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1998-1999-2000-2001
THE
PARLIAMENT OF THE COMMONWEALTH OF
AUSTRALIA
HOUSE OF
REPRESENTATIVES
DEFENCE LEGISLATION
AMENDMENT
(APPLICATION OF CRIMINAL CODE)
BILL
2001
EXPLANATORY
MEMORANDUM
(Circulated by
authority of the Minister for Veterans Affairs,
The Honourable Bruce Scott,
MP)
DEFENCE LEGISLATION AMENDMENT
(APPLICATION OF
CRIMINAL CODE)
BILL 2001
OUTLINE
This Bill is one of a number which have been,
or are being, prepared in relation to offences under Acts administered by other
Ministers. The Bill gives effect to the requirements of the Commonwealth
Criminal Code Act 1995 (the Criminal Code). Chapter 2 of the
Criminal Code comes into effect on 15 December 2001 and codifies the
general principles of criminal responsibility applicable to all Commonwealth
offences. The Bill seeks to amend all Defence portfolio legislation so that it
will operate harmoniously with the Criminal Code.
Broadly
speaking, the Bill contains two sets of amendments:
• First,
extensive amendments are proposed for the Defence Force Discipline Act
1982 (DFD Act). These include amendments to harmonise the offence-creating
and related provisions within the Act with the general principles of criminal
responsibility as codified in Chapter 2 of the Criminal Code, whilst at
the same time ensuring that the offences continue to operate as intended by
Parliament.
• Secondly, amendments are also proposed for the
balance of portfolio legislation. These will ensure that there is a smooth
transition to the application of the Criminal Code. Many involve
repealing unnecessary offences in accordance with the Government’s
objective of rationalising the number of statutory offences on the Commonwealth
statute book. Many of the amendments seek to re-formulate offences into the
Criminal Code drafting format in order that their physical and fault
elements are readily apparent, and any ambiguity with respect to their
interpretation is removed.
FINANCIAL
IMPACT STATEMENT
As the Bill makes consequential amendments to the
existing criminal and disciplinary law, there is no new financial
impact.
Notes on Clauses
Items 1 and
2 deal with the short title and commencement.
Item 3 refers
to the Schedule to be inserted to this Act. The Schedule contains the various
Acts that will be amended or repealed as specified in the applicable items of
the Schedule.
Item 4 concerns the application of amendments to
acts or omissions that take place after the amendments in this Bill
commence.
SCHEDULE 1
Part 1
– Amendments relating to the Criminal
Code
Approved Defence Projects Protection Act
1947
Item 1 inserts new section 3A that applies Chapter 2
of the Criminal Code to all offences against the Act. Chapter 2 sets out
the codified general principles of criminal responsibility.
Item 2
repeals and substitutes subsection 4(1) of the Act. This subsection provides
that a person is guilty of an offence if the person boycotts or threatens to
boycott any person, work or undertaking and in doing so prevents, hinders or
obstructs (paragraph (1)(b)(i)) or endeavours to prevent, hinder or obstruct
(paragraph (1)(b)(ii)), the carrying out of an approved defence project.
New subsection 4(1A) is inserted which provides that a person is guilty
of an offence if the person publishes a declaration of a boycott or threat of a
boycott (paragraph 4(1A)(a)) and as a result, the carrying out of an approved
defence project is prevented, hindered or obstructed (paragraph
4(1A)(b).
New subsection 4(1B) is inserted which makes it an offence for
a person to advocate or encourage the prevention, hindrance or obstruction of
the carrying out of an approved defence project either by speech or in writing.
New subsection 4(1C) is inserted which restates the existing defence of
reasonable cause or excuse in relation to a charge under subsections 4(1), (1A)
or (1B). A note is added after the new subsection referring to the fact that,
under subsection 13.3(3) of the Criminal Code, a defendant seeking to
rely on this statutory defence of reasonable cause or excuse bears an evidential
burden.
New subsection 4(1D) is inserted which provides that a person is
guilty of an offence if the person uses violence or a threat of violence to a
person or property, or engages in any other unlawful conduct (paragraph 4(1D)(a)
refers) and in doing so prevents, hinders or obstructs the carrying out of an
approved defence project (paragraph (1D)(b)(i) refers), or endeavours to
prevent, hinder or obstruct the carrying out of an approved defence project
(paragraph (1D)(b)(ii) refers).
Control of Naval Waters
1918
Item 3 inserts new section 3AA that applies Chapter 2
of the Criminal Code to all offences against the Act. Chapter 2 sets out
the codified general principles of criminal responsibility.
Item 4
repeals and substitutes subsection 6(2). The master of a vessel is guilty of an
offence if the master is given a direction under subsection (1) and he or she
fails to comply with that direction. Subsection (2) restates the existing
penalty of $1,000 for an offence under that subsection. New subsection (2A)
provides that this offence is one of strict liability. Where strict liability
applies to an offence, the prosecution does not have to prove fault on the part
of the defendant. The prosecution need only prove that the physical elements of
the offence occurred. Under the Criminal Code, any legislative
provision that attracts strict liability must expressly state that it is an
offence of strict liability (see section 6.1 of the Criminal
Code).
Defence Act 1903
Item 5 inserts
new section 6 that applies Chapter 2 of the Criminal Code to all offences
against the Act. Chapter 2 sets out the codified general principles of criminal
responsibility.
Item 6 repeals subsection 51S(3). Subsection
51S(3) currently applies Chapter 2 of the Criminal Code to an offence
against section 51S. Subsection 51S(3) will be unnecessary when Chapter 2 of
the Criminal Code applies to the Act generally on 15 December 2001.
Item 7 repeals and substitutes section 61CY and section
61CZ.
Section 61CY relates to the failure of a witness to attend before
the Conscientious Objection Tribunal. New subsection 61CY(1) provides that a
person is guilty of an offence if a person fails to attend or appear before the
Conscientious Objection Tribunal to give evidence after being served with a
summons under paragraph 61CQ(b). The existing penalty of 6 months imprisonment
is restated in the subsection. New subsection (2) provides that reasonable
excuse is a defence to a charge under subsection (1). A note is added after the
subsection (2) referring to the fact that under subsection 13.3(3) of the
Criminal Code a defendant seeking to rely on the statutory defence bears
an evidential burden.
New subsection 61CY(3) provides that strict
liability applies to the physical element of circumstance at paragraph (1)(a),
that is, that the summons is under paragraph 61CQ(b).
Where strict liability applies to an element, the prosecution does not
have to prove fault on the part of the defendant in relation to that element. In
this case, the application of strict liability to paragraph (1)(a) reflects
subsection 9.3(1) of the Criminal Code (and the common law position) that
ignorance of the law is no excuse.
New section 61CZ relates to the
refusal of a person to, among other things, be sworn or to answer a question
when appearing before the Conscientious Objection Tribunal. Subsection (1)
provides that a person who is required to produce a document in accordance with
a summons under paragraph 61CQ(c) and refuses or fails to do so is guilty of an
offence. The existing penalty of 6 months imprisonment is restated in
subsection (1).
New subsection 61CZ(2) provides that strict liability
applies to the physical element of circumstance at paragraph (1)(a), that is,
that the summons is under paragraph 61CQ(c). Where
strict liability applies to an element, the prosecution does not have to prove
fault on the part of the defendant in relation to that element. In this case,
the application of strict liability to paragraph (1)(a) reflects subsection
9.3(1) of the Criminal Code (and the common law position) that ignorance
of the law is no excuse.
New subsection 61CZ(3) provides that a person
who refuses or fails to take an oath or affirmation as required under paragraph
61CQ(d) when giving evidence before the Conscientious Objection Tribunal is
guilty of an offence. The existing penalty of penalty of 6 months imprisonment
is restated in subsection (3).
New subsection 61CZ (4) provides that
strict liability applies to the physical element of circumstance at paragraph
(3)(b), that is, that the requirement (to either take an oath or make an
affirmation) is under paragraph 61CQ(d). Where strict
liability applies to an element, the prosecution does not have to prove fault on
the part of the defendant in relation to that element. In this case, the
application of strict liability to paragraph (3)(b) reflects subsection 9.3(1)
of the Criminal Code (and the common law position) that ignorance of the
law is no excuse.
New subsection 61CZ(5) provides that a person appearing
before the Conscientious Objection Tribunal who refuses or fails to answer a
question put to him or her by the presiding member is guilty of an offence. The
existing penalty of 6 months imprisonment is restated in subsection
(5).
New subsection 61CZ(6) provides that an offence will not be
committed under subsections (1), (3) or (5) where the person has a reasonable
excuse. A note is added referring to the fact that under subsection 13.3(3) of
the Criminal Code a defendant seeking to rely on this statutory defence
bears an evidential burden.
New subsection 61CZ(7) provides that a person
will be guilty of an offence if he or she gives false or misleading evidence to
the Conscientious Objections Tribunal knowing that it is false or misleading in
a material particular. The existing penalty of 6 months imprisonment is
restated in subsection (7).
Item 8 repeals and substitutes
sections 73 to 73 E. These provisions are contained within Part VII relating to
offences generally under the Defence Act 1903.
New section 73A
relates to the unlawful communication or obtaining of information in relation to
the defences of the Commonwealth. It is an offence under subsection 73A(1) for
a member of the Defence Force or a person engaged under the Public Service
Act 1999 to –
• communicate to another person any
plan, document or information relating to any fort, battery, field, work,
fortification, or defence work, or to any defences of the Commonwealth, or to
any factory or air force aerodrome or establishment or any other naval, military
or air force information (paragraph (1)(a)); and
• the
communication is not in the course of that person’s official duty
(paragraph (1)(b)).
Subsection (2) makes it an offence to unlawfully
obtain any of the information or material contained in subsection
(1).
Item 9 omits from subsections 73F(1) and (2) the reference to
“73C, 73D or 73E” because sections 73C, 73D and 73E will be repealed
by this Bill as noted above in Item 8.
Item 10 omits the words
“except for lawful cause (the proof of which shall lie upon him”
from paragraph 79(1)(c) which relates to the unlawful possession of arms or
military articles belonging to the Commonwealth. These words are made
unnecessary by proposed subsections (1AA) and (1AB) noted in Item 11
below.
Item 11 inserts new subsections 79(1AA) and (1AB). New
subsection 79(1AA) provides that an offence under subsection 79(1) is one of
strict liability subject to the statutory defence noted below. Where strict
liability applies to an offence, the prosecution does not have to prove fault on
the part of the defendant. The prosecution need only prove that the physical
elements of the offence occurred. Under the Criminal Code, any
legislative provision that attracts strict liability must expressly state that
it is an offence of strict liability (see section 6.1 of the Criminal
Code).
New subsection 79(1AB) restates the existing statutory defence
that an offence is not committed under paragraph 79(1)(c) if the person proves
that he or she had a lawful cause for possessing any of the articles mentioned
in subsection (1). The statutory defence at subsection 79(1AB) retains the
existing legal burden of proof. The note after subsection 79(1AB) refers to the
fact that, under subsection 13.4 of the Criminal Code, a defendant
seeking to rely on this statutory defence carries a legal burden.
Item
12 adds a note after subsection 79(1A) to the effect that under subsection
13.4 of the Criminal Code a defendant seeking to rely on the defence set
out in paragraph 79(1A)(b) carries a legal burden. The existing legal burden of
proof for the statutory defence in paragraph 79(1A)(b) has been
retained.
Item 13 repeals and substitutes subsection 80A(1). It
will be an offence under subsection 80A(1) if a person falsely represents
himself or herself to be a returned soldier, sailor or airman. The existing
penalty of $200 or 6 months imprisonment has been restated.
Item
14 repeals subsection 80A(3). At present, subsection 80A(3) permits the
prosecution to aver that the defendant is not a returned soldier, sailor or
airman and such an averment is deemed to be proved in the absence of evidence to
the contrary. This provision will not operate in the same manner after Chapter 2
of the Criminal Code takes effect. In particular, the prosecution will be
required to prove each element of the offence beyond reasonable doubt (see
sections 13.1 and 13.2 of the Criminal Code). In addition, section 13.6
limits the effect of an averment provision to the extent that the prosecution
will be unable to aver any fault elements of an offence or to make an averment
in prosecuting an offence that is punishable by imprisonment. The existing
penalties for an offence against section 80A of $200 or imprisonment for six
months, or both have been retained.
Item 15 repeals and
substitutes subsection 80B(1) which makes it an offence for a person to wear a
service decoration that has not been conferred on him or her. The existing
penalty of $200 has been restated.
Item 16 inserts a note after
subsection 80B(2) referring to the fact that, by virtue of subsection 13.3(3) of
the Criminal Code, a defendant bears an evidential burden in respect of a
matter under subsection 80B(2).
Item 17 inserts a note after
subsection 80B(3) referring to the fact that, by virtue of subsection 13.3(3) of
the Criminal Code, a defendant bears an evidential burden in respect of a
matter under subsection 80B(3).
Item 18 restates the existing
penalty of $200 in respect of an offence under subsection 80B(4) which relates
to a person falsely representing that a service decoration has been conferred on
him or her.
Item 19 repeals and substitutes subsections 82(1),
(2) and (3). Section 82 prohibits the sketching, drawing, painting etc of any
fort, fieldwork, fortification etc. New subsection 82(1) provides that if a
person who has no lawful authority to do so, makes a sketch, drawing,
photograph, picture or painting of any (or any part of) defence installation in
Australia, he or she is guilty of an offence and all the sketches etc are to be
confiscated and may be destroyed, sold or otherwise disposed of as the
Governor-General directs.
New subsection 82(1A) restates the existing
penalty of $200 or imprisonment for 6 months, or both in respect of an offence
under subsection 82(1).
New subsection 82(2) provides that a person who,
without lawful authority, enters or approaches a defence installation with
materials or apparatus intending to contravene subsection (1) will be guilty of
an offence and all tools and all materials or apparatus are to be confiscated
and may be destroyed, sold or disposed of as the Governor-General
directs.
New subsection 82(2A) restates the existing maximum penalty of
$100 for an offence under subsection 82(2).
New subsection (3) provides
that a person is guilty of an offence if he or she trespasses on, among other
things, a defence installation, building or land used in connection with the
administration, accommodation or training of the Defence Force or on an
aircraft. Subsection (3) restates the existing penalty of $40 for an offence
under this subsection.
Item 20 adds new subsection 82(5) which
defines “defence installation” to mean any fort, battery, fieldwork,
fortification, aircraft, air force establishment, aircraft material or any
naval, military or airforce work of defence.
Item 21 repeals and
substitutes subsections 83(1), (2) and (3). Subsection 83(1) deals with the
unauthorised use of Defence emblems. A person who uses or wears a defence
emblem (or something that can be mistaken for a defence emblem), without the
written authority from the Minister or his or her delegate, is guilty of an
offence. Subsection (1) restates the existing penalty of
$200.
Subsection 83(2) makes it an offence for a person to make, supply
or offer to supply a defence emblem (or something that can be mistaken for a
defence emblem) without the written authority from the Minister or his or her
delegate. Subsection (2) restates the existing penalty of
$500.
Subsection 83(3) makes it an offence for a person to fly or display
a defence flag without the written authority of the Minister or his or her
delegate. An offence will only be committed if the person is not a member of
the Defence Force acting in the course of his or her duties. Subsection (3)
restates the existing penalty of $200.
Item 22 adds new
subsection 83(4A) to make an offence under subsection 83(4) one of strict
liability. Where strict liability applies to an offence, the prosecution does
not have to prove fault on the part of the defendant. The prosecution need only
prove that the physical elements of the offence occurred. Under the Criminal
Code, any legislative provision that attracts strict liability must
expressly state that it is an offence of strict liability (see section 6.1 of
the Criminal Code). The existing penalty in subsection (4) of a fine not
exceeding $200 remains unchanged.
Item 23 adds a note to
subsection 83(5) that the defendant bears an evidential burden in relation to
the matter in subsection (5). Subsection (5) creates the statutory defence of
using or wearing a defence emblem or flying a defence flag in the course of a
dramatic or visual representation (including a representation that is to be
televised) or in the making of a cinematograph film.
Item 24 adds
new subsection 84(2) making an offence under section 84 one of strict liability.
The offence is one of bringing contempt on a uniform of the Defence Force etc.
Where strict liability applies to an offence, the prosecution does not have to
prove fault on the part of the defendant. The prosecution need only prove that
the physical elements of the offence occurred. Under the Criminal Code,
any legislative provision that attracts strict liability must expressly state
that it is an offence of strict liability (see section 6.1 of the Criminal
Code). Section 84 imposes a penalty of a fine not exceeding
$200.
Item 25 repeals and substitutes sections 86 and
88.
New section 86 deals with the failure of a witness to appear before a
service tribunal. Subsection 86(1) provides that a person is guilty of an
offence if he or she has been served with a summons under the Defence Force
Discipline Act 1982 to appear as a witness and fails to appear or has not
been excused by the tribunal from further attendance. Subsection 86(1) restates
the existing penalty of $1,000 or 6 months imprisonment, or both.
Subsection 86(2) provides that an offence under subsection (1) is one of
strict liability subject to the statutory defence noted below. Where strict
liability applies to an offence, the prosecution does not have to prove fault on
the part of the defendant. The prosecution need only prove that the physical
elements of the offence occurred. Under the Criminal Code, any
legislative provision that attracts strict liability must expressly state that
it is an offence of strict liability (see section 6.1 of the Criminal
Code).
Subsection 86(3) sets out the defence of reasonable excuse to
a charge laid under subsection (1). A note is added after the new subsection
referring to the fact that, under subsection 13.3(3) of the Criminal
Code, a defendant seeking to rely on this statutory defence bears an
evidential burden.
New section 88 relates to false or misleading
evidence. If a person knowingly gives false or misleading evidence as a witness
before a service tribunal, then he or she is guilty of an offence. The section
restates the existing penalty of $1,000 or 6 months imprisonment, or
both.
Item 26 inserts new subsection 89(1A) to make it clear that
an offence under section 89(1) (contempt of service tribunal) is one of strict
liability. Where strict liability applies to an offence, the prosecution does
not have to prove fault on the part of the defendant. The prosecution need only
prove that the physical elements of the offence occurred. Under the Criminal
Code, any legislative provision that attracts strict liability must
expressly state that it is an offence of strict liability (see section 6.1 of
the Criminal Code).
Item 27 repeals and substitutes section
90 that relates to the failure to comply with an order under section 140 of the
Defence Force Discipline Act 1982. New subsection 90(1) provides that a
person who fails to comply with, or contravenes, such an order is guilty of an
offence. The section restates the existing penalty of $1,000 or 6 months
imprisonment, or both.
New subsection 90(2) provides that strict
liability applies to the physical element of circumstance at paragraph (1)(a),
that is, that the order is under section 140 of the Defence Force Discipline
Act 1982. Where strict liability applies to an
element, the prosecution does not have to prove fault on the part of the
defendant in relation to that element. In this case, the application of strict
liability to paragraph (1)(a) reflects subsection 9.3(1) of the Criminal
Code (and the common law position) that ignorance of the law is no
excuse.
