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2000
THE
PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE
OF REPRESENTATIVES
FOREIGN
AFFAIRS AND TRADE LEGISLATION
AMENDMENT
(APPLICATION OF CRIMINAL
CODE)
BILL 2000
EXPLANATORY MEMORANDUM
(Circulated by authority of the Minister for
Foreign Affairs,
The Honourable Alexander Downer
MP)
ISBN: 0642 463964
FOREIGN AFFAIRS AND TRADE LEGISLATION
AMENDMENT
(APPLICATION OF CRIMINAL
CODE)
BILL 2000
GENERAL OUTLINE
The Bill amends eleven Foreign Affairs and Trade portfolio statutes by inserting new provisions and amending existing provisions to harmonise various offences within those statutes with Chapter 2 of the Criminal Code Act 1995. The amendments are to ensure that the relevant offences continue to have much 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 by various pieces of legislation are by no means consistent and it is therefore necessary to make adjustment for when the Criminal Code applies to all Commonwealth offences on 15 December 2001 (as provided for in Criminal Code Amendment (Application) Act 2000). The Bill is one of a number being prepared for offences administered by other Ministers (for example: Treasury Legislation Amendment (Application of Criminal Code) Bill 2000 which was introduced in the House of Representatives on 29 June 2000).
The application of the Criminal Code to all offences will improve Commonwealth criminal law by clarifying important elements of offences, in particular, the fault elements. At present many hours of practitioners' and court time are wasted in litigation about the meaning of particular fault elements or the extent to which the prosecution should have the burden of proving those fault elements.
The effect of the Bill is to harmonise offence-creating and
related provisions within the Foreign Affairs and Trade portfolio with the
general principles of criminal responsibility as codified in Chapter 2 of the
Criminal Code. The major forms of amendment effected by this Bill
are:
• applying the Criminal Code to
all offence-creating and related provisions in Foreign Affairs and Trade
portfolio legislation;
• deleting references in
Foreign Affairs and Trade portfolio legislation to some Crimes Act 1914
general offence provisions (sections 5, 7, 7A and 86) which duplicate
provisions of the Criminal Code and replacing these with references to
equivalent Criminal Code provisions where
appropriate;
• applying strict liability to
individual offences or specified physical elements of offences where
appropriate;
• reconstructing provisions in order
to clarify physical elements of conduct, circumstance and
result;
• removing or replacing inappropriate
fault elements; and
• repealing some
offence-creating provisions which duplicate general offence provisions in the
Criminal Code.
FINANCIAL IMPACT
STATEMENT
It is not possible to assess what
impact the Bill will have on Commonwealth expenditure or revenue except that it
should be positive. This is because the Bill will contribute to a clarification
of the law and therefore less lengthy court proceedings. There will, however,
be no direct financial benefit or detriment to the Commonwealth through the
Bill.
NOTES ON
CLAUSES
Clause 1: Short
Title
1. Clause 1 of the Bill deals
with the short title.
Clause 2:
Commencement
2. Clause 2 of the Bill
deals with the commencement. The Bill will not commence at least until the 15
December 2001, which is (currently) the date on which the Criminal Code
Amendment (Theft, Fraud, Bribery and Related Offences) Act 2000 commences,
also being the date when the Chapter 2 of the Criminal Code will apply to
all Commonwealth offences. However, the provisions of the Bill are also linked
to other legislation, namely the Law and Justice Legislation Amendment
(Application of Criminal Code) Act 2000 which has not yet received the Royal
Assent. Clause 2 therefore provides that the Bill will commence on the latest
of three dates, being (a) 28 days after the day on which the Bill receives the
Royal Assent; (b) 28 days after the day on which the Law and Justice
Legislation Amendment (Application of Criminal Code) Act 2000 receives the
Royal Assent; and (c) the day on which item 15 of Schedule 1 to the Criminal
Code Amendment (Theft, Fraud, Bribery and Related Offences) Act 2000
commences.
Clause 3: Schedule of
amendments
2. Clause 3 of the Bill
provides that each Act that is specified in a Schedule to the Bill shall be
amended or repealed as provided in the
Schedule.
Clause 4:
Application of amendments
3. Clause
4(1) provides that amendments made by the Bill apply to acts and omissions that
take place after the Bill commences. To provide further clarity, clause 4(2)
provides that if an act or omission is alleged to have taken place between two
dates - one before the Bill commences, and one on or after the day on which the
Bill commences - the act or omission is alleged to have taken place before the
Bill commences. Hence the amendments made by the Bill only apply to conduct
occurring wholly after the Bill
commences.
