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1998-1999-2000-2001
THE
PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF
REPRESENTATIVES
EDUCATION, TRAINING AND YOUTH
AFFAIRS LEGISLATION AMENDMENT
(APPLICATION OF CRIMINAL CODE) BILL
2001
EXPLANATORY
MEMORANDUM
(Circulated by authority
of the Minister for Education, Training and Youth Affairs the Hon Dr David Kemp
MP)
EDUCATION, TRAINING AND YOUTH AFFAIRS
LEGISLATION AMENDMENT (APPLICATION OF CRIMINAL CODE) BILL
2001
OUTLINE
The Bill amends criminal offences in Education, Training and Youth Affairs
portfolio legislation to ensure there is a smooth transition to the application
of the Criminal Code Act 1995. Specifically the Bill will amend
provisions relating to offences contained in the Higher Education Funding Act
1988 and the Student Assistance Act 1973 to ensure that the relevant
offences continue to have the same meaning and to operate in the same manner as
they do at present.
The Criminal Code contains a standard
approach to the formulation of criminal offences. Offences developed over many
years as part of Commonwealth statute law are by no means standard and it is
therefore necessary to make adjustments for when the Criminal Code
applies to all Commonwealth offences on 15 December 2001 (as provided for in the
Criminal Code Act 1995). The Bill is one of a number, which have been or
are being prepared in relation to offences under Acts administered by other
Ministers.
As the Bill makes consequential amendments to the criminal law there is no
financial impact.
EDUCATION, TRAINING AND YOUTH AFFAIRS
LEGISLATION AMENDMENT (APPLICATION OF CRIMINAL CODE) BILL
2001
NOTES ON CLAUSES
Clause 1 - Short title
Provides for the Act to be cited as the
Education, Training and Youth Affairs Legislation Amendment (Application of
Criminal Code) Act 2001.
Clause 2 -
Commencement
Provides for the Act to commence on the day after the
day on which it receives the Royal Assent.
Clause 3 -
Schedule(s)
This clause has the effect that any Act that is specified
in a Schedule is amended or repealed as provided in that
Schedule.
Clause 4 – Application of
amendments
Subclause 4(1) provides that amendments made by the Bill
apply only to acts and omissions that take place after the Bill commences. To
provide further clarity, subclause 4(2) provides that if an act or omission is
alleged to have taken place between two dates; one before the Bill commences and
one on or after the day on which the Bill commences, the act or omission is
alleged to have taken place before the Bill commences. Hence the amendments
made by the Bill only apply to offences occurring wholly after the Bill
commences.
Item 1
Inserts a new section 11, which applies Chapter 2 of
the Criminal Code to all offences against the Act. Chapter 2 establishes
the codified general principles of criminal responsibility.
Item
2
This item has the effect of removing the defences to the offence of
requiring or requesting a student to quote his or her tax file number from
subsection 52(1) and recreating them in a new subsection 52(1A). The rationale
for this amendment is to prevent the provision from being interpreted in such a
way as to include the defence elements of the provision as elements of the
offence, which would have to be disproved by the prosecution. The amendment
makes it clear that these elements are a defence to the offence. A standard
note is added after the new subsection referring to the fact that under
subsection 13.3(3) of the Criminal Code, a defendant seeking to rely on
the defences in new subsection 52(1A) carries an evidential
burden.
Item 3
This item has the effect of removing the
defences to the offence of unauthorised recording, use and divulgence of a
student’s tax file number from subsection 53(1) and recreating them in new
subsections 53(1A) and (1B). The rationale for this amendment is to prevent the
provision from being interpreted in such a way as to include the defence
elements of the provision as elements of the offence, which would have to be
disproved by the prosecution. The amendment makes it clear that these elements
are a defence to the offence. A standard note is added after the new
subsections referring to the fact that under subsection 13.3(3) of the
Criminal Code, a defendant seeking to rely on the defences in new
subsections 53(1A) and (1B) carries an evidential burden.
Items 4
and 5
These items have the effect of removing from subsection 78(4)
the defences to the offence of an officer recording or divulging information
obtained in the course of his/her employment, and recreating them in a new
subsection 78(4A). The rationale for this amendment is to prevent the provision
from being interpreted in such a way as to include the defence elements of the
provision as elements of the offence, which would have to be disproved by the
prosecution. The amendment makes it clear that these elements are a defence to
the offence. A standard note is added after the new subsection referring to the
fact that under subsection 13.3(3) of the Criminal Code, a defendant
seeking to rely on the defences in new subsection 78(4A) carries an evidential
burden.
Item 5 also inserts a new subsection 78(4B), which specifies
that the offence in subsection 78(4) attracts strict liability in respect of the
physical element of circumstance that information was disclosed or obtained
under or for the purposes of Chapter 4 of the Act. 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 physical element. A defence of mistake of
fact is open to the defendant under section 9.2 of the Criminal Code.
This defence is available if a person is under a mistaken but reasonable belief
about a fact and, had that fact existed, the conduct would not constitute an
offence. Under the Criminal Code, any legislative provision that
attracts strict liability must expressly state that it is an offence of strict
liability (see section 6.1 of the Code).
