2000 and the Law and Justice Legislation Amendment
(Application of Criminal Code) Act 2000. In particular, the
Communications and the Arts Legislation Amendment (Application of Criminal
Code) Bill 2000 proposes to repeal various false or misleading offence
provisions which are to be included in the Criminal Code by the
Criminal Code Amendment (Theft, Fraud, Bribery and Related Offences) Act
2000. This Bill also proposes to replace references to certain
Crimes Act 1914 provisions which will be repealed by the Law and
Justice Legislation Amendment (Application of Criminal Code) Act 2000 and
replaced by equivalent ancillary offence provisions which are to be included in
the Criminal Code by the Law and Justice Legislation Amendment
(Application of Criminal Code) Act 2000.
Subclauses 2(2) to 2(8)
provide for the commencement of various provisions which this Act is amending,
but which provisions are not yet in force.
Subclause 2(2) provides that
if item 22 of Schedule 1 to the Broadcasting Services Amendment Act 2000
has not commenced before the commencement of section 1 of this Act
then items 20 to 25 in Schedule 1 (which amend proposed sections 121FH, 121FJ
and 121FLF of the Broadcasting Services Act 1992 (BSA)) are to commence
immediately after the commencement of item 22 of Schedule 1 to the
Broadcasting Services Amendment Act 2000. This is because these proposed
sections will be introduced into the BSA by item 22 of Schedule 1 to the
Broadcasting Services Amendment Act 2000.
Subclauses 2(3), 2(4)
and 2(5) provide for the commencement of item 27 (the item amending paragraph
139(2)(c) of the BSA), depending upon the date of commencement of section 1 of
this Act. Item 27 makes amendments to paragraph 139(2)(c) of the BSA which are
proposed to be made by item 21 of Schedule 1 to the Broadcasting Services
Amendment Act (No. 3) 1999, which is to commence on 1 July 2001.
Subclause 2(3) provides that if section 1 of this Act commences before 1
July 2001 then item 27 of this Act commences on 1 July 2001. It
also provides that item 21 of Schedule 1 to the Broadcasting Services
Amendment Act (No. 3) 1999 does not commence. This is because item 21 of
Schedule 1 would no longer be necessary as item 27 of this Act
will make these amendments to paragraph 139(2)(c) of the BSA.
Subclause 2(4) provides that if section 1 of this Act commences on 1
July 2001 then item 26 of Schedule 1 to this Act (which inserts a new section
139 into the BSA) will commence immediately after the commencement of item 21 of
Schedule 1 to the Broadcasting Services Amendment Act (No. 3) 1999, that
is 1 July 2001. Item 27 will commence immediately after the commencement of
item 26.
Subclause 2(5) provides that if section 1 of this Act commences
after 1 July 2001 then item 27 of this Act commences immediately
after the commencement of item 26.
Subclause 2(6) provides for the
commencement of item 38, which amends clause 10 of Schedule 6 to the
Broadcasting Services Act 1992 (BSA). Clause 10 of Schedule 6 to the BSA
will be introduced into the BSA by item 140 of Schedule 1 to the Broadcasting
Services Amendment (Digital Television and Datacasting) Act 2000. Subclause
2(6) provides that item 38 of Schedule 1 to this Act will commence
immediately after the commencement of item 140 of Schedule 1 to the
Broadcasting Services Amendment (Digital Television and Datacasting) Act
2000, if this item has not commenced before the commencement of section 1 of
this Act.
Schedule 1 to this Act makes amendments to various provisions
in the Australian Postal Corporation Act 1989 (APC Act) (see items 13 to
17). Item 2 of Schedule 1 to the Postal Services Legislation Amendment Act
2000 proposes to change the name of the APC Act to the Australian Postal
Corporation Limited Act 1989. Subclause 2(7) provides that if this name
change is operational prior to the commencement of section 1 of this Act (that
is if item 2 of Schedule 1 to the Postal Services Legislation Amendment Act
2000 commences before this Act) then the amendments to the
Australian Postal Corporation Act 1989 contained in Schedule 1 to this
Act have effect as if they were amendments to the Australian Postal
Corporation Limited Act 1989.
Subclause 2(8) provides for the
commencement of items 164 and 165 of Schedule 1 to this Act, which amend
sections 20 and 20J of the Telecommunications (Consumer Protection and
Service Standards) Act 1999. These sections are to be introduced by item 1
of Schedule 1 to the Telecommunications (Consumer Protection and Service
Standards) Amendment Act (No. 2) 2000. Consequently these items cannot
commence until the item introducing sections 20 and 20J have commenced.
Subclause 2(8) ensures this by providing that if item 1 of Schedule 1 to the
Telecommunications (Consumer Protection and Service Standards) Amendment Act
(No. 2) 2000 has not commenced before the commencement of section 1 of this
Act, item numbers 166 and 167 commence immediately after the commencement of
item 1 of Schedule 1 to the Telecommunications (Consumer Protection and
Service Standards) Amendment Act (No. 2) 2000.
By virtue of this clause, each Act specified in a Schedule to this Act is
amended or repealed as set out in the Schedule, and any other item has effect
according to its terms.
This clause provides that the Act only applies to acts or omissions after
commencement. Subclause 4(2) provides that if there is a discrepancy between
whether an act or omission occurred before or after commencement then it will be
deemed to have taken place before the amendment commenced.
Item 1 – Subsection 3(1)
This item amends subsection
3(1) of the Archives Act 1983 (Archives Act) by introducing a definition
of ‘engage in conduct’ which applies to the whole of the Act. The
definition covers doing an act and omitting to perform an act. This is
consistent with the definition of conduct in the Criminal Code, which
covers both acts and omissions (see subsection 4.1(2) of the Code).
This amendment is not strictly necessary to harmonise the offence
provisions in the Archives Act with the Criminal Code. However, it is
desirable to clarify that offences which refer to ‘engage in
conduct’ in the Act cover both acts and omissions. For example an offence
relating to the destruction of a record (see item 3) may be committed if a
person omits to perform an act, such as omitting to keep an archival storage
room at the correct temperature, and consequently destroys a record. The
inclusion of a definition of ‘engage in conduct’ ensures that such
offences cover both acts and omissions.
Item 2 - New section 4A -
Application of the Criminal Code
This item inserts a new
section 4A into the Archives Act which provides that Chapter 2 of the
Criminal Code applies to all offences against the Archives Act. It also
inserts a note that says that Chapter 2 of the Code sets out the general
principles of criminal responsibility.
This item repeals the existing subsection 24(1) of the Archives Act and
substitutes new subsections 24(1) and 24(1A).
This amendment ensures
that the offence provision more accurately identifies the physical elements of
conduct and result in the offence in order that there is no doubt as to the
default fault elements which will be supplied by the Criminal Code. This
amendment has rephrased the offence to clarify that the destruction, disposal,
transfer, damage or alteration is a physical element of result of the
defendant’s conduct to which the default fault element of recklessness
will apply.
In addition new subsection 24(1) replaces the reference to a
penalty of $2,000 with a reference to an equivalent penalty of 20 penalty units.
This provides consistency with other penalty provisions, which refer to penalty
units rather than dollar amounts. It does not alter the penalty which is
applied for this offence as section 4AB of the Crimes Act 1914 has the
effect of converting references to dollar amounts to equivalent penalty
units.
New subsection 24(1A) specifies that strict liability applies to
the physical element of circumstance of this offence, that the record is a
Commonwealth record. This amendment is necessary as this particular element of
the offence is likely to have been interpreted as a strict liability element
before this amendment because of the relatively low penalty attached to this
offence and because of the difficulties in proving that a person knew that a
record was a Commonwealth record.
Therefore this new subsection should
not alter the way a court would interpret this element of the offence. If the
amendment were not made then, after the application of the Criminal Code,
this element of the offence would no longer be interpreted in the same way as it
could currently be interpreted. After the Criminal Code comes into
operation it is necessary to expressly state that an offence, or a particular
element of an offence, is one of strict liability if the provision, or element,
is to attract strict liability (sections 6.1 and 6.2 of the Code). If it is
not specified a court would be obliged to interpret it as a fault offence, or
element, and no longer as a strict liability offence, or element, and would
require proof of fault elements in relation to the physical
elements.
This is consistent with the approach taken in the Criminal
Code Amendment (Theft, Fraud, Bribery and Related Offences) Act 2000. In
this Act where an offence includes a physical element of ‘property
belonging to a Commonwealth entity’ absolute liability is applied to the
physical element of circumstance of the offence that the ‘property belongs
to the Commonwealth entity’.
Item 4 – Subsection
26(1)
This item repeals the existing subsection 26(1) of the Archives
Act and substitutes new subsections 26(1) and 26(1A).
This amendment
ensures that the offence provision more accurately identifies the physical
elements of conduct and result in the offence in order that there is no doubt as
to the default fault elements which will be supplied by the Criminal
Code. This amendment has rephrased the offence to clarify that the addition
or alteration is a physical element of result of the defendant’s conduct
to which the default fault element of recklessness will apply.
In
addition new subsection 26(1) replaces the reference to a penalty of $2,000 with
a reference to an equivalent penalty of 20 penalty units. This provides
consistency with other penalty provisions, which refer to penalty units rather
than dollar penalties. It does not alter the penalty which is applied for this
offence as section 4AB of the Crimes Act 1914 has the effect of
converting references to dollar amounts to equivalent penalty units.
New
subsection 26(1A) specifies that strict liability applies to the physical
element of circumstance of this offence, that the record is a Commonwealth
record that has been in existence for more than 25 years. This amendment is
necessary as this particular element of the offence is likely to have been
interpreted as a strict liability element before this amendment because of the
relatively low penalty attached to this offence and because of the difficulties
in proving that a person knew that the record was a Commonwealth record that had
been in existence for more than 25 years.
Therefore this new subsection
should not alter the way a court would interpret this element of the offence.
If the amendment were not made then, after the application of the Criminal
Code, this element of the offence would no longer be interpreted in the same
way as it could currently be interpreted. After the Criminal Code comes
into operation it is necessary to expressly state that an offence, or a
particular element of an offence, is one of strict liability if the provision,
or element, is to attract strict liability (sections 6.1 and 6.2 of the Code).
If it is not specified a court would be obliged to interpret it as a fault
offence, or element, and no longer as a strict liability offence, or element,
and would require proof of fault elements in relation to the physical
elements.
This is consistent with the approach taken in the Criminal
Code Amendment (Theft, Fraud, Bribery and Related Offences) Act 2000. In
this Act where an offence includes a physical element of ‘property
belonging to a Commonwealth entity’ absolute liability is applied to the
physical element of circumstance of the offence that the ‘property belongs
to the Commonwealth entity’.
Item 5 – Subsection
56(3)
This item repeals subsection 56(3) of the Archives Act and
substitutes a new subsection 56(3).
The current subsection 56(3) may be
interpreted so that ‘contravention of a condition’ forms part of the
conduct element of the offence. This amendment has rephrased the offence to
ensure that the contravention of the conditions under which records are made
available to the person is part of the physical element of ‘result’.
This means that it will attract the default fault element of
recklessness.
While this amendment is not strictly necessary to harmonise
the offence provisions with the Criminal Code it is desirable to amend
this provision for the following reason. Under the Criminal Code the
fault element of intention applies to the physical element of conduct. If the
offence were not restructured prior to the Code coming into operation this could
give rise to difficulties in the prosecution of this offence as the prosecution
may be required to prove that the defendant has specific intention to breach a
particular condition. This could be extremely difficult if the defendant had
knowledge of the conditions but does not have a specific intention to breach a
particular condition. The defendant could merely intend to breach the conditions
generally whilst being reckless as to the particular condition breached.
In addition, new subsection 56(3) replaces the reference to a penalty of
$2,000 with a reference to a penalty of 20 penalty units. This provides
consistency with other penalty provisions, which refer to penalty units rather
than dollar penalties. It does not alter the penalty which is applied for this
offence as section 4AB of the Crimes Act 1914 has the effect of
converting references to dollar amounts to equivalent penalty
units.
Item 6 – Subsection 61(3)
This item repeals
subsection 61(3) of the Archives Act, including the penalty, and substitutes new
subsections 61(3) and (4).
This amendment ensures that the offence
provision more accurately identifies the physical elements of conduct and result
in the offence in order that there is no doubt as to the default fault elements
which will be supplied by the Criminal Code. This amendment has
rephrased the offence to clarify that the destruction, disposal or damage is a
physical element of result of the defendant’s conduct to which the default
fault element of recklessness will apply.
In addition new subsection
61(3) replaces the reference to a penalty of $2,000 with a reference to an
equivalent penalty of 20 penalty units. This provides consistency with other
penalty provisions, which refer to penalty units rather than dollar penalties.
It does not alter the penalty which is applied for this offence as section 4AB
of the Crimes Act 1914 has the effect of converting references to dollar
amounts to equivalent penalty units.
New subsection 61(4) provides a defence to subsection 61(3) if the person has
the permission of the Archives to destroy, dispose or damage the object.
This defence is currently contained in the body of the offence in subsection 61(3). This amendment has been made to avoid the defence being mistakenly interpreted as being part of the elements of the offence. A note is provided that a defendant bears an evidential burden in relation to the matter in subsection (4) (see subsection 13.3 of the Criminal Code).
Subsection 13.3 of the Code provides that normally a defendant bears an
evidential burden in relation to a defence. An evidential burden requires the
defendant to adduce or point to evidence that suggests a reasonable possibility
that the matter exists or does not exist.
Item 7 – New section 4A - Application of the Criminal
Code
This item inserts a new section 4A into the Australian
Communications Authority Act 1997 (ACA Act) which provides that Chapter 2 of
the Criminal Code applies to all offences against the ACA Act. It also
inserts a note that says that Chapter 2 of the Code sets out the general
principles of criminal responsibility.
Item 8 – Subsection
55(1)
This item amends subsection 55(1) of the ACA Act by omitting
the defence of ‘unless if ACA consents in writing’ from the terms of
the offence in subsection 55(1) and setting it out in a new subsection. This
defence becomes a new subsection under item 10. This amendment has been made to
avoid the defence being mistakenly interpreted as being part of the elements of
the offence.
Item 9 – Subsection 55(2)
This item
amends subsection 55(2) of the ACA Act by removing the reference to the words
‘intentionally or recklessly’. This is intended to provide clarity
to the interpretation of the offence and to give consistency as to how criminal
offences are to be interpreted by the courts. The current wording of the
offence appears to apply an alternative fault element of recklessly to the
physical element of conduct (namely, contravention of subsection (1)). Repeal
of a specific fault element of recklessly from an offence does not prevent the
Criminal Code supplying the default fault element of recklessly to a
physical element of circumstance or result in an offence (for example, that the
name or symbol is a protected name or symbol).
Item 10 – New
subsection 55(2A)
This item, which is consequential upon item 8,
inserts a new subsection 55(2A) into the ACA Act. It provides that subsections
(1) and (2) do not apply if the ACA consents in writing to the use or
application of the name or symbol. The note to the subsection provides that the
defendant bears an evidential burden in relation to the matters in subsection
(2A). It also refers to subsection 13.3(3) of the Code. That subsection
provides that a defendant who wishes to rely on any exception, exemption,
excuse, qualification or justification provided by law creating an offence bears
an evidential burden in relation to that matter. An evidential burden is
defined in subsection 13.3(6) of the Criminal Code to mean ‘the
burden of adducing or pointing to evidence that suggests a reasonable
possibility that the matter exists or does not exist’.
Item 11 – New section 3A - Application of the Criminal
Code
This item inserts a new section 3A into the Australian
Film Commission Act 1975 (AFC Act) which provides that Chapter 2 of the
Criminal Code applies to all offences against the AFC Act. It also
inserts a note that says that Chapter 2 of the Code sets out the general
principles of criminal responsibility.
This item repeals subsection 10(5) of the AFC Act and substitutes new
subsections 10(5) and 10(5A).
Currently subsection 10(5) provides a
defence to an offence under subsection 10(4) if a defendant proves that he or
she had a reasonable excuse relating to the availability of Australian short
films for not complying with the requirement to which the offence relates. This
provision imposes a legal burden on the defendant (see subsection 13.4 of the
Code). This means that the defendant must prove the existence of the matter
(see subsection 13.1(3) of the Code). This is contrary to the policy behind the
Criminal Code that a defendant bears only an evidential burden in
relation to defences (see subsection 13.3 of the Code).
The proposed new
subsection 10(5) requires the defendant to bear only an evidential burden in
relation to the defence. While this amendment is not strictly necessary to
harmonise the offence provisions with the Criminal Code it is desirable
to amend this provision to provide consistency with the Code.
The note
to the subsection provides that the defendant bears an evidential burden in
relation to the matters in subsection (5). It also refers to subsection 13.3(3)
of the Code. That subsection provides that a defendant who wishes to rely on
any exception, exemption, excuse, qualification or justification provided by law
creating an offence bears an evidential burden in relation to that matter. An
evidential burden is defined in subsection 13.3(6) of the Criminal Code
to mean ‘the burden of adducing or pointing to evidence that suggests a
reasonable possibility that the matter exists or does not exist’.
Proposed new subsection 10(5A) provides that subsection (4) is an
offence of strict liability. This amendment is necessary as this offence is
likely to have been interpreted as a strict liability element before this
amendment because of the relatively low penalty attached to this offence ($200),
it contains a defence of reasonable excuse, which is an indication of a strict
liability offence, and because of the nature of the offence (which does not
involve dishonesty or other serious imputation affecting the offender’s
reputation).
Therefore this new subsection should not alter the way a
court would interpret this offence. If the amendment were not made then, after
the application of the Criminal Code, this offence would no longer be
interpreted in the same way as it could currently be interpreted. After the
Criminal Code comes into operation it is necessary to expressly state
that an offence is one of strict liability if the provision is to attract strict
liability (sections 6.1 and 6.2 of the Code). If it is not specified a court
would be obliged to interpret it as a fault offence and no longer as a strict
liability offence and would require proof of fault elements in relation to the
physical elements.