Item 28 omits the reference to “intentionally”
in paragraph 106(b).
Item 29 adds new paragraph 106(2) that
provides that strict liability applies to the physical element of circumstance
at paragraph 106(1)(a), that is, that the requirement (to provide a sample) is
under section 94. Where strict liability applies to an
element, the prosecution does not have to prove fault on the part of the
defendant in relation to that element. In this case, the application of strict
liability to paragraph (1)(a) reflects subsection 9.3(1) of the Criminal
Code (and the common law position) that ignorance of the law is no
excuse.
Item 30 repeals and substitutes paragraphs 107(a) and
107(aa). Paragraph (a) contains the physical element of circumstance that a
sample is provided by a member pursuant to a requirement under section 94.
Paragraph (aa) contains the physical element of conduct, that the member
interferes with or otherwise deals with a sample provided by a member under
section 94. The existing paragraph (b) remains unchanged and contains the
further physical element of circumstance that the member is not authorised, that
is, not authorised to commit the conduct in the new paragraph (aa).
Item 31 adds new subsection 107(2) that applies strict liability
to the physical element of circumstance at paragraph (1)(a), that is, that the
requirement to provide a sample is under section 94.
Where strict liability applies to an element, the prosecution does not
have to prove fault on the part of the defendant in relation to that element. In
this case, the application of strict liability to paragraph (1)(a) reflects
subsection 9.3(1) of the Criminal Code (and the common law position) that
ignorance of the law is no excuse.
Item 32 repeals and
substitutes subsection 116W(5) that relates to the general powers of rangers.
New subsection (5) makes it an offence for a person to fail to comply with a
requirement made by a ranger under this section. Subsection (5) restates the
existing penalty of $1,000. New subsection (6) makes an offence under
subsection (5) one of strict liability subject to the statutory defence at
subsection (7) of reasonable excuse. A note is added after the new subsection
(7) referring to the fact that, under subsection 13.3(3) of the Criminal
Code, a defendant seeking to rely on this statutory defence bears an
evidential burden.
Item 33 repeals and substitutes section 116Y.
New subsection (1) provides that a person is guilty of an offence if he or she
threatens or assaults a ranger who is performing his or her duties under the
Part or the by-laws. The subsection restates the existing penalty of $5,000 or
2 years imprisonment, or both.
Item 33 adds new subsection
116Y(2) that provides that strict liability applies to the physical element of
circumstance at paragraph (1)(b), that is, that the performance of the duties is
under this Part or the by-laws. Where strict
liability applies to an element, the prosecution does not have to prove fault on
the part of the defendant in relation to that element. In this case, the
application of strict liability to paragraph (1)(b) reflects subsection 9.3(1)
of the Criminal Code (and the common law position) that ignorance of the
law is no excuse.
Item 34 repeals and substitutes section 118 that
relates to the raising of forces without authority. A person is guilty of an
offence for the unauthorised inducement of another person to enlist or engage to
serve in any naval, military or air force. The section restates the existing
penalty of 6 months imprisonment.
Item 35 repeals and substitutes
section 123AA relating to the sale or supply of intoxicating liquor to cadets.
New subsection (1) provides that it is an offence for a person to sell or supply
intoxicating liquor to a member of the Australian Cadet Corps who is under the
prescribed age and is in uniform. The section restates the existing penalty of
$40.
New subsection 123AA(2) creates a statutory defence where the liquor
was sold or supplied at the direction of a duly qualified medical practitioner.
A note is added after this subsection referring to the fact that, under
subsection 13.3(3) of the Criminal Code, a defendant bears an evidential
burden where he or she seeks to rely on this statutory defence.
New
subsection 123AA(3) provides that an offence under subsection 123AA(1) is an
offence of strict liability subject to the statutory defence at subsection (2).
Where strict liability applies to an offence, the prosecution does not have to
prove fault on the part of the defendant.
Item 36 preserves
Regulations that were in effect under section 123AA of the Act immediately
before the commencement of this Item. Those Regulations continue to have effect
as if they had been made under new section 123AA.
Defence Force Discipline Act 1982
Item 37 inserts
a new definition, “engage in conduct”, into subsection 3(1) of the
Act. “Engage in conduct” is defined as doing an act or omitting to
perform an act. Offence provisions in the Act have been harmonised using this
term.
Item 38 amends the existing definition of
“property” so that it mirrors the definition in section 130.1 of the
Criminal Code Amendment (Theft, Fraud, Bribery and Related Offences) Act
2000. The definition is widely cast, covering real and personal property,
money, intangible property such as the right to recover funds, electricity and
wild creatures. This definition, together with the definition of “service
property” in subsection 3(1), will be particularly relevant to the new
Division 5A – Property offences which contains the harmonised Criminal
Code offence provisions pertaining to property and service property
currently in sections 43, 44, 45, 46, 47 and 48.
Item 39 repeals
the existing subsection 3(13) and inserts a new subsection 3(13) defining
“ancillary offences” into the Act. The existing subsection provides
that offences against sections 6, 7, 7A and subsection 86(1) of the Crimes
Act 1914 are ancillary offences. With the exception of section 6, these
Crimes Act provisions have been replaced by provisions in Part 2.4 of the
Criminal Code.
Item 40 repeals the existing section 10 and
substitutes a new section 10 which provides that the principles of criminal
responsibility set out in Chapter 2 of the Criminal Code now apply to all
service offences other than “old system offences”. In relation to a
service offence against section 61, Chapter 2 of the Criminal Code
applies to the content of section 61, but it may not necessarily apply to the
content of the law in force in the Jervis Bay Territory. Section 61 is
concerned with “Territory offences” as defined in subsection 3(1) of
the Act. To determine for the purposes of section 61, whether Chapter 2 of the
Criminal Code also applies to Jervis Bay Territory law, it is necessary
to consult Jervis Bay Territory law. For example, where a law of the
Commonwealth is in force in the Jervis Bay Territory, Chapter 2 will apply to
that law (see section 61).
As the Act has been in force for over 15
years, it is unlikely that any “old system offences”, for which time
limits have not expired, will be charged in the future. As a precaution,
however, the reference to old system offences in this section has been
retained.
Items 41 and 42 amend section 11 of the
Act.
Item 41 amends subsection 11(3) by substituting the words
“the application of Chapter 2 of the Criminal Code to” for
the existing phrase “principles of common law that apply in relation
to”.
Item 42 inserts additional provisions after subsection
11(3) to aid in the interpretation of the concepts of “recklessness”
and “negligence”. These amendments are designed to clarify the
application of section 11 in view of the application of sections 5.4 and 5.5 of
the Criminal Code to the Act. New subsection (3A) provides that service
tribunals will continue to have regard to existing subsections 11(1) and 11(2)
when determining whether a member was “reckless” or
“negligent”, but that these matters do not alter the definitions of
“recklessness” and “negligence” in sections 5.4 and 5.5
of the Criminal Code. New subsection (3B) provides that subsections
11(1) and 11(2) do not limit the matters to which a service tribunal may have
regard when determining whether a member was “reckless” or
“negligent”.
At present, when an issue of
“recklessness” is before a service tribunal, the meaning attributed
will be its common law meaning qualified by subsection 11(1). Subsection 11(1)
provides:
“Where a member of the Defence Force is charged with a
service offence arising out of activities (in this subsection referred to as
“the relevant activities”) upon which the member was engaged in the
course of the member’s duty or in accordance with the requirements of the
Defence Force, a service tribunal, in deciding whether the member, by act or
omission, behaved recklessly shall have regard to the fact that the member was
engaged in the relevant activities in the course of the member’s duty or
in accordance with the requirements of the Defence Force, as the case may
be.”
“Recklessness” arises for consideration in the
context of the service offences in sections 36, 39, 41 and 43. A person is
considered to have acted recklessly if he or she is aware of the particular kind
of harm that might be done and yet has taken the risk that it will occur.
Hence, “recklessness” involves foresight of or, as it is sometimes
said, advertence to, the consequences of the contemplated act and a willingness
to run the risk of the likelihood, or even perhaps the possibility, of those
consequences maturing into actuality.
The amendments to section 10 and
subsection 11(3) make it clear that the legal definition of
“recklessness” in section 5.4 now applies to the Act in place of the
common law definition. Under the Criminal Code
“recklessness” is defined in section 5.4 as:
(1) A person is
reckless with respect to a circumstance if:
(a) he or she is aware of a
substantial risk that the circumstance exists or will exist; and
(b) having
regard to the circumstances known to him or her, it is unjustifiable to take
that risk.
(2) A person is reckless with respect to a result
if:
(a) he or she is aware of a substantial risk that the result will occur;
and
(b) having regard to the circumstances known to him or her, it is
unjustifiable to take the risk.
(3) The question whether taking a risk is
unjustifiable is one of fact.
(4) If recklessness is a fault element for
a physical element of an offence, proof of intention, knowledge or recklessness
will satisfy that fault element.
Under the Criminal Code,
the definition of “recklessness” has undergone
significant change aimed at ensuring a more rigorous and structured approach to
its interpretation. “Recklessness” has been defined using
“substantial” and “unjustifiable” as the two key words.
The definition follows the United States Model Penal Code definition. It uses
“substantial” risk rather than a definition phrased in terms of
possibility or probability because those latter terms are considered to invite
speculation about mathematical chances and ignore the link between the
acceptable degree of risk and the unjustifiability of running that risk in any
given situation.
“Unjustifiably” is used as the evaluative
element of the recklessness rather than “unreasonably”. This is
intended to avoid confusion between recklessness and criminal negligence. The
“unjustifiability” of the risk is to be assessed on the facts as the
defendant believes them to be. The question of whether the risk taken is
“unjustifiable” that is, in the case of service tribunals, either
the summary authority, defence force magistrate or court martial members.
When an issue of “negligence” arises, the meaning attributed
by the service tribunal is the common law meaning qualified by subsection 11(2).
The issue arises for consideration in the context of the service offences in
sections 35, 36, 36A, 39, 41, and 43, and subsections 40(5) and 40(6). In
general terms, a person is considered to have acted negligently when he or she
acts without advertence to the certainty, probability or possibility of injury
that a reasonable person would have adverted to.
The common law concept
of “negligence” presently applied to negligence-based service
offences was considered by the Federal Court in Re Lamperd (1983) 63 FLR
470; 46 ALR 371. The Court said:
“It is clear from the cases
referred to that there is no absolute rule that where negligence is the basic
element of a statutory offence, the degree of negligence to be proved is that
required to found a charge of manslaughter. It is a question of construing the
statute in each case.”
The Court recognised that it was not
necessary to show gross negligence such as would be necessary for a manslaughter
charge for all negligence-based service offences when their statutory context
and maximum punishment are properly considered. Re Lamperd also stressed
the need to focus on the standard of care, departure from which will be
negligent, rather than to nominate a degree of departure from which is necessary
to make the negligence an offence. Accordingly, a small deviation from the
standard of care would be sufficient to prove a charge of
negligence.
Subsection 11(2) operates so as to require a service
tribunal, in giving consideration to the standard of care of a reasonable person
in this context, to have regard to the standard of care that would have been
exercised:
(a) by a reasonable person who was a member of the Defence
Force with the same training and experience as the member; and
(b) where
the member was engaged at the time of the offence on activities carried out in
the course of his or her duty or in accordance with the requirements of the
Defence Force – by a reasonable person who was so engaged.
Under
the Criminal Code “negligence” is defined in section 5.5
as:
A person is negligent with respect to a physical element of an
offence if his or her conduct involves:
(a) such a great falling short of
the standard of care that a reasonable person would exercise in the
circumstances; and
(b) such a high risk that the physical element exists
or will exist;
that the conduct merits criminal punishment for the
offence.
“Negligence” under the Criminal Code is
criminal negligence, based closely on the definition in Nydam [1977] VR
430. The phrase “merits criminal punishment” is intended to
specifically exclude civil negligence. However, “negligence” under
the Criminal Code is designed to deal with different levels of criminal
negligence for some offences (for example, a different level of negligence would
apply to a manslaughter charge than the level applicable for a charge of
negligent driving, see Buttsworth [1983] 1 NSWLR 658). The definition is
intended to apply in such a way that the degree of negligence required for
conviction must always be related to the nature of the offence. The definition
includes specifically the words “for the offence” to achieve that
purpose. This definition differs from the present interpretation of
“negligence” under the DFD Act.
Despite the change affected
by the application of the definitions in sections 5.4 and 5.5, new subsection
(3A) confirms that their operation continues to be affected by subsections 11(1)
and 11(2) for the purposes of the DFD Act. This recognises that notwithstanding
the application of the Criminal Code, service offences must continue to
be considered in their unique disciplinary context. When a service tribunal is
determining whether a member was in fact “reckless” or
“negligent” in the circumstances of the actual case, the tribunal
will have regard to the matters in subsections 11(1) and 11(2) so that the
service context of the defendant’s acts or omissions is adequately
assessed. This achieves harmonisation of these concepts with Chapter 2 of the
Criminal Code but does so in a way that recognises the military context
of offences in the Act.
Item 43 repeals sections 12 and 13. The
general principles of criminal responsibility in Chapter 2 of the Criminal
Code now apply with respect to onus and standard of proof. The current
operation of subsection 12(2) was to put a legal burden on a defendant. The
effect of repealing section 12 is to permit legal and evidential standards of
proof to apply to defences in particular circumstances. The amendment of the
wording of each statutory defence in the Act that enables the defence creating
sections to comply with section 13.4 of the Criminal Code, thereby
preserving the existing position of applying a legal standard to statutory
defences.
The effect of repealing section 13 is to remove the
availability of a defence of diminished responsibility. This defence is not
available under the Criminal Code but is largely subsumed by the
correlative Criminal Code defences based on lack of voluntariness
(section 4.2) or mental impairment (section 7.3).
Item 44 repeals
Divisions 1 to 6 of Part III of the Act which are the offence-creating
provisions, and substitutes re-drafted offence provisions as
follows:
Division 1 – Offences relating to operations
against the enemy
The offences relating to operations against the enemy or involving the
provision of assistance to the enemy contained in the present section 15 have
been separated into individual offence provisions in sections 15, 15A, 15B, 15C,
15D, 15E, 15F and 15G.
A new subsection (2) has been inserted into each
of the proposed offence creating provisions which preserves the present defence
in subsection 15(2). The defence has been reformulated so that the phrase
“engaging in conduct” is used in place of the present phrase of
“engaging in behaviour” because the former is defined in the
Criminal Code to include an act or omission. This provision enables the
existing position to remain unchanged, that is, the defendant bears a legal
burden of proof in relation to the statutory defence.
At present,
subsection 15(3) provides for a maximum penalty of life imprisonment when the
conduct in any one of the offences under subsection 15(1) is committed with the
“intent to assist the enemy”. The proposed section 16B would
replace the existing subsection 15(3). The proposed section 16B has been
created to apply to sections 15 to 16A with the exception of sections 15B and
15C. Sections 15B and 15C are not included in the section 16B offence because
they can only be committed in circumstances where the relevant conduct
“intentionally assists the enemy”. Hence, there is no need for an
additional formulation of these sections 15B and 15C in section
16B.
Section 15 - Abandoning or surrendering a post
etc.
The proposed subsection 15(1) replaces the present paragraph
15(1)(a) of the Act. The outcome of applying Chapter 2 of the Criminal
Code to this paragraph would result in the physical element of circumstance
in paragraph 1(a), that is the duty to defend etc, attracting the fault element
of “recklessness” by default. The fault element of
“knowledge” has been applied to this element in paragraph 1(b) so
that fault element in the present section is preserved. The fault element of
“intention” applies by default to the conduct described in paragraph
1(c).
The proposed subsection 15(2) preserves the existing defence of
“reasonable excuse” at subsection (3).
Section 15A
– Causing the capture or destruction of a service ship, aircraft or
vehicle
The proposed section 15A substitutes for the present
paragraph 15(1)(b) of the Act. The fault element of “intention”
applies by default to paragraph 1(a). The fault element of
“intention” has been specified in paragraph 1(c) as applying to the
physical element of conduct in paragraph 1(b). This preserves the present
operation of the offence.
The proposed subsection 15A(2) preserves the
existing defence of “reasonable excuse” at subsection (3).
Proposed section 15B is substituted for the present paragraph 15(1)(c) of
the Act. Paragraph 1(a) contains the physical element of circumstance, which
attracts the fault element of “recklessness” by default under the
Criminal Code. Paragraph 1(b) contains the physical elements of conduct,
comprising three different forms, which attract the fault element of
“intention” by default under the Criminal Code. The word
“knowingly” has been deleted because it means
“intentionally” in the context of this offence.
The maximum
punishment for this offence is now life imprisonment. The maximum punishment of
life imprisonment applies to the present section by virtue of subsection 15(3)
when it is established that the conduct constituting the offence is shown to
have been committed with the “intent to assist the enemy”. The
outcome of applying Chapter 2 of the Criminal Code to paragraph 1(b)
results in the fault element of “intention” to the conduct in
paragraph 1(b) of assisting the enemy in one of three alternative ways: first,
serving with the enemy; secondly, aiding the enemy in the prosecution of
hostilities or measures likely to influence morale; and thirdly, aiding the
enemy in any other manner that is not authorised by international law. This
offence can only be committed in circumstances where the conduct intentionally
assists the enemy. Consequently, application of the Criminal Code has
made the distinction redundant, in terms of applicable fault element, between
the present paragraph 15(1)(c) offence and the more aggravated offence where
subsection 15(3) applies. In view of this outcome, section 15B is specifically
excluded from the ambit of section 16B.
The proposed subsection 15B(2)
preserves the existing defence of “reasonable excuse” at subsection
(3).
The proposed section 15C replaces paragraph 15(1)(d) of the Act. The
word “intentionally” in paragraph 15(1)(b) has been deleted because
it will be applied by default by the Criminal Code in relation to the
conduct that constitutes this offence.
The maximum punishment for this
offence is now life imprisonment. The maximum punishment of life imprisonment
applies to the present section by virtue of subsection 15(3) when it is
established that the conduct constituting the offence is shown to have been
committed with the “intent to assist the enemy”. The outcome of
applying Chapter 2 of the Criminal Code to the existing paragraph results
in the fault element of “intention” applying to the conduct of
“providing the enemy with, or permitting or enabling the enemy to have
access to, arms, ammunition, vehicles, supplies or any other thing likely to
assist the enemy”. This offence can only be committed in circumstances
where the defendant’s conduct assists the enemy. Consequently the
distinction, in terms of applicable fault element between the present paragraph
15(1)(d) offence and the more aggravated offence where subsection 15(3) applies,
is redundant. In view of this outcome, section 15C is specifically excluded
from the ambit of section 16B.
The proposed subsection 15C(2) preserves
the existing defence of “reasonable excuse” at subsection
(3).
Proposed section 15D replaces paragraph 15(1)(e) of the Act. The fault
element of “intention” will be applied by operation of the
Criminal Code to the conduct in paragraph 1(a) of harbouring or
protecting a person. The fault element of “knowledge” is specified
in paragraph 1(d), in relation to the “circumstances” in paragraphs
1(b) and 1(c). Those “circumstances” are that the person being
harboured or protected is an enemy person and is not a prisoner of war. This
structure preserves the wording and intention of the present section.