Item 1
Inserts a new section 5E, which applies Chapter 2
(except Part 2.5) of the Criminal Code to all offences created by the
Act. Chapter 2 establishes the codified general principles of criminal
responsibility while Part 2.5 of Chapter 2 establishes the general principles of
corporate criminal responsibility. Part 2.5 of Chapter 2 of the Criminal
Code has been excluded in favour of retaining the existing corporate
criminal responsibility provision established by section 50 of the
Act.
Items 2 and 3
These items have the effect of
removing from subsection 12ZU(4) the defences to the offence of an officer
divulging information obtained in the course of his/her employment, and
recreating them in a new subsection 12ZU(4A). The rationale for this amendment
is to prevent the provision from being interpreted in such a way as to include
the defence elements of the provision as elements of the offence, which would
have to be disproved by the prosecution. The amendment makes it clear that
these elements are a defence to the offence. A standard note is added after the
new subsection referring to the fact that under subsection 13.3(3) of the
Criminal Code, a defendant seeking to rely on the defences in new
subsection 12ZU(4A) carries an evidential burden.
Item 3 also inserts a
new subsection 12ZU(4B), which specifies that the offence in subsection 12ZU(4)
attracts strict liability in respect of the physical element of circumstance
that information was disclosed or obtained under or for the purposes of Division
6 of Part 4A of the Act. 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 physical element. A defence of mistake of fact is open to the
defendant under section 9.2 of the Criminal Code. This defence is
available if a person is under a mistaken but reasonable belief about a fact
and, had that fact existed, the conduct would not constitute an offence. Under
the Criminal Code, any legislative provision that attracts strict
liability must expressly state that it is an offence of strict liability (see
section 6.1 of the Code).
Items 4 and 5
These items
remove the defence of reasonable excuse from subsection 42(5) and recreate it in
a new subsection 42(5A). The rationale for this amendment is to prevent the
provision from being interpreted in such a way as to include the reasonable
excuse element of the provision as an element of the offence, which would have
to be disproved by the prosecution. The amendment makes it clear that
reasonable excuse is a defence to the offence.
A standard note is added after
the new subsection referring to the fact that under subsection 13.3(3) of the
Criminal Code a defendant seeking to rely on the reasonable excuse
defence carries an evidential burden.
Items 6 and
7
These items remove the defence of reasonable excuse from subsection
49(1) and recreate it in a new subsection 49(1A). The rationale for this
amendment is to prevent the provision from being interpreted in such a way as to
include the reasonable excuse element of the provision as an element of the
offence, which would have to be disproved by the prosecution. The amendment
makes it clear that reasonable excuse is a defence to the offence.
A standard
note is added after the new subsection referring to the fact that under
subsection 13.3(3) of the Criminal Code a defendant seeking to rely on
the reasonable excuse defence carries an evidential burden.
Item
8
This item has the effect of removing from subsection 347(10) the
defences to the offence of failing to comply with a requirement made under
section 343, 344 or 345 and recreating them in new subsections 347(11) and (12).
The rationale for this amendment is to prevent subsection 347(10) from being
interpreted in such a way as to include the defence elements of the provision as
elements of the offence, which would have to be disproved by the prosecution.
The amendment makes it clear that these elements are a defence to the offence.
A standard note is added after each of the new subsections referring to the fact
that under subsection 13.3(3) of the Criminal Code, a defendant seeking
to rely on the defences in the relevant subsection carries an evidential burden.
Item 8 also inserts a new subsection 347(13), which specifies that the
offence in subsection 347(10) is an offence of strict liability in respect of
the physical element of circumstance that the requirement was made under section
343, 344 or 345 of the Act. 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 physical element. A defence of mistake of fact is open to the
defendant under section 9.2 of the Criminal Code. This defence is
available if a person is under a mistaken but reasonable belief about a fact
and, had that fact existed, the conduct would not constitute an offence. Under
the Criminal Code, any legislative provision that attracts strict
liability must expressly state that it is an offence of strict liability (see
section 6.1 of the Code).
Items 9 and 10
Repeal
paragraphs 352(b) and 353(b) respectively in favour of relying on the
Criminal Code’s general defence of lawful authority (see section
10.5 of the Code) as a defence to the offence of unauthorised access to
protected information.
Item 11
Inserts a new subsection
357(2), which specifies that the offence of soliciting the disclosure of
protected information from an officer or another person in subsection 357(1) is
an offence of strict liability in respect of the physical element of
circumstance that the contravention is a contravention of Division 3 of Part 10
of the Act. 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
physical element. A defence of mistake of fact is open to the defendant under
section 9.2 of the Criminal Code. This defence is available if a person
is under a mistaken but reasonable belief about a fact and, had that fact
existed, the conduct would not constitute an offence. Under the Criminal
Code, any legislative provision that attracts strict liability must
expressly state that it is an offence of strict liability (see section 6.1 of
the Code).
Item 12
This item replaces paragraph 358(b)
with a new paragraph to make it clear that it is the intention held by the
defendant that is the key element in the offence of making untrue
representations for the purpose of soliciting the disclosure of protected
information from an officer.