Item 13 – New section 11A - Application of the Criminal
Code
This item inserts a new section 11A into the Australian
Postal Corporation Act 1989 (APC Act) which provides that Chapter 2 of the
Criminal Code applies to all offences against the APC Act. It also
inserts a note that says that Chapter 2 of the Code sets out the general
principles of criminal responsibility.
Item 14 – Subsection
90H(2)
This item amends subsection 90H(2) of the APC Act by removing
the reference to the words ‘knowingly or recklessly’. This is
intended to make the provision consistent with the principles of the Criminal
Code. This amendment is necessary because following application of the
Code, it will not be possible to apply the fault elements of ‘knowingly or
recklessly’ to a physical element consisting of conduct (see Division 5 of
Part 2.2 of the Criminal Code generally). The fault elements of
knowingly or recklessly can only be applied to physical elements of circumstance
or result. Accordingly this provision is amended to remove the word
‘knowingly or recklessly’ as in its present operation the word
‘knowingly’ will have no effect following application of the
Criminal Code. The default fault element of intention will apply to the
conduct element of the offence. Repeal of a specific fault element of
recklessly from an offence does not prevent the Criminal Code supplying
the default fault element of recklessly to a physical element of circumstance or
result in an offence.
Item 15 – Subsection
90LB(2)
This item amends subsection 90LB(2) of the APC Act by
removing the words ‘knowingly or recklessly’. This is intended to
make the provision consistent with the principles of the Criminal Code.
This amendment is necessary because following application of the Code, it will
not be possible to apply the fault elements of ‘knowingly or
recklessly’ to a physical element consisting of conduct (see Part 2.2 of
Division 5 of the Criminal Code generally). The fault elements of
knowingly or recklessly can only be applied to physical elements of circumstance
or result. Accordingly this provision is amended to remove the word
‘knowingly or recklessly’ as in its present operation the word
‘knowingly’ will have no effect following application of the
Criminal Code. The default fault element of intention will apply to the
conduct element of the offence. Repeal of a specific fault element of
recklessly from an offence does not prevent the Criminal Code supplying
the default fault element of recklessly to a physical element of circumstances
or result in an offence.
Item 16 – Subsection
90LE(2)
This item amends subsection 90LE(2) of the APC Act by
removing the words ‘knowingly or recklessly’. This is intended to
make the provision consistent with the principles of the Criminal Code.
This amendment is necessary because following application of the Code, it will
not be possible to apply the fault elements of ‘knowingly or
recklessly’ to a physical element consisting of conduct (see Part 2.2 of
Division 5 of the Criminal Code generally). The fault elements of
knowingly or recklessly can only be applied to physical elements of circumstance
or result. Accordingly this provision is amended to remove the word
‘knowingly or recklessly’ as in its present operation the word
‘knowingly’ will have no effect following application of the
Criminal Code. The default fault element of intention will apply to the
conduct element of the offence. Repeal of a specific fault element of
recklessly from an offence does not prevent the Criminal Code supplying
the default fault element of recklessly to a physical element of circumstances
or result in an offence.
Item 17 – Subsection
90N(2)
This item amends subsection 90N(2) of the APC Act by removing
the words ‘knowingly or recklessly’. This is intended to make the
provision consistent with the principles of the Criminal Code. This
amendment is necessary because following application of the Code, it will not be
possible to apply the fault elements of ‘knowingly or recklessly’ to
a physical element consisting of conduct (see Part 2.2 of Division 5 of the
Criminal Code generally). The fault elements of knowingly or recklessly
can only be applied to physical elements of circumstance or result. Accordingly
this provision is amended to remove the word ‘knowingly or
recklessly’ as in its present operation the word ‘knowingly’
will have no effect following application of the Criminal Code. The
default fault element of intention will apply to the conduct element of the
offence. Repeal of a specific fault element of recklessly from an offence does
not prevent the Criminal Code supplying the default fault element of
recklessly to a physical element of circumstances or result in an
offence.
Item 18 – New section 10A – Application of the Criminal
Code
This item inserts a new section 10A into the Broadcasting
Services Act 1992 (BSA) which provides that Chapter 2 of the Criminal
Code applies to all offences against the BSA, subject to subsection (2). It
also inserts a note that says that Chapter 2 of the Code sets out the general
principles of criminal responsibility.
Proposed new subsection 10A(2)
provides that Part 2.5 of the Criminal Code does not apply to an offence
against Schedule 5 to this Act. Part 2.5 of the Code deals with corporate
criminal responsibility. Part 2.5 of the Criminal Code is the only Part
of Chapter 2 which does not apply automatically to offences. When the Criminal
Code Bill was introduced into the Senate on 30 June 1994 it was stated that Part
2.5 would be the basis of liability if no other basis were provided. Since
Schedule 5 to the BSA already contains a provision which deals with corporate
criminal responsibility (clause 87 of Schedule 5 to the BSA), Part 2.5 of the
Criminal Code has not been applied to an offence against Schedule 5 to
this Act.
Item 19 – New subsection 66(1A)
This item
inserts a new subsection 66(1A) into the BSA. This subsection provides that in
a prosecution for an offence against subsection (1), it is not necessary to
prove that the defendant knew that the provision breached was a provision of
Division 2, 3, 4 or 5.
This amendment ensures that the prosecution does
not have to prove that the defendant had knowledge of a particular legal
provision. This is consistent with the default position in section 9.3 of the
Criminal Code, which provides that a person can be criminally responsible
for an offence even if he or she is mistaken about, or ignorant of, the
provision that creates the offence. While this amendment is not strictly
necessary to harmonise the offence provisions with the Criminal Code it
is desirable to amend this provision for consistency with the Code.
Item 20 - Subsection 121FH(2)
This item repeals subsection
121FH(2) of the BSA and substitutes a new subsection 121FH(2). Subsection
121FH(2) is to be introduced into the BSA by item 22 of Schedule 1 to the
Broadcasting Services Amendment Act 2000 (see subclause 2(2) which
relates to the commencement of this item).
This amendment has
rephrased the offence to ensure that the non-compliance with a notice under
subsection (1) is a physical element of result of the defendant’s conduct
to which the default fault element of recklessness will apply. While this
amendment is not strictly necessary to harmonise the offence provisions with the
Criminal Code it is desirable to amend this provision to more clearly
identify the physical elements of conduct and result in the offence.
Item 21 – New subsection 121FH(4)
This item inserts
new subsection 121FH(4) into the BSA which introduces a definition of
‘engage in conduct’ which applies to section 121FH of the BSA. The
definition covers doing an act and omitting to perform an act. This is
consistent with the definition of conduct in the Criminal Code, which
covers both acts and omissions (see subsection 4.1(2) of the Code).
This amendment is not strictly necessary to harmonise the offence
provisions in the BSA with the Criminal Code. However, it is desirable
to ensure that the offence in subsection 121FH(2) covers both acts and
omissions. For example a notice under subsection (1) which directs a person to
cease providing an international broadcasting service without a licence could
clearly be contravened by omitting to do an act (for example, omitting to cease
providing the service).
Item 22 – Paragraph 121FJ(b)
This item repeals paragraph 121FJ(b) of the BSA and substitutes new
paragraphs 121FJ(b) and 121FJ(c). Paragraph 121FJ(b) is to be introduced into
the BSA by item 22 of Schedule 1 to the Broadcasting Services Amendment Act
2000 (see subclause 2(2) which relates to the commencement of
this item).
The current paragraph 121FJ(b) may be interpreted so that
‘breach of a condition’ forms part of the conduct element of the
offence. This amendment has rephrased the offence to ensure that the
contravention of the conditions of an international broadcasting licence is part
of the physical element of ‘result’. This means that it will
attract the default fault element of recklessness.
While this amendment
is not strictly necessary to harmonise the offence provisions with the
Criminal Code it is desirable to amend this provision for the following
reason. Under the Criminal Code the fault element of intention applies
to the physical element of conduct. If the offence were not restructured prior
to the Code coming into operation this could give rise to difficulties in the
prosecution of this offence as the prosecution may be required to prove that the
defendant has specific intention to breach a particular condition. This could
be extremely difficult if the defendant had knowledge of the conditions but does
not have a specific intention to breach a particular condition. The defendant
could merely intend to breach the conditions generally whilst being reckless as
to the particular condition breached.
Item 23 – New subsection
121FJ(2)
This item inserts a new subsection 121FJ(2) into the BSA
which introduces a definition of ‘engage in conduct’ which applies
to section 121FJ of the BSA. The definition covers doing an act and omitting to
perform an act. This is consistent with the definition of conduct in the
Criminal Code, which covers both acts and omissions (see subsection
4.1(2) of the Code).
This amendment is not strictly necessary to
harmonise the offence provisions in the BSA with the Criminal Code.
However, it is desirable to ensure that the offence in section 121FJ covers both
acts and omissions. As a licence condition may require a positive action from a
person, a breach of a licence condition under paragraph 121FJ(c) could cover an
omission to act.
Item 24 – Paragraph 121FLF(b) and
(c)
This item repeals paragraph 121FLF(b) of the BSA and substitutes
new paragraphs 121FLF(b) and 121FLF(c). Paragraph 121FLF(b) is to be introduced
into the BSA by item 22 of Schedule 1 to the Broadcasting Services Amendment
Act 2000 (see subclause 2(2) which relates to the commencement
of this item).
The current paragraph 121FLF(b) may be interpreted so that
the ‘breach of a condition’ forms part of the conduct element of the
offence. This amendment has rephrased the offence to ensure that the breach of
a condition of the nominated broadcaster declaration is part of the physical
element of ‘result’. This means that it will attract the default
fault element of recklessness.
While this amendment is not strictly
necessary to harmonise the offence provisions with the Criminal Code it
is desirable to amend this provision for the following reason. Under the
Criminal Code the fault element of intention applies to the physical
element of conduct. If the offence were not restructured prior to the Code
coming into operation this could give rise to difficulties in the prosecution of
this offence as the prosecution may be required to prove that the defendant has
specific intention to breach a particular condition. This could be extremely
difficult if the defendant had knowledge of the conditions but does not have a
specific intention to breach a particular condition. The defendant could merely
intend to breach the conditions generally whilst being reckless as to the
particular condition breached.
Item 25 – New subsection
121FLF(2)
This item inserts a new subsection 121FLF(2) into the BSA
which introduces a definition of ‘engage in conduct’ which applies
to section 121FLF of the BSA. The definition covers doing an act and omitting
to perform an act. This is consistent with the definition of conduct in the
Criminal Code, which covers both acts and omissions (see subsection
4.1(2) of the Code).
This amendment is not strictly necessary to
harmonise the offence provisions in the BSA with the Criminal Code.
However, it is desirable to ensure that the offence in section 121FLF covers
both acts and omissions. As a condition of a nominated broadcaster declaration
may require a positive action from a person, a breach of a condition under
paragraph 121FLF(c) could cover an omission to act.
Item 26 –
Section 139
This item repeals section 139 of the BSA and substitutes
a new section 139. Section 139 of the BSA relates to offences for breaches of
conditions of licences and class licences.
The current subsections 139(1)
to (5) may be interpreted so that ‘breach of a condition’ forms part
of the conduct element of the offences. This amendment has rephrased the
offences to ensure that the contravention of the conditions of the particular
licence is part of the physical element of ‘result’. This means
that it will attract the default fault element of recklessness.
While
this amendment is not strictly necessary to harmonise the offence provisions
with the Criminal Code it is desirable to amend this provision for the
following reason. Under the Criminal Code the fault element of intention
applies to the physical element of conduct. If the offence were not
restructured prior to the Code coming into operation this could give rise to
difficulties in the prosecution of these offences as the prosecution may be
required to prove that the defendant has specific intention to breach a
particular condition. This could be extremely difficult if the defendant had
knowledge of the conditions but does not have a specific intention to breach a
particular condition. The defendant could merely intend to breach the conditions
generally whilst being reckless as to the particular condition breached.
In addition a new subsection 139(7) is inserted. This new subsection
introduces a definition of ‘engage in conduct’ which applies to
section 139 of the BSA. The definition covers doing an act and omitting to
perform an act. This is consistent with the definition of conduct in the
Criminal Code, which covers both acts and omissions (see subsection
4.1(2) of the Code).
This amendment is not strictly necessary to
harmonise the offence provisions in the BSA with the Criminal Code.
However, it is desirable to clarify that the offence in section 139 covers both
acts and omissions. As a licence condition may require a positive action from a
person, a breach of a licence condition under subsections 139(1) to (6) could
cover an omission to act.
Item 27 – Paragraph
139(2)(c)
This item omits the reference to sections 103ZM and 103ZN
from paragraph 139(2)(c). This amendment to omit references in subsection
139(2) to sections 103ZM and 103ZN was proposed in item 21 of Schedule 1 to the
Broadcasting Services Act (No. 3) 1999. See the discussion above at
subclauses 2(3) to (5) for the commencement of this item.
Item 28
– Subsection 202(1)
This item removes the defence
‘without reasonable excuse’ from subsection 202(1) of the BSA and
this defence becomes a new subsection under item 31. This amendment has been
made to avoid the defence being mistakenly interpreted as being part of the
elements of the offence.
Item 29 – Subsection
202(1)
This item inserts a penalty of imprisonment for one year after
subsection 202(1). This amendment is intended to clarify that subsection 202(1)
is an offence provision that carries the same penalty as subsection 202(2) of
the BSA.
Subsection 202(1) of the BSA currently provides that a
person required to give evidence or produce documents at a hearing must not
fail to attend or appear and report. Further, subsection 202(2) makes it an
offence not to comply with a requirement to give evidence or produce documents.
A penalty of one year is provided at the foot of subsection 202(2). However, it
appears that the original intention was that failure to comply with either
subsections 202(1) or 202(2) amount to an offence carrying a penalty of 12
months imprisonment. While this amendment is not strictly necessary to
harmonise the offence provisions with the Criminal Code it is desirable
to amend this provision to correct this oversight.
Item 30 –
Subsection 202(2)
This item removes the defence ‘without
reasonable excuse’ from subsection 202(2) of the BSA and this defence
becomes a new subsection under item 31. This amendment has been made to avoid
the defence being mistakenly interpreted as being part of the elements of the
offence.
Item 31 – New subsection 202(2A)
New
subsection 202(2A) is consequential upon items 28 and 30. It provides that
subsections (1) and (2) do not apply if a person has a reasonable excuse. The
note to the subsection provides that the defendant bears an evidential burden in
relation to the matter in subsection (2A). It also refers to subsection 13.3(3)
of the Code. That subsection provides that a defendant who wishes to rely on
any exception, exemption, excuse, qualification or justification provided by law
creating an offence bears an evidential burden in relation to that matter. An
evidential burden is defined in subsection 13.3(6) of the Criminal Code
to mean ‘the burden of adducing or pointing to evidence that suggests a
reasonable possibility that the matter exists or does not exist’.
Item 32 – Paragraph 82(b) of Schedule 5
This item repeals
paragraph 82(b) of Schedule 5 to the BSA and substitutes new paragraphs 82(b)
and 82(c) of Schedule 5.
This amendment has rephrased the offence to
ensure that the contravention of an online provider rule under subsection (1) is
a physical element of result of the defendant’s conduct to which the
default fault element of recklessness will apply. While this amendment is not
strictly necessary to harmonise the offence provisions with the Criminal
Code it is desirable to amend this provision to more clearly identify the
physical elements of conduct and result in the offence.
Item 33–
New subclause 82(2) of Schedule 5
This item inserts a new subclause
82(2) of Schedule 5 into the BSA, which introduces a definition of ‘engage
in conduct’ which applies to clause 82 of Schedule 5. The definition
covers doing an act and omitting to perform an act. This is consistent with the
definition of conduct in the Criminal Code, which covers both acts and
omissions (see subsection 4.1(2) of the Code).
This amendment is not
strictly necessary to harmonise the offence provisions in the BSA with the
Criminal Code. However, it is desirable to ensure that the offence in
clause 82 of Schedule 5 to the BSA covers both acts and omissions. As an online
provider rule may require a positive action from a person, a breach of an online
provider rule under paragraph 82(c) of Schedule 5 could cover an omission to
act.
Item 34 – Paragraph 83(4)(b) of Schedule 5
This
item repeals paragraph 83(4)(b) of Schedule 5 to the BSA and substitutes
paragraphs 83(4)(b) and 83(4)(c) of Schedule 5.
This amendment has
rephrased the offence to ensure that the contravention of a direction relating
to an online provider rule under subsection (2) is a physical element of result
of the defendant’s conduct to which the default fault element of
recklessness will apply. While this amendment is not strictly necessary to
harmonise the offence provisions with the Criminal Code it is desirable
to amend this provision to more clearly identify the physical elements of
conduct and result in the offence.
Item 35 – Subclause 83(4) of
Schedule 5 (penalty)
This item, consequential upon item 36, omits
reference to the words ‘for contravention of this subclause’. This
is a technical amendment necessary as a result of the penalty no longer being at
the foot of the clause.
Item 36 – New subclause 83(5) of
Schedule 5
This item inserts a new subclause 83(5) of Schedule 5 into
the BSA which introduces a definition of ‘engage in conduct’ which
applies to clause 83 of Schedule 5 to the BSA. The definition covers doing an
act and omitting to perform an act. This is consistent with the definition of
conduct in the Criminal Code, which covers both acts and omissions (see
subsection 4.1(2) of the Code).
This amendment is not strictly
necessary to harmonise the offence provisions in the BSA with the Criminal
Code. However, it is desirable to ensure that the offence in clause 83 of
Schedule 5 to the BSA covers both acts and omissions. As a direction relating
to an online provider rule may require a positive action from a person, a breach
of a direction under paragraph 83(c) of Schedule 5 could cover an omission to
act.
Item 37 – Subclause 87(9) of Schedule 5
This
item amends subclause 87(9) of Schedule 5 to the BSA to omit the reference to
‘section 5, 6, 7 or 7A or subsection 86(1) of the Crimes Act
1914’ and substitute a reference to ‘section 6 of the Crimes
Act 1914 or Part 2.4 of the Criminal Code.’