The
proposed subsection 15D(2) preserves the existing defence of “reasonable
excuse” at subsection (3).
Section 15E – Offences
relating to signals and messages
Proposed section 15E replaces
paragraph 15(1)(f) of the Act. The physical element of circumstance in
paragraph 1(a) attracts the fault element of “recklessness” on
application of the Criminal Code. The outcome of applying Chapter 2 of
the Criminal Code to the existing paragraph results in the physical
elements of conduct being separately specified in paragraphs 1(b)(i), 1(b) (ii)
and 1(b)(iii). The physical elements of the paragraphs attract the fault
element of “intention” on application of the Criminal Code.
The word “knowingly” in the present section has been deleted because
it means “intentionally” in this context.
The proposed
subsection 15E(2) preserves the existing defence of “reasonable
excuse” at subsection (3).
Proposed section 15F replaces paragraph 15(1)(g) of the Act. The
physical elements of circumstance for this offence are set out in paragraphs
(1)(a)(i) and (ii) and attract the fault element of “recklessness”
on application of the Criminal Code. The present section does not
specify a fault element in relation to the conduct that constitutes this offence
of failing to use utmost exertions to carry orders into effect, but
“intention” may be implied from the wording of the section. In the
proposed section, the fault element of “intention” will apply to the
physical elements of conduct in paragraph 1(b) by default under the Criminal
Code.
The proposed subsection 15F(2) preserves the existing defence
of “reasonable excuse” at subsection (3).
Proposed section 15G replaces paragraph 15(1)(h) of the Act. Paragraph
1(a) sets out the physical element “engages in conduct” to which the
fault element of “intention” applies by application of the
Criminal Code. The physical element of result of (that) conduct is that
the success of operations against the enemy is imperilled by that conduct. This
element is set out in paragraph 1(b) and attracts the fault element of
“recklessness” on application of the Criminal Code.
The term “otherwise” that appears in the present paragraph
15(1)(h) has been omitted. Its presence in paragraph 15(1)(h) acknowledged that
the conduct prohibited by paragraphs 15(1)(a) to (g) is also capable of
“imperilling the success of operations against the
enemy”.
The proposed subsection 15G(2) preserves the existing
defence of “reasonable excuse” at subsection (3).
The present subsection 16(1) has been re-drafted into two separate
offence provisions in the proposed sections 16 and 16A. Section 16 contains the
offence of unlawful communication with or giving intelligence to the enemy and
section 16A contains the offence of failure to pass on enemy intelligence
received.
Proposed subsections 16(2) and 16A(2) have been inserted to
create individualised versions of the present defence in subsection 16(2). The
defence has been reformulated so that the phrase “engaging in
conduct” is used in place of the present phrase of “engaging in
behaviour” because the former is defined in the Criminal Code to
include an act or omission. This provision enables the existing position to
remain unchanged whereby the defendant bears a legal burden of proof in relation
to the statutory defence.
The proposed section 16 replaces paragraph 16(1)(a). The statement of
offence has been amended from “Communication with enemy” to
“Communicating with the enemy” for section 16 and “Failing to
report information received from the enemy” for the new section 16A
offence in the present paragraph 16(1)(b). This reflects the Criminal
Code drafting style.
.
The fault element of “intention”
applies by default under the Criminal Code to the conduct of
communicating with or giving intelligence to the enemy.
The proposed
subsection 16(2) preserves the existing defence of “reasonable
excuse” at subsection (2).
In the proposed paragraph (1)(b) the fault element of
“intention” applies under the Criminal Code to the conduct
specified in paragraph 1(a) of not making known to proper authority any
information received by the person from the enemy. To ensure the section
operates effectively under the Criminal Code, it is necessary to include
the physical element in paragraph 1(c), namely, that the information received is
likely to be directly or indirectly useful to the enemy in conducting
operations. To this physical element the fault element of
“knowledge” is then applied by paragraph 1(d).
The proposed
subsection 16A(2) preserves the existing defence of “reasonable
excuse” at subsection (2).
Section 16B – Offence
committed with intent to assist the enemy
A proposed section 16B
has been inserted in place of the existing subsections 15(3) and 16(3).
Existing subsections 15(3) and 16(3) created aggravated forms of offences at
section 15 and 16 where the offences are committed with the additional specific
intention of assisting the enemy (paragraph 16B(1)(b) refers). Section 16B
duplicates the effect of subsections 15(3) and 16(3) and creates a separate
offence with a maximum penalty of life imprisonment where conduct amounts to an
offence against proposed sections 15 to 15G and 16A (excluding sections 15B and
15C).
New subsection 16B(2) provides that strict liability applies to the
physical element of circumstance at paragraph (1)(a), that is, the conduct
constitutes an offence against sections 15 to 16A (excluding sections 15B and
15C). Where strict liability applies to an element, the prosecution does not
have to prove fault on the part of the defendant in relation to that element.
In this case, the application of strict liability to paragraph (1)(a) reflects
subsection 9.3(1) of the Criminal Code (and the common law position) that
ignorance of the law is no
excuse.
Section
17 – Leaving a post, abandoning equipment or otherwise failing to perform
duty
The proposed section 17 statement of offence has been
re-drafted so that it more precisely reflects the nature of an offence.
Subsection (1) and paragraph (1)(a)(i) now specify the physical element of
circumstance that the member must be engaged on service in connection with
operations against the enemy and has a duty to be at a post position or other
place to commit the offence. The fault element of “recklessness”
applies by default under the Criminal Code to this physical element of
circumstance. Paragraphs (a)(ii) and paragraphs (b) and (c) specify the
physical elements of conduct to which the fault element of
“intention” applies by default.
The term “post”
in this section can be interpreted as including, according to orders or
circumstances, such surrounding area as may be necessary for the proper
performance of the duties for which the person was posted.
The defence of
“reasonable excuse” has been retained in subsection (2) in order to
conform to the present section but the words “engaging in conduct”
are substituted for the phrase “engaging in behaviour”. The
defendant bears a legal burden in relation to this defence.
The outcome of applying Chapter 2 of the Criminal Code to the
existing Subsection 18(1) results in the physical element of conduct –
(1)(a) “spreads reports” and circumstance – (1)(b)
“those reports relate to operations against the enemy”. The
additional fault element of “intention to create despondency or
unnecessary alarm” is created in paragraph (1)(c).
Paragraph (2)(a)
contains the physical element of circumstance – “engaged on service
in connection with operations against the enemy”. The fault element of
“recklessness” applies to this paragraph by default under the
Criminal Code. The physical element of circumstance in paragraph (c)
attracts the fault element of recklessness. The fault element of
“intention to create despondency or unnecessary alarm” in paragraph
(d) applies to the physical element of conduct in paragraph (b) that would
otherwise attract the fault element of “intention” upon application
of the Criminal Code.
The proposed amendment is a deconstruction of the physical and fault
elements in accordance with the Criminal Code. The present subsections
19(1) and 19(2) have both been re-drafted so that section 19 now consists of
four separate offences.
In the proposed subsections (1) and (2) the
physical elements of circumstance set out in paragraphs 1(a) and 2(a), and 1(b)
and 2(b) attract the fault element of “recklessness” on application
of the Criminal Code. For both subsections (1) and (2), the conduct that
constitutes the offence is set out in paragraph 1(c) and attracts the fault
element of “intention” under the Criminal Code.
In
subsection (3) the physical element of circumstance in paragraph 3(a) attracts
the fault element of “recklessness” on application of the
Criminal Code. Paragraph 3(b) applies the fault element of
“intention to secure favourable treatment for the member” to the
physical element of “engages in conduct”. Paragraph 3(c) sets out a
further physical element of result of conduct attracting the fault element of
“recklessness”.
In
subsection (4) the physical element of circumstance in paragraph 4(a) attracts
the fault element of “recklessness” on application of the
Criminal Code. Paragraph 4(b) is a physical element of circumstance to
which the fault element of “recklessness” applies. Paragraph 4(c)
sets out the fault element of conduct – “ill-treats those other
persons”. “Intention” applies to this element on application
of the Criminal Code.
Division 2 –Mutiny, desertion
and unauthorised absence
Subsection (1) replaces subsection 20(1) of the Act. Subsection 3(1) of
the DFD Act defines two types of mutiny:
• A combination between
persons to overthrow lawful authority in the Defence Force or an allied force;
or
• A combination between persons to resist lawful authority in
the Defence Force or in an allied force in such a manner as to prejudice
substantially the operational efficiency of the Defence Force or of, or a part
of, an allied force.
In either case, at least two persons who are members
of the Defence Force must engage in the relevant conduct. The definition is
intended to exclude those forms of collective insubordination which, while
amounting to resistance to a lawful authority, are not formed to overthrow the
authority or to substantially prejudice operational efficiency, but are directed
at such matters as poor food or living conditions, or at delays in repatriation
or demobilisation after the conclusion of hostilities.
The proposed offence
omits the word “intentionally” from subsection 20(1). This has been
done because the fault element of “intention” automatically applies
to the conduct of taking part in a mutiny by default under the Criminal
Code.
Subsection (2) replaces subsection 20(2) of the Act.
Similarly, the word “intention” has been omitted because this is the
fault element that will apply by default to the conduct of taking part in a
mutiny. Under the Criminal Code, the fault element of
“recklessness” will apply to the physical element of circumstance
set out in paragraph (2)(b) relating to the object of the mutiny, the refusal of
the various kinds of important service described in the subsection. The present
section does not give any indication as to the fault element intended to apply
to this physical element. Upon application of the Criminal Code, the
application of the fault element of “recklessness” to this physical
element is now explicit.
Subsection (1) replaces subsection 21(1) of the Act. The fact that a
mutiny is taking place or is intended has to be implied in the present section.
As this is the physical element that must exist before the fault element of
“knowledge” can be applied, it has been stated expressly in
paragraph (1)(a). Paragraph (1)(c) contains the physical element of conduct of
either failing to take reasonable steps to suppress or prevent the mutiny or to
report the mutiny to the proper authority.
Subsection (2) replaces
subsection 21(2) of the Act. The fact that a mutiny is taking place in order
for the offence to be committed has been expressly stated in paragraph (2)(a).
Paragraph 2(b) applies the fault element of “knowledge” to the
physical element of circumstance at paragraph 2(a). Paragraph (2)(c) applies
the further fault element of “knowledge” in terms of the
mutiny’s objects in paragraphs (c)(i) and (ii). For additional clarity,
the re-drafted provision has amended the reference to paragraph 21(2)(b) to
“subsection 20(2)” by setting out the relevant words of that
subsection in paragraphs 2(c)(i) and (ii). Paragraph (2)(d) contains the
physical element of conduct of either failing to take reasonable steps to
suppress or prevent the mutiny or report it to the proper authority without
delay. “Intention” applies to this physical element by default
under the Criminal Code.
The existing section 22 has been re-drafted to create separate offences
in subsection (1) and (2). Paragraph (1)(a) sets out the physical element of
circumstance in which the offence of desertion arises, namely, where a member is
on active service or has been warned for active service. Paragraph (1)(b) sets
out the conduct that constitutes the offence which is “departing from or
not attending at place of duty” and the fault element which has to be
applied to that conduct, “the intention to avoid active
service”.
Paragraph (2)(a) sets out the physical element of
circumstance, “is absent without leave”, to which the fault element
of “recklessness” applies under the Criminal Code. In
paragraph (2)(b) the phrase “engages in conduct” is the physical
element of conduct that constitutes the offence. Accordingly, the fault element
of “intention” applies to this element by operation of the
Criminal Code. Paragraph (1)(c) then sets out the physical element of
result of conduct, that the conduct manifests an intention by the defendant to
avoid active service. To this element the fault element of
“recklessness” applies under the Criminal Code.
Section 23 has been re-drafted so that it separates the two forms of
conduct presently contained in subsection 23(1) into two separate offences in
subsections (1) and (2). The section is intended to apply to the circumstances
where a member is absent from duty without necessarily being absent from his or
her unit. This section is usually used where the member has attended for
initial duty and is then later absent from a particular duty but has not left
the barrack or unit etc. Where the member has left the barrack or unit etc at
the time he or she was required to attend for the later, particular duty, the
charge of section 24 absence without leave is used. Likewise, where a member
fails to report for initial duty, the charge of section 24 is
used.
Section 23 is a commonly charged offence within the Defence Force
and is considered to be one of the fundamental service offences essential for
the maintenance of service discipline. Section 23 offences are usually dealt
with by summary authorities and generally attract relatively minor punishments.
Custodial sentences for these offences are extremely rare, especially in
peacetime.
Subsection 23(3) makes an offence under subsection 23(1) an
offence of strict liability subject to the statutory defence of reasonable
excuse set out in subsection 23(4). If strict liability is not so specified, it
would be necessary to prove the fault element of “recklessness” in
relation to the requirement to perform a duty (paragraphs 23(1)(a) and (2)(a)
refer) and “intention” in relation to the physical element of not
attending for duty, or ceasing to perform duty before being permitted to do so
(paragraphs 23(1)(b) and (2)(b) refer). The application of these fault elements
will substantially alter the current operation of the provision. Ministerial
approval was therefore granted to retain the offence as one of strict liability.
The existing statutory defence of reasonable excuse has been retained in
subsection 23(4). Subsection 23(4) mitigates the effect of the application of
strict liability to subsections 23(1) and (2) by permitting the charge to be
defeated by proof of reasonable excuse for the relevant conduct. The defendant
bears a legal burden of proof in relation to the statutory defence.
Section 24 has been re-drafted so that strict liability has been applied
by subsection (2) to the offence.
The interpretation of the present
section 24 involves similar considerations as those that apply to section 23.
Section 24 involves similar conduct, carries a maximum penalty of 12 months
imprisonment and provides a defence of circumstances not reasonably within the
member’s control. The expression “absent without leave” is
not statutorily defined but is interpreted as applying when a member is absent,
without authority or acceptable excuse, from his or her unit, ship,
establishment, barrack, camp, air force base etc.
Subsection 24(2) makes
an offence under subsection 24(1) an offence of strict liability subject to the
statutory defence of “circumstances not reasonably within the
member’s control” set out in subsection 24(3). If strict liability
is not specified, it would be necessary to prove the fault element of
“intention” in relation to the physical element of conduct, that is,
“absence without leave”. The application of this fault element will
substantially alter the current operation of the provision. Ministerial
approval was therefore granted to retain the offence as one of strict liability.
The existing statutory defence of circumstances not reasonably within
the member’s control has been retained in subsection 24(3). Subsection
24(3) mitigates the effect of the application of strict liability to subsections
24(1) by permitting the charge to be defeated by proof of circumstances not
reasonably within the member’s control. The defendant bears a legal
burden of proof in relation to the statutory defence. Ministerial approval was
granted to retain the offence as one of strict
liability.
Division 3 –Insubordination and
violence
The statement of offence for section 25 has been amended to the present
tense where it was previously “Assault on superior officer”. The
term “superior officer” is defined in subsection 3(1) of the
Act.
Application of the Criminal Code to DFD Act assault-based
offences will not prevent the term ‘assault’ from continuing to be
interpreted in accordance with its common law meaning. Whilst not made explicit
in each of the re-drafted assault-based offences, the application of the common
law position in relation to the definition and interpretation of
“assault” has been preserved albeit within Criminal Code
constraints.
Section 25 has been re-drafted so that an offence now has
the two physical elements set out in paragraphs (1)(a) and (b) respectively.
The first physical element is the physical element of conduct
“assault” which attracts the fault element of
“intention” under the Criminal Code. The second physical
element is the physical element of circumstance, that is, the victim was a
superior officer.
Default application of Chapter 2 of the Criminal
Code would require the fault element of “recklessness” to be
proven in relation to the physical element of circumstance paragraph (1)(b) that
the victim was a superior officer. The application of this fault element would
change the current operation of the offence and hence subsection 25(2) specifies
the application of strict liability to paragraph (1)(b) subject to a statutory
defence noted below. Ministerial approval was granted to retain the offence as
one of strict liability.
The existing statutory defence of actual or
imputed knowledge has been retained in subsection 25(3) and mitigates the effect
of the application of strict liability to paragraph (1)(b). The defendant bears
a legal burden of proof in relation to the statutory defence.
Section 26 has been re-drafted so that subsection (1) covers conduct that
is threatening, insubordinate or insulting to a superior officer; and subsection
(2) covers the use of language that is threatening, insubordinate or insulting
about a person who is a superior officer. The statement of this offence has
been amended to “Insubordinate conduct” where previously it was
“Insubordinate behaviour with respect to a superior
officer”.
In the proposed subsection (1) the term “engages in
conduct that is threatening” is substituted for the words “behaves
in a threatening manner”. “Engages in conduct” is preferred
because it is defined in the Criminal Code to mean to do an act or to
omit to perform an act. The expression “to a person” in paragraph
(1)(a) is interpreted to mean the conduct is directed to a person and intended
to come to that person’s notice. Ordinarily, the conduct will occur
within sight or earshot of the superior but nevertheless encompassed by this
offence would also be instances where the conduct occurs in a telephone
conversation with a superior or in a letter sent to a superior couched in
insubordinate language.
In the proposed subsection (2) the combined
effect of paragraphs (2)(a), (b) and (c) means that the language complained of
need not be heard by the superior about whom the language was used but the use
must occur in the person’s presence.
The section has been
re-drafted so that the proposed subsection 26(3) expressly applies strict
liability to the two forms of the offence at subsection (1) and (2), subject to
the statutory defence at subsection (4). The relatively low maximum penalty for
this offence and the statutory defence provided in subsection (4) are indicators
of legislative intent to apply strict liability to section 26. Furthermore, if
strict liability is not applied to the offence, the fault element of
“intention” would have to be applied to the defendant’s
insubordinate, threatening or insulting conduct (subsection (1) refers) or to
the defendant’s insubordinate, threatening or insulting language
(subsection (2) refers). The application of these fault elements would change
the operation of the section and would be inconsistent with the disciplinary, as
opposed to criminal, nature of the offence. Ministerial authority was obtained
for the application of strict liability to an offence against this section.
The existing statutory defence of actual or imputed knowledge has been
retained in subsection 26(4). The statutory defence affords the defendant
protection against the application of strict liability to the offence. The
defendant bears a legal burden in relation to that defence.
In the amended section 27, paragraph (1)(a) is a physical element of
circumstance that attracts the fault element of “recklessness” under
the Criminal Code. Paragraph (1)(b), a further physical element of
circumstance, and paragraph (1)(c), the physical element of conduct, have both
been specified as attracting strict liability. It is recognised that
application of Chapter 2 of the Criminal Code means that fault elements
attach by default to all physical elements. If this were to occur in relation
to section 27, the current operation of the section would change. The fault
element of “recklessness” would apply by default to the physical
element of circumstance “the person giving the command is a superior
officer”, and the fault element of “intention” would apply to
the conduct element of “disobeying the command”. This would be
inconsistent with the disciplinary, as opposed to criminal, nature of the
offence.