SCHEDULE 1
The proposed amendments are as
follows:
Australian Trade
Commission Act 1985
Item 1 - Application
of Criminal Code
This item inserts
proposed section 6A which applies Chapter 2 of the Criminal Code to all
offences against the Act. Chapter 2 establishes the codified general principles
of criminal
responsibility.
Chemical
Weapons (Prohibition) Act 1994
This item inserts proposed section 11A which applies
Chapter 2 of the Criminal Code to all offences against the Act. Chapter
2 establishes the codified general principles of criminal
responsibility.
Section 12 applies the fault element of
“intentionally or recklessly” in relation to a number of proscribed
physical elements of conduct, including developing, producing, otherwise
acquiring, stockpiling or retaining chemical weapons; transferring, directly or
indirectly, chemical weapons to another
person; or using chemical
weapons.
Following application of the
Criminal Code, the fault element of recklessness will be restricted to
physical elements of circumstance or result, and intention will be the sole
Criminal Code fault element that can be applied to a physical element of
conduct: see sections 5.2 and 5.3 of the Criminal Code. The proscribed
matters in section 12 are wholly "conduct" and hence the only fault element that
can apply after the application of the Criminal Code is
"intention".
Accordingly this item proposes the
replacement of “intentionally or recklessly” in section 12 with the
appropriate fault element, namely intention. It is considered that Section 12
will continue to operate, for all practical purposes, in the same manner as at
present following this amendment.
This item proposes to repeal subsection 29(3) and replace
it with a restructured offence that accords with the Criminal
Code.
Subsections 29(1) and (2) require the
operator (that is, the person having ultimate responsibility) of a facility
(that is, a plant where particular chemicals will be produced, acquired,
retained or used at, or transferred from) to notify the facility to the Minister
in accordance with that section. Subsection 29(3) makes it an offence for the
operator of a facility to, without reasonable excuse, refuse or fail to notify
the facility to the Minister in accordance with the requirements of section
29.
The item breaks the existing offence up into
the physical elements of conduct ("a person refuses or fails to do an act") and
circumstance or result ("the refusal or failure causes a contravention of
subsections (1) or (2)"). A new proposed subsection 3A is inserted by the item
to provide a defence of "reasonable excuse".
This
item also adds the standard note after the new proposed subsection 29(3A)
concerning the imposition of an evidential burden on a defendant by subsection
13.3(3) of the Criminal Code if a defendant relies on the reasonable
excuse defence established by subsection 29(3A).
This item proposes to repeal subsection 30(3) and replace
it with a restructured offence that accords with the Criminal
Code.
Subsection 30(2) of the Act requires the
operator (that is, the person having ultimate responsibility) of a facility
(that is, a plant where particular chemicals will be produced, acquired,
retained or used at, or transferred from) to keep records of, and to provide to
the Director of the Chemical Weapons Convention Office, certain information.
Subsection 30(3) makes it an offence for the operator of a facility to, without
reasonable excuse, refuse or fail to comply with subsection
(2).
The item breaks the existing offence up into
the physical elements of conduct ("a person refuses or fails to do an act") and
circumstance or result ("the refusal or failure causes a contravention of
subsection (2)").
A new proposed subsection 3A is
inserted by the item to provide a defence of "reasonable excuse". This item
also adds the standard note after the new proposed subsection 30(3A) concerning
the imposition of an evidential burden on a defendant by subsection 13.3(3) of
the Criminal Code if a defendant relies on the reasonable excuse defence
established by subsection 30(3A).
This item proposes to repeal subsection 31(4) and replace
it with a restructured offence (in four subsections) that accords with the
Criminal Code.
Currently, subsection 31(4) provides
that a person must not, without reasonable excuse, intentionally or recklessly
refuse or fail to comply with a notice issued under section 31 (which is a
notice to produce certain information or documents to the Director of the
Chemical Weapons Convention Office) to the extent that the person is capable of
complying with it.
The item breaks the existing
offence up into four new proposed subsections. The new proposed subsection
31(4) simply provides that a person must comply with a notice given to a person
under section 31. The proposed subsection 31(4A) breaks the existing offence up
into the physical elements of conduct ("a person refuses or fails to do an act")
and circumstance or result ("the refusal or failure causes a contravention of
subsection (4)").
A new proposed subsection 4B is
inserted by the item to provide a defence of "reasonable excuse", and a new
proposed subsection 4C provides that the offence provision (subsection 4A) does
not apply to the extent that the person is not capable of complying with the
notice.
This item also adds the standard note after
each of the new proposed subsections 31(4B) and 31(4C) concerning the imposition
of an evidential burden on a defendant by subsection 13.3(3) of the Criminal
Code if a defendant relies on a defence established by, respectively,
subsection 31(4B) or 31(4C).