Sections 5,
7, 7A and 86(1) of the Crimes Act 1914 are concerned with the offences of
aiding, abetting, counselling or procuring, attempt, inciting or urging and
conspiracy. These sections of the Crimes Act 1914 are repealed by the
Law and Justice Legislation Amendment (Application of Criminal Code) Act
2000. These ancillary offences are replaced by equivalent provisions
in Part 2.4 of the Criminal Code, which is referred to in the new
subclause 87(9) of Schedule 5.
This item inserts a new subclause 10(2A) of Schedule 6 into the BSA.
Schedule 6 to the BSA is to be inserted by item 140 of Schedule 1 to the
Broadcasting Services Amendment (Digital Television and Datacasting) Act
2000 (see subclause 2(6) for commencement of this item).
This item
makes it clear that an offence under subclause 10(2) is a strict liability
offence. Subclause 10(2) of Schedule 6 provides that if a datacasting licensee
transfers the licence to another qualified entity, the transferee must, within 7
days after the transfer, notify the Australian Broadcasting Authority (the ABA)
of the transfer. A penalty of 50 penalty units is provided.
This
amendment is likely to have been interpreted as a strict liability offence
before this amendment because of the relatively low penalty attached to this
offence (50 penalty units or $5,500) and for the policy reasons of the
difficulties the prosecution would have in proving that the defendant
intentionally failed to notify the ABA of the transfer.
Therefore this
new subclause should not alter the way a court would interpret this offence. If
the amendment were not made then, after the application of the Criminal
Code, the offence would no longer be interpreted in the same way as it could
currently be interpreted. After the Criminal Code comes into operation
it is necessary to expressly state that an offence is one of strict liability if
the provision is to attract strict liability (sections 6.1 and 6.2 of the Code).
If it is not specified a court would be obliged to interpret it as a fault
offence and no longer as a strict liability offence and would require proof of
fault elements in relation to the physical elements.
Item 39 – Section 35
This item repeals section 35.
This section is no longer necessary as it is similar to the general false or
misleading provisions which Schedule 1 to the Criminal Code Amendment (Theft,
Fraud, Bribery and Related Offences) Act 2000 inserts into the Criminal
Code as new Part 7.4.
This item repeals paragraphs 3(3)(a) and (b) of the Protection of
Movable Cultural Heritage Act 1986 (PMCH Act) and substitutes new paragraphs
3(3)(a) and (b).
Currently paragraphs 3(3)(a) and (b) refer to
‘(a) section 6, 7 or 7A of the Crimes Act 191; or (b) subsection
86(1) of that Act by virtue of paragraph (a) of that subsection’. This
reference will be replaced with a reference to ‘section 6 of the Crimes
Act 1914 or an ancillary offence (within the meaning of the Criminal
Code).’
Sections 7, 7A and 86(1) of the Crimes Act 1914
are concerned with the offences of attempt, inciting or urging and conspiracy.
These sections of the Crimes Act 1914 are repealed by the Law and
Justice Legislation Amendment (Application of Criminal Code) Act 2000.
These ancillary offences are replaced by equivalent provisions in Part 2.4
of the Criminal Code. The ancillary offences within the Code are
referred to in the new paragraph 3(3)(b).
This item inserts a new section 6A into the PMCH Act which provides that
Chapter 2 of the Criminal Code applies to all offences against the PMCH
Act. It also inserts a note that says that Chapter 2 of the Code sets out the
general principles of criminal responsibility.
This item repeals subsection 9(3) of the PMCH Act and substitutes new
subsections 9(3), 9(3A) and 9(3B). Subsection 9(3) is concerned with the
unlawful export of Australian protected objects.
Section 9(3) currently
provides two separate offences of ‘exporting, or attempting to export, an
Australian protected object otherwise than in accordance with a permit or
certificate’ (paragraph 9(3)(a)) and ‘contravening, or attempting to
contravene, a condition of a permit or certificate’ (paragraph 9(3)(b)).
For clarity these offences have been separated into two separate subsections.
Subsection 9(3) replaces the former offence and subsection 9(3A) replaces the
latter offence.
The current paragraph 9(3)(a) includes ‘otherwise
than in accordance with a permit or certificate’ as part of the conduct
element of the offence. This amendment has rephrased the offence to ensure that
the ‘otherwise than in accordance with a permit or certificate’ is
part of the physical element of ‘result’. This means that it will
attract the default fault element of recklessness.
Currently paragraph
9(3)(b) may be interpreted so that ‘contravention of a condition of a
permit or certificate’ forms part of the physical element of conduct.
This amendment has rephrased the offence to ensure that the ‘contravention
of the condition of a permit or certificate’ is part of the physical
element of ‘result’. This means that it will attract the default
fault element of recklessness.
While this amendment is not strictly
necessary to harmonise the offence provisions with the Criminal Code it
is desirable to amend this provision for the following reason. Under the
Criminal Code the fault element of intention applies to the physical
element of conduct. If the offences were not restructured prior to the Code
coming into operation this could give rise to difficulties in the prosecution of
these offence as the prosecution may be required to prove that the defendant has
specific intention to breach a particular condition. This could be extremely
difficult if the defendant had knowledge of the conditions but does not have a
specific intention to breach a particular condition. The defendant could merely
intend to breach the conditions generally whilst being reckless as to the
particular condition breached.
The restructured subsections also remove
the reference to the word ‘knowingly’. This is intended to make the
provision consistent with the principles of the Criminal Code. This
amendment is necessary because following application of the Code, it will not be
possible to apply a fault element of ‘knowingly’ to a physical
element consisting of conduct (see Division 5 of Part 2.2 of the Criminal
Code generally). The fault element of knowingly can only be applied to
physical elements of circumstance or result. Accordingly this provision is
amended to remove the word ‘knowingly’ as in its present operation
it will have no effect following application of the Criminal
Code.
New subsection 9(3B) replaces the current paragraphs 9(3)(c)
and (d), which set out the penalty for the above offences. The penalties have
been amended to refer to penalty units rather than dollar figures (1,000 penalty
units or imprisonment for a period not exceeding 5 years, replaces the penalty
of $100,000 or imprisonment for a period not exceeding 5 years for individuals,
and a fine not exceeding 2,000 penalty units replaces the fine not exceeding
$200,000 for a body corporate). This provides consistency with other penalty
provisions, which refer to penalty units rather than dollar penalties. It does
not alter the penalty that is applied for these offences as section 4AB of the
Crimes Act 1914 has the effect of converting references to dollar amounts
to equivalent penalty units.
This item inserts a new subsection 9(7) into the PMCH Act, which provides
a definition of ‘engage in conduct’ which applies to section 9. The
definition covers doing an act and omitting to perform an act. This is
consistent with the definition of conduct in the Criminal Code, which
covers both acts and omissions (see subsection 4.1(2) of the Code).
This amendment is not strictly necessary to harmonise the offence
provisions in the PMCH Act with the Criminal Code. However, it is
desirable to ensure that a reference to ‘engage in conduct’ in
section 9 covers both acts and omissions. As a condition of a permit or
certificate may require a positive action from a person, a breach of a permit of
certificate condition under subsections 9(3) or 9(3A) could cover an omission to
act.
Item 44 – New subsection 29(4)
This item inserts
a new subsection 29(4) into the PMCH Act. This item makes it clear that an
offence under subsection 29(3) is a strict liability offence. Subsection 29(3)
provides that a person who ceases to be an inspector must not fail to return his
or her identity card to the Minister forthwith. A penalty of $100 is
provided.
This amendment is likely to have been interpreted as a strict
liability offence before this amendment because of the relatively low penalty
attached to this offence ($100) and for the policy reasons that an identity card
must be returned as soon as the cardholder stops being an inspector, so that
false representations cannot be made about the scope of the person’s
powers and authority.
Therefore this new subsection should not alter the
way a court would interpret this offence. If the amendment were not made then,
after the application of the Criminal Code, the offence would no longer
be interpreted in the same way as it could currently be interpreted. After the
Criminal Code comes into operation it is necessary to expressly state
that an offence is one of strict liability if the provision is to attract strict
liability (sections 6.1 and 6.2 of the Code). If it is not specified a court
would be obliged to interpret it as a fault offence and no longer as a strict
liability offence and would require proof of fault elements in relation to the
physical elements.
This item omits from subsection 39(2) of the PMCH Act the defence
‘without reasonable excuse’. This defence becomes a new subsection
under the next item. This amendment has been made to avoid the defence being
mistakenly interpreted as being part of the elements of the
offence.
Item 46 – New subsections 39(3) and (4)
This
item inserts new subsections 39(3) and (4) into the PMCH Act. New subsection
39(3) is consequential upon item 45. It provides that subsection (2) does not
apply if a person has a reasonable excuse. The note to the subsection provides
that the defendant bears an evidential burden in relation to the matters in
subsection (3). It also refers to subsection 13.3(3) of the Code. That
subsection provides that a defendant who wishes to rely on any exception,
exemption, excuse, qualification or justification provided by law creating an
offence bears an evidential burden in relation to that matter. An evidential
burden is defined in subsection 13.3(6) of the Criminal Code to mean
‘the burden of adducing or pointing to evidence that suggests a reasonable
possibility that the matter exists or does not exist’.
New
subsection 39(4) makes it clear that an offence under subsection 39(2) is a
strict liability offence. Subsection 39(2) provides that a person must not,
without reasonable excuse, fail to comply with a requirement of an inspector to
produce a permit or certificate or evidence of such, where the inspector
suspects on reasonable grounds that the person is intending to export, or having
exported an Australian protected object. A penalty of $1,000 is
provided.
This amendment is likely to have been interpreted as a strict
liability offence before this amendment because of the relatively low penalty
attached to this offence ($1,000), the nature of the offence, and because it
contains a defence of without reasonable excuse which is an indication that an
offence is one of strict liability.
Therefore this new subsection should
not alter the way a court would interpret this offence. If the amendment were
not made then, after the application of the Criminal Code, the offence
would no longer be interpreted in the same way as it could currently be
interpreted. After the Criminal Code comes into operation it is
necessary to expressly state that an offence is one of strict liability if the
provision is to attract strict liability (sections 6.1 and 6.2 of the Code).
If it is not specified a court would be obliged to interpret it as a fault
offence and no longer as a strict liability offence and would require proof of
fault elements in relation to the physical elements.
Item 47 –
Section 42
This item repeals section 42 of the PMCH Act. This
section is no longer necessary as it is similar to the general false or
misleading provisions which Schedule 1 to the Criminal Code Amendment (Theft,
Fraud, Bribery and Related Offences) Act 2000 inserts into the Criminal
Code as new Part 7.4.
Item 48 – Subsection
46(1)
This item amends subsection 46(1) of the PMCH Act to omit a
reference to the words ‘subsection 9(3), 14(2) or 42(1)’ and
substitute a reference to the words ‘subsection 9(3), 9(3A) or
14(2)’. This amendment is consequential upon items 42 and
47.
Item 49 – Subsection 46(4)
This item repeals
subsection 46(4) of the PMCH Act and substitutes a new subsection 46(4). This
item is a penalty provision. It makes amendments consequential upon items 47
and 48.
In addition the penalties have been amended to refer to penalty
units rather than dollar figures (50 penalty units or imprisonment for a period
not exceeding 2 years, replaces the penalty of $5,000 or imprisonment for a
period not exceeding 2 years for individuals, and a fine not exceeding 200
penalty units replaces the fine not exceeding $20,000 for a body corporate).
This provides consistency with other penalty provisions, which refer to penalty
units rather than dollar penalties. It does not alter the penalty, which is
applied for this offence as section 4AB of the Crimes Act 1914 has the
effect of converting references to dollar amounts to equivalent penalty
units.
Item 50 – Subsection 11(1)
This item amends
subsection 11(1) of the Radiocommunications Act 1992 (RA) so as to omit
the reference to ‘section 6, 7 or 7A or subsection 86(1) of the Crimes
Act 1914’ and substitute a reference to ‘section 6 of the
Crimes Act 1914 or an ancillary offence (within the meaning of the
Criminal Code).’
Sections 7, 7A and 86(1) of the Crimes
Act 1914 are concerned with the offences of attempt, inciting or urging and
conspiracy. These sections of the Crimes Act 1914 are repealed by the
Law and Justice Legislation Amendment (Application of Criminal Code) Act
2000. These ancillary offences are replaced by equivalent provisions
in Part 2.4 of the Criminal Code. The new subsection 11(1) refers to the
these ancillary offences within the Code.
Item 51 – Section
46
This item removes the references to the words ‘without
reasonable excuse, knowingly or recklessly’ in section 46 of the
RA.
This item removes the defence ‘without reasonable excuse’
and this defence becomes a new subsection under the next item. This amendment
has been made to avoid the defence being mistakenly interpreted as being part of
the elements of the offence.
This item also removes reference to the
words ‘knowingly or recklessly’. This is intended to make the
provision consistent with the principles of the Criminal Code. This
amendment is necessary because following application of the Code, it will not be
possible to apply the fault elements of ‘knowingly or recklessly’ to
a physical element consisting of conduct (see Division 5 of Part 2.2 of the
Criminal Code generally). The fault elements of knowingly or recklessly
can only be applied to physical elements of circumstance or result. Accordingly
this provision is amended to remove the word ‘knowingly or
recklessly’ as in its present operation the word ‘knowingly’
will have no effect following application of the Criminal Code. Repeal
of a specific fault element of recklessly from an offence does not prevent the
Criminal Code supplying a default fault element of recklessly to a
physical element of circumstance or result in an offence.
New subsection 46(2) of the RA is consequential upon item 51. It
provides that subsection (1) does not apply if a person has a reasonable excuse.
The note to the subsection provides that the defendant bears an evidential
burden in relation to the matters in subsection (2). It also refers to
subsection 13.3(3) of the Code. That subsection provides that a defendant who
wishes to rely on any exception, exemption, excuse, qualification or
justification provided by law creating an offence bears an evidential burden in
relation to that matter. An evidential burden is defined in subsection 13.3(6)
of the Criminal Code to mean ‘the burden of adducing or pointing to
evidence that suggests a reasonable possibility that the matter exists or does
not exist’.
Item 53 – Section 47
This item
removes the defence ‘without reasonable excuse’ from section 47 of
the RA. This defence becomes a new subsection under the next item. This
amendment has been made to avoid the defence being mistakenly interpreted as
being part of the elements of the offence.
Item 54 – New
subsection 47(2)
New subsection 47(2) of the RA is consequential upon
item 53. It provides that subsection (1) does not apply if a person has a
reasonable excuse. The note to the subsection provides that the defendant bears
an evidential burden in relation to the matter in subsection (2). It also
refers to subsection 13.3(3) of the Code. That subsection provides that a
defendant who wishes to rely on any exception, exemption, excuse, qualification
or justification provided by law creating an offence bears an evidential burden
in relation to that matter. An evidential burden is defined in subsection
13.3(6) of the Criminal Code to mean ‘the burden of adducing or
pointing to evidence that suggests a reasonable possibility that the matter
exists or does not exist’.
This item repeals section 113 of the RA and substitutes a new section
113. Section 113 relates to the contravention of an apparatus licence
condition.
The current subsection 113 may be interpreted so that
‘breach of a condition’ forms part of the conduct element of the
offence. This amendment has rephrased the offence to ensure that the
contravention of the conditions of the licence is part of the physical element
of ‘result’. This means that it will attract the default fault
element of recklessness.
While this amendment is not strictly necessary
to harmonise the offence provisions with the Criminal Code it is
desirable to amend this provision for the following reason. Under the
Criminal Code the fault element of intention applies to the physical
element of conduct. If the offence were not restructured prior to the Code
coming into operation this could give rise to difficulties in the prosecution of
this offence as the prosecution may be required to prove that the defendant has
specific intention to breach a particular condition. This could be extremely
difficult if the defendant had knowledge of the conditions but does not have a
specific intention to breach a particular condition. The defendant could merely
intend to breach the conditions generally whilst being reckless as to the
particular condition breached.
This item also removes the defence
‘without reasonable excuse’ from the offence provision. This
defence becomes a new subsection under subsection 113(2). It provides that
subsection (1) does not apply if a person has a reasonable excuse. This
amendment has been made to avoid the defence being mistakenly interpreted as
being part of the elements of the offence.
The note to the subsection
provides that the defendant bears an evidential burden in relation to the
matters in subsection (2). It also refers to subsection 13.3(3) of the Code.
That subsection provides that a defendant who wishes to rely on any exception,
exemption, excuse, qualification or justification provided by law creating an
offence bears an evidential burden in relation to that matter. An evidential
burden is defined in subsection 13.3(6) of the Criminal Code to mean
‘the burden of adducing or pointing to evidence that suggests a reasonable
possibility that the matter exists or does not exist’.
In
addition a new subsection 113(3) is inserted. This new subsection introduces a
definition of ‘engage in conduct’ which applies to section 113. The
definition covers doing an act and omitting to perform an act. This is
consistent with the definition of conduct in the Criminal Code, which
covers both acts and omissions (see subsection 4.1(2) of the Code).
This amendment is not strictly necessary to harmonise the offence
provisions in the RA with the Criminal Code. However, it is desirable to
clarify that the offence in subsection 113(1) covers both acts and omissions.
As a licence condition may require a positive action from a person, a breach of
a licence condition under subsection 113(1) could cover an omission to
act.
This item inserts a new subsection 117(2) into the RA. This item makes
it clear that an offence under subsection 117(1) is a strict liability offence.
Subsection 117(1) provides that a licensee of an apparatus licence who
authorises a person under section 114 must keep records of authorisations. A
penalty of 20 penalty units is provided.
This amendment is likely to have
been interpreted as a strict liability offence before this amendment because of
the relatively low penalty attached to this offence (20 penalty units or $2,200)
and because of the nature of the offence (which does not involve dishonesty or
other serious imputation affecting the offender’s
reputation).
Therefore this new subsection should not alter the way a
court would interpret this offence. If the amendment were not made then, after
the application of the Criminal Code, the offence would no longer be
interpreted in the same way as it could currently be interpreted. After the
Criminal Code comes into operation it is necessary to expressly state
that an offence is one of strict liability if the provision is to attract strict
liability (sections 6.1 and 6.2 of the Code). If it is not specified a court
would be obliged to interpret it as a fault offence and no longer as a strict
liability offence and would require proof of fault elements in relation to the
physical elements.