Notwithstanding the position that applies by virtue of Chapter
2, another important feature of the Criminal Code is that it allows a law
that creates an offence to provide there is no fault element for one or more of
its physical elements. To do this, however, the provision must specify that
those elements are of strict liability. Ministerial approval was granted to
specify the application of strict liability in subsection (2) to the physical
elements in paragraphs (1)(b) and (1)(c) so that the operation of the provision
remains unchanged. Consequently, it will not be necessary to prove that the
defendant intended to engage in the proscribed conduct or did so with any other
particular state of mind.
The statement of offence has been amended from
“Disobedience of command” to “Disobeying a lawful
command” to conform to the Criminal Code drafting style and to
express the statement of offence in the present tense. The expression
“lawful command” means a command given by a superior officer who has
the authority in the circumstances to give such a command where the command
relates to military duty. A command which has for its sole object the
attainment of some private end or which is otherwise unconnected with military
duty would not be lawful.
The existing statutory defence has been
retained in subsection (3). This provision mitigates the application of strict
liability to the physical element in paragraph (1)(b). The defendant bears a
legal burden in relation to the defence.
Section
28 - Failure to comply with direction by the commander of a ship, aircraft or
vehicle
The proposed section 28 statement of offence has been
amended to “Failure to comply with direction by the commander of a ship,
aircraft or vehicle” where previously it was “Failure to comply with
direction of person in command”. This has been done in order to more
clearly distinguish this offence from sections 27 and 29, and to emphasise its
particular application to situations involving lawful directions given by
persons in command of service ships, aircraft and vehicles in relation to their
sailing, flying or handling.
Paragraphs (1)(a), (1)(b) and (1)(c) of the
re-drafted section are all physical elements of circumstance and have been set
out separately for clarity and convenience. The fault element of
“recklessness” applies by default under the Criminal Code to
each of these physical elements.
The physical element of conduct is that
the person does not comply with the lawful direction by the person in command of
the ship, aircraft or vehicle. This element is set out in paragraph (1)(d).
Strict liability has been applied to this physical element. The present section
does not require that a person know of the direction given by the person in
command of the ship, aircraft, nor is the person’s actual or imputed
knowledge of the direction specified in the defence in subsection 28(2). By
applying strict liability, the current operation of the offence has been
preserved. Under the Criminal Code, any legislative provision that
attracts strict liability must expressly state that it is an offence of strict
liability (see section 6.1 of the Criminal Code). Ministerial
approval was granted for this to occur.
The expression “lawful
direction” obviates any pre-requisite for a Service command relationship
between the person giving the direction and the recipient. The offence itself
is directed at members who are passengers or bystanders in relation to service
ships, service aircraft or service vehicles. A lawful direction may be given by
a member to a passenger who is senior in rank to the member.
The proposed
subsection (3) preserves the statutory defence of “reasonable
excuse” found in the existing subsection 28(2). The provision is
unchanged except for the substitution of the word “conduct” for the
word behaviour. As noted earlier, “engages in conduct” is defined
in the Criminal Code to include an act and an omission. The defendant
bears a legal burden in relation to the defence. The presence of the defence
provision mitigates the operation of strict liability in subsection (2).
The statement of offence has been amended from “Failure to comply
with general order” to “Failing to comply with a general
order” to conform to the Criminal Code drafting style of putting
the statement of offence in the present tense. In the re-drafted offence,
paragraph (1)(a) sets out the physical element of circumstance that “a
lawful general order applies to the person”. The expressions
“order” and “general order” are defined in subsection
3(1) of the Act. Paragraph (1)(b) is the physical element of conduct that
“a person does not comply with the order”.
An offence under
subsection 29(1) is an offence of strict liability (subsection 29(2) refers).
Where strict liability applies to an offence, the prosecution does not have to
prove fault on the part of the defendant in relation to that offence. In this
case, the application of strict liability to paragraph (1)(a) reflects
subsection 9.3(1) of the Criminal Code (and the common law position) that
ignorance of the law is no excuse. Strict liability is applied to paragraph
(1)(b) to reflect current usage of the provision and the retention of the
pre-existing statutory defence of actual or imputed knowledge. Defence obtained
Ministerial approval to specify the application of strict liability to this
offence.
The statement of offence has been amended from “Assault on a
guard” to “Assaulting a guard” to conform to the Criminal
Code drafting style of putting the statement of offence in the present
tense. Paragraph 30 (1)(a) is the physical element of conduct that is an
assault, and attracts the fault element of “intention” upon
application of the Criminal Code. Paragraph
(1)(b) and (c) are physical elements of circumstance, that is, the person was a
defence member and was a guard, to which the fault element of
“recklessness” applies under the Criminal Code. No other
fault element is suggested by the present wording of the section for these
elements of the offence.
The proposed subsection 30(2) comprises the
physical element of circumstance, “being engaged on service in connection
with operations against the enemy”, and repeats the other elements in
subsection
30(1).
As
with section 25, the proposed amendment to section 30 does not define
“assault”. Application of the Criminal Code to DFD Act
assault-based offences will not prevent the term ‘assault’ from
continuing to be interpreted in accordance with its common law meaning. Whilst
not referred to explicitly in each of the re-drafted assault-based offences in
the DFD Act, the common law position on the definition and interpretation of
“assault” has been preserved.
The proposed statement of offence has been amended from
“Obstruction of police member” to “Obstructing a police
member” to conform to the Criminal Code drafting style of putting
the statement of offence in the present tense. The words “acting in the
performance of his or her duty” in the provision are intended to ensure it
accords with offences in the ordinary law with regard to obstruction of police
officers.
The present section 31 is separated into two proposed offences.
Subsection (1) applies to a defence member or a defence civilian and is
constituted by obstructing a police member or a person lawfully exercising
authority on behalf of a service police officer. Subsection (2) applies to a
defence member who, when called upon to assist a police member or a person
lawfully exercising authority on behalf of a service police officer, refuses to
do so.
In section 31 the fault element of “intention” applies
by default under the Criminal Code to the conduct described in paragraph
(1)(a), that is, “obstructs another person”, and in paragraph (2)(c)
“refuses to assist the other person”. The fault element of
“recklessness” applies to the physical element of circumstance in
paragraph (2)(a).
In both subsections 31(1) and (2) the physical element
of circumstance is that the other person is a police member acting in the
performance of duty or is another person lawfully exercising authority under or
on behalf of a service police officer (paragraphs (1)(b) and (2)(b)
refer).
New subsection 31(3) provides that strict liability applies to
the physical element of circumstance at paragraphs (1)(b) and (2)(b), that is,
that the person was a police member, or a person lawfully exercising authority
under or on behalf of a service police officer. Where strict liability applies
to an element, the prosecution does not have to prove fault on the part of the
defendant in relation to that element. In this case, the application of strict
liability to paragraphs (1)(b) and (2)(b) reflects subsection 9.3(1) of the
Criminal Code (and the common law position) that ignorance of the law is
no excuse. Defence obtained Ministerial approval for the application of strict
liability in subsection (3) to paragraphs (1)(b) and (2)(b) subject to the
statutory defence noted below.
The existing statutory defence of actual
or imputed knowledge has been retained in subsection 31(4). The defendant bears
a legal burden in relation to that defence. The presence of this defence
mitigates the application of strict liability in subsection (3).
Section 32 deals with a range of offences that may be committed by a
defence member who is on guard duty or on watch. The efficient performance of
guard duties and watches is critical to ensuring the safety and the operational
efficiency of the Defence Force. This is especially the case during operations
against the enemy.
The term “on watch” can mean any member
of the Defence Force who is placed on watch, in the sense of being a sentinel or
look out. It also has a particular nautical meaning. A ship’s company is
divided into watches and the members of a watch together attend to the working
of the ship during their watch. A member of the ship’s company on watch
is such a member on duty during his or her watch whatever the nature of his or
her duty may be. In paragraph (1)(c) and subsection (5) the word
“drunk” has been replaced with “intoxicated” so as to
more accurately encompass the definition in the present subsection 32(3) which
applies to intoxication by liquor or drugs.
The proposed provision has
the following structure. Subsection 32(1) sets out the non-aggravated form of
the offences and imposes a maximum penalty of 12 months imprisonment.
Subsection 32(2) applies strict liability to the physical elements of conduct
set out in paragraphs (1)(a) to (1)(d), subject to the statutory defence of
reasonable excuse contained in subsection (6) and referred to below.
Ministerial approval has been granted for the application of strict liability to
these elements.
Subsection 32(3) sets out the aggravated form of the
offence with a maximum penalty of 5 years imprisonment in the following manner.
Paragraph (3)(a) introduces an additional physical element of circumstance,
that, at the relevant time, the defence member is “engaged on service in
connection with operations against the enemy.” Paragraph (3)(b) repeats
the physical element of circumstance that the defence member is on guard duty or
on watch. The fault element of “recklessness” applies to paragraphs
(3)(a) and (3)(b) by default under the Criminal Code.
Paragraph
32(3)(c) sets out the physical element of circumstance, that the conduct
constitutes an offence against subsection (1). Subsection 32(4) applies strict
liability to (3)(c), that is, to those elements which are already strict
liability elements under subsection (2), subject to the statutory defence of
reasonable excuse set out in subsection (6) and noted below. Furthermore, the
application of strict liability to paragraph (3)(c) reflects subsection 9.3(1)
of the Criminal Code (and the common law position) that ignorance of the
law is no excuse. Ministerial approval was granted for the application of
strict liability to paragraph (3)(c).
The statutory defence of
“reasonable excuse” has been retained in subsection (6). For the
reasons given in the notes to earlier sections, the phrase “engages in
conduct” has been used in subsection 32(6) in place of the words
“engaging in the behaviour” in present subsection 32(4). The
defendant bears a legal burden in relation to the defence. The presence of the
statutory defence mitigates the imposition of strict liability by affording the
defendant a degree of protection.
In the proposed section 33 the preface contains the physical element of
circumstance – being on service land, in a service ship, service aircraft
or service vehicle, or being in a public place. Application of the Criminal
Code will mean that “recklessness” will have to be proved in
relation to this physical element. Paragraphs (a) to (d) contain the physical
elements of conduct to which the fault element of “intention” will
have to be proved.
Similarly with sections 25 and 30, the proposed
amendment to paragraph 33(a) does not define “assault”. Application
of the Criminal Code to DFD Act assault-based offences will not prevent
the term ‘assault’ from continuing to be interpreted in accordance
with its common law meaning. Whilst not made explicit in each of the re-drafted
assault-based offences, the application of the common law position in relation
to the definition and interpretation of “assault” has been preserved
albeit within Criminal Code constraints.
The proposed statement of offence of section 34 has been amended to
conform to the Criminal Code drafting style of putting the statement of
offence in the present tense. The deconstructed section sets the physical
element of conduct – in paragraph (1)(a) - and circumstance – in
paragraph (1)(b). On application of the Criminal Code the fault element
of “intention” applies by default to the conduct of assault or
ill-treatment, described in paragraph (1)(a). Strict liability has been applied
to the physical element of “circumstance” set out in paragraph
(1)(b) that the person is a member of the Defence Force who is of inferior rank.
The Criminal Code permits a law that creates an offence to provide that
there is no fault element for a physical element. If this is not done in the
case of paragraph (1)(b) the current operation of the offence would
substantially altered. Hence, subsection (2) specifies the application of
strict liability to paragraph (1)(b). Ministerial approval was given for this
to occur.
The term “inferior” means a member of the Defence
Force of lower rank. The term “ill-treat” must be interpreted in a
military context and, in general, can be considered to encompass all forms of
neglect not constituting an assault, for example, the unlawful imposition of a
punishment or the deliberate and improper withholding of benefits.
Similarly with sections 25, 30, and paragraph 33(a), the proposed
amendment to section 34 does not define “assault”. Application of
the Criminal Code to DFD Act assault-based offences will not prevent the
term ‘assault’ from continuing to be interpreted in accordance with
its common law meaning. Whilst not explicit expressed in each of the re-drafted
assault-based offences, the application of the common law position in relation
to the definition and interpretation of “assault” has been
preserved.
The defence in the present subsection 34(2) has been retained
in subsection (3). The defendant bears a legal burden in relation to the
defence. The presence of the defence mitigates the application of strict
liability in subsection (2) to paragraph (1)(b).
Division 4
– Offences relating to performance of duty
The proposed section 35 has been formulated from the existing section 35.
Paragraph (a) is a physical element of circumstance and attracts the fault
element of ”recklessness” when the Criminal Code is applied.
Although the present section does not specify a fault element in relation to the
requirement to perform a duty, its wording implies that the member must know of
the requirement to perform the duty or be reckless as to that fact. Application
of the Criminal Code will therefore not change the operation of this
element of the offence.
Paragraph (b) is the physical element of conduct
to which the fault element of “negligence” has been applied. This
preserves the current operation of the offence. “Negligence” is
defined in section 5.5 of the Criminal Code. In applying the Criminal
Code definition of “negligence”, the service tribunal will have
regard to the matters referred to in subsection 11(2) in accordance with
proposed subsection 11(3A).
The terms “office” and
“appointment” used in paragraph (a) are not defined. The ordinary
meaning of “office” is a position to which certain duties are
attached, especially a place of trust, authority of service under constituted
authority. The ordinary meaning of “appointment” is the action of
nominating to, or placing in, an office, and it can also mean the office itself.
The office or appointment may be one that the member holds on a continuous
basis, or it could be one that the member occupies for a particular
occasion.
The proposed statement of offence has been amended from “Dangerous
behaviour” to “Dangerous conduct”
Paragraphs (1)(a),
(2)(a) and 3(a) contain the physical elements of conduct to which the fault
element of “intention” applies. The phrase “engages in
conduct” replaces the words “...by act or omission, behaves in a
manner...” in each of those subsections because, as noted earlier, it is
defined in the Criminal Code to include an act or omission.
Paragraphs (1)(b), (2)(b) and (3)(b) contain the physical element of
circumstance to which the fault element of “recklessness” applies.
Paragraphs (1)(c), (2)(c) and 3(c) contain the physical element of result of the
conduct to which the fault elements of “knowledge”,
“recklessness” and “negligence” in paragraphs (1)(d),
(2)(d) and (3)(d) apply. It is necessary to specify the different fault
elements for the offences created by the section because of the different
maximum punishments which apply to them. In applying the Criminal Code
definitions of “recklessness” and “negligence” (sections
5.4 and 5.5 of the Criminal Code), the service tribunal will have regard
to the matters referred to in subsections 11(1) and 11(2) in accordance with
proposed subsection 11(3A).
Paragraphs (1)(e), (2)(e) and 3(e) replace
the provision contained in subsection 36(4) which applies to all three
variations of this offence. This means that the service tribunal must consider
whether the victim was an enemy and whether the injury was occasioned in the
course of the defendant’s duty.
Section
36A - Unauthorised or negligent discharge of
weapon
The existing subsection 36A(1) has been re-drafted in
proposed subsection (1) into two elements, the physical element of conduct -
discharge of a weapon - and the physical element of circumstance – that in
the circumstances in which the discharge takes place it is unauthorised. The
fault element of “intention” applies to the element of conduct upon
application of the Criminal Code. The fault element of
“recklessness” applies to the element of circumstance upon
application of the Criminal Code.
The existing subsection 36A(2)
has been re-drafted in the proposed subsection (2) retaining the fault element
of “negligently”. “Negligence” is defined in section
5.5 of the Criminal Code. In applying the Criminal Code
definition of “negligence”, the service tribunal will have regard to
the matters referred to in subsection 11(2) in accordance with proposed
subsection 11(3A).
The proposed section 37 has been re-drafted as an offence of strict
liability. If strict liability was not applied, it would be necessary for the
prosecution to show “recklessness” to paragraph (1)(a) that the
member is on duty, or reports, or should report for duty, and
“intention” in relation to paragraph (1)(b) that the member is
intoxicated. The present section does not specify any fault element in relation
to the physical elements of the offence and, because of the nature of this
offence, it is assumed that this was intentional. The maximum penalty of 6
months imprisonment has also been considered as an indication of an intention
that this offence be one of strict liability. Ministerial approval for this to
occur has been granted.
The word “drunk” has been replaced
with “intoxicated” in the statement of the offence and in paragraph
(1)(b) so as to more accurately encompass the definition in the present
subsection 37(3) which applies to intoxication by liquor or drugs.
The existing section 38 has been re-drafted so that the preface in
subsection 38(1) contains the fault element of “intention”, as
expressed in the existing section, to the conduct that constitutes the offence.
That intention is “to render or keep himself or herself unfit for duty or
service”. The conduct to which this fault element applies is contained in
paragraphs (1)(a) and (1)(b).
The proposed subsection 38(2) applies the
fault element of “intent to avoid service or duty” [in paragraph
(2)(b)] to the conduct of making a representation [in paragraph (2)(a)]. The
further requirement that the representation be false is a physical element of
circumstance that is included in paragraph (2)(c). The fault element of
“knowledge” is then applied by paragraph (2)(d) to this physical
element. The present section implies that the defendant must know that the
representation was false. It is therefore inappropriate to allow the element of
“recklessness” to be applied by default under the Criminal
Code.
Division 5 – Offences relating to ships,
vehicles, aircraft and weapons
Minimal changes have been made to the three variations of the section 39
offence. The proposed paragraphs (1)(a), (2)(a) and (3)(a) contain the physical
element of conduct. Paragraphs (1)(b), (2)(b) and (3)(b) contain the physical
element of result of conduct. Paragraphs (1)(c), (2)(c) and (3)(c) apply the
requisite fault element for each of the three variations of this offence –
“intention”, “recklessness” and
“negligence”. In applying the Criminal Code definitions of
“recklessness” and “negligence” (sections 5.4 and 5.5 of
the Criminal Code), the service tribunal will have regard to the matters
referred to in subsections 11(1) and 11(2) in accordance with proposed
subsection 11(3A).
The term “loss” means total loss, however
a surface ship can be lost without necessarily being lost to view. The term
“stranded” is not defined. It would normally be sufficient to show
that the ship ran aground or into some object affixed to the ground and remained
fast for a time, rather than momentarily. The term “hazarded” has
its ordinary meaning of “being exposed to danger”.
The offences relating to use of vehicles contained in the present section
40 have been separated into individual offence provisions in the proposed
sections 40, 40A, 40B, 40C and 40D. A statement of offence that appropriately
describes each of the present offences contained in section 40 has been inserted
in each section.
The offences created by section 40 are generally the
counterparts of driving offences in State and Territory legislation. These
offences generally contain strict and absolute liability elements, particularly
driving offences such as driving under the influence of alcohol or drugs. The
offences in the existing section 40 have been deconstructed so that their strict
and absolute liability elements are now explicit in accordance with the
Criminal Code objects. Defence obtained Ministerial authorisation for
the specification of strict and absolutely liability to these offences.