Item 57 – New subsection
118(1A)
This item inserts a new subsection 118(1A) into the RA. This
item makes it clear that an offence under subsection 118(1) is a strict
liability offence. Subsection 118(1) provides that licensees must notify
authorised persons of certain matters (such as suspension of a licence, licence
cancellation, change in licence conditions etc) as soon as practicable. A
penalty of 20 penalty units is provided.
This amendment is likely to have
been interpreted as a strict liability offence before this amendment because of
the relatively low penalty attached to this offence (20 penalty units or $2,200)
and for the policy reasons of trying to ensure that apparatus licensees are
aware of whether or not their licences have been cancelled or the conditions
changed.
Therefore this new subsection should not alter the way a court
would interpret this offence. If the amendment were not made then, after the
application of the Criminal Code, the offence would no longer be
interpreted in the same way as it could currently be interpreted. After the
Criminal Code comes into operation it is necessary to expressly state
that an offence is one of strict liability if the provision is to attract strict
liability (sections 6.1 and 6.2 of the Code). If it is not specified a court
would be obliged to interpret it as a fault offence and no longer as a strict
liability offence and would require proof of fault elements in relation to the
physical elements.
Item 58 – Subsection 124(4)
This
item removes the defence ‘without reasonable excuse’ from subsection
124(4) of the RA. This defence becomes a new subsection under item 60. This
amendment has been made to avoid the defence being mistakenly interpreted as
being part of the elements of the offence.
Item 59 – Subsection
124(4) (penalty)
This item omits reference to the words ‘for
contravention of this subsection’. This is a technical amendment
necessary as a result of the penalty no longer being at the foot of the clause
(consequential upon item 60).
Item 60 – New subsections 124(5)
and (6)
This item inserts new subsections 124(5) and (6) into the
RA.
New subsection 124(5) is consequential upon item 58. It provides
that subsection (4) does not apply if a person has a reasonable excuse. The
note to the subsection provides that the defendant bears an evidential burden in
relation to the matters in subsection (5). It also refers to subsection 13.3(3)
of the Code. That subsection provides that a defendant who wishes to rely on
any exception, exemption, excuse, qualification or justification provided by law
creating an offence bears an evidential burden in relation to that matter. An
evidential burden is defined in subsection 13.3(6) of the Criminal Code
to mean ‘the burden of adducing or pointing to evidence that suggests a
reasonable possibility that the matter exists or does not exist’.
New subsection 124(6) makes it clear that an offence under subsection
124(4) is a strict liability offence. Subsection 124(4) provides that if the
ACA cancels a certificate of proficiency, the person must not, without
reasonable excuse, fail to return the certificate to the ACA within 7 days after
receiving notification of the cancellation. A penalty of 20 penalty units is
provided.
This amendment is likely to have been interpreted as a strict
liability offence before this amendment because of the relatively low penalty
attached to this offence (20 penalty units or $2,200), because the defence of
reasonable excuse is provided which is an indication of a strict liability
offence, and because of the policy reason that a certificate of proficiency must
be returned as soon as it is cancelled so that false representations cannot be
made about the qualification of an operator of a transmitter.
Therefore
this new subsection should not alter the way a court would interpret this
offence. If the amendment were not made then, after the application of the
Criminal Code, the offence would no longer be interpreted in the same way
as it could currently be interpreted. After the Criminal Code comes into
operation it is necessary to expressly state that an offence is one of strict
liability if the provision is to attract strict liability (sections 6.1 and 6.2
of the Code). If it is not specified a court would be obliged to interpret it
as a fault offence and no longer as a strict liability offence and would require
proof of fault elements in relation to the physical elements.
Item 61
– Subsection 157(1)
This item removes the defence
‘without reasonable excuse’ from subsection 157(1) of the RA. This
defence becomes a new subsection under the next item. This amendment has been
made to avoid the defence being mistakenly interpreted as being part of the
elements of the offence.
Item 62 – New subsection
157(1A)
New subsection 157(1A) of the RA is consequential upon item
61. It provides that subsection (1) does not apply if a person has a reasonable
excuse. The note to the subsection provides that the defendant bears an
evidential burden in relation to the matter in subsection (1A). It also refers
to subsection 13.3(3) of the Code. That subsection provides that a defendant
who wishes to rely on any exception, exemption, excuse, qualification or
justification provided by law creating an offence bears an evidential burden in
relation to that matter. An evidential burden is defined in subsection 13.3(6)
of the Criminal Code to mean ‘the burden of adducing or pointing to
evidence that suggests a reasonable possibility that the matter exists or does
not exist’.
Item 63 – Subsection 158(1)
This
item removes the defence ‘without reasonable excuse’ from subsection
158(1) of the RA. This defence becomes a new subsection under the next item.
This amendment has been made to avoid the defence being mistakenly interpreted
as being part of the elements of the offence.
Item 64 – New
subsection 158(1A)
New subsection 158(1A) of the RA is consequential
upon item 63. It provides that subsection (1) does not apply if a person has a
reasonable excuse. The note to the subsection provides that the defendant bears
an evidential burden in relation to the matter in subsection (1A). It also
refers to subsection 13.3(3) of the Code. That subsection provides that a
defendant who wishes to rely on any exception, exemption, excuse, qualification
or justification provided by law creating an offence bears an evidential burden
in relation to that matter. An evidential burden is defined in subsection
13.3(6) of the Criminal Code to mean ‘the burden of adducing or
pointing to evidence that suggests a reasonable possibility that the matter
exists or does not exist’.
Item 65 – Subsection
160(1)
This item removes the defence ‘without reasonable
excuse’ from subsection 160(1) of the RA. This defence becomes a new
subsection under the next item. This amendment has been made to avoid the
defence being mistakenly interpreted as being part of the elements of the
offence.
Item 66 – New subsection 160(1A)
New
subsection 160(1A) of the RA is consequential upon item 65. It provides that
subsection (1) does not apply if a person has a reasonable excuse. The note to
the subsection provides that the defendant bears an evidential burden in
relation to the matters in subsection (1A). It also refers to subsection
13.3(3) of the Code. That subsection provides that a defendant who wishes to
rely on any exception, exemption, excuse, qualification or justification
provided by law creating an offence bears an evidential burden in relation to
that matter. An evidential burden is defined in subsection 13.3(6) of the
Criminal Code to mean ‘the burden of adducing or pointing to
evidence that suggests a reasonable possibility that the matter exists or does
not exist’.
Item 67 – Section 170
This item
repeals section 170 of the RA and substitutes a new section 170.
The
current subsection 170 could be interpreted so that ‘contravention of a
condition’ forms part of the conduct element of the offence. This
amendment has rephrased the offence to ensure that the contravention of the
conditions of the permit is part of the physical element of
‘result’. This means that it will attract the default fault element
of recklessness.
While this amendment is not strictly necessary to
harmonise the offence provisions with the Criminal Code it is desirable
to amend this provision for the following reason. Under the Criminal
Code the fault element of intention applies to the physical element of
conduct. If the offence were not restructured prior to the Code coming into
operation this could give rise to difficulties in the prosecution of this
offence as the prosecution may be required to prove that the defendant has
specific intention to breach a particular condition. This could be extremely
difficult if the defendant had knowledge of the conditions but does not have a
specific intention to breach a particular condition. The defendant could merely
intend to breach the conditions generally whilst being reckless as to the
particular condition breached.
The new subsection 170(1) also removes
the reference to the word ‘knowingly’. This is intended to make
the provision consistent with the principles of the Criminal Code. This
amendment is necessary because following application of the Code, it will not be
possible to apply the fault element of ‘knowingly’ to a physical
element consisting of conduct (see Division 5 of Part 2.2 of the Criminal
Code generally). The fault element of knowingly can only be applied to
physical elements of circumstance or result.
This item also removes the
defence ‘without reasonable excuse’ from the offence provision.
This defence becomes a new subsection under subsection 170(2). It provides that
subsection (1) does not apply if a person has a reasonable excuse. This
amendment has been made to avoid the defence being mistakenly interpreted as
being part of the elements of the offence.
The note to the subsection
provides that the defendant bears an evidential burden in relation to the
matters in subsection (2). It also refers to subsection 13.3(3) of the Code.
That subsection provides that a defendant who wishes to rely on any exception,
exemption, excuse, qualification or justification provided by law creating an
offence bears an evidential burden in relation to that matter. An evidential
burden is defined in subsection 13.3(6) of the Criminal Code to mean
‘the burden of adducing or pointing to evidence that suggests a reasonable
possibility that the matter exists or does not exist’.
In
addition a new subsection 170(3) is inserted. This new subsection introduces a
definition of ‘engage in conduct’ which applies to section 170. The
definition covers doing an act and omitting to perform an act. This is
consistent with the definition of conduct in the Criminal Code, which
covers both acts and omissions (see subsection 4.1(2) of the Code).
This amendment is not strictly necessary to harmonise the offence
provisions in the RA with the Criminal Code. However, it is desirable to
ensure that the offence in section 170 covers both acts and omissions. As a
permit condition may require a positive action from a person, a breach of a
licence condition under subsection 170(1) could cover an omission to
act.
Item 68 – Section 178
This item omits reference
to the words ‘subsection 157(1), 158(1) or 160(1) and substitutes
‘subsection 157(1A), 158(1A) or 160(1A)’. This is a consequential
amendment as a result of items 60 to 65.
Item 69 – Subsection
186(1)
This item amends subsection 186(1) of the RA by removing the
defence ‘without reasonable excuse’ from subsection 186(1). This
defence becomes a new subsection under the next item. This amendment has been
made to avoid the defence being mistakenly interpreted as being part of the
elements of the offence.
Item 70 – New subsection
186(1A)
New subsection 186(1A) of the RA is consequential upon item
69. It provides that subsection (1) does not apply if a person has a reasonable
excuse. The note to the subsection provides that the defendant bears an
evidential burden in relation to the matter in subsection (1A). It also refers
to subsection 13.3(3) of the Code. That subsection provides that a defendant
who wishes to rely on any exception, exemption, excuse, qualification or
justification provided by law creating an offence bears an evidential burden in
relation to that matter. An evidential burden is defined in subsection 13.3(6)
of the Criminal Code to mean ‘the burden of adducing or pointing to
evidence that suggests a reasonable possibility that the matter exists or does
not exist’.
Item 71 – Subsection 187(1)
This
item removes the defence ‘without reasonable excuse’ from subsection
187(1) of the RA. This defence becomes a new subsection under the next item.
This amendment has been made to avoid the defence being mistakenly interpreted
as being part of the elements of the offence.
Item 72 – New
subsection 187(1A)
New subsection 187(1A) of the RA is consequential
upon item 71. It provides that subsection (1) does not apply if a person has a
reasonable excuse. The note to the subsection provides that the defendant bears
an evidential burden in relation to the matters in subsection (1A). It also
refers to subsection 13.3(3) of the Code. That subsection provides that a
defendant who wishes to rely on any exception, exemption, excuse, qualification
or justification provided by law creating an offence bears an evidential burden
in relation to that matter. An evidential burden is defined in subsection
13.3(6) of the Criminal Code to mean ‘the burden of adducing or
pointing to evidence that suggests a reasonable possibility that the matter
exists or does not exist’.
Item 73 – Subsection
187A(1)
This item removes the defence ‘without reasonable
excuse’ from subsection 187A(1) of the RA. This defence becomes a new
subsection under the next item. This amendment has been made to avoid the
defence being mistakenly interpreted as being part of the elements of the
offence.
Item 74 – New subsections 187A(1A) and
(1B)
This item inserts new subsections 187A(1A) and (1B) into the
RA.
New subsection 187(1A) is consequential upon item 73. It provides
that subsection (1) does not apply if a person has a reasonable excuse. The
note to the subsection provides that the defendant bears an evidential burden in
relation to the matters in subsection (1A). It also refers to subsection
13.3(3) of the Code. That subsection provides that a defendant who wishes to
rely on any exception, exemption, excuse, qualification or justification
provided by law creating an offence bears an evidential burden in relation to
that matter. An evidential burden is defined in subsection 13.3(6) of the
Criminal Code to mean ‘the burden of adducing or pointing to
evidence that suggests a reasonable possibility that the matter exists or does
not exist’.
New subsection 187A(1B) makes it clear that an
offence under subsection 187A(1) is a strict liability offence. Subsection
187A(1) provides that if the ACA publishes a certain notice that specifies
requirements to be met after a label has been applied, a manufacturer or
importer, must not, without reasonable excuse, fail to comply with the
requirements specified in the notice. A penalty of 20 penalty units is
provided.
This amendment is likely to have been interpreted as a strict
liability offence before this amendment because of the relatively low penalty
attached to this offence (20 penalty units or $2,200) and because the defence of
reasonable excuse is provided which is an indication of a strict liability
offence.
Therefore this new subsection should not alter the way a court
would interpret this offence. If the amendment were not made then, after the
application of the Criminal Code, the offence would no longer be
interpreted in the same way as it could currently be interpreted. After the
Criminal Code comes into operation it is necessary to expressly state
that an offence is one of strict liability if the provision is to attract strict
liability (sections 6.1 and 6.2 of the Code). If it is not specified a court
would be obliged to interpret it as a fault offence and no longer as a strict
liability offence and would require proof of fault elements in relation to the
physical elements.
Item 75 – Subsection 188A(2)
This
item amends subsection 188A(2) of the RA by omitting the reference to the words
‘intentionally or recklessly’. This is intended to provide clarity
to the interpretation of the offence and to give consistency as to how criminal
offences are to be interpreted by the courts. The current wording of the
offence appears to apply an alternative fault element of recklessly to the
physical element of conduct. Repeal of a specific fault element of recklessly
from an offence does not prevent the Criminal Code supplying the default
fault element of recklessly to a physical element of circumstance or result in
an offence (for example that a symbol is a protected symbol).
Item 76
– Subsection 189(1)
This item removes the defence
‘without reasonable excuse’ from subsection 189(1) of the RA. This
defence becomes a new subsection under the next item. This amendment has been
made to avoid the defence being mistakenly interpreted as being part of the
elements of the offence.
Item 77 – New subsection
189(1A)
New subsection 189(1A) of the RA is consequential upon item
76. It provides that subsection (1) does not apply if a person has a reasonable
excuse. The note to the subsection provides that the defendant bears an
evidential burden in relation to the matter in subsection (1A). It also refers
to subsection 13.3(3) of the Code. That subsection provides that a defendant
who wishes to rely on any exception, exemption, excuse, qualification or
justification provided by law creating an offence bears an evidential burden in
relation to that matter. An evidential burden is defined in subsection 13.3(6)
of the Criminal Code to mean ‘the burden of adducing or pointing to
evidence that suggests a reasonable possibility that the matter exists or does
not exist’.
Item 78 – Section 197
This item
repeals section 197 of the RA and substitutes a new section 197.
The
current subsection 197 may be interpreted so that ‘interfere substantially
with radiocommunications, or otherwise substantially disrupt or disturb
radiocommunications’ forms part of the conduct element of the offence.
This amendment has rephrased the offence to ensure that the ‘substantial
interference with radiocommunications, or substantial disruption or disturbance
of radiocommunications’ is part of the physical element of
‘result’. This means that it will attract the default fault element
of recklessness. While this amendment is not strictly necessary to harmonise
the offence provisions with the Criminal Code it is desirable to amend
this provision to more clearly identify the physical elements of conduct and
result in the offence.
The new subsection 170(1) also removes the
reference to the word ‘knowingly’. This is intended to make the
provision consistent with the principles of the Criminal Code. This
amendment is necessary because following application of the Code, it will not be
possible to apply the fault element of ‘knowingly’ to a physical
element consisting of conduct (see Division 5 of Part 2.2 of the Criminal
Code generally). The fault element of knowingly can only be applied to
physical elements of circumstance or result.
This item also inserts a
new subsection 197(2), which inserts a definition of ‘engage in
conduct’ which applies to section 197. The definition covers doing an act
and omitting to perform an act. This is consistent with the definition of
conduct in the Criminal Code, which covers both acts and omissions (see
subsection 4.1(2) of the Code).
This amendment is not strictly
necessary to harmonise the offence provisions in the RA with the Criminal
Code. However, it is desirable to ensure that the offence in section 197
covers both acts and omissions. As a substantial interference with
radiocommunications may occur as a result of an omission, an offence under
subsection 197(1) could cover an omission to act.
Item 79 –
Section 199
This item removes the defence ‘without reasonable
excuse’ from section 199 of the RA. This defence becomes a new subsection
under the next item. This amendment has been made to avoid the defence being
mistakenly interpreted as being part of the elements of the
offence.
Item 80 – New subsection 199(2)
New
subsection 199(2) of the RA is consequential upon item 79. It provides that
subsection (1) does not apply if a person has a reasonable excuse. The note to
the subsection provides that the defendant bears an evidential burden in
relation to the matter in subsection (2). It also refers to subsection 13.3(3)
of the Code. That subsection provides that a defendant who wishes to rely on
any exception, exemption, excuse, qualification or justification provided by law
creating an offence bears an evidential burden in relation to that matter. An
evidential burden is defined in subsection 13.3(6) of the Criminal Code
to mean ‘the burden of adducing or pointing to evidence that suggests a
reasonable possibility that the matter exists or does not exist’.
Item 81 – Subsection 210(5)
This item removes the
defence ‘without reasonable excuse’ from subsection 210(5) of the
RA. This defence becomes a new subsection under the next item. This amendment
has been made to avoid the defence being mistakenly interpreted as being part of
the elements of the offence.
Item 82 – New subsection
210(5A)
New subsection 210(5A) of the RA is consequential upon item
81. It provides that subsection (5) does not apply if a person has a reasonable
excuse. The note to the subsection provides that the defendant bears an
evidential burden in relation to the matter in subsection (5A). It also refers
to subsection 13.3(3) of the Code. That subsection provides that a defendant
who wishes to rely on any exception, exemption, excuse, qualification or
justification provided by law creating an offence bears an evidential burden in
relation to that matter. An evidential burden is defined in subsection 13.3(6)
of the Criminal Code to mean ‘the burden of adducing or pointing to
evidence that suggests a reasonable possibility that the matter exists or does
not exist’.
Item 83 – Section 214
This item
repeals section 214 of the RA and substitutes a new section 214.
This
amendment has rephrased the offence to ensure that the contravention of a
direction under section 212 is a physical element of result of the
defendant’s conduct to which the default fault element of recklessness
will apply. While this amendment is not strictly necessary to harmonise the
offence provisions with the Criminal Code it is desirable to amend this
provision to more clearly identify the physical elements of conduct and result
in the offence.
The new subsection 214(1) also removes the reference to
the word ‘knowingly’. This is intended to make the provision
consistent with the principles of the Criminal Code. This amendment is
necessary because following application of the Code, it will not be possible to
apply the fault element of ‘knowingly’ to a physical element
consisting of conduct (see Part 2.2 of Division 5 of the Criminal Code
generally). The fault element of ‘knowingly’ can only be applied to
physical elements of circumstance or result.
New subsection 214(2)
inserts a definition of ‘engage in conduct’ which applies section
214. The definition covers doing an act and omitting to perform an act. This
is consistent with the definition of conduct in the Criminal Code, which
covers both acts and omissions (see subsection 4.1(2) of the Code).
This amendment is not strictly necessary to harmonise the offence
provisions in the Radiocommunications Act 1992 with the Criminal
Code. However, it is desirable to ensure that the reference to engage in
conduct in the section 214 covers both acts and omissions.
This item removes the defence ‘without reasonable excuse’
from subsection 227(1) of the RA. This defence becomes a new subsection under
the next item. This amendment has been made to avoid the defence being
mistakenly interpreted as being part of the elements of the
offence.
Item 85 – New subsection 227(1A)
New
subsection 227(1A) of the RA is consequential upon item 84. It provides that
subsection (1) does not apply if a person has a reasonable excuse. The note to
the subsection provides that the defendant bears an evidential burden in
relation to the matter in subsection (1A). It also refers to subsection 13.3(3)
of the Code. That subsection provides that a defendant who wishes to rely on
any exception, exemption, excuse, qualification or justification provided by law
creating an offence bears an evidential burden in relation to that matter. An
evidential burden is defined in subsection 13.3(6) of the Criminal Code
to mean ‘the burden of adducing or pointing to evidence that suggests a
reasonable possibility that the matter exists or does not exist’.
Item 86 – Subsection 227(4)
This item, consequential
upon items 84 and 85, amends subsection 227(4) of the RA by omitting a reference
to ‘subsection (1)’ and substituting ‘subsection
(1A)’.
Item 87 – Subsection 261B(3)
This item
removes the defence ‘without reasonable excuse’ from subsection
261B(3) of the RA. This defence becomes a new subsection under the next item.
This amendment has been made to avoid the defence being mistakenly interpreted
as being part of the elements of the offence.
Item 88 –
Subsection 261B(4)
This item repeals subsection 261B(4) of the RA and
substitutes new subsections 261B(4), (5) and (6).
This amendment has
rephrased the offence to ensure that the contravention of an order under
subsection (2) is a physical element of result of the defendant’s conduct
to which the default fault element of recklessness will apply. While this
amendment is not strictly necessary to harmonise the offence provisions with the
Criminal Code it is desirable to amend this provision to more clearly
identify the physical elements of conduct and result in the offence.
New
subsection 261B(5) is consequential upon item 87. It provides that subsections
(3) and (4) do not apply if a person has a reasonable excuse. The note to the
subsection provides that the defendant bears an evidential burden in relation to
the matter in subsection (5). It also refers to subsection 13.3(3) of the Code.
That subsection provides that a defendant who wishes to rely on any exception,
exemption, excuse, qualification or justification provided by law creating an
offence bears an evidential burden in relation to that matter. An evidential
burden is defined in subsection 13.3(6) of the Criminal Code to mean
‘the burden of adducing or pointing to evidence that suggests a reasonable
possibility that the matter exists or does not exist’.
New
subsection 261B(6) inserts a definition of ‘engage in conduct’ which
applies to section 261B. The definition covers doing an act and omitting to
perform an act. This is consistent with the definition of conduct in the
Criminal Code, which covers both acts and omissions (see subsection
4.1(2) of the Code).
This amendment is not strictly necessary to
harmonise the offence provisions in the Radiocommunications Act 1992 with
the Criminal Code. However, it is desirable to ensure that the reference
to engage in conduct in the section 261B covers both acts and omissions.
Item 89 – Subsection 261C(3)
This item removes the
defence ‘without reasonable excuse’ from subsection 261C(3) of the
RA. This defence becomes a new subsection under the next item. This amendment
has been made to avoid the defence being mistakenly interpreted as being part of
the elements of the offence.
Item 90 – Subsection
261C(4)
This item repeals subsection 261C(4) of the RA and
substitutes new subsections 261B(4), (5), (6) and (7).
Subsection
261C(4)) currently provides two separate offences of ‘contravening a
direction under paragraph (2)(1)’ (paragraph 261C(4)(a)) and
‘contravening a direction under paragraph (2)(b)’ (paragraph
261C(4)(b)). For clarity these offences have been separated into two separate
subsections. Subsection 261C(4) replaces the former offence and 261C(5)
replaces the latter offence.
This amendment has rephrased the offences to
ensure that the contravention of an order under paragraph (2)(a) and paragraph
(2)(b) is a physical element of result of the defendant’s conduct to which
the default fault element of recklessness will apply. While these amendments are
not strictly necessary to harmonise the offence provisions with the Criminal
Code it is desirable to amend this provision to more clearly identify the
physical elements of conduct and result in the offences.
The new
subsections 261C(4) and (5) also remove the reference to the word
‘recklessly’. Repeal of a specific fault element of recklessly from
an offence does not prevent the Criminal Code supplying the default fault
element of recklessly to a physical element of circumstance or result in an
offence.
New subsection 261C(6) is consequential upon item 89. It
provides that subsections (3), (4) and (5) do not apply if a person has a
reasonable excuse. The note to the subsection provides that the defendant bears
an evidential burden in relation to the matter in subsection (6). It also
refers to subsection 13.3(3) of the Code. That subsection provides that a
defendant who wishes to rely on any exception, exemption, excuse, qualification
or justification provided by law creating an offence bears an evidential burden
in relation to that matter. An evidential burden is defined in subsection
13.3(6) of the Criminal Code to mean ‘the burden of adducing or
pointing to evidence that suggests a reasonable possibility that the matter
exists or does not exist’.
New subsection 261C(7) inserts a
definition of ‘engage in conduct’ which applies to section 261C. The
definition covers doing an act and omitting to perform an act. This is
consistent with the definition of conduct in the Criminal Code, which
covers both acts and omissions (see subsection 4.1(2) of the Code).
This amendment is not strictly necessary to harmonise the offence
provisions in the Radiocommunications Act 1992 with the Criminal
Code. However, it is desirable to clarify that the reference to engage in
conduct in the section 261C covers both acts and omissions.
Item 91
– Subsection 268(3)
This item removes the defence
‘without reasonable excuse’ from subsection 268(3) of the RA. This
defence becomes a new subsection under the next item. This amendment has been
made to avoid the defence being mistakenly interpreted as being part of the
elements of the offence.
Item 92 – New subsections 268(4) and
(5)
This item inserts new subsections 268(4) and (5) into the
RA.
New subsection 268(4) is consequential upon item 91. It provides
that subsection (3) does not apply if a person has a reasonable excuse. The
note to the subsection provides that the defendant bears an evidential burden in
relation to the matter in subsection (4). It also refers to subsection 13.3(3)
of the Code. That subsection provides that a defendant who wishes to rely on
any exception, exemption, excuse, qualification or justification provided by law
creating an offence bears an evidential burden in relation to that matter. An
evidential burden is defined in subsection 13.3(6) of the Criminal Code
to mean ‘the burden of adducing or pointing to evidence that suggests a
reasonable possibility that the matter exists or does not exist’.
New subsection 268(5) makes it clear that an offence under subsection
268(3) is a strict liability offence. Subsection 268(3) provides that a person
who ceases to be an inspector must not, without reasonable excuse, fail to
return his or her identity card to the Australian Communications Authority (ACA)
as soon as practicable. A penalty of 5 penalty units is provided.
This
amendment is likely to have been interpreted as a strict liability offence
before this amendment because of the relatively low penalty attached to this
offence (5 penalty units or $550), because a defence of reasonable excuse is
provided, and for the policy reasons that an identity card must be returned as
soon as the cardholder stops being an inspector, so that false representations
cannot be made about the scope of the person’s powers and
authority.
Therefore this new subsection should not alter the way a court
would interpret this offence. If the amendment were not made then, after the
application of the Criminal Code, the offence would no longer be
interpreted in the same way as it could currently be interpreted. After the
Criminal Code comes into operation it is necessary to expressly state
that an offence is one of strict liability if the provision is to attract strict
liability (sections 6.1 and 6.2 of the Code). If it is not specified a court
would be obliged to interpret it as a fault offence and no longer as a strict
liability offence and would require proof of fault elements in relation to the
physical elements.
Item 93 – Subsection 278(4)
This
item removes the defence ‘without reasonable excuse’ from subsection
278(4) of the RA. This defence becomes a new subsection under the next item.
This amendment has been made to avoid the defence being mistakenly interpreted
as being part of the elements of the offence.
Item 94 – New
subsections 278(5) and (6)
This item inserts new subsections 278(5)
and (6) into the RA.
New subsection 278(5) is consequential upon item 93.
It provides that subsection (4) does not apply if a person has a reasonable
excuse. The note to the subsection provides that the defendant bears an
evidential burden in relation to the matter in subsection (5). It also refers
to subsection 13.3(3) of the Code. That subsection provides that a defendant
who wishes to rely on any exception, exemption, excuse, qualification or
justification provided by law creating an offence bears an evidential burden in
relation to that matter. An evidential burden is defined in subsection 13.3(6)
of the Criminal Code to mean ‘the burden of adducing or pointing to
evidence that suggests a reasonable possibility that the matter exists or does
not exist’.
New subsection 278(6) makes it clear that an offence
under subsection 278(4) is a strict liability offence. Subsection 278(4)
provides that a person must not, without reasonable excuse, refuse to comply
with a direction from an inspector to operate a transmitter where the inspector
has reasonable grounds to believe that a transmitter has been, or is being or
may be operated so as to cause interference to radiocommunications. A penalty
of 20 penalty units is provided.
This amendment is likely to have been
interpreted as a strict liability offence before this amendment because of the
relatively low penalty attached to this offence (20 penalty units or $2,200),
because a defence of reasonable excuse is provided, and for the policy reasons
that a person must operate a transmitter to enable an inspector to investigate
the interference or risk of interference to
radiocommunications.
Therefore this new subsection should not alter the
way a court would interpret this offence. If the amendment were not made then,
after the application of the Criminal Code, the offence would no longer
be interpreted in the same way as it could currently be interpreted. After the
Criminal Code comes into operation it is necessary to expressly state
that an offence is one of strict liability if the provision is to attract strict
liability (sections 6.1 and 6.2 of the Code). If it is not specified a court
would be obliged to interpret it as a fault offence and no longer as a strict
liability offence and would require proof of fault elements in relation to the
physical elements.
This item removes the defence ‘without reasonable excuse’
from subsection 279(2) of the RA. This defence becomes a new subsection under
the next item. This amendment has been made to avoid the defence being
mistakenly interpreted as being part of the elements of the
offence.
Item 96 – New subsections 279(3) and
(4)
This item inserts new subsections 279(3) and (4) into the
RA.
New subsection 279(3) is consequential upon item 95. It provides
that subsection (2) does not apply if a person has a reasonable excuse. The
note to the subsection provides that the defendant bears an evidential burden in
relation to the matter in subsection (3). It also refers to subsection 13.3(3)
of the Code. That subsection provides that a defendant who wishes to rely on
any exception, exemption, excuse, qualification or justification provided by law
creating an offence bears an evidential burden in relation to that matter. An
evidential burden is defined in subsection 13.3(6) of the Criminal Code
to mean ‘the burden of adducing or pointing to evidence that suggests a
reasonable possibility that the matter exists or does not exist’.
New subsection 279(4) makes it clear that an offence under subsection
279(2) is a strict liability offence. Subsection 279(1) provides general powers
of inspectors relating to requiring a person to show a permit, or evidence of
certain matters and produce records that the person is required to hold.
Subsection 279(2) provides that a person must not, without reasonable excuse,
fail to comply with a requirement under subsection (1). A penalty of 20 penalty
units is provided.
This amendment is likely to have been interpreted as a
strict liability offence before this amendment because of the relatively low
penalty attached to this offence (20 penalty units or $2,200) and because a
defence of reasonable excuse is provided which is an indication of a strict
liability offence.
Therefore this new subsection should not alter the way
a court would interpret this offence. If the amendment were not made then,
after the application of the Criminal Code, the offence would no longer
be interpreted in the same way as it could currently be interpreted. After the
Criminal Code comes into operation it is necessary to expressly state
that an offence is one of strict liability if the provision is to attract strict
liability (sections 6.1 and 6.2 of the Code). If it is not specified a court
would be obliged to interpret it as a fault offence and no longer as a strict
liability offence and would require proof of fault elements in relation to the
physical elements.
Item 97 – Subsection 301(1)
This
item removes the defence ‘without reasonable excuse’ from subsection
301(1) of the RA. This defence becomes a new subsection under the next item.
This amendment has been made to avoid the defence being mistakenly interpreted
as being part of the elements of the offence.
Item 98 – New
subsections 301(1A) and 301(1B)
This item inserts new subsection
301(1A) and (1B) into the RA.
New subsection 301(1A) is consequential
upon item 97. It provides that subsection (1) does not apply if a person has a
reasonable excuse. The note to the subsection provides that the defendant bears
an evidential burden in relation to the matter in subsection (1A). It also
refers to subsection 13.3(3) of the Code. That subsection provides that a
defendant who wishes to rely on any exception, exemption, excuse, qualification
or justification provided by law creating an offence bears an evidential burden
in relation to that matter. An evidential burden is defined in subsection
13.3(6) of the Criminal Code to mean ‘the burden of adducing or
pointing to evidence that suggests a reasonable possibility that the matter
exists or does not exist’.
New subsection 301(1B) makes it clear
that an offence under subsection 301(1) is a strict liability offence.
Subsection 301(1) relates to supplying radiocommunications devices to unlicensed
persons. A penalty of 20 penalty units is provided.
This amendment is
likely to have been interpreted as a strict liability offence before this
amendment because of the relatively low penalty attached to this offence (20
penalty units or $2,200) and because a defence of reasonable excuse is provided
which is an indication of a strict liability offence.
Therefore this new
subsection should not alter the way a court would interpret this offence. If
the amendment were not made then, after the application of the Criminal
Code, the offence would no longer be interpreted in the same way as it could
currently be interpreted. After the Criminal Code comes into operation
it is necessary to expressly state that an offence is one of strict liability if
the provision is to attract strict liability (sections 6.1 and 6.2 of the Code).
If it is not specified a court would be obliged to interpret it as a fault
offence and no longer as a strict liability offence and would require proof of
fault elements in relation to the physical elements.
Item 99 –
New subsection 301(3A)
New subsection 301(3A) of the RA makes it
clear that an offence under subsection 301(3) is a strict liability offence.
Subsection 301(3) makes it an offence for a supplier of radiocommunications
devices to fail to keep documents in which certain particulars of the supply
were recorded for at least 2 years after the supply. A penalty of 20 penalty
units is provided.
This amendment is likely to have been interpreted as a
strict liability offence before this amendment because of the relatively low
penalty attached to this offence (20 penalty units or $2,200) and because a
defence of reasonable excuse is provided which is an indication of a strict
liability offence.
Therefore this new subsection should not alter the
way a court would interpret this offence. If the amendment were not made then,
after the application of the Criminal Code, the offence would no longer
be interpreted in the same way as it could currently be interpreted. After the
Criminal Code comes into operation it is necessary to expressly state
that an offence is one of strict liability if the provision is to attract strict
liability (sections 6.1 and 6.2 of the Code). If it is not specified a court
would be obliged to interpret it as a fault offence and no longer as a strict
liability offence and would require proof of fault elements in relation to the
physical elements.
Item 100 – New section 313A –
Application of the Criminal Code
This item inserts a new
section 313A into the RA. It provides that Chapter 2 (other than Part 2.5) of
the Criminal Code applies to all offences against the RA. It also
inserts a note that says that Chapter 2 of the Code sets out the general
principles of criminal liability.
Part 2.5 of the Criminal Code
relates to corporate criminal responsibility. Part 2.5 of the Criminal
Code is the only Part of Chapter 2 which does not apply automatically to
offences. When the Criminal Code Bill was introduced into the Senate on 30 June
1994 it was stated that Part 2.5 would be the basis of liability if no other
basis was provided. Since the RA contains section 306, which deals with
corporate criminal responsibility, Part 2.5 of the Criminal Code has not
been applied to offences against the Act.
Item 101 – Paragraph 2(1)(e)
This item, which is
consequential upon item 162, repeals paragraph 2(1)(e), which refers to Part
33.
This item, which is consequential upon item 162, amends the simplified
outline in section 5 by omitting the last dot point relating to ancillary
matters and substitutes a dot point relating to ancillary matters that omits the
reference to provisions which deal with the prohibition of false or misleading
statements.
Item 103 – Section 6 (table item
31)
This item, which is consequential upon item 162, repeals item 31
from the table in section 6. Item 31 refers to false or misleading statements.
Item 104 – New section 11A – Application of the
Criminal Code
This item inserts a new section 11A into the
Telecommunications Act 1997 (TA). It provides that Chapter 2 (other than
Part 2.5) of the Criminal Code applies to all offences against the Act.
It also inserts a note that says that Chapter 2 of the Code sets out the general
principles of criminal liability.