The offence of driving while under the influence of alcohol or drugs
created by subsection 40(1) has been specified as an offence of absolute
liability. The proposed amendment will maintain the intended operation of the
present sub-section and corresponds to the civilian counterpart of this offence
in almost all States and Territories. Ministerial authorisation was obtained
for this. Proposed subsection (1) applies to driving a service vehicle in any
place, and subsection (2) applies to driving a service vehicle on service
land.
The offence created by the present subsection 40(3) does not require
proof of any fault element. In the proposed amendment, no fault element will be
applied to the physical elements set out in paragraphs (1)(a) – drives in
any place, whether or not a public place, and (2)(a) – drives on service
land. These physical elements have been specified as absolute liability.
Defences of involuntariness or sudden emergency will continue to be
available.
Strict liability has been applied to proposed paragraphs
(1)(b) and (2)(b) which both appear as “the person does so at a speed, or
in a manner, dangerous to another person in that place or on that land”.
This means that an objective test will be applied to the question of whether the
defendant drove “at a speed or in a manner dangerous....” and in
applying that test, the defendant’s state of mind will be irrelevant.
This preserves the current operation of the offence and ensures the offence
provision is drafted consistently with its civilian counterparts. Ministerial
authorisation was obtained for this to occur.
The proposed provisions apply the fault element of
“negligence” to the physical element of conduct in paragraphs
40B(1)(b) and 40B(2)(b), described as “behaves negligently” in the
existing section. The fault element of “negligence” is applied to
the defendant’s conduct while he or she is driving a service vehicle
rather than to the driving per se. “Negligence” is defined
in section 5.5 of the Criminal Code. In applying the Criminal
Code definition of “negligence”, the service tribunal will have
regard to the matters referred to in subsection 11(2) in accordance with
proposed subsection 11(3A).
Additionally, the physical element of
driving the service vehicle is specified as absolute liability - with the result
that the fault element of “intention” is not applied to paragraphs
(1)(a) and (2)(a) on application of the Criminal Code. Ministerial
authorisation was obtained in relation to the application of absolute
liability.
The nature of this offence, the language of the section, the relatively
low maximum penalty, and the presence of the statutory defence of
“reasonable excuse” indicate a legislative intent that strict
liability applies to this offence. The proposed provision accords with that
intent. For both variations of the offence under the present subsection 40(7),
paragraph (1)(a) - driving without authorisation and paragraph (1)(b) - using a
service vehicle for an unauthorised purpose, strict liability has been applied.
Ministerial authorisation was obtained for the application of strict
liability.
The statutory defence of “reasonable excuse” has
been retained in subsection (3). The defendant bears a legal burden in relation
to that defence. Defence obtained specific Ministerial authorisation to enable
the existing position to remain unchanged whereby the defendant bears a legal
burden of proof in relation to the statutory defence.
Section 40D -
Driving without due care and attention etc.
The longstanding
interpretation of the civilian equivalent of the offence in subsection 40(8) is
that an objective test is applicable to the assessment of whether the defendant
was driving without due care and attention.
The applicable test is
generally regarded as being whether the defendant exercised that degree of care
and attention that a reasonable and prudent driver would exercise in the
circumstances (per Lord Goddard CJ in Simpson v Peat [1952] 1 All ER
447). Further guidance on this test can be found in the comments of Lord Hewitt
LCJ in McCrone v Riding [1938] 1 All ER 157 where he
said:
“The standard is an objective standard, impersonal and
universal, fixed in relation to the safety of other users of the highway... Due
care and attention is something not related to the proficiency of the driver,
but governed by the essential needs of the public on the
highway.”
Consequently, in the proposed provision, absolute
liability has been applied to an offence under section 40D. Ministerial
authorisation was obtained for this to occur. Subsection (1) applies to driving
a service vehicle in any place, and subsection (2) applies when driving a
service vehicle on service land.
Section 41 has been deconstructed in accordance with Criminal Code
requirements.
The proposed paragraph (1)(a) contains the physical element
of conduct “...the member flies a service aircraft...” to which the
fault element of “intention” applies upon application of the
Criminal Code.
Proposed paragraph (1)(b) contains the physical
element of circumstance “by or in accordance with a lawful general order,
there is a minimum height at which the member is authorised to fly”.
Proposed subsection 41(2) applies strict liability to the physical element of
circumstance in paragraph (1)(b). The application of strict liability to
paragraph (1)(b) reflects subsection 9.3(1) of the Criminal Code (and the
common law position) that ignorance of the law is no excuse. The application of
strict liability to paragraph (1)(b) is also subject to the statutory defence
contained in subsection (3) as noted below. Ministerial approval was obtained
for the application of strict liability to paragraph (1)(b).
Proposed
paragraph (1)(c) contains a further physical element of circumstance that
“the height at which the member flies is less than the minimum
height”.
Proposed paragraph (1)(d) applies the fault element of
either “recklessness” or “negligence” to the physical
element of circumstance in paragraph (1)(c). In applying the Criminal
Code definitions of “recklessness” and “negligence”
(sections 5.4 and 5.5 of the Criminal Code), the service tribunal will
have regard to the matters referred to in DFD Act subsections 11(1) and 11(2) in
accordance with proposed subsection 11(3A).
The existing statutory
defence of actual or imputed knowledge has been retained in proposed subsection
41(3). The statutory defence affords the defendant a degree of protection by
mitigating the effect of the application of strict liability to subsection
(1)(b). The defendant bears a legal burden in relation to the statutory
defence.
Section
42 - Inaccurate certification in relation to ships, aircraft, vehicles
etc.
The proposed section 42 makes minimal changes to the present
section. Paragraph (a) of the proposed section 42 is a physical element of
conduct. To this element the fault element of “intention” is
applied under the Criminal Code by default. Paragraph (b) is physical
element of circumstance to which the fault element of “recklessness”
applies under the Criminal Code, by default. Paragraph (c) is a physical
element of conduct to which the fault element of “intention” applies
by default.
Division 5A – Property
offences
The proposed provisions in section 43 make minimal changes to the present
section. The statement of the proposed offence has been amended from
“Destruction of, or damage to, service property” to conform to the
Criminal Code drafting style of putting the statement of offence in the
present tense.
Proposed paragraphs (1)(a), (2)(a) and (3)(a) are the
physical elements of conduct to which the fault element of
“intention” applies by default upon application of the Criminal
Code. Paragraphs (1)(b), (2)(b) and (3)(b) are the physical elements of
result of conduct – “results in the destruction of, or damage to,
service property”. Paragraphs (1)(c), (2)(c) and (3)(c) specify the
particular fault element that applies to the result of conduct element in
paragraph (b). For subsection (1) it is “intends the result”, for
subsection (2) it is “reckless to the result”, and for subsection
(3) it is “negligent as to the result”. This achieves drafting
consistency with the present provision. In applying the Criminal Code
definitions of “recklessness” and “negligence” (sections
5.4 and 5.5 of the Criminal Code), the service tribunal will have regard
to the matters referred to in subsections 11(1) and 11(2) in accordance with
proposed subsection 11(3A).
The statutory defence in subsection (4) has
been retained unaltered save for use of the word “conduct” instead
of “behaviour”. The defendant bears a legal burden in relation to
the defence. Defence obtained specific Ministerial authorisation to enable the
existing position to remain unchanged whereby the defendant bears a legal burden
of proof in relation to the statutory defence.
The proposed statement of offence has been amended from “Loss of
service property” to conform to the Criminal Code drafting style of
putting the statement of offence in the present tense. The section has been
deconstructed into separate physical elements of conduct and circumstance. The
act of losing service property for the purposes of this offence has been found
by the Full Court of the Federal Court of Australia to attract absolute
liability (see Chief of General Staff v Stuart (1995) A Crim R
529; (1995) 133 ALR 513), subsection (2) specifies that absolute liability
applies to paragraph (1)(a). Ministerial authorisation for the application of
absolute liability to this element was obtained.
The further physical element
of this offence, set out in paragraph (1)(b), attracts the fault element of
“recklessness” on application of the Criminal Code. This is
consistent with the decision in Stuart, that mens rea is
applicable to every element of the offence save that of losing service
property.
The proposed amendment retains the defence of “reasonable
excuse” in order to preserve the intended purpose of the section. The
defendant bears a legal burden in relation to the defence. Defence obtained
specific Ministerial authorisation to enable the existing position to remain
unchanged whereby the defendant bears a legal burden of proof in relation to the
statutory defence.
The proposed offence provision has been re-drafted so that the
application of strict liability has been made express. Strict liability applies
to paragraph (1)(a) – possession of service property, and to paragraph
(1)(b) – absence of lawful authority for possession. Under the
Criminal Code, any legislative provision that attracts strict liability
must expressly state that it is an offence of strict liability (see section 6.1
of the Criminal Code). Ministerial authorisation was obtained by
Defence for the application of strict liability to these elements.
The
defendant is protected against the application of strict liability by the
defence in subsection (3) that is unchanged from the statutory defence in the
present section. A defendant will be entitled to be found not guilty if there
is evidence which suggests that the defendant was either not aware that he or
she was not in possession of property; not aware that the property was service
property; or had a reasonable excuse for possession of the property without
authority.
Subdivision B – Possession of property
suspected of having been unlawfully obtained
Section 46 is structured in similar terms to section 45 and bears the
indicators of strict liability in that the maximum penalty is relatively low and
the wording used gives no indication of any fault elements having to be proved.
The existing offence has been deconstructed in an identical manner to section
45. Again, Ministerial authorisation was obtained by Defence for the
application of strict liability to the proposed offence. The proposed section
specifies that both of the physical elements are strict liability and the
existing statutory defences have been retained. The prosecution is required to
prove only that the property was in the possession of the defendant and that a
reasonable person would have suspected the property was stolen. If the
defendant denies the charge, he or she has a legal burden of proving either of
the defences in subsection (3) or (4). The existing position whereby the
defendant bears a legal burden of proof in relation to the statutory defence
remains unchanged.
The existing offences in section 47 are to be replaced by offences
closely modelled on the theft and receiving offences contained in Chapter 7 of
the Criminal Code which was inserted into the Criminal Code by the
Criminal Code Amendment (Theft, Fraud, Bribery and Related Offences) Act
2000. The DFD Act theft and receiving offences will now be almost identical
to the section 131.1 theft offence and the section 132.1 receiving offence save
for several minor amendments designed to ensure they can operate cohesively with
the remainder of the DFD Act. New interpretative provisions relevant to
sections 131.1 and 132.1 have replaced the interpretative provisions in
subsection (3) of existing section 47. These are preferred because they reflect
the current status of the Commonwealth criminal law in relation to theft.
Specific Ministerial approval was obtained for this change to the existing
stealing and receiving offences in the DFD Act.
Section 47 –
When property belongs to a person
A new section 47 will contain
the definition of “when property belongs to a person”. This
definition provides that property belongs to any person who owns it, or has any
other proprietary right or interest in it, or who has possession or control of
the property. One effect of the section is that co-owners or people with
different rights to a piece of property can be guilty of theft from one another.
For example, one owner of property can be guilty of theft from another owner (eg
theft by one business partner from another), or an owner can be guilty of theft
by taking his or her property away from someone who has possession or control of
it (eg an owner who dishonestly took back his or her own goods from a
pawnbroker). The owner cannot deny appropriation by relying on his or her own
consent to the appropriation. Proposed subsection 47E(1) and section 47L
requires the consent of all those to whom it belongs. In the example, the owner
of the pawn shop has not consented to the appropriation of his or her right to
possession. This section can also apply to the Commonwealth where it is a
co-owner of property.
The definition in proposed subsection 47(1) also
provides that property also belongs to people who have any proprietary right or
interest (not being an equitable interest arising either from an agreement to
transfer or grant an interest, or from a constructive trust). Equitable
interests arising from agreements to transfer or grant an interest (for example,
to sell land or shares) are excluded. These equitable interests arise by the
operation of legal rules but only in relation to contracts that are specifically
enforceable. Civil remedies are considered adequate to protect these
interests.
The definition of property belonging to another does not
include constructive trusts or equitable interests arising from constructive
trusts. The rationale here is that, constructive trusts - based on equitable
notions of unconscionability - may be appropriate for recovery in civil actions,
but they stray too far from the common conception of theft and the much more
culpable sort of dishonesty involved in theft to form part of the definition of
the offence of theft. Their ambit is uncertain and likely to expand. To attach
the boundaries of theft to such an uncertain concept would offend the important
principle that the criminal law should be knowable in advance. (see
Attorney-General's Reference (No 1 of 1985) [1986] 1 QB 491at
503).
Proposed subsection 47(2) provides that the definition in
subsection (1) is subject to Criminal Code subsections 134.1(9) and (10)
regarding money transfers.
The definition of property belonging to
another contained in proposed section 47 is supplemented for the purposes of the
offence of theft by sections 47G to 47L.
Proposed section 47A will insert a definition of the fault element of
“dishonesty” into the Act. The proposed section is identical to the
definition of “dishonesty” found in section 130.3 and is based on
the test of “dishonesty” formulated by the Court of Appeal in
Ghosh [1982] 3 WLR 110, 118-9:
“a jury must first of all
decide whether according to the ordinary standards of reasonable and honest
people what was done was dishonest. If it was not dishonest by those standards,
that is the end of the matter and the prosecution fails.
If what was done
was dishonest by those standards, then the jury must consider whether the
defendant himself must have realised that what he was doing was by those
standards dishonest.”
The Ghosh test is a familiar concept
in Australia because until February 1998, it had been used in all jurisdictions,
both common law and Criminal Code, in relation to conspiracy to defraud.
In Peters v R (1998) 151 ALR 51 the High Court held that the Ghosh
test was no longer appropriate and developed a new test which did not include a
subjective component. The Peters v R test was not followed in the
Criminal Code because it was considered necessary for offences like theft
to retain a broad concept of dishonesty to reflect the characteristic of moral
wrongdoing. Paragraph (a) of the definition does this by linking the definition
of dishonesty to community standards. Paragraph (b) requires knowledge on the
part of the defendant that he or she is being dishonest according to the
standards of ordinary people.
Section 47B – Determination of
dishonesty to be a matter for the trier of fact
Proposed section
47B provides that the question of whether a person is “dishonest”
must be determined by the trier of fact. For service tribunals, this means that
the summary authority, defence force magistrate or court martial members will
make this determination having regard to community standards.
47C
– Theft
Proposed section 47C contains the elements of the
offence of theft and is virtually identical to the existing subsection 47(1). A
person is guilty if the person dishonestly appropriates property belonging to
another with the intention of permanently depriving the other of the
property.
Proposed section 47C differs from the theft offence in section
131.1 of the Criminal Code by omitting the physical element that the
property belongs to the Commonwealth. This is not an element of the offence
created by the present section 47 of the Act. Subsections 131.1(3) and (4) of
the Criminal Code have also been omitted because they are not relevant.
In all other respects, the proposed section 47C is identical to the Criminal
Code theft offence.
Section 47D – Special rules about the
meaning of dishonesty
Section 47D contains interpretative
provisions that qualify the Criminal Code concept of
“dishonesty” at proposed section 47A. Section 47D is identical to
section 131.3 of the Criminal Code. The defences in the present
paragraphs 47(4)(b) and (c) are now subsumed in proposed section
47D.
Proposed subsection 47D(1) negates dishonesty where a property owner
cannot be discovered, for example, in relation to abandoned property. Proposed
subsection 47D(2) provides an exception to the rule in relation to trustees or
personal representatives. Proposed subsection 47D(3) provides that an
appropriation may be dishonest notwithstanding preparedness to
pay.
Section 9.5 of the Criminal Code contains a general claim of
right defence. The defence will apply in relation to any property offences if
at the time of the conduct constituting the offence, the person is under a
mistaken belief about a proprietary or possessory right and the existence of
that right would have negated any fault element. The “claim of
right” defence in the existing paragraph 47(4)(a) has not been included in
the new sections.
Section 47E – Appropriation of
property
Proposed section 47E is a critical interpretative
provision for the theft offence. The definition of “appropriation”
in the Criminal Code modifies the UK Theft Act model which
treats “any assumption of the rights of the owner” as an
appropriation so that it is not as broad. The common law required a taking and
carrying away without the consent of the owner. The Criminal Code
definition is designed to confine the broader interpretation of the concept
since the House of Lords decision of Gomez [1992] 3 WLR 1067
(which adopted the approach in Lawrence [1972] AC 626). Gomez
effectively collapsed the distinction between theft and fraud because consent
was considered irrelevant to the issue of appropriation. The Model Criminal
Code Officers Committee concluded that this went too far from the central and
commonly-understood meaning of theft as involving non-consensual takings and
therefore adopted a narrower concept of “appropriation”. Hence, the
Morris approach was adopted.
The definition of
“appropriation” in subsection 47E(1) is also intended to enable an
appropriation to occur in a case where property is subject to multiple ownership
and the consent of any one of the owners is missing at the time of the
assumption of their rights.
Proposed subsection 47E(1) also addresses the
nature of the rights of the owner that are protected - ownership, possession or
control of property.
Proposed subsection 47E(2) protects bona fide
purchasers who discover after purchase that the property was stolen but decide
to keep the property. Proposed subsection 47E(2) prevents this from being theft
by providing that it is not an appropriation. The subsection also protects the
bona fide recipient of a gift, which is a departure from the UK Theft
Act. However, the protection is limited and would not apply to a subsequent
fraudulent transfer (see Criminal Code fraud offences in sections 134.1
and 134.2).
Section 47F – Theft of land or things forming
part of land
Proposed section 47F maintains the existing common
law position that it is not possible to commit theft of land or things forming
part of land and severed from it except where:
(a) a trustee appropriates
land by dealing with it in breach of trust; or
(b) a person who is not
in possession of the land severs something forming part of it; or
(c) a
tenant steals a fixture.
Under the Criminal Code land can be the
subject of a separate fraud offence.
Section 47G – Trust
property
Proposed subsection 47G(1) and (2) are almost identical
to existing subsection 47(3)(b). Proposed subsection 47G(1) provides that
property also belongs to people who have any proprietary right or interest (not
being an equitable interest arising either from an agreement to transfer or
grant an interest, or from a constructive trust).
Equitable interests
arising from agreements to transfer or grant an interest (eg to sell land or
shares) are excluded because of the definitions of “property”
(proposed amendment to subsection 3(1)) and what is meant by “property
belonging to a person” (proposed section 47). These equitable interests
arise by the operation of legal rules but only in relation to contracts that are
specifically enforceable. The qualification in proposed subsection 47(1) means
that this is not property belonging to another and therefore not
theft.
Similar considerations arise in relation to constructive trusts
that are also excluded.
Proposed subsection 47(1) extends the qualification
contained in the UK Theft Act so that equitable interests arising from
constructive trusts do not fall within the definition of “property
belonging to another”. Constructive trusts - based on equitable notions
of unconscionability - may be appropriate for recovery in civil actions, but
they stray too far from the common conception of theft and the much more
culpable sort of dishonesty involved in theft to form part of the definition of
the offence of theft.
Proposed subsection 47G(2) makes it clear that an
intention to defeat a trust is an intention to permanently deprive for the
purposes of the offence.