Part 2.5 of the Criminal Code
relates to corporate criminal responsibility. Part 2.5 of the Criminal
Code is the only Part of Chapter 2, which does not apply automatically to
offences. When the Criminal Code Bill was introduced into the Senate on 30 June
1994 it was stated that Part 2.5 would be the basis of liability if no other
basis was provided. Since the TA contains section 576, which deals with
corporate criminal responsibility, Part 2.5 of the Criminal Code has not
been applied to offences against the Act.
Item 105 – Subsection
42(5)
This item amends subsection 42(5) of the TA by omitting the
reference to the words ‘intentionally or recklessly’. This
amendment is intended to provide clarity to the interpretation of the offence
and to give consistency as to how criminal offences are to be interpreted by the
courts. The current wording of the offence appears to apply an alternative
fault element of recklessly to the physical element of conduct. Repeal of a
specific fault element of recklessly from an offence does not prevent the
Criminal Code supplying the default fault element of recklessly to a
physical element of circumstance or result in an offence. It ensures that the
appropriate fault element of intention applies to the physical element of
conduct in the offence and the fault element of recklessness applies to the
physical element of circumstance or result in the offence.
Item 106
– Subsection 276(3)
This item amends subsection 276(3) of the
TA by omitting the reference to the words ‘intentionally or
recklessly’. This amendment is intended to provide clarity to the
interpretation of the offence and to give consistency as to how criminal
offences are to be interpreted by the courts. The current wording of the offence
appears to apply an alternative fault element of recklessly to the physical
element of conduct. Repeal of a specific fault element of recklessly from an
offence does not prevent the Criminal Code supplying the default fault
element of recklessly to a physical element of circumstance or result in an
offence. It ensures that the appropriate fault element of intention applies to
the physical element of conduct in the offence and the fault element of
recklessness applies to the physical element of circumstance or result in the
offence.
Item 107 – Subsection 277(3)
This item
amends subsection 277(3) of the TA by omitting the reference to the words
‘intentionally or recklessly’. This amendment is intended to
provide clarity to the interpretation of the offence and to give consistency as
to how criminal offences are to be interpreted by the courts. The current
wording of the offence appears to apply an alternative fault element of
recklessly to the physical element of conduct. Repeal of a specific fault
element of recklessly from an offence does not prevent the Criminal Code
supplying the default fault element of recklessly to a physical element of
circumstance or result in an offence. It ensures that the appropriate fault
element of intention applies to the physical element of conduct in the offence
and the fault element of recklessness applies to the physical element of
circumstance or result in the offence.
Item 108 – Subsection
278(3)
This item amends subsection 278(3) of the TA by omitting the
reference to the words ‘intentionally or recklessly’. This
amendment is intended to provide clarity to the interpretation of the offence
and to give consistency as to how criminal offences are to be interpreted by the
courts. The current wording of the offence appears to apply an alternative fault
element of recklessly to the physical element of conduct. Repeal of a specific
fault element of recklessly from an offence does not prevent the Criminal
Code supplying the default fault element of recklessly to a physical element
of circumstance or result in an offence. It ensures that the appropriate fault
element of intention applies to the physical element of conduct in the offence
and the fault element of recklessness applies to the physical element of
circumstance or result in the offence.
Item 109 – Section
303
This item amends section 303 of the TA by omitting the reference
to the words ‘intentionally or recklessly’. This amendment is
intended to provide clarity to the interpretation of the offence and to give
consistency as to how criminal offences are to be interpreted by the courts. The
current wording of the offence appears to apply an alternative fault element of
recklessly to the physical element of conduct. Repeal of a specific fault
element of recklessly from an offence does not prevent the Criminal Code
supplying the default fault element of recklessly to a physical element of
circumstance or result in an offence. It ensures that the appropriate fault
element of intention applies to the physical element of conduct in the offence
and the fault element of recklessness applies to the physical element of
circumstance or result in the offence.
Item 110 – Subsection
306(7)
This item amends subsection 306(7) of the TA by omitting the
reference to the words ‘intentionally or recklessly’. This
amendment is intended to provide clarity to the interpretation of the offence
and to give consistency as to how criminal offences are to be interpreted by the
courts. The current wording of the offence appears to apply an alternative fault
element of recklessly to the physical element of conduct. Repeal of a specific
fault element of recklessly from an offence does not prevent the Criminal
Code supplying the default fault element of recklessly to a physical element
of circumstance or result in an offence. It ensures that the appropriate fault
element of intention applies to the physical element of conduct in the offence
and the fault element of recklessness applies to the physical element of
circumstance or result in the offence.
Item 111 – Subsection
307(2)
This item amends subsection 307(2) of the TA by omitting the
reference to the words ‘intentionally or recklessly’. This
amendment is intended to provide clarity to the interpretation of the offence
and to give consistency as to how criminal offences are to be interpreted by the
courts. The current wording of the offence appears to apply an alternative fault
element of recklessly to the physical element of conduct. Repeal of a specific
fault element of recklessly from an offence does not prevent the Criminal
Code supplying the default fault element of recklessly to a physical element
of circumstance or result in an offence. It ensures that the appropriate fault
element of intention applies to the physical element of conduct in the offence
and the fault element of recklessness applies to the physical element of
circumstance or result in the offence.
Item 112 – Section
399
This item repeals section 399 of the TA and substitutes a new
section 399.
The current subsection 399 may be interpreted so that
‘contravention of a condition’ forms part of the conduct element of
the offence. This amendment has rephrased the offence to ensure that the
contravention of a permit condition is part of the physical element of
‘result’. This means that it will attract the default fault element
of recklessness.
While this amendments is not strictly necessary to
harmonise the offence provisions with the Criminal Code it is desirable
to amend this provisions for the following reason. Under the Criminal
Code the fault element of intention applies to the physical element of
conduct. If the offence were not restructured prior to the Code coming into
operation this could give rise to difficulties in the prosecution of this
offence as the prosecution may be required to prove that the defendant has
specific intention to breach a particular condition. This could be extremely
difficult if the defendant had knowledge of the conditions but does not have a
specific intention to breach a particular condition. The defendant could merely
intend to breach the conditions generally whilst being reckless as to the
particular condition breached.
New subsection 399(2) inserts a
definition of ‘engage in conduct’ which applies to section 399. The
definition covers doing an act and omitting to perform an act. This is
consistent with the definition of conduct in the Criminal Code, which
covers both acts and omissions (see subsection 4.1(2) of the Code).
This amendment is not strictly necessary to harmonise the offence
provisions in the Telecommunications Act 1992 with the Criminal
Code. However, it is desirable to ensure that the reference to engage in
conduct in the section 399 covers both acts and omissions. The offence of
contravening a permit condition could clearly involve omitting to do an act.
The inclusion of a definition of ‘engage in conduct’ ensures that
such offences are covered.
Item 113 – Subsection
411(2)
This item omits the reference to the words ‘without
reasonable excuse, intentionally or recklessly’ in subsection 411(2) of
the TA.
This item removes the defence ‘without reasonable
excuse’ and this defence becomes a new subsection under the next item.
This amendment has been made to avoid the defence being mistakenly interpreted
as being part of the elements of the offence.
This item also removes
reference to the words ‘intentionally or recklessly’. This
amendment is intended to provide clarity to the interpretation of the offence
and to give consistency as to how criminal offences are to be interpreted by the
courts. The current wording of the offence appears to apply an alternative
fault element of recklessly to the physical element of conduct. Repeal of a
specific fault element of recklessly from an offence does not prevent the
Criminal Code applying the default fault element of recklessly to a
physical element of circumstance or result in an offence.
Item 114
– New subsection 411(2A)
New subsection 411(2A) of the RA is
consequential upon item 113. It provides that subsection (2) does not apply if
a person has a reasonable excuse. The note to the subsection provides that the
defendant bears an evidential burden in relation to the matter in subsection
(2A). It also refers to subsection 13.3(3) of the Code. That subsection
provides that a defendant who wishes to rely on any exception, exemption,
excuse, qualification or justification provided by law creating an offence bears
an evidential burden in relation to that matter. An evidential burden is
defined in subsection 13.3(6) of the Criminal Code to mean ‘the
burden of adducing or pointing to evidence that suggests a reasonable
possibility that the matter exists or does not exist’.
Item
115 – Subsection 412(2)
This item omits the reference to the
words ‘without reasonable excuse, intentionally or recklessly’ in
subsection 412(2) of the TA.
This item removes the defence ‘without
reasonable excuse’ and this defence becomes a new subsection under the
next item. This amendment has been made to avoid the defence being mistakenly
interpreted as being part of the elements of the offence.
This item also
removes reference to the words ‘intentionally or recklessly’. This
amendment is intended to provide clarity to the interpretation of the offence
and to give consistency as to how criminal offences are to be interpreted by the
courts. The current wording of the offence appears to apply an alternative
fault element of recklessly to the physical element of conduct. Repeal of a
specific fault element of recklessly from an offence does not prevent the
Criminal Code applying the default fault element of recklessly to a
physical element of circumstance or result in an offence.
Item 116
– New subsection 412(2A)
New subsection 412(2A) is
consequential upon item 115. It provides that subsection (2) does not apply if
a person has a reasonable excuse. The note to the subsection provides that the
defendant bears an evidential burden in relation to the matter in subsection
(2A). It also refers to subsection 13.3(3) of the Code. That subsection
provides that a defendant who wishes to rely on any exception, exemption,
excuse, qualification or justification provided by law creating an offence bears
an evidential burden in relation to that matter. An evidential burden is
defined in subsection 13.3(6) of the Criminal Code to mean ‘the
burden of adducing or pointing to evidence that suggests a reasonable
possibility that the matter exists or does not exist’.
Item
117 – Subsection 413(2)
This item omits the reference to the
words ‘without reasonable excuse, intentionally or recklessly’ in
subsection 413(2) of the TA.
This item removes the defence ‘without
reasonable excuse’ and this defence becomes a new subsection under the
next item. This amendment has been made to avoid the defence being mistakenly
interpreted as being part of the elements of the offence.
This item also
removes reference to the words ‘intentionally or recklessly’. This
amendment is intended to provide clarity to the interpretation of the offence
and to give consistency as to how criminal offences are to be interpreted by the
courts. The current wording of the offence appears to apply an alternative
fault element of recklessly to the physical element of conduct. Repeal of a
specific fault element of recklessly from an offence does not prevent the
Criminal Code applying the default fault element of recklessly to a
physical element of circumstance or result in an offence.
Item 118
– New subsection 413(2A)
New subsection 413(2A) of the RA is
consequential upon item 117. It provides that subsection (2) does not apply if
a person has a reasonable excuse. The note to the subsection provides that the
defendant bears an evidential burden in relation to the matter in subsection
(2A). It also refers to subsection 13.3(3) of the Code. That subsection
provides that a defendant who wishes to rely on any exception, exemption,
excuse, qualification or justification provided by law creating an offence bears
an evidential burden in relation to that matter. An evidential burden is
defined in subsection 13.3(6) of the Criminal Code to mean ‘the
burden of adducing or pointing to evidence that suggests a reasonable
possibility that the matter exists or does not exist’.
Item
119 – Subsection 414(2)
This item omits the reference to the
words ‘without reasonable excuse, intentionally or recklessly’ in
subsection 414(2) of the TA.
This item removes the defence ‘without
reasonable excuse’ and this defence becomes a new subsection under the
next item. This amendment has been made to avoid the defence being mistakenly
interpreted as being part of the elements of the offence.
This item also
removes reference to the words ‘intentionally or recklessly’. This
amendment is intended to provide clarity to the interpretation of the offence
and to give consistency as to how criminal offences are to be interpreted by the
courts. The current wording of the offence appears to apply an alternative
fault element of recklessly to the physical element of conduct. Repeal of a
specific fault element of recklessly from an offence does not prevent the
Criminal Code applying the default fault element of recklessly to a
physical element of circumstance or result in an offence.
Item 120
– New subsection 414(3)
New subsection 414(3) is consequential
upon item 119. It provides that subsection (2) does not apply if a person has a
reasonable excuse. The note to the subsection provides that the defendant bears
an evidential burden in relation to the matter in subsection (3). It also
refers to subsection 13.3(3) of the Code. That subsection provides that a
defendant who wishes to rely on any exception, exemption, excuse, qualification
or justification provided by law creating an offence bears an evidential burden
in relation to that matter. An evidential burden is defined in subsection
13.3(6) of the Criminal Code to mean ‘the burden of adducing or
pointing to evidence that suggests a reasonable possibility that the matter
exists or does not exist’.
Item 121 – Subsection
415(2)
This item repeals section 415 of the TA and substitutes a new
section 415.
This amendment has rephrased the offence to ensure that the
contravention of a requirement under subsection (1) is a physical element of
result of the defendant’s conduct to which the default fault element of
recklessness will apply. While this amendment is not strictly necessary to
harmonise the offence provisions with the Criminal Code it is desirable
to amend this provision to more clearly identify the physical elements of
conduct and result in the offence.
This item also removes the defence of
‘without reasonable excuse’ from the offence provision. This
defence becomes a new subsection, namely subsection 415(3). This amendment has
been made to avoid the defence being mistakenly interpreted as being part of the
elements of the offence. New subsection 415(3) provides that subsection (1)
does not apply if a person has a reasonable excuse. The note to the subsection
provides that the defendant bears an evidential burden in relation to the matter
in subsection (3). It also refers to subsection 13.3(3) of the Code. That
subsection provides that a defendant who wishes to rely on any exception,
exemption, excuse, qualification or justification provided by law creating an
offence bears an evidential burden in relation to that matter. An evidential
burden is defined in subsection 13.3(6) of the Criminal Code to mean
‘the burden of adducing or pointing to evidence that suggests a reasonable
possibility that the matter exists or does not exist’.
New
subsection 414(4) inserts a definition of ‘engage in conduct’ which
applies to section 415. The definition covers doing an act and omitting to
perform an act. This is consistent with the definition of conduct in the
Criminal Code, which covers both acts and omissions (see subsection
4.1(2) of the Code).
This amendment is not strictly necessary to
harmonise the offence provisions in the Telecommunications Act 1992 with
the Criminal Code. However, it is desirable to clarify that the
reference to engage in conduct in the section 415 covers both acts and omissions
as a requirement may require a positive action.
Item 122 –
Subsection 416(2)
This item omits the reference to the words
‘intentionally or recklessly’ in subsection 416(2) of the
TA.
This amendment is intended to provide clarity to the interpretation
of the offence and to give consistency as to how criminal offences are to be
interpreted by the courts. The current wording of the offence appears to apply
an alternative fault element of recklessly to the physical element of conduct.
Repeal of a specific fault element of recklessly from an offence does not
prevent the Criminal Code applying the default fault element of
recklessly to a physical element of circumstance or result in an
offence.
Item 123 – Subsection 417(2)
This item omits
the reference to the words ‘intentionally or recklessly’ in
subsection 417(2) of the TA.
This amendment is intended to provide
clarity to the interpretation of the offence and to give consistency as to how
criminal offences are to be interpreted by the courts. The current wording of
the offence appears to apply an alternative fault element of recklessly to the
physical element of conduct. Repeal of a specific fault element of recklessly
from an offence does not prevent the Criminal Code applying the default
fault element of recklessly to a physical element of circumstance or result in
an offence.
Item 124 – Subsection 420(2)
This item
omits the reference to the words ‘intentionally or recklessly’ in
subsection 420(2) of the TA.
This amendment is intended to provide
clarity to the interpretation of the offence and to give consistency as to how
criminal offences are to be interpreted by the courts. The current wording of
the offence appears to apply an alternative fault element of recklessly to the
physical element of conduct. Repeal of a specific fault element of recklessly
from an offence does not prevent the Criminal Code applying the default
fault element of recklessly to a physical element of circumstance or result in
an offence.
Item 125 – Subsection 421(4)
This item
omits the reference to the words ‘intentionally or recklessly’ in
subsection 421(4) of the TA.
This amendment is intended to provide
clarity to the interpretation of the offence and to give consistency as to how
criminal offences are to be interpreted by the courts. The current wording of
the offence appears to apply an alternative fault element of recklessly to the
physical element of conduct. Repeal of a specific fault element of recklessly
from an offence does not prevent the Criminal Code applying the default
fault element of recklessly to a physical element of circumstance or result in
an offence.
Item 126 – Section 434
Subsection 434(3) currently provides two separate offences, namely
contravening subsection (1) or contravening subsection (2). For clarity these
offences have been separated into two separate subsections. Subsection 434(1)
replaces the former offence and subsection 434(2) replaces the latter
offence.
This amendment has rephrased the offences to ensure that the
contravention of a licence condition under subsection 434(1), and failure to
take all reasonable steps to ensure that cabling work of a certain type
performed under a person’s supervision does not contravene the licence
conditions under subsection 434(2), is a physical element of result of the
defendant’s conduct to which the default fault element of recklessness
will apply.
While these amendments are not strictly necessary to
harmonise the offence provisions with the Criminal Code it is desirable
to amend this provision for the following reason. Under the Criminal
Code the fault element of intention applies to the physical element of
conduct. If the offences were not restructured prior to the Code coming into
operation this could give rise to difficulties in the prosecution of these
offences as the prosecution may be required to prove that the defendant has
specific intention to breach a particular condition. This could be extremely
difficult if the defendant had knowledge of the conditions but does not have a
specific intention to breach a particular condition. The defendant could merely
intend to breach the conditions generally whilst being reckless as to the
particular condition breached.
The new subsections 434(1) and 434(2)
also remove the reference to the word ‘recklessly’. Repeal of a
specific fault element of recklessly from an offence does not prevent the
Criminal Code supplying the default fault element of recklessly to a
physical element of circumstance or result in an offence.
New subsection
434(3) inserts a definition of ‘engage in conduct’ which applies to
section 434. The definition covers doing an act and omitting to perform an act.
This is consistent with the definition of conduct in the Criminal Code,
which covers both acts and omissions (see subsection 4.1(2) of the Code).
This amendment is not strictly necessary to harmonise the offence
provisions in the Radiocommunications Act 1992 with the Criminal
Code. However, it is desirable to clarify that the reference to engage in
conduct in the section 434 covers both acts and omissions. As a licence
condition may require a positive action from a person, a breach of an offence
under subsections 434(1) or 434(2) could cover an omission to
act.
Item 127 – Subsection 452(2)
This item omits the
reference to the words ‘intentionally or recklessly’ in subsection
452(2) of the TA.
This amendment is intended to provide clarity to the
interpretation of the offence and to give consistency as to how criminal
offences are to be interpreted by the courts. The current wording of the
offence appears to apply an alternative fault element of recklessly to the
physical element of conduct. Repeal of a specific fault element of recklessly
from an offence does not prevent the Criminal Code applying the default
fault element of recklessly to a physical element of circumstance or result in
an offence.
Item 128 – subsection 475(7)
This item
repeals subsection 475(7) of the TA and substitutes a new subsection
475(7).
This amendment has rephrased the offence to ensure that the
contravention of a direction under this section is a physical element of result
of the defendant’s conduct to which the default fault element of
recklessness will apply. While this amendment is not strictly necessary to
harmonise the offence provisions with the Criminal Code it is desirable
to amend this provision to more clearly identify the physical elements of
conduct and result in the offence.
Item 129 – New subsection
475(9)
New subsection 475(9) of the TA inserts a definition of
‘engage in conduct’ which applies to section 475. The definition
covers doing an act and omitting to perform an act. This is consistent with the
definition of conduct in the Criminal Code, which covers both acts and
omissions (see subsection 4.1(2) of the Code).
This amendment is not
strictly necessary to harmonise the offence provisions in the TA with the
Criminal Code. However, it is desirable to clarify that the reference to
engage in conduct in the section 475 covers both acts and omissions. As a
direction may require a positive action from a person, an offence under
subsection 475(7) could cover an omission to act.
Item 130 –
Subsection 476(7)
This item repeals subsection 476(7) of the TA and
substitutes a new subsection 476(7).
This amendment has rephrased the
offence to ensure that the contravention of a direction under this section is a
physical element of result of the defendant’s conduct to which the default
fault element of recklessness will apply. While this amendment is not strictly
necessary to harmonise the offence provisions with the Criminal Code it
is desirable to amend this provision to more clearly identify the physical
elements of conduct and result in the offence.
Item 131 – New
subsection 476(9)
New subsection 476(9) of the TA inserts a
definition of ‘engage in conduct’ which applies to section 476. The
definition covers doing an act and omitting to perform an act. This is
consistent with the definition of conduct in the Criminal Code, which
covers both acts and omissions (see subsection 4.1(2) of the Code).
This amendment is not strictly necessary to harmonise the offence
provisions in the Telecommunications Act 1997 with the Criminal
Code. However, it is desirable to ensure that the reference to engage in
conduct in the section 476 covers both acts and omissions. As a direction may
require a positive action from a person, an offence under subsection 476(7)
could cover an omission to act.
Item 132 – Subsection
493(3)
This item omits the reference to the words ‘without
reasonable excuse’ from subsection 493(3) of the TA. This removes the
defence ‘without reasonable excuse’ and this defence becomes a new
subsection under the next item. This amendment has been made to avoid the
defence being mistakenly interpreted as being part of the elements of the
offence.
Item 133 – Subsection 493(4)
This item
repeals subsection 493(4) of the TA and substitutes new subsections 493(4), (5)
and (6).
This amendment has rephrased the offence to ensure that the
contravention of an ACA order under subsection (2) is a physical element of
result of the defendant’s conduct to which the default fault element of
recklessness will apply. While this amendment is not strictly necessary to
harmonise the offence provisions with the Criminal Code it is desirable
to amend this provision to more clearly identify the physical elements of
conduct and result in the offence.
It also removes the defence of
‘without reasonable excuse’ from the offence provision. New
subsection 493(5) provides that subsections (3) and (4) do not apply if a person
has a reasonable excuse. The note to the subsection provides that the defendant
bears an evidential burden in relation to the matter in subsection (5). It also
refers to subsection 13.3(3) of the Code. That subsection provides that a
defendant who wishes to relay on any exception, exemption, excuse, qualification
or justification provided by law creating an offence bears an evidential burden
in relation to that matter. An evidential burden is defined in subsection
13.3(6) of the Criminal Code to mean ‘the burden of adducing or
pointing to evidence that suggests a reasonable possibility that the matter
exists or does not exist’.
New subsection 493(6) inserts a
definition of ‘engage in conduct’ which applies to section 493. The
definition covers doing an act and omitting to perform an act. This is
consistent with the definition of conduct in the Criminal Code, which
covers both acts and omissions (see subsection 4.1(2) of the Code).
This amendment is not strictly necessary to harmonise the offence
provisions in the Telecommunications Act 1997 with the Criminal
Code. However, it is desirable to ensure that the reference to engage in
conduct in the section 493 covers both acts and omissions. As an ACA order may
require a positive action from a person, an offence under subsection 493(4)
could cover an omission to act.
Item 134 – Subsection
494(3)
This item omits the reference to the words ‘without
reasonable excuse’ from subsection 494(3) of the TA. This removes the
defence ‘without reasonable excuse’ and this defence becomes a new
subsection under the next item. This amendment has been made to avoid the
defence being mistakenly interpreted as being part of the elements of the
offence.
Item 135 – Subsection 494(4)
This item
repeals subsection 494(4) of the TA and substitutes new subsections 494(4), (5),
(6) and (7).
Subsection 494(4) currently provides two separate offences
of ‘contravening a direction under paragraph (2)(a)’ (paragraph
494(4)(a)) and ‘contravening a direction under paragraph (2)(b)’
(paragraph 494(4)(b)). For clarity these offences have been separated into two
separate subsections. Subsection 494(4) replaces the former offence and
subsection 494(5) replaces the latter offence.
This amendment has
rephrased the offences to ensure that the contravention of a direction under
paragraph (2)(a) and paragraph (2)(b) is a physical element of result of the
defendant’s conduct to which the default fault element of recklessness
will apply. While this amendment is not strictly necessary to harmonise the
offence provisions with the Criminal Code it is desirable to amend this
provision to more clearly identify the physical elements of conduct and result
in the offence.
The new subsections 494(4) and (5) also remove the
reference to the word ‘recklessly’. Repeal of a specific fault
element of recklessly from an offence does not prevent the Criminal Code
supplying the default fault element of recklessly to a physical element of
circumstance or result in an offence.
It also removes the defence of
‘without reasonable excuse’ from the offence provision. This
defence becomes a new subsection under the new subsection 494(6). New
subsection 494(6) provides that subsections (3), (4) and (5) do not apply if a
person has a reasonable excuse. The note to the subsection provides that the
defendant bears an evidential burden in relation to the matter in subsection
(6). It also refers to subsection 13.3(3) of the Code. That subsection
provides that a defendant who wishes to rely on any exception, exemption,
excuse, qualification or justification provided by law creating an offence bears
an evidential burden in relation to that matter. An evidential burden is
defined in subsection 13.3(6) of the Criminal Code to mean ‘the
burden of adducing or pointing to evidence that suggests a reasonable
possibility that the matter exists or does not exist’.
New
subsection 494(7) inserts a definition of ‘engage in conduct’ which
applies to section 494. The definition covers doing an act and omitting to
perform an act. This is consistent with the definition of conduct in the
Criminal Code, which covers both acts and omissions (see subsection
4.1(2) of the Code).
This amendment is not strictly necessary to
harmonise the offence provisions in the Telecommunications Act 1997 with
the Criminal Code. However, it is desirable to clarify that the
reference to engage in conduct in the section 494 covers both acts and
omissions. As a direction may require a positive action from a person, an
offence under subsections 494(4) or (5) could cover an omission to
act.
Item 136 – Subsection 503(3)
This item omits the
reference to the words ‘without reasonable excuse’ from subsection
503(3) of the TA. This removes the defence ‘without reasonable
excuse’ and this defence becomes a new subsection under the next item.
This amendment has been made to avoid the defence being mistakenly interpreted
as being part of the elements of the offence.
Item 137 –
Subsection 503(4)
This item repeals subsection 503(4) of the TA and
substitutes new subsections 503(4), (5) and (6).
This amendment has
rephrased the offence to ensure that the contravention of an order of the
Australian Competition and Consumer Commission (ACCC) under subsection (2) is a
physical element of result of the defendant’s conduct to which the default
fault element of recklessness will apply. While this amendment is not strictly
necessary to harmonise the offence provisions with the Criminal Code it
is desirable to amend this provision to more clearly identify the physical
elements of conduct and result in the offence.
It also removes the
defence of ‘without reasonable excuse’ from the offence provision,
which is consequential upon item 136. This defence becomes a new subsection
under the new subsection 503(5). New subsection 503(5) provides that subsections
(3) and (4) do not apply if a person has a reasonable excuse. The note to the
subsection provides that the defendant bears an evidential burden in relation to
the matter in subsection (5). It also refers to subsection 13.3(3) of the Code.
That subsection provides that a defendant who wishes to rely on any exception,
exemption, excuse, qualification or justification provided by law creating an
offence bears an evidential burden in relation to that matter. An evidential
burden is defined in subsection 13.3(6) of the Criminal Code to mean
‘the burden of adducing or pointing to evidence that suggests a reasonable
possibility that the matter exists or does not exist’.
New
subsection 503(6) inserts a definition of ‘engage in conduct’ which
applies to section 503. The definition covers doing an act and omitting to
perform an act. This is consistent with the definition of conduct in the
Criminal Code, which covers both acts and omissions (see subsection
4.1(2) of the Code).
This amendment is not strictly necessary to
harmonise the offence provisions in the Telecommunications Act 1997 with
the Criminal Code. However, it is desirable to clarify that the
reference to engage in conduct in the section 503 covers both acts and
omissions. As an order may require a positive action from a person, an offence
under subsection 503(4) could cover an omission to act.
Item 138
– Subsection 504(3)
This item omits the reference to the words
‘without reasonable excuse’ from subsection 504(3) of the TA. This
removes the defence ‘without reasonable excuse’ and this defence
becomes a new subsection under the next item. This amendment has been made to
avoid the defence being mistakenly interpreted as being part of the elements of
the offence.
Item 139 – Subsection 504(4)
This item
repeals subsection 504(4) of the TA and substitutes new subsections 504(4), (5),
(6) and (7).
Subsection 503(4) currently provides two separate offences
of ‘contravening a direction under paragraph (2)(a)’ and
‘contravening a direction under paragraph (2)(b)’. For clarity
these offences have been separated into two separate subsections. Subsection
504(4) replaces the former offence and subsection 504(5) replaces the latter
offence.
This amendment has rephrased the offences to ensure that the
contravention of a direction under paragraph (2)(a) and paragraph (2)(b) is a
physical element of result of the defendant’s conduct to which the default
fault element of recklessness will apply. While this amendment is not strictly
necessary to harmonise the offence provisions with the Criminal Code it
is desirable to amend this provision to more clearly identify the physical
elements of conduct and result in the offence.
The new subsections 504(4)
and (5) also remove the reference to the word ‘recklessly’. Repeal
of a specific fault element of recklessly from an offence does not prevent the
Criminal Code supplying the default fault element of recklessly to a
physical element of circumstance or result in an offence.
This item also
removes the defence of ‘without reasonable excuse’ from the offence
provisions, which is consequential upon item 138. This defence becomes a new
subsection under the new subsection 504(6). New subsection 504(6) provides that
subsections (3), (4) and (5) do not apply if a person has a reasonable excuse.
The note to the subsection provides that the defendant bears an evidential
burden in relation to the matter in subsection (6). It also refers to
subsection 13.3(3) of the Code. That subsection provides that a defendant who
wishes to rely on any exception, exemption, excuse, qualification or
justification provided by law creating an offence bears an evidential burden in
relation to that matter. An evidential burden is defined in subsection 13.3(6)
of the Criminal Code to mean ‘the burden of adducing or pointing to
evidence that suggests a reasonable possibility that the matter exists or does
not exist’.
New subsection 504(7) inserts a definition of
‘engage in conduct’ which applies to section 504. The definition
covers doing an act and omitting to perform an act. This is consistent with the
definition of conduct in the Criminal Code, which covers both acts and
omissions (see subsection 4.1(2) of the Code).
This amendment is not
strictly necessary to harmonise the offence provisions in the
Telecommunications Act 1997 with the Criminal Code. However, it
is desirable to clarify that the reference to engage in conduct in the section
504 covers both acts and omissions. As an ACCC direction may require a positive
action from a person, an offence under subsections 504(4) and 504(5) could cover
an omission to act.
Item 140 – Paragraphs 521(4)(e) and
(f)
This item repeals paragraphs 521(4)(e) and (f) of the TA and
substitutes paragraph 521(4)(e). This is a consequential amendment as a result
of item 145.
Item 141 – Paragraphs 521(5)(e) and
(f)
This item, which is consequential upon item 145, repeals
paragraphs 521(5)(e) and (f) of the TA and substitutes paragraph 521(5)(e).
Paragraph 521(f) refers to section 526.
Item 142 – Subsections
522(4) and (5)
This item repeals subsections 522(4) and (5) of the TA
and substitutes new subsections 522(4), (5) and (6).
This amendment has
rephrased the offence to ensure that the contravention of a notice requirement
is a physical element of result of the defendant’s conduct to which the
default fault element of recklessness will apply. While this amendment is not
strictly necessary to harmonise the offence provisions with the Criminal
Code it is desirable to amend this provision to more clearly identify the
physical elements of conduct and result in the offence.
New subsection
522(6) inserts a definition of ‘engage in conduct’ which applies to
section 522. The definition covers doing an act and omitting to perform an act.
This is consistent with the definition of conduct in the Criminal Code,
which covers both acts and omissions (see subsection 4.1(2) of the Code).
This amendment is not strictly necessary to harmonise the offence
provisions in the TA with the Criminal Code. However, it is desirable to
clarify that the reference to engage in conduct in the section 522 covers both
acts and omissions. As an ACA notice may require a positive action from a
person, an offence under subsection 522(4) could cover an omission to
act
Item 143 – Paragraph 524(2)(c)
This item, which
is consequential upon item 145, omits the reference to ‘or
526’.
Item 144 – Section 525
This item omits
the reference to the words ‘intentionally or recklessly’ in section
525 of the TA.
This amendment is intended to provide clarity to the
interpretation of the offence and to give consistency as to how criminal
offences are to be interpreted by the courts. The current wording of the
offence appears to apply an alternative fault element of recklessly to the
physical element of conduct. Repeal of a specific fault element of recklessly
from an offence does not prevent the Criminal Code applying the default
fault element of recklessly to a physical element of circumstance or result in
an offence.
Item 145 – Section 526
This item repeals
section 526. This section is no longer necessary as it is similar to the
general false or misleading provisions which Schedule 1 to the Criminal Code
Amendment (Theft, Fraud, Bribery and Related Offences) Act 2000 inserts into
the Criminal Code as new Part 7.4.
Item 146 – Subsection
531(2)
This item omits the reference to the words
‘intentionally or recklessly’ in subsection 531(2) of the
TA.
This amendment is intended to provide clarity to the interpretation
of the offence and to give consistency as to how criminal offences are to be
interpreted by the courts. The current wording of the offence appears to apply
an alternative fault element of recklessly to the physical element of conduct.
Repeal of a specific fault element of recklessly from an offence does not
prevent the Criminal Code applying the default fault element of
recklessly to a physical element of circumstance or result in an
offence.
Item 147 – Subsection 534(3)
This item omits
the reference to the words ‘without reasonable excuse, intentionally or
recklessly’ in subsection 534(3) of the TA.
This item removes the
defence ‘without reasonable excuse’ and this defence becomes a new
subsection under the next item. This amendment has been made to avoid the
defence being mistakenly interpreted as being part of the elements of the
offence.
This item also removes reference to the words
‘intentionally or recklessly’. This amendment is intended to
provide clarity to the interpretation of the offence and to give consistency as
to how criminal offences are to be interpreted by the courts. The current
wording of the offence appears to apply an alternative fault element of
recklessly to the physical element of conduct. Repeal of a specific fault
element of recklessly from an offence does not prevent the Criminal Code
applying the default fault element of recklessly to a physical element of
circumstance or result in an offence.
Item 148 – New subsections
534(4) and (5)
This item inserts new subsections 534(4) and (5) into
the TA.
New subsection 534(4) is consequential upon item 147. It
provides that subsection (3) does not apply if a person has a reasonable excuse.
The note to the subsection provides that the defendant bears an evidential
burden in relation to the matter in subsection (4). It also refers to
subsection 13.3(3) of the Code. That subsection provides that a defendant who
wishes to rely on any exception, exemption, excuse, qualification or
justification provided by law creating an offence bears an evidential burden in
relation to that matter. An evidential burden is defined in subsection 13.3(6)
of the Criminal Code to mean ‘the burden of adducing or pointing to
evidence that suggests a reasonable possibility that the matter exists or does
not exist’.
New subsection 534(5) specifies that an offence under
subsection 534(3) is a strict liability offence. Subsection 534(3) provides
that a person who ceases to be an inspector must not, without reasonable excuse,
fail to return his or her identity card to the ACA as soon as practicable. A
penalty of 5 penalty units is provided.
This amendment alters the current
provision, which could not currently be interpreted as a strict liability
offence because it applies default elements of ‘intentionally or
recklessly’ to the offence. This amendment has additional authority.
However, it is desirable that this offence be an offence of strict liability
because of the relatively low penalty attached to this offence (5 penalty units
or $550), because a defence of reasonable excuse is provided, and for the policy
reasons that an identity card must be returned as soon as the cardholder stops
being an inspector, so that false representations cannot be made about the scope
of the person’s powers and authority. In addition, this offence is
similar to offence provisions in other portfolio legislation, which are
specified to be strict liability offences (see items 44 and 92).
Item
149 – Subsection 535(2)
This item amends subsection 535(2) of
the TA so as to omit the reference to ‘section 6, 7 or 7A or subsection
86(1) of the Crimes Act 1914’ and replace it with a reference to
‘section 6 of the Crimes Act 1914 or Part 2.4 of the Criminal
Code.’