Section 47H – Obligation to deal
with property in a particular way
The general definition of
property belonging to another contained in proposed section 47 is supplemented
for the purposes of the offence of theft by proposed section 47H. This proposed
section is similar to the existing paragraph 47(3)(d) except that the proposed
subsection explicitly provides that the obligation to deal with the money or
property in a particular way must be a ‘legal’ obligation. So, for
example, if the defendant receives money from another person and is under an
obligation (this must be a legal obligation) to retain and deal with that money
in a particular way but the defendant deals with it another way, the money is
said to belong to the victim. The cases have held that the obligation must be
legal rather than moral. The application of this provision will depend very
much on the facts of the transaction. The most difficult cases involve cash
deposits. The section only applies if the particular cash is to be used. If
the cash is to be mixed with the general cash of the organisation and there is a
liability to provide something or to provide a refund at a later time, then the
cash ceases to belong to another. There is a debt to the depositor and the
situation is dealt with on the normal principles relating to debtors and
creditors.
Section 47J – Property obtained because of
fundamental mistake
Proposed section 47J deals with the problem
when the victim makes a fundamental mistake and gives the defendant some
property, and the defendant does nothing to induce the mistake. It essentially
covers the same ground as existing paragraph 47(3)(c). Insofar as the use of
the law of mistake is concerned, the Criminal Code adopts the existing
Australian law as stated by the High Court in Ilich (1987) 162 CLR 110
subject to the qualifications discussed below.
Fundamental mistakes are
mistakes about the identity of the defendant, the essential nature of the
property, or the quantity of the goods (but not the amount of money). The
problem is whether the victim's mistake is so fundamental that it vitiates the
consent to the defendant appropriating the property and the victim's intention
to transfer ownership of the property to the defendant. Non-fundamental
mistakes do not vitiate consent or intent to pass ownership and the defendant
does not incur any criminal liability. However, in the case of fundamental
mistakes, if the defendant decides to keep the goods the question is whether he
or she should be guilty of theft.
There are two situations relating to
fundamental mistakes:
(i) where the defendant knows of the mistake at
the time ("T1") of transfer and decides to keep the goods; and
(ii) where the
defendant does not know of the mistake at T1 but discovers it later ("T2") and
then decides to keep the goods.
At common law in England, the defendant
was guilty of theft in both T1 and T2 situations (Middleton (1873) LR 2
CCR 38).
The more difficult cases arise when the defendant only finds out
about the mistake later at T2 and then the defendant decides to keep the
property. This was at issue in the case of Ashwell (1885) 16 QBD 190.
The prevailing view was that the taking did not occur at T1 when a valuable coin
was handed over. The appropriation did not occur until T2, when the defendant
discovered what the coin really was, namely a sovereign. At T2, on the
authority of Middleton, the mistake as to the nature of the subject
matter meant that there was no consent to the taking and that ownership had not
passed (eg it was still property belonging to another). The opposing view was
as follows. The taking occurred at T1, was with consent and occurred at a time
when the defendant lacked fraudulent intent. At T2, when the intent became
fraudulent, there was no taking without consent and ownership of the property
had passed to the defendant.
In Australia, the majority judges in the
High Court decision of Ilich expressed their disapproval of the reasoning
in Middleton and Ashwell. Ilich was a decision on the WA
Code but in the course of the decision, the majority indicated its agreement
with the reasoning in Potisk (1973) 6 SASR 389 (a SA Full Court decision
on common law larceny which had also rejected the English cases). In
Ilich, the High Court ruled that cases where property passes because of a
non-fundamental mistake are not theft under the WA Code because at the time of
the conversion (eg T2) the property belongs to the defendant. The reasoning of
the High Court was that at T1, the owner knew the identity of the payee and the
nature of what he was transferring, namely money. The normal presumption with
money is that ownership passes with possession. Consent to the taking is not
required under the WA Code, so that issue did not arise. At T2, the time of the
"conversion", ownership of the $500 in question had passed to Ilich and
therefore it was not property belonging to another.
Under the UK
Theft Act, fundamental and non-fundamental mistakes can count as theft,
even at T2. The Theft Act approach in this type of case is to say that
the appropriation occurs at the time the defendant dishonestly decides to keep
the money. The question is whether the property belongs to another at this
point. There are a variety of routes to the conclusion that it does. This is
because the UK Theft Act has such a wide definition of property belonging
to another: it includes any case where the victim has a proprietary right or
interest or is under a legal obligation to return the property.
First,
in cases of fundamental mistakes as to the identity of the transferee, the
nature of the subject matter or the quantity of the goods, the intent to pass
ownership is vitiated by the mistake and hence the property still belongs to the
victim. If the defendant is aware of the mistake at either T1 or T2 and
dishonestly decides to appropriate the property, he or she will be guilty of
theft.
Second, English cases have held that where certain sorts of
mistakes are made, although legal ownership of the property passes, there is a
constructive trust and the transferor retains an equitable proprietary interest
in the property transferred. Thus, the property still belongs to another under
subsection 5(1) of the UK Theft Act because the person has a "proprietary
right or interest" in it. The type of mistake here is not so fundamental as to
prevent ownership passing but must be serious enough that it would be
unconscionable for the defendant to retain the property; hence he or she becomes
a constructive trustee for the victim who, as beneficiary, has an equitable
proprietary interest in the property. Exactly when this is so will vary
according to the essentials of the transaction, but it is wider than mistakes as
to the identity of the transferee or the nature of the subject matter. In
England, the Court of Appeal has cast doubt on the notion of using constructive
trusts as a basis for the law of theft. For the reasons outlined above, the
Criminal Code specifically excludes constructive trusts from the ambit of
property belonging to another and hence from the ambit of theft. Hence, this
route to a conviction for theft is not open under the proposed provisions.
The third category of cases produces the most difficult problem. These
are cases of non-fundamental mistake where the ownership does pass - such as in
a case where a $200 debt is mistakenly paid twice. Under the Theft Act,
this will be theft if the defendant is under a legal obligation to repay the
money. This is because subsection 5(4) of the UK Theft Act deems the
property to belong to the victim if the defendant receives the money by
another's mistake and is under a legal obligation to make restoration in whole
or in part of the property or its proceeds.
Whether the defendant is
under such an obligation is a matter of civil law and may include, among other
things, decisions about the law of quasi-contract and whether a contract is void
or voidable. If the contract is voidable, it may be argued that the defendant
is not under a legal obligation to return the property until the contract is
avoided. In many of these cases, the intricacies of the civil law are such that
the defendant may be able to argue that he or she is not dishonest because he or
she did not know that keeping the property was dishonest. However, defendants
who take advantage of other's mistakes or who make secret profits may be
regarded as dishonest. But that does not necessarily mean that such people are
guilty of theft. Dishonesty is an important element of the law of theft and
fraud but it is not the only element. Leaving such cases to be determined
solely by reference to the concept of dishonesty avoids the basic question about
whether the intricacies of the civil law appropriately mark out the boundary of
the physical elements of theft.
Proposed section 47J is therefore a
rejection of the uncertain ambit of constructive trusts for the purpose of
extending the boundaries of when property belongs to another for the purposes of
the law of theft.
There are strong arguments that the mistake cases -
particularly the T2 cases - should not be treated as theft but as matters
involving civil liability. The victim has brought about his or her own
misfortune and it is unduly harsh to cast the onus of rectifying the situation
onto the defendant on pain of committing theft. Thus, while the victim in
Ilich is certainly entitled to sue to recover his money, he should not be
able to have the other person arrested and prosecuted for theft, any more than
any other creditor could if the debtor spent money on a holiday rather than
paying the creditor's account. In some cases these overpayments will arise
because the victim has chosen to set up business arrangements which are prone to
error because this is cheaper than setting up a less error-prone system.
Although the defendant may be under an obligation to return the property, the
culpability is of a much less serious sort than theft or fraud where the
defendant initiates a dishonest transaction. In these cases, the defendant has
had temptation thrust upon him or her. To make a defendant like Ilich, or the
recipient of a social security overpayment, guilty of theft in these T2 cases is
to cast a duty to act in relation to innocently acquired property on pain of
committing theft.
The potential width of this sort of liability is also
of concern. In theory, it turns civil obligations into criminal ones where
hitherto that has not been the case. It may be that all sorts of business
transactions involving mistakes would now carry potential criminal liability.
The 1995 Model Criminal Code report mentions the following examples of cases
which now would be brought within the law of theft:
(1) A purchaser pays
a vendor for goods; neither realised that the purchaser already owned them. The
vendor refuses to repay the money.
(2) An insurer pays money to an
insured for goods that both believed to have been destroyed by fire.
Subsequently the defendant finds the goods but does not tell the
victim.
(3) An employer pays a manager a lump sum to terminate her
contract. It turns out that breaches of the contract would have entitled the
employer to terminate the contract without payment. Neither knew of the breaches
at the time of the contract. They subsequently discover this but the employee
refuses to repay. The House of Lords and the Court of Appeal in England differed
on whether the defendant was under an obligation to repay in the employment
case.
In (1) and (2) the defendant would be civilly liable to give back
the money or goods mistakenly given to him or her. The question is whether it
is justifiable to impose criminal liability for the offence of theft as well.
While the consultation on the Model Criminal Code revealed that opinion
was divided on this issue, for the reasons advanced in relation to constructive
trusts, it has been concluded that the civil law distinctions - while
appropriate to the context of determining civil recovery - are too obscure on
the whole to define the boundaries of an offence as serious as theft. It is
therefore proposed that it is appropriate to limit the use of the law of mistake
to the existing Australian law as stated by the High Court in Ilich,
subject to the qualifications outlined below. This involves the following rules:
(a) Mistakes as to the nature of the subject matter or the identity of
the transferee will continue to negate the intent to confer ownership
(subsections 47J(1) and (3)). If the defendant knows of this sort of mistake
either at T1 or T2, the property still belongs to the victim and the victim will
be deemed not to have consented to its appropriation and the defendant will
commit theft. (Mistakes as to quantity are not included on the basis that they
are not sufficiently fundamental: the person intends to hand over goods of that
sort and there is no mistake about the identity of the transferee).
(b) Other mistakes do not vitiate either the consent to the
appropriation or the intention to pass ownership. The defendant does not commit
theft if he or she knows of the mistake either at T1 or T2 because the property
no longer belongs to another.
(c) Mistaken overpayments by cash, cheque
or direct credit are a special case (subsection 47J(1) and paragraph (3)(b)).
Where the defendant is aware of the mistake at the point of transfer (T1), the
absence of what may be termed the inertia factor makes this case sufficiently
like the finding cases to warrant the offence of theft. This raises a question
about when the relevant time is. In a supermarket if the defendant immediately
knows the overpayment at the register, this is clearly a T1 situation. On the
other hand, in a case like Ilich, where the defendant does not become
aware of the mistake until some time after transfer, it is clearly a T2
situation. The defendant will not be guilty of theft but the victim would be
able to recover the money civilly. Cases where the defendant receives a cheque
in the mail are more difficult. In accordance with the reasoning of Kriewaldt J
in Wauchope that this would not be theft because the defendant did not
become aware of the mistake until some time after the drawer intended to convey
ownership (eg it is a T2 situation). Mistaken direct credits to bank accounts
are similar to cheques. If a bank customer saw the teller mistakenly credit his
or her account with $2000 rather than $200, and said nothing, that would be
theft. In practice, direct credits will overwhelmingly be T2 cases because the
defendant will only find out about the mistake some time after the transfer. If
there was a fundamental mistake (eg wrong account because of a mistaken
identity), the defendant would be liable for theft at T2. If it was a
non-fundamental mistake (eg the correct account but the wrong amount), the
defendant would not be guilty of theft. The victim would have civil remedies to
recover what is in effect a debt.
Section 47K – Property of a
corporation sole
Proposed section 47K preserves ownership for a
corporation sole where there is a vacancy in the
corporation.
Section 47L – Property belonging to 2 or more
persons
Proposed section 47L provides that the person to whom
property belongs includes all the owners.
Section 47M –
Intention of permanently depriving a person of property
The
proposed theft offence (section 47C) retains the longstanding common law element
of intention to permanently deprive. Proposed section 47M provides guidance as
to the meaning of intention to permanently deprive. The concept of permanent
deprivation is expanded by including an intention to treat the property as one's
own to dispose of regardless of the rights of the other person. This
is a helpful crystallisation of the common law position and judicial
interpretations seem to favour that view. "Disposals" and "borrowings" will
need to have a quality of permanence about them before the section can be
satisfied (eg the defendant melts down the victim's antique bracelet intending
to give back the melted silver). Similar points apply to proposed subsection
47M(2) relating to parting with property under conditions which the person may
not be able to fulfil. This is treated as an example of disposing of property
regardless of the other's rights in terms of proposed subsection 47M(1).
Section 47N – General deficiency
Proposed
section 47N is an evidentiary provision which allows the prosecution to prove
the defendant guilty of theft even though the prosecution cannot identify the
particular sums of money or property taken if the prosecution can prove a
general deficiency in the victim's money or property referable to the
defendant's conduct. A typical example is where the defendant is an employee
and takes small amounts of money from the till over a period of time.
Proposed section 47P is based on the offence of receiving in section
132.1 of the Criminal Code. Proposed subsection 47P provides that a
person is guilty if the person dishonestly receives stolen property, knowing or
believing the property to be stolen. The proposed section also incorporates all
of the interpretative provisions in section 132.1 except subsections (9) and
(10) which are not relevant to the DFD Act. In some of these provisions
reference is made to section 134.1 of the Criminal Code, which creates
the offence of obtaining property by deception. Although a counterpart of this
section is not contained in the DFD Act, it is open to service authorities to
charge a person under section 134.1 of the Criminal Code, as a Territory
offence under section 61 of the DFD Act. Accordingly, effect could be given to
the references to section 134.1, if necessary, in relation to a charge under
section 47P.
The defences in existing paragraphs 47(4)(b) and (c) are
not included in the proposed section because they are subsumed by the
“special rules about the meaning of dishonesty” in proposed
subsections 47D(3) and (4) which applies to section 47P. The only defence
retained in the section is “claim of right” (paragraph 4(a) of the
existing section) but the wording of this defence has been amended to reflect
subsection 9.5(1) of the Criminal Code.
Proposed 47P(3) provides
that property is stolen whether it is “original stolen property”
(subsection 47P(5)), “previously received property” (subsections
47P(6) and (7)), or “tainted property” (subsections 47P(8)). The
definition of “previously received property” makes it clear that no
matter how the property was received in the first place (whether by theft or
fraud), subsequent receiving will also be caught by the offence.
Proposed section 47P is a much less complex form of the offence than
that contained in the UK Theft Act. The Theft Act attempts to
graft a variety of complicity provisions into the basic receiving
offence. It produces a complex and unwieldy offence with overlaps into the law
of complicity. Section 47P confines itself to receiving. The normal rules of
complicity and accessory after the fact apply to those who assist a thief or a
receiver.
The definition of “original stolen property” in
subsection 47P(5) covers property, or part of property, appropriated in the
course of theft and in the possession and custody of the person who appropriated
it.
Proposed subsection 47P(6) makes it clear that after the property is
restored it ceases to be original stolen property for the purposes of the
proposed offence. The same is also the case where the person who previously had
it ceases to have a right to its restitution. This follows similar provisions
in Victoria and the ACT. This provision has been included in recognition of the
public interest in encouraging people to return stolen property or to regularise
ownership where there is a dispute over the property.
Proposed subsection
47P(7) deals with “tainted property”. The definition ensures that
the offence of receiving still attaches to the receiver where stolen property is
sold or exchanged. The “proceeds” of the transaction is defined as
“tainted property” if the receiver still has possession or custody
of them whether it derived from theft or property fraud. The aim here is not to
make receiving an offence that can continue down a chain of people. To do so
would make the offence too open ended.
Proposed subsection 47P(8) expands
the offence to make it clear that it covers the receipt of funds credited into
an account. This additional provision is as a consequence of changes to the
property fraud offence (see subsections 134.1(9) and (10) of the Criminal
Code) which clarify the position with respect to money transfers.
Proposed subsection 47P(10) is a transitional provision designed to
ensure that property illegally appropriated or obtained contrary to Commonwealth
law before the commencement of the legislation will be caught by the proposed
offence. The amendment recognises that the existing offences vary from the
proposed offences and is therefore carefully drafted to ensure there is no
retrospectivity.
In the proposed section 48 the fault element of
“recklessness” applies by default under the Criminal Code to
the physical element of circumstance in subsection (1). The fault element of
“intention” applies by default to the physical elements of conduct
in paragraph (a) “taking any property left exposed or unprotected”,
paragraph (b) “taking property from the body of a person killed, wounded,
injured or captured”, and paragraph (c) “taking any vehicle,
equipment or stores captured or abandoned by the enemy”.
In the
deconstruction of the existing subsection 48(2), the proposed paragraph (b)
provides the physical element of circumstance that has to be implied in the
existing section. The fault element of “knowledge” specified in
paragraph (c) applies to (b) and accords with the present wording of the
subsection.
The proposed defence in subsection 48(3) is retained
unaltered save for substitution of the word “conduct” for the word
“behaviour” in subsection 48(3). As noted earlier “engaging
in conduct” is defined in the Criminal Code to include acts and
omissions.
Division 6 - Arrest, custody and proceedings before
service tribunals
The existing section 49(1) creates the separate offences of:
“refuses to obey a lawful order...” and “assaults..”.
These two offences have been re-drafted in separate proposed provisions 49 and
49A for enhanced clarity. The statement of the proposed offence has been
amended to “Refusing to submit to arrest” for section 49, and
“Assault against arresting person” for section 49A to more precisely
reflect the nature of the offences.
The existing section 49 refers to a refusal to obey a lawful order
ordering the person into arrest. Defence obtained specific Ministerial approval
to replace the words “refuses to obey” in the current version of
subsection (1)(a) with the word “disobeys” proposed for insertion
into subsection (1)(c). The word “disobeys” is wider than the
existing term and will permit the application of the section to omissions and
sheer insolence and the like by defendants, rather than limiting the section to
situations where there is an outright refusal to obey. This complies with the
original intent of this offence.
The proposed offence at subsection 49(1)
has been re-drafted as follows. A physical element of circumstance is set out
in paragraph (1)(a) “person is ordered into arrest”. Paragraph
(1)(b) contains the further physical element of circumstance that “the
order is lawful”. Paragraph (1)(c) contains the physical element of
conduct “the person disobeys the order.”
Proposed subsection
49(2) applies strict liability to the physical element of circumstance in
paragraphs (1)(b) and (1)(c). The application of strict liability to paragraph
(1)(b) reflects subsection 9.3(1) of the Criminal Code (and the common
law position) that ignorance of the law is no excuse. The application of strict
liability to paragraph (1)(c) is subject to the statutory defence contained in
subsection (3) as noted below. Ministerial approval was obtained for the
application of strict liability to paragraphs (1)(b) and (1)(c).
The
existing statutory defence of actual or imputed knowledge that the other person
was acting lawfully has been retained in the proposed subsection 49(3). The
statutory defence mitigates the application of strict liability and affords the
defendant some protection. The defendant bears a legal burden in relation to
that defence.