Sections 7, 7A and 86(1) of the Crimes Act 1914
are concerned with the offences of attempt, inciting or urging and conspiracy.
These sections of the Crimes Act 1914 are repealed by the Law and
Justice Legislation Amendment (Application of Criminal Code) Act 2000.
These ancillary offences are replaced by equivalent provisions in Part 2.4
of the Criminal Code, which is referred to in the new subsection 535(2).
Item 150 – Subsection 542(4)
This item amends
subsection 542(4) of the TA so as to omit the reference to ‘section 6, 7
or 7A or subsection 86(1) of the Crimes Act 1914’ and replace it
with a reference to ‘section 6 of the Crimes Act 1914 or Part 2.4
of the Criminal Code.’
Sections 7, 7A and 86(1) of the
Crimes Act 1914 are concerned with the offences of attempt, inciting or
urging and conspiracy. These sections of the Crimes Act 1914 are
repealed by the Law and Justice Legislation Amendment (Application of
Criminal Code) Act 2000. These ancillary offences are replaced by
equivalent provisions in Part 2.4 of the Criminal Code, which is referred
to in the new subsection 542(4).
Item 151 – Subsection
544(2)
This item amends subsection 544(2) of the TA so as to omit the
reference to ‘section 6, 7 or 7A or subsection 86(1) of the Crimes Act
1914’ and replace it with a reference to ‘section 6 of the
Crimes Act 1914 or Part 2.4 of the Criminal
Code.’
Sections 7, 7A and 86(1) of the Crimes Act 1914
are concerned with the offences of attempt, inciting or urging and conspiracy.
These sections of the Crimes Act 1914 are repealed by the Law and
Justice Legislation Amendment (Application of Criminal Code) Act 2000.
These ancillary offences are replaced by equivalent provisions in Part 2.4
of the Criminal Code, which is referred to in the new subsection 544(2).
Item 152 – Subsection 545(4)
This item amends
subsection 545(4) of the TA so as to omit the reference to ‘section 6, 7
or 7A or subsection 86(1) of the Crimes Act 1914’ and replace it
with a reference to ‘section 6 of the Crimes Act 1914 or Part 2.4
of the Criminal Code.’
Sections 7, 7A and 86(1) of the
Crimes Act 1914 are concerned with the offences of attempt, inciting or
urging and conspiracy. These sections of the Crimes Act 1914 are
repealed by the Law and Justice Legislation Amendment (Application of
Criminal Code) Act 2000. These ancillary offences are replaced by
equivalent provisions in Part 2.4 of the Criminal Code, which is referred
to in the new subsection 545(4).
Item 153 – Subsection
548(2)
This item omits the reference to the words ‘without
reasonable excuse, intentionally or recklessly’ in subsection 548(2) of
the TA.
This item removes the defence ‘without reasonable
excuse’ and this defence becomes a new subsection under the next item.
This amendment has been made to avoid the defence being mistakenly interpreted
as being part of the elements of the offence.
This item also removes
reference to the words ‘intentionally or recklessly’. This
amendment is intended to provide clarity to the interpretation of the offence
and to give consistency as to how criminal offences are to be interpreted by the
courts. The current wording of the offence appears to apply an alternative
fault element of recklessly to the physical element of conduct. Repeal of a
specific fault element of recklessly from an offence does not prevent the
Criminal Code applying the default fault element of recklessly to a
physical element of circumstance or result in an offence.
Item 154
– New subsections 548(2A) and (2B)
This item inserts new
subsections 548(2A) and (2B) into the TA.
New subsection 548(2A) is
consequential upon item 153. It provides that subsection (2) does not apply if
a person has a reasonable excuse. The note to the subsection provides that the
defendant bears an evidential burden in relation to the matters in subsection
(2A). It also refers to subsection 13.3(3) of the Code. That subsection
provides that a defendant who wishes to rely on any exception, exemption,
excuse, qualification or justification provided by law creating an offence bears
an evidential burden in relation to that matter. An evidential burden is
defined in subsection 13.3(6) of the Criminal Code to mean ‘the
burden of adducing or pointing to evidence that suggests a reasonable
possibility that the matter exists or does not exist’.
New
subsection 548(2B) specifies that an offence under subsection 548(2) is a strict
liability offence. Subsection 548(2) provides general powers of inspectors
relating to requiring a person to show a permit, or evidence of certain matters
and produce records they’re required to hold. Subsection 548(2) provides
that a person must not, without reasonable excuse, fail to comply with a
requirement under subsection (1). A penalty of 20 penalty units is
provided.
This amendment alters the current provision, which could not
currently be interpreted as a strict liability offence because it applies
default elements of ‘intentionally or recklessly’ to the offence.
However, it is desirable that this offence be an offence of strict liability
because of the relatively low penalty attached to this offence (20 penalty units
or $2,200), because a defence of reasonable excuse is provided. In addition,
this offence is similar to offence provisions in other portfolio legislation,
which specify that similar offences are strict liability offences (see items 46
and 96).
Item 155 – Subsection 548(3)
New subsection
548(3) of the TA inserts a definition of ‘engage in conduct’ which
applies to section 548. The definition covers doing an act and omitting to
perform an act. This is consistent with the definition of conduct in the
Criminal Code, which covers both acts and omissions (see subsection
4.1(2) of the Code).
This amendment is not strictly necessary to
harmonise the offence provisions in the Telecommunications Act 1997 with
the Criminal Code. However, it is desirable to clarify that the
reference to engage in conduct in the section 548 covers both acts and
omissions.
Item 156 – Subsection 549(3)
This item
repeals subsection 549(3) of the TA and substitutes new subsections 549(3) and
(3A).
This amendment has rephrased the offence to ensure that the
contravention of a requirement under subsection (1) is a physical element of
result of the defendant’s conduct to which the default fault element of
recklessness will apply. While this amendment is not strictly necessary to
harmonise the offence provisions with the Criminal Code it is desirable
to amend this provision to more clearly identify the physical elements of
conduct and result in the offence.
This item removes the defence
‘without reasonable excuse’ from the offence provision and this
defence becomes a new subsection, namely subsection 549(3A). This amendment has
been made to avoid the defence being mistakenly interpreted as being part of the
elements of the offence. New subsection 549(3A) provides that subsection (3)
does not apply if a person has a reasonable excuse. The note to the subsection
provides that the defendant bears an evidential burden in relation to the matter
in subsection (3A). It also refers to subsection 13.3(3) of the Code. That
subsection provides that a defendant who wishes to rely on any exception,
exemption, excuse, qualification or justification provided by law creating an
offence bears an evidential burden in relation to that matter. An evidential
burden is defined in subsection 13.3(6) of the Criminal Code to mean
‘the burden of adducing or pointing to evidence that suggests a reasonable
possibility that the matter exists or does not exist’.
Item
157 – New subsection 549(5)
New subsection 549(5) of the TA
inserts a definition of ‘engage in conduct’ which applies to section
549. The definition covers doing an act and omitting to perform an act. This
is consistent with the definition of conduct in the Criminal Code, which
covers both acts and omissions (see subsection 4.1(2) of the Code).
This amendment is not strictly necessary to harmonise the offence
provisions in the Telecommunications Act 1997 with the Criminal
Code. However, it is desirable to clarify that the reference to engage in
conduct in the section 549 covers both acts and omissions. As a requirement
under subsection (1) may require a positive action from a person, an offence
under subsection 549(3) could cover an omission to act.
Item 158
– Subsection 551(2)
This item amends subsection 551(2) of the
TA so as to omit the reference to ‘section 6, 7 or 7A or subsection 86(1)
of the Crimes Act 1914’ and replace it with a reference to
‘section 6 of the Crimes Act 1914 or Part 2.4 of the Criminal
Code.’
Sections 7, 7A and 86(1) of the Crimes Act 1914
are concerned with the offences of attempt, inciting or urging and conspiracy.
These sections of the Crimes Act 1914 are repealed by the Law and
Justice Legislation Amendment (Application of Criminal Code) Act 2000.
These ancillary offences are replaced by equivalent provisions in Part 2.4
of the Criminal Code, which is referred to in the new subsection 551(2).
Item 159 – Subsection 553(2)
This item amends
subsection 553(2) of the TA so as to omit the reference to ‘section 6, 7
or 7A or subsection 86(1) of the Crimes Act 1914’ and replace it
with a reference to ‘section 6 of the Crimes Act 1914 or Part 2.4
of the Criminal Code.’
Sections 7, 7A and 86(1) of the
Crimes Act 1914 are concerned with the offences of attempt, inciting or
urging and conspiracy. These sections of the Crimes Act 1914 are
repealed by the Law and Justice Legislation Amendment (Application of
Criminal Code) Act 2000. These ancillary offences are replaced by
equivalent provisions in Part 2.4 of the Criminal Code, which is referred
to in the new subsection 553(2).
Item 160 – Subparagraph
574(b)(ii)
This item amends subparagraph 574(b)(ii) of the TA so as
to omit the reference to ‘section 6, 7 or 7A or subsection 86(1) of the
Crimes Act 1914’ and replace it with a reference to ‘section
6 of the Crimes Act 1914 or Part 2.4 of the Criminal
Code.’
Sections 7, 7A and 86(1) of the Crimes Act 1914
are concerned with the offences of attempt, inciting or urging and conspiracy.
These sections of the Crimes Act 1914 are repealed by the Law and
Justice Legislation Amendment (Application of Criminal Code) Act 2000.
These ancillary offences are replaced by equivalent provisions in Part 2.4
of the Criminal Code, which is referred to in the new subparagraph
574(b)(ii).
Item 161 – Paragraph 576(1)(b)
This
item amends paragraph 576(1)(b) of the TA so as to omit the reference to
‘section 6, 7 or 7A or subsection 86(1) of the Crimes Act
1914’ and replace it with a reference to ‘section 6 of the
Crimes Act 1914 or Part 2.4 of the Criminal
Code.’
Sections 7, 7A and 86(1) of the Crimes Act 1914
are concerned with the offences of attempt, inciting or urging and conspiracy.
These sections of the Crimes Act 1914 are repealed by the Law and
Justice Legislation Amendment (Application of Criminal Code) Act 2000.
These ancillary offences are replaced by equivalent provisions in Part 2.4
of the Criminal Code, which is referred to in the new paragraph
576(1)(b).
Item 162 – Part 33
This item repeals
Part 33 of the TA, which consists of section 577 (a simplified outline) and
section 578. Section 578 is no longer necessary as it is similar to the general
false or misleading provisions which Schedule 1 to the Criminal Code
Amendment (Theft, Fraud, Bribery and Related Offences) Act 2000 inserts into
the Criminal Code as new Part
7.4.
Telecommunications (Consumer Protection and
Service Standards) Act 1999
This item inserts a new section 7A into the Telecommunications
(Consumer Protection and Service Standards) Act 1999 (TCPSS Act). It
provides that Chapter 2 (other than Part 2.5) of the Criminal Code
applies to all offences against the Act. It also inserts a note that says that
Chapter 2 of the Code sets out the general principles of criminal liability.
Part 2.5 of the Criminal Code relates to corporate criminal
responsibility. Part 2.5 of the Criminal Code is the only Part of
Chapter 2 which does not apply automatically to offences. When the Criminal
Code Bill was introduced into the Senate on 30 June 1994 it was stated that Part
2.5 would be the basis of liability if no other basis was provided. Since the
TCPSS Act incorporates section 575 of the Telecommunications Act 1997
(see section 574A of the Telecommunications Act 1997), which
deals with corporate criminal responsibility, Part 2.5 of the
Criminal Code has not been applied to offences against the
Act.
Item 164 – Section 20 (note)
This item, which is
consequential upon item 162, omits a reference in the note to section 20 of the
words ‘(see section 578 of the Telecommunications Act 1997’)
and substitutes a reference to ‘(see Part 7.4 of the Criminal
Code).’
Section 20 is inserted in the Telecommunications
(Consumer Protection and Service Standards) Act 1999 by item 1 of Schedule 1
to the Telecommunications (Consumer Protection and Service Standards)
Amendment Act (No. 2) 2000 (see subclause 2(8) for the commencement of this
item).
Item 165 – Section 20J (note)
This item, which
is consequential upon item 162, omits a reference in the note to section 20J of
the words ‘(see section 578 of the Telecommunications Act
1997)’ and substitutes a reference to ‘(see Part 7.4 of the
Criminal Code)’.
Section 20J is inserted in the TCPSS
Act by item 1 of Schedule 1 to the Telecommunications (Consumer
Protection and Service Standards) Amendment Act (No. 2) 2000 (see subclause
2(8) for the commencement of this item).
Item 166 – New section 6A – Application of the Criminal
Code
This item inserts new section 6A into the Telstra
Corporation Act 1991 (TC Act). It provides that Chapter 2 of the
Criminal Code applies to all offences against the Act, subject to
subsection 6A(2). It also inserts a note that says that Chapter 2 of the Code
sets out the general principles of criminal liability.
New subsection
6A(2) provides that despite subsection (1), Part 2.5 of the Criminal Code
does not apply to an offence against Part 2 or 2A (within the meaning of section
8CI). Part 2.5 of the Criminal Code deals with corporate criminal
responsibility. Part 2.5 of the Criminal Code is the only Part of
Chapter 2 which does not apply automatically to offences. When the Criminal
Code Bill was introduced into the Senate on 30 June 1994 it was stated that Part
2.5 would be the basis of liability if no other basis was provided. Since
section 8CI of the Telstra Corporation Act 1991, which refers to offences
against Part 2 or 2A, deals with corporate criminal responsibility, Part 2.5 of
the Criminal Code has not been applied to offences against these Parts of
the Act.
Item 167 – Subsection 8AC(2)
This item
repeals subsection 8AC(2) of the TC Act and substitutes new subsections 8AC(2)
and (3).
This amendment has rephrased the offence to ensure that the
contravention of subsection (1) is a physical element of result of the
defendant’s conduct to which the default fault element of recklessness
will apply. While this amendment is not strictly necessary to harmonise the
offence provisions with the Criminal Code it is desirable to amend this
provision to more clearly identify the physical elements of conduct and result
in the offence.
New subsection 8AC(3) inserts a definition of
‘engage in conduct’ which applies to section 8AC. The definition
covers doing an act and omitting to perform an act. This is consistent with the
definition of conduct in the Criminal Code, which covers both acts and
omissions (see subsection 4.1(2) of the Code).
This amendment is not
strictly necessary to harmonise the offence provisions in the TC Act with the
Criminal Code. However, it is desirable to clarify that the reference to
engage in conduct in section 8AC covers both acts and omissions.
Item
168 – Subsection 8BI(2)
This item repeals subsection 8BI(2) of
the TC Act and substitutes new subsections 8BI(2) and (3).
This amendment
has rephrased the offence to ensure that the contravention of subsection (1) is
a physical element of result of the defendant’s conduct to which the
default fault element of recklessness will apply. While this amendment is not
strictly necessary to harmonise the offence provisions with the Criminal
Code it is desirable to amend this provision to more clearly identify the
physical elements of conduct and result in the offence.
New subsection
8BI(3) inserts a definition of ‘engage in conduct’ which applies to
section 8BI. The definition covers doing an act and omitting to perform an act.
This is consistent with the definition of conduct in the Criminal Code,
which covers both acts and omissions (see subsection 4.1(2) of the Code).
This amendment is not strictly necessary to harmonise the offence
provisions in the Telstra Corporation Act 1991 with the Criminal
Code. However, it is desirable to clarify that the reference to engage in
conduct in the section 8BI covers both acts and omissions.
This item omits removes the references to the words ‘intentionally
or recklessly’ in subsection 8BO(2) of the TC Act.
This amendment
is intended to provide clarity to the interpretation of the offence and to give
consistency as to how criminal offences are to be interpreted by the courts.
The current wording of the offence appears to apply an alternative fault element
of recklessly to the physical element of conduct. Repeal of a specific fault
element of recklessly from an offence does not prevent the Criminal Code
applying the default fault element of recklessly to a physical element of
circumstance or result in an offence.
Item 170 – Section
8BP
This item repeals section 8BP of the TC Act. This section is no
longer necessary as it is similar to the general false or misleading provisions
which Schedule 1 to the Criminal Code Amendment (Theft, Fraud, Bribery and
Related Offences) Act 2000 inserts into the Criminal Code as new Part
7.4.
Item 171 – Subsection 8CI(6)
This item amends
subsection 8CI(6) of the TC Act so as to omit the reference to ‘section 6,
7 or 7A or subsection 86(1) of the Crimes Act 1914’ and replace it
with a reference to ‘section 6 of the Crimes Act 1914 or Part 2.4
of the Criminal Code.’
Sections 7, 7A and 86(1) of the
Crimes Act 1914 are concerned with the offences of attempt, inciting or
urging and conspiracy. These sections of the Crimes Act 1914 are
repealed by the Law and Justice Legislation Amendment (Application of
Criminal Code) Act 2000. These ancillary offences are replaced by
equivalent provisions in Part 2.4 of the Criminal Code, which is referred
to in the new subsection 8CI(6).
Item 172 – Subsection
8CI(6)
This item adds a reference to ‘of this Act’, which
is technical amendment to clarify that the reference to ‘Parts 2 or
2A’ refers to Parts 2 or 2A of the Telstra Corporation Act
1991.
This item amends subsection 8CJ(6) of the TC Act so as to omit the
reference to ‘section 6, 7 or 7A or subsection 86(1) of the Crimes Act
1914’ and replace it with a reference to ‘section 6 of the
Crimes Act 1914 or Part 2.4 of the Criminal
Code.’
Sections 7, 7A and 86(1) of the Crimes Act 1914
are concerned with the offences of attempt, inciting or urging and conspiracy.
These sections of the Crimes Act 1914 are repealed by the Law and
Justice Legislation Amendment (Application of Criminal Code) Act 2000.
These ancillary offences are replaced by equivalent provisions in Part 2.4
of the Criminal Code, which is referred to in the new subsection 8CJ(6).
This item adds a reference to ‘of this Act’, which is
technical amendment to clarify that the reference to ‘Parts 2 or 2A’
refers to Parts 2 or 2A of the Telstra Corporation Act 1991.