The proposed section 49A deals with assault against arresting person but
does not define “assault”. Application of the Criminal Code
to DFD Act assault-based offences will not prevent the term
‘assault’ from continuing to be interpreted in accordance with the
common law. Whilst not referred to explicitly in each of the re-drafted
assault-based offences, the application of the common law to the definition and
interpretation of “assault” has been preserved albeit within
Criminal Code constraints.
Paragraph 49A(1)(a) sets out the
physical element of conduct “assault” of another person. This
physical element attracts the fault element of “intention” on
application of the Criminal Code.
Paragraphs (1)(b)(i) to (iv)
contain physical elements of circumstance, each of which pertain to the
lawfulness of the conduct referred to in those paragraphs. Subject to the
statutory defence noted below, subsection 49A(2) applies strict liability to the
physical elements of circumstance set out in paragraphs 49A(1)(b)(i),
(1)(b)(ii), (1)(b)(iii) and (1)(b)(iv), that the conduct is lawful. The
application of strict liability to paragraphs 49A(1)(b)(i), (1)(b)(ii),
(1)(b)(iii) and (1)(b)(iv) reflects section 9.3(1) of the Criminal Code
(and the common law position) that ignorance of the law is no excuse.
Ministerial approval was obtained for the application of strict liability as
described above.
The proposed statement of offence has been amended from “Delay or
denial of justice” to conform to the Criminal Code drafting style
of putting the statement of offence in the present tense. In section 50 there
are two physical elements of circumstance for each of the offences and these are
set out in the proposed paragraphs (1) and (2)(a) and (b). The fault element of
“recklessness” applies to each of these elements by default under
the Criminal Code. In each of subsections (1) and (2) the physical
element is that the member does not take such action as is required. The fault
element of “intention” applies in each case by default under the
Criminal Code. The defence of “reasonable excuse” in the
proposed subsection (3) is retained,
unaltered.
Section
51 – Escaping from custody
As this section
has only one physical element –“escapes from custody” –
and the fault element of “intention” has to be applied by default
under the Criminal Code to this element - the only amendment proposed is
to re-format it in accordance with the other re-drafted provisions. The
statement of offence has been amended from “Escape from custody” to
conform to the Criminal Code drafting style of putting the statement of
offence in the present tense.
“Custody” is defined in
subsection 3(1) of the DFD Act. What constitutes an “escape” is a
question of fact but before a person can be said to have escaped, it must be
proved that the person was out of the control and reach of the person’s
escort or guards.
The proposed statement of offence has been amended from “False
evidence” to conform to the Criminal Code drafting style of putting
the statement of offence in the present tense. The physical element of
circumstance in paragraph (1)(a) attracts the fault element of
“recklessness” by default under the Criminal Code. The fault
element of “knows or believes” is applied by paragraph (c) to the
physical element of conduct is in paragraph (1)(b) “makes a false
statement in those proceedings”. This fault element conforms to the
present wording of the section. Paragraph (d) is a further physical element of
the offence – that the statement is material in the proceedings –
and attracts the fault element of “recklessness” on application of
the Criminal Code. The defence in present subsection (2) is retained,
unaltered.
The proposed offences have been reformulated into the Criminal
Code drafting style with minimal change.
The powers given to service
tribunals by this section are similar to those granted to State and Territory
courts by the Acts that create the court, or in the Rules of Court. The powers
given by these Acts or Rules are intended to enable the court to protect itself
and its proceedings from disturbance, in order to enable justice to be done with
decorum: R v McIndoe [1938] VLR 277. The maximum penalty for contempt
of court provided by section 133 of the Magistrates Court Act 1989 (Vic)
is 6 months imprisonment or a fine of $2500 which is very similar to the maximum
penalty for the present section 53.
The present subsection 53(7) empowers
a court martial or Defence Force magistrate to deal with contempt summarily, in
the same way that magistrates and judges can in the civilian arena. It should
be noted that this power is not conferred on any summary authority under the
Act. Contempt against a summary authority must be dealt with by laying a charge
outside the hearing and proceeding in accordance with the usual requirements of
the Act. This provides a safeguard against misuse of the contempt provisions by
summary authorities, who are not usually legally trained.
The application
of strict liability to the three categories of offence in the present section 53
has been made explicit. Defence obtained Ministerial authorisation for this to
occur. The current offences are considered to be ones of strict liability in
view of their nature, the relatively low maximum penalty, and in the case of
subsections 53(1) and (3) the availability of a statutory defence of
“without reasonable excuse”. If the offences created by section 53
are not specified as strict liability, fault elements will be applied by the
Criminal Code when the present section gives no indication that proof of
any fault element is required.
To prove an offence in subsection (1) it
will be sufficient to show that the defendant was summonsed or ordered to appear
and without reasonable excuse (or as a result of a mistake of fact, within the
meaning of section 6.1 of the Criminal Code) failed to do so.
To
prove an offence in subsection (2) it will be sufficient to show that a person
is appearing as a witness before a service tribunal and without reasonable
excuse (or as a result of a mistake of fact, within the meaning of section 6.1
of the Criminal Code) refused or failed to either take an oath or make an
affirmation; or answer a question; or produce a document required to be
produced under summons or an order.
To prove an offence in subsection (4)
- insulting a member of a service tribunal, interrupting proceedings, creating a
disturbance near a service tribunal or engages in any other conduct that would
constitute a contempt - proof of a fault element is also not necessary. The
defendant’s rights are adequately protected by the requirement in
subsection (5) to show cause why he or she should not be convicted of an offence
against subsection (4) and by the availability of the defence of mistake of fact
which applies to all offences of strict liability.
For convenience and clarity of application, existing subsection 54(1) has
been re-drafted into two proposed separate offence subsections. Paragraphs
(1)(a) and (2)(a) contain the physical element of circumstance – “a
person is delivered into the member’s custody” or “the member
has a duty to guard the person”. A further physical element of
circumstance is in paragraph (2)(c): “the member has no authority to
release the person”. The fault element of “recklessness”
applies to these physical elements by default under the Criminal
Code.
The physical elements of conduct for the offences against this
section are set out in paragraphs (1)(b) and (2)(b): “allows the person to
escape” and “releases the person”. The fault element of
“intention” applies by default to each of these elements and does
not need to be expressed in the section.
The existing subsections 54(2)
and (3) are replaced respectively by subsections (3) and (4). Both of these
subsections have only one physical element (conduct) and clearly express the
fault element of “intention” in relation to that conduct.
Deconstruction of the subsections into fault elements and physical elements is
therefore unnecessary.
Items 45 to 49 concern amendments to
section 54A. The offences created by section 54A apply to persons undergoing a
punishment of detention in a detention centre. A detention centre is defined in
section 4 of the DFD Act.
Item 45 creates a proposed subsection
54A(2A) which provides that an offence under section 54A is a strict liability
offence. On consideration of the wording of section 54A, its intended purpose,
the relatively low maximum penalty and the availability of the defence of
“reasonable excuse” in the present subsection (3), it is clearly
intended to create offences of strict liability. Ministerial authorisation for
the continued application of strict liability to these offences was
obtained.
Item 46 seeks to insert in subsection 54A(3) after
“custodial offences” the words “proves that he or she”.
This amendment provides certainty in relation to the existing
defence.
Item 47 adds the standard note that a defendant bears a
legal burden of proof in relation to the statutory defence in subsection
54A(3).
Item 48 repeals and substitutes subsection 54A(6) so that
references to Crimes Act 1914 and section 73 of the Defence Act
1903 are removed and updated upon application of the Criminal
Code.
Item 49 repeals Division 7 and 8 of Part III of the Act
and substitutes re-drafted offence provisions as
follows:
Division 7 – Miscellaneous
offences
The statement of offence has been amended from “Falsification of
service documents” to conform to the Criminal Code drafting style
of putting the statement of offence in the present tense.
In the preface
to this offence in subsection (1) the word “intent” has been
substituted for the phrase “with a view to” which is used in the
present subsection 55(1) preface. The preface then applies the two separate
fault elements of “intention” to the various physical elements of
conduct set out in paragraphs (a) to (e).
In place of
“suppresses, defaces, makes away with or destroys a service
document...” in paragraph (1)(d) the words “engages in conduct that
results in the suppression of, the defacing or, the making away with or the
destruction of a service document” for consistency with the Criminal
Code.
Section 56 - False statement in relation to application
for benefit
The proposed section 56 has been re-drafted in a
manner that is consistent with the provisions of section 136.1 of the
Criminal Code: relating to “False or misleading statements in
applications”. One of the objectives of introducing the section 136.1
offence was to create a generic offence that would replace over 130 variations
of false or misleading statement offences that currently appear on the
Commonwealth statute books. By re-drafting the present section 56 into the form
of section 136.1, this objective is being fulfilled insofar as the DFD Act
variant of a “false or misleading statement in application” offence
is concerned.
The re-drafted provision differs from section 136.1 in
that it retains the existing categories of “applications for
benefit” in the present paragraphs 56(a) to (c) – “grants,
payments or allotments or money or allowances, applications for leave of absence
or any other benefit or advantage”. This will have the effect of properly
confining the offence to its service context because it will only pertain to an
application for benefit that arises out of, or is based on, membership of, or
service in or in connection with, the Defence Force. False or misleading
statements arising outside of those categories will lack the necessary service
nexus and should be prosecuted using section 136.1. The proposed section now
has two offence provisions, one in subsection (1) and the other in subsection
(4).
The proposed section omits s.136.7 of the Criminal Code,
relating to alternative verdicts, for the sake of drafting consistency within
the Act. The intended effect of this provision has been achieved by an
amendment to the Table of Alternative Offences in Schedule 6 of the
Act.
Subsection (1) contains the first offence-provision. Paragraph
56(1)(a) contains the physical element of conduct, “the person makes a
statement” to which the fault element of “intention” applies
by default upon application of the Criminal Code. Paragraph (b) contains
the physical elements of result of conduct, paragraph (i) “that the
statement is false or misleading”, or paragraph (ii) “that the
statement omits any matter or think without which the statement is
misleading”. The fault element of “knowledge” applies to the
elements in paragraph (b) by virtue of paragraph (c). Paragraph (d) contains
the physical elements of circumstance that the statement is made in, or in
connection with, an application of the type specified in paragraphs (i), (ii)
and (iii); and paragraph (e) contains the further physical element of
circumstance that the application arises out of or is based on membership or
service in connection with the Defence Force.
It will also be noted that
subsections (2) and (3) provide that a defendant bears an evidential burden in
relation to the matters in paragraphs (1)(b)(i) and (1)(b)(ii). This changes
the existing situation that applies as a consequence of the present subsection
12(2).
A consequence of adopting the Criminal Code section is that
the maximum punishment for the offence in subsection (1) will be 12 months
imprisonment instead of 2 years, in the present section.
Subsection 56(4)
contains the second offence-provision in this section. Paragraph (4)(a)
contains the physical element of conduct, “the person makes a
statement” to which the fault element of “intention” applies
by default upon application of the Criminal Code. Paragraph (b) contains
the physical elements of result of conduct, paragraph (i) “that the
statement is false or misleading”, or paragraph (ii) “that the
statement omits any matter or thing without which the statement is
misleading”. The fault element of “recklessness” applies to
the elements in paragraph (b) by virtue of paragraph (c). The remainder of the
offence is identical to the subsection (1) offence. Subsections (5) and (6)
make the same provision in relation to paragraphs (4)(b)(i) and (4)(b)(ii).
A consequence of adopting the Criminal Code section is that the
maximum punishment for the offence in subsection (4) will be 6 months
imprisonment.
Re-drafting of section 57 in the drafting style of the Criminal
Code has resulted in minimal change to the existing provision. The separate
offences in section 57 whereby the offence in section 57(1) can be committed by
“any person” but the offence in subsection 57(2) can only be
committed by a “defence member”, have been retained in subsections
(1) and (2).
Subsection (1) contains the physical element of circumstance
“in or in connection with an application for the person’s
appointment or enlistment in the Defence Force” which attracts the fault
element of “recklessness” under the Criminal Code.
Paragraphs (a), (b) and (c) contain the physical elements of conduct to which
the fault element of “intent to deceive” has been expressly stated
to apply to that conduct.
Paragraphs (2)(a), (b) and (c) the fault
element of “intent to deceive” applies to the three forms of conduct
that can give rise to an offence under this subsection.
Although the
offences created by this section cover similar ground to the offences of false
or misleading information or false or misleading documents in sections 137.1 and
137.2 of the Criminal Code, there are some significant differences in
their respective physical elements and fault elements. The Criminal Code
provisions also carry a higher maximum penalty of 12 months imprisonment rather
than a 3 month maximum as is found in section 57. Accordingly, the section has
been retained as a separate offence.
Proposed paragraph 58(1)(a) sets out the physical element of conduct
necessary to constitute this offence, “person discloses
information”. The fault element of “intention” applies to
this physical element by default under the Criminal Code. Proposed
paragraph 58(1)(b) is the physical element of circumstance that attracts the
fault element of “recklessness” upon application of the Criminal
Code. Paragraph (c) contains the physical element of result of conduct that
would attract the fault element of “recklessness” if the Criminal
Code were to apply by default. However, as the present subsection 58(2)
provides a defence based on actual or imputed knowledge by a defendant person
(that disclosure of the information is likely to be prejudicial to the security
or defence of Australia), strict liability has been expressed to apply to
paragraph (c) by subsection (2). Ministerial approval was obtained for this to
occur.
The existing statutory defence in subsection 58(2) has been
retained in order to protect the accused against the application of strict
liability. The defendant bears a legal burden in relation to the
defence.
Section 59 – Dealing in or possession of narcotic
goods
The existing division of offences in section 59 has been
retained in the re-drafted section 59. The offence is existing 59(1) is now
found in subsection (1). The offence in existing subsection 59(2) is now in
subsection (3). The offence in existing subsection 59(3) is now in subsection
(5). The offence in subsection 59(4) is now in subsection (6). Finally, the
offence in subsection 59(5) is now in subsection (7).
Paragraph (1)(a)
sets out the physical element of circumstance for this offence, “that the
person is outside Australia”. Although this element might be specified as
strict or absolute liability, there may be situations in which there is doubt as
to whether a defendant person is in Australia at the relevant time - for
example, a sale of narcotics on board a ship at sea. Accordingly, the fault
element of “recklessness” has been applied to this element by
default under the Criminal Code. Paragraph (b) sets out the physical
element of conduct that constitutes the offence and paragraph (c) applies the
fault element of “knows the nature of those goods” to that conduct.
This accords with the present wording of subsection 59(1).
A new
statutory defence of “lawful authority” has been created in proposed
subsection (2) in place of the existing reference to “without lawful
authority” in the present section 59(1). It is considered that the
presence of that term essentially amounts to a defence, and the requirement to
adhere to Criminal Code objectives means that this term should be
re-formulated into a separate statutory defence provision. A person who
traffics in narcotics can now raise a defence of lawful
authority.
Paragraph (3)(a) sets out the physical element of circumstance
for this offence, “that the person is outside Australia”, which
attracts the fault element of “recklessness” by default under the
Criminal Code. The physical element of conduct “possession of
narcotic goods” is set out in paragraph (b) and, attracts the fault
element specified in paragraph (c) that the defendant knew that he or she was in
possession of narcotic goods, and their nature. A new statutory defence of
“lawful authority” has been created in subsection (4) in place of
the existing reference to “without lawful authority” in the present
subsection 59(2) offence.
Paragraph (5)(a) sets out the fault element of
circumstance – that the person is outside Australia – which attracts
the fault element of “recklessness” under the Criminal Code.
The physical element of conduct – administering to himself or herself
narcotic goods (other than cannabis) – is set out in paragraph (b) and
attracts the fault element of “intention” by default upon
application of the Criminal Code.
Subsection (6) makes it an
offence if a defence member or defence civilian uses cannabis “whether
within or outside Australia”. This phrase could be replaced by the word
“anywhere”, but to maintain consistency with other provisions in
section 59 it is retained in subsection 59(6). The physical element of conduct
– “uses cannabis” - attracts the fault element of
“intention” under the Criminal Code.
The proposed
subsection 59(7), although relating to small amount of cannabis, is not
specified as strict liability because the present section applies the fault
element of “knowledge” to the conduct of possession of the cannabis.
The proposed section sets out the physical element of circumstance in paragraph
(a) “being in Australia”. The physical element of conduct
“being in possession of a quantity of cannabis not exceeding 25 grams in
mass” to which the fault element of “knowledge” in paragraph
(c) applies. A new statutory defence of “lawful authority” has been
created in subsection (8) in place of the existing reference to “without
lawful authority” in the present subsection 59(5) offence.
The re-drafted section 60 differs from the present section 60. Because
of the unique nature of the offence, it was not possible to re-formulate it so
as to accord with the Criminal Code philosophy for fault elements without
effecting a fundamental change to the nature of the offence. Consequently,
Defence obtained specific Ministerial authorisation to amend section 60 in the
proposed manner. This represents the best balance between maintaining the
current operation of the provision and adhering to the Criminal Code
philosophy.
The present section 60 is used in connection with breaches of
discipline that fall outside the ambit of specific offence provisions. Charges
of a similar nature to section 60 have been present in the military codes of
Australia, the United Kingdom and the United States for many years (see, for
example, in the United Kingdom, section 69 of the Army Act 1955, as amended by
the Armed Forces Act 1971 and the Armed Forces Act 1986; and, in the United
States, Article 134 (General Article) of the United States Uniform Code of
Military Justice). The offence also has a very long history. The present
section is the successor to the old charge of engaging in conduct to the
prejudice of good order and military discipline found in section 40 of the Army
Act (44 and 45 Victoria C. 58) which provided:
"Conduct to Prejudice of
Military Discipline Every person subject to military law who commits any of the
following offences: that is to say:- is guilty of any act, conduct, disorder
or neglect to the prejudice of good order and military discipline, shall be
guilty of an offence and liable to suffer a term of imprisonment or other less
punishment”
The conduct that can constitute the offence can take
many forms. So much so, that Lockhart J commented in Chief of the General
Staff v Stuart (1995) 133 ALR 513 that: “It is impossible, indeed
unwise, to attempt any exhaustive definition of the words employed in s.
60.” The provision carries a maximum penalty of three months imprisonment
and permits charges to be preferred against a Defence member for an act or
omission that is likely to bring discredit on the Defence Force or that is
likely to be prejudicial to the discipline of the Defence Force. The nature of
the charge is such that its use within the Defence Force is particularly
widespread.
Traditionally, a range of fault elements are permitted to
attach to the conduct specified for the purposes of a section 60 offence. The
requisite fault element depends entirely on the nature of the conduct being
alleged. In Chief of the General Staff v Stuart Lockhart J
said:
“The kind of mens rea which it is necessary for the
prosecution to prove in a prosecution under s. 60, relevant to the present case,
is that the respondent must be shown to have known all the facts constituting
the ingredients necessary to make the act criminal that were involved in the
charge. Generally it is not necessary that the accused must think that what he
was doing was wrong, although in some cases this knowledge may be necessary. It
all depends on the facts of the case, and there is a multifarious range of
situations that may attract the operation of s. 60.”
The
requirement of the Criminal Code that the fault element of intention must
attach to the physical element of conduct in a statutory offence would have made
a fundamental change to the operation of this provision. Such a change runs
contrary to the policy of the Criminal Code that is intended to minimise
changes to the current operation of provisions to the extent consistent with
harmonisation requirements.
Under subsection 60(1) a defence member will
be guilty of an offence if the member engages in conduct that is likely to
prejudice the discipline of, or bring discredit on, the Defence Force.
Subsection 60(2) provides that an offence under this section is one of strict
liability. This has been done taking into account the relatively low penalty
for this offence, and the need for the section to be used in a wide variety of
circumstances to meet the disciplinary purposes of the Act. Subsection (3)
creates the statutory defence of “reasonable excuse” to which a
legal burden applies to the defendant. The new statutory defence
counter-balances the effect of making the offence one of strict liability by
providing appropriate protection for the accused against unjust conviction.
This accords with contemporary notions of justice. The defendant bears a legal
burden of proof in relation to the defence.
Division 8 –
Offences based on Territory offences
Section 61 creates certain offences triable by service tribunals that are
offences against the ordinary criminal law. The offences relevant to this
provision are acts or omissions which would be Territory offences if they took
place in the Jervis Bay Territory. Subsection 3(1) defines a “Territory
offence” for the purpose of the DFD Act. Hence, section 61 is essentially
a mechanism for expanding the jurisdiction under the DFD Act to include
Territory offences.
An explanatory note has been included in subsection
61(6) that clarifies the application of the Criminal Code to the law in
force in the Jervis Bay Territory for the purpose of determining whether an
offence against section 61 has been committed. This note is necessary to
confirm that whilst the content of Chapter 2 of the Criminal Code applies
to section 61, it may not apply to the content of the law in force in the Jervis
Bay Territory. To determine, for the purposes of section 61, whether Chapter 2
of the Criminal Code also applies to Jervis Bay Territory law, it is
necessary to consult Jervis Bay Territory law. For example, where a law of the
Commonwealth is in force in the Jervis Bay Territory, Chapter 2 will apply to
the Commonwealth law for the purposes of an offence under section 61.
The
re-drafted provision makes minimal changes to the existing section 61. The
proposed section utilises the phrase “engages in conduct” as the
fault element for each of the offences set out in paragraphs (1)(a), (2)(a) and
(3)(a). The phrase replaces the current wording “does or omits to do
“an act or thing the doing or omission of which is.” The fault
element of “intention” applies to this conduct by default under the
Criminal Code.
Item
50 amends section 62 as follows:
Section 62 deconstructs into two physical elements. The physical element
of conduct, as set out in paragraph (1)(a), has the effect that the member
commands or orders a person to do something, or to omit to do something. The
physical element of circumstance, as set out in paragraph (1)(b), is that the
conduct would constitute a service offence.
The physical element of
conduct at paragraph 62(1)(a) attracts the fault element of
“intention” by default under the Criminal Code. Subsection
62(2) applies strict liability to the physical element of circumstance at
paragraph (1)(b). In doing so, subsection (2) reflects the position set out in
subsection 9.3(1) of the Criminal Code (and the common law) that
ignorance of the law is no excuse.
There is no specific maximum penalty
for this offence because the penalty will be the maximum penalty for the primary
offence.
Items 51 to 54 are consequential amendments
arising from the application of Chapter 2 of the Criminal Code to the DFD
Act, and from the re-numbering of offence provisions.
Items 55 to
62 amend the present section 101QA. The existing provision has been
re-drafted so that a statutory defence of “reasonable excuse” has
been created for the two variations of offence contained in this section. The
reference to “without reasonable excuse” in paragraphs 101QA(1)(e)
and 101QA(2)(f) have been deleted, and new defence provisions have been created
in subsections 101QA(1A) and 101QA(2A). The defendant bears a legal burden in
relation to those defences. Defence obtained Ministerial authorisation for a
legal burden to apply to these defences. A consequential amendment has been
made to subsection 101QA(3) arising from the creation of new subsections (1A)
and (2A).
In subsection 101QA(4) the term “the person proves
that” has been inserted after the words “to the extent that”,
and in place of the term “is not reasonably necessary” the words
“was not reasonably necessary” have been substituted. These
amendments will enhance the clarity of the provision with respect to matters
that the defendant can raise by way of defence. Because subsection 101QA(4)
effectively operates as a statutory defence, a notation to that effect has been
included at the end of the subsection.
Items 63 to 66 are a
further series of consequential amendments arising from the application of
Chapter 2 of the Criminal Code to the DFD Act, and from the re-numbering
of offence provisions.
Items 67 to 88 concern the amendment
of Schedule 6 to the DFD Act. Section 142 of the Act makes provision for the
case in which a service tribunal convicts an accused of an offence other than
that charged. Schedule 6 lists the allowable alternatives. These amendments
ensure that this system of statutory alternatives is revised to take account of
the re-numbered provisions following amendment to implement the Criminal
Code.
Defence Force Retirement and Death Benefits Act
1973
Item 89 adds new section 6D which applies Chapter 2
of the Criminal Code to all offences against the Act. Chapter 2 sets out
the general principles of criminal responsibility.
Item 90 repeals
and substitutes subsection 127(1). A recipient member, a person in receipt of a
pension under previous legislation (being the Defence Forces Retirement
Benefits Act 1948) other than sections 55 or 57 of that Act or a person to
whom a deferred benefit is applicable under section 78 of the Act or under
section 82ZB of the 1948 Act is guilty of an offence if the person becomes an
eligible member of the Defence Force and does not inform the (Defence Force
Retirement and Death Benefits) Authority within 14 days of becoming an eligible
member that he or she has become such a member. The subsection restates the
existing penalty of a fine of $100.
Item 91 repeals and
substitutes subsection 130(3). New subsection 130(3) provides that a person is
guilty of an offence if he or she is given a notice under subsection 130(2) and
does not comply with the requirements contained in that notice. The relevant
notice under subsection 130(2) is a notice requiring the (Defence Force
Retirement and Death Benefits) Authority to inform a judgement debtor of service
of documents. The existing penalty of $40 is retained.
Item 92
repeals and substitutes subsection 130(8). The new subsection provides that a
judgement creditor is guilty of an offence if he or she serves a copy of a
judgement on the (Defence Force Retirement and Death Benefits) Authority under
subsection 130(1) and he or she does not notify the Authority immediately that
the judgement debt is satisfied. The subsection retains existing penalties of
$100 or a term of 3 months imprisonment for natural persons or a maximum penalty
of $500 in the case of a body corporate.
Defence Forces Retirement
Benefits Act 1948
Item 93 adds new section 26 to this Act
to provide that Chapter 2 of the Criminal Code applies to all offences
under the Act. Chapter 2 sets out the codified general principles of criminal
responsibility.
Item 94 repeals and substitutes subsection 69(7)
of this Act. Subsection (7) provides that a pensioner (other than a pensioner
under sections 55 or 57) is guilty of an offence if he or she becomes a member
for the purposes of the Act and does not notify the board in the prescribed
manner within 14 days after becoming a member again. The subsection retains the
existing penalty of $40.
Item 95 saves Regulations that were in
effect for the purposes of subsection 69(7) of the Defence Forces Retirement
Benefits Act 1948 immediately before the commencement of this item. Those
Regulations continue to have effect as if they had been made under new
subsection 69(7).
Item 96 repeals and substitutes subsection
85A(3). This subsection provides that a person is guilty of an offence if he or
she does not comply with the requirements of a notice given to him or her under
subsection 85A(2) by the Defence Force Retirement and Death Benefits Authority.
A notice under subsection 85A(2) informs the person of the service of certain
documents on the Authority and requires the person to notify the Authority of
certain matters. Subsection (3) retains the existing penalty of
$40.
Item 97 repeals and substitutes subsection 85A(8).
Subsection 85A(8) provides that a judgement creditor will be guilty of an
offence if he or she serves a copy of a judgement on the Defence Force
Retirement and Death Benefits Authority under subsection (1) and does not notify
the Authority immediately that the debt has been satisfied. The existing
penalties set out in the subsection have been retained: in the case of a natural
person a penalty of $100 or 3 months imprisonment and in the case of a body
corporate, a penalty of $500.
Defence (Special Undertakings) Act
1952
Item 98 inserts new section 5 in the Act to provide
that Chapter 2 of the Criminal Code applies to all offences under the
Act. Chapter 2 sets out the codified general principles of criminal
responsibility.
Item 99 repeals and substitutes section 9 of the
Act that deals with the unlawful entry with regard to a prohibited area. New
subsection 9(1) provides that a person will be guilty of an offence if the
person is in, enters or flies over a prohibited area. Subsection (1) restates
the existing penalty of 7 years imprisonment for an offence under this
section.
New subsection 9(1A) restates the current statutory defence that
subsection 9(1) does not apply if the person is the holder of a permit under
section 11 in respect of the prohibited area. A note is added referring to the
fact that under subsection 13.3(3) of the Criminal Code a defendant bears
an evidential burden in respect of the matter in subsection 9(1A).
New
subsection 9(1B) provides that where a permit under section 11 has been issued
to a ships master or an aircraft pilot to enable a ship or aircraft to pass
through or to be over a prohibited area, a person who is lawfully on the ship or
aircraft does not commit an offence under subsection (1) by reason only of his
or her presence on board the ship or aircraft. A note is added after the new
subsection (1B) referring to the fact that under subsection 13.3(3) of the
Criminal Code a defendant bears an evidential burden in relation to the
matter at subsection 9(1B).
New subsection 9(2) provides that a person is
guilty of an offence if:
• a person makes a photograph, sketch,
plan, model, article, note or other document of or relating to an area or
anything in an area that is a prohibited area; or
• obtains,
collects, records, uses, has in his or her possession, publishes or communicates
to another person a photograph, sketch, plan, model, article, note, or other
document or information relating to or used in an area or relating to anything
in an area that is a prohibited area.
Subsection 9(2) restates the
existing penalty of 7 years imprisonment.
New subsection 9(3) sets out
the existing defence of lawful authority or excuse for the conduct described in
subsection (2). A note is added after subsection 9(3) that under subsection
13.3(3) of the Criminal Code a defendant seeking to raise a matter in
subsection (3) bears an evidential burden in relation to that
matter.
Item 100 repeals and substitutes subsections 11(4) and
(5).
New subsection 11(4) refers to permits under section 11 authorising
a person to be in, enter or to fly over a prohibited area. Subsection (4) makes
it an offence if the holder of such a permit does not comply with the conditions
and restrictions specified in the permit. The subsection restates the existing
penalty of 7 years imprisonment.
New subsection 11(5) refers to permits
under section 11 authorising a person to be in, enter or to fly over a
prohibited area. Subsection (5) makes it an offence if the holder of such a
permit, that has been revoked or suspended, does not immediately deliver the
permit to the officer in charge of the prohibited area, or to a person specified
by the person revoking or suspending the permit. The subsection restates the
existing penalty of 2 years imprisonment.
Item 101 repeals and
substitutes sections 12 and 13.
New section 12 refers to a permit
issued under section 11. Section 12 states that if the holder of such a permit
enters or is in a prohibited area and does not comply with a direction given by
the officer in charge of the prohibited area for regulating his or her (the
permit holder’s) conduct is guilty of an offence. The section restates
the existing penalty of 2 years imprisonment.
New section 13 deals with
sabotage. Subsection (1) provides that a person is guilty of an offence if he
or she engages in conduct that results in damage to, destruction of, obstruction
of or interference with any of the things listed in subsection 13(2). The
person must intend to bring about that result and the thing must be used or
occupied either wholly or in part for the purposes of a special defence
undertaking. The section restates the existing penalty of 7 years.
New
subsection 13(2) itemises the “listed things” referred to in
subsection 13(1). These are:
• a railway, tramway, roadway, wharf,
pier or jetty, or a work or structure that is part of or connected with a means
of transport by land, water or air;
• a searchlight, lighthouse,
buoy or other navigational aid;
• a public building, fire station,
aerodrome, air station or runway for aircraft;
• a signal,
telegraph, telephone, radar or wireless station or office;
• a
place used for gas, water or electricity works or other works for the purposes
of a public character.
Item 102 repeals and substitutes subsection
14(3). Paragraph 14(3)(a) refers to an order declaring an area to be a
restricted area for the purposes of the Act. Paragraph 14(3)(b) then makes it
an offence for a person to contravene or fail to comply with such an order. The
subsection restates the existing penalty of 2 years imprisonment.
Item
103 repeals and substitutes sections 16 and 17.
New section 16
relates to the procedures to be adopted by the pilot of an aircraft which is
over a prohibited area or a restricted area. Section 16 provides that a pilot
is guilty of an offence if he or she knows that he or she is over a prohibited
area or a restricted area without lawful authority and does not take the
following actions:
• immediately cause the aircraft to be flown
outside the area;
• as soon as possible, report the circumstances
to the nearest air traffic control centre established under the Air Navigation
Regulations; and
• cause the aircraft to land at a place designated
by the air traffic control centre and, for that purpose, obey any instructions
given by the centre in relation to the movement of the aircraft.
Section 16
restates the existing penalty of 7 years imprisonment.
New section 17
relates to the use of cameras. New subsection 17(1) provides that a person is
guilty of an offence if he or she is in or passing over a prohibited area and
has in his or her possession, carries or uses a camera or other photographic
apparatus or material. The subsection restates the existing penalty of 2 years
imprisonment.
New subsection 17(2) sets out a statutory defence where the
person has the authority of the officer in charge of the prohibited area for the
conduct mentioned in subsection (1). A note is added referring to the fact that
under subsection 13.3(3) of the Criminal Code a defendant bears an
evidential burden in relation to the matter in subsection (2).
Item
104 repeals and substitutes subsection 23(2). Section 23 deals with the
arrest of suspected persons. New subsection (2) makes it an offence for a
person who:
• is in, or in the neighbourhood of a prohibited area;
and
• who is required, by the officer in charge of the prohibited
area or a Commonwealth officer or constable, to give his or her name to that
officer in charge, Commonwealth officer or constable;
• to refuse
to do so.
Subsection 23(2) restates the existing penalty of 2 years.
Item 105 repeals and substitutes subsection 31(2). Section 31
relates to proceedings in respect of an offence under the Act. Section 31 has
the effect that where it is considered in the interests of the defence of the
Commonwealth, proceedings may be heard in camera. New subsection 31(2) makes it
an offence for a person to fail to comply with an order or direction under the
section. The section restates the existing penalty of 5 years
imprisonment.
Military Superannuation and Benefits Act
1991
Item 106 inserts section 3A to the Act to provide
that Chapter 2 of the Criminal Code applies to all offences under the
Act. Chapter 2 sets out the codified general principles of criminal
responsibility.
Naval Defence Act 1910
Item
107 inserts a new section 5B to the Act that applies Chapter 2 of the
Criminal Code to all offences under the Act. Chapter 2 sets out the
codified general principles of criminal responsibility.
Item 108
repeals and substitutes section 44E of the Act which relates to supplying
intoxicating liquor to Naval Reserve Cadets. Subsection 44E(1) provides that it
is an offence for a person to sell or supply intoxicating liquor to a Naval
Reserve Cadet who is under the prescribed age and in uniform. The existing
penalty of $40 has been restated.
New subsection 44E(2) retains the
existing statutory defence that the sale or supply of the liquor is by direction
of a duly qualified medical practitioner. A note is added that, pursuant to
subsection 13.3(3) of the Criminal Code, the defendant bears an
evidential burden in relation to a matter under subsection (2).
Under
new subsection 44E(3), this offence is one of strict liability subject to the
statutory defence noted above. Where strict liability applies to an offence,
the prosecution does not have to prove fault on the part of the defendant. The
prosecution need only prove that the physical elements of the offence occurred.
Under the Criminal Code, any legislative provision that attracts
strict liability must expressly state that it is an offence of strict liability
(see section 6.1 of the Criminal Code).
Item 109 preserves
Regulations that were in effect for the purposes of section 44E of the Act
immediately before the commencement of this item. These Regulations continue to
have effect as if they had been made under new section 44E.
Weapons
of Mass Destruction (Prevention of Proliferation) Act 1995
Item 110 inserts new section 8A which applies Chapter 2 of the
Criminal Code (other than Part 2.5) to all offences under the Act.
Chapter 2 sets out the codified general principles of criminal responsibility.
Part 2.5 of Chapter 2 refers to corporate criminal responsibility and has been
omitted because existing section 15 of the Act specifically deals with the
conduct of directors, servants and agents.
Item 111 repeals and
substitutes subsection 14(6). The subsection makes it an offence for a person
to supply or export goods or to provide services in contravention of a notice or
of a condition stated in a notice in force under section 14. The subsection
retains the existing 8 year maximum
penalty.
Part 2—Technical
amendment
Item 112 is a technical amendment to paragraph 3(1)(b)(i) - the
definition of defence member. The amendment does not amount to a change
in policy, and Ministerial approval was granted for this amendment to be
included in this Bill. Whilst purely technical in nature, the amendment is
critical in terms of DFD Act jurisdiction for members of the Reserves. It was
considered to be of such importance that it be included within this Defence
Legislation Amendment Bill.
The amendment to subsection 3(1) is aimed at
rectifying an unintended error that occurred when consequential amendments were
made in the Defence Legislation Amendment (Enhancement of the Reserves and
Modernisation) Act 2001 (the Modernisation Act). The Modernisation Act was
part of a package of legislation that extended the options available to the
Government for calling out members of the Reserves. The Modernisation Act
overhauled and modernised the structure of the Defence Force, including
terminology used to refer to various parts of the Defence Force.
One of
its effects was to repeal outdated references to parts of the Defence Force in
various portfolio Acts including the DFD Act. As part of this exercise the
definition of “defence member” in subsection 3(1) was inadvertently
amended in such a way that the conjunction “or” which separated
paragraphs 3(1)(b)(i) and (ii) was replaced by “and” with the
following result -
“defence member” means:
(a) a member of
the Permanent Navy, the Regular Army or the Permanent Air Force;
or
(b) a member of the Reserves who:
(i) is rendering continuous full
time service; and
(ii) is on duty or in uniform
Whilst
this appears on its fact to be a relatively minor error, the effect is quite
significant because it means that unless a member is rendering continuous full
time service, he or she will not be a “defence member” for the
purposes of the DFD Act. Bearing in mind that most Reservists do not render
service on a continuous full time basis, the error is such that where a
Reservist performs the normal part-time service in the form of training days, he
or she would potentially be outside of the DFD Act disciplinary net.
It
is arguable that by utilising common law statutory interpretation principles and
the provisions of the Acts Interpretation Act 1901 the “and”
could be interpreted as an “or”. However, replacement of the
“and” with “or” will remove any doubt by restoring the
definition to its original form and ensuring the continuity of DFD Act
jurisdiction to Reservists.