Item 7 –
Amendment of inappropriate fault element, reasonable excuse defence, amendment
of physical elements and application of strict liability
This item proposes to repeal sections 77
and 78 and replace them with restructured offences that accord with the
Criminal Code.
The new proposed section 77
reconstructs the offence provisions of the current section 77 in such a way that
the fault element of recklessness attaches to the physical elements of
circumstances or result, by removing the term "recklessness" from these
provisions and allowing the fault element of recklessness to attach by operation
of subsection 5.6(2) of the Criminal Code. The item also breaks the
existing section 77 offences up into the physical elements of conduct and
circumstance or result. A new proposed subsection 5 is inserted by the item to
provide a defence of "reasonable excuse". This item also adds the standard note
after the new proposed subsection 77(5) concerning the imposition of an
evidential burden on a defendant by subsection 13.3(3) of the Criminal Code
if a defendant relies on the reasonable excuse defence established by
subsection 77(5).
Subsection 78(1) currently
provides that a permit holder who, without reasonable excuse, contravenes a
condition subject to which a permit is granted is guilty of an offence against
subsection 78(1).
The item breaks the existing
offence up into the physical elements of conduct ("a person engages in conduct")
and circumstance or result ("the conduct contravenes a condition subject to
which a permit is granted"). A new proposed subsection 2 is inserted by the
item to provide a defence of "reasonable
excuse".
This item adds the standard note after the
new proposed subsection 78(2) concerning the imposition of an evidential burden
on a defendant by subsection 13.3(3) of the Criminal Code if a defendant
relies on the reasonable excuse defence established by subsection
78(2).
This item also proposes to insert subsection
78(3) which provides that the offence contained in subsection 78(1) is an
offence of strict liability. The application of strict liability to this
offence reflects the most likely way in which the current offence would be
interpreted. The offence concerns an administrative obligation which could be
difficult to establish if the prosecution was required to prove intention with
respect to the failure to return the card. This is the type of obligation which
is usually interpreted to mean that the legislature intended that strict
liability should apply. Another factor in determining whether strict liability
applies is the penalty, which in this case is quite low (the maximum penalty for
this offence is one hundred penalty units ($11,000)) compared to the seriousness
of the offence.
Strict liability is defined in
section 6.1 of the Criminal Code. The Criminal Code provides that
where an offence is intended to be one of strict liability, then it should be
identified as such in the statute. Where strict liability applies to an element
of an offence or the complete offence, there is a defence of mistake of fact
under section 9.2 of the Criminal Code. Section 9.2 provides that the
person is not criminally responsible for an offence of this nature if at or
before the time of the conduct the person considered whether or not a relevant
fact existed and is under a mistaken but reasonable belief about that fact and,
had that fact existed, the conduct would not constitute an offence. If there is
a mistake of fact, the evidential burden of proof is on the defence. It means
that the defendant has to adduce or point the evidence that suggests a
reasonable possibility that the matter exists or does not exist. If the
defendant is able to do this, the prosecution is required to prove beyond the
reasonable doubt that there was no such
mistake.
This item inserts
the standard notes concerning Chapter 2 of the Criminal Code setting out
the principles of criminal responsibility and referring to section 6.1 of the
Criminal Code, which governs strict
liability.
This item also adds a proposed
subsection 78(4) which defines the term "engage in conduct" in the same terms as
that expression is defined in the Criminal
Code.
Item 8 - Omission of inappropriate
fault element
This item omits the words "or
recklessly" where they appear in Subsection 80(1) of the
Act.
Subsection 80(1) currently provides that a
person who intentionally or recklessly makes a statement, either orally or in
writing, to the Minister, the Director, the Controller, a national inspector, an
Organisation
inspector, a foreign country inspector or
another person exercising a power or performing a function or duty in relation
to the Act that is false or misleading in a material particular, is guilty of an
offence.
The fault element "recklessness" is
inappropriately applied in this provision to the physical element of conduct
(that is, making a statement). After the introduction of the Criminal
Code, recklessness as a fault element will not be able to be applied to
conduct, but will be the default fault element applied to physical elements of
circumstance or result (in this case, the circumstance being that the statement
is false or misleading in a material particular). Hence by removing the term
"recklessly" from this provision, the application of the Criminal Code
will operate to ensure that it is interpreted in the same manner as it is
currently: the fault element of intention will apply to the conduct of making a
statement, and, by operation of the Criminal Code, the fault element of
recklessness will apply to the physical element of circumstance (that is, the
statement being false or misleading in a material
particular).
Item 9 - Strict liability
applied
This item proposes to insert
subsection 93(4) which provides that the offence contained in subsection 93(3)
is an offence of strict liability. Subsection 93(3) provides that as soon as
practicable after a person ceases to be a national inspector under the Act the
person must return their identity card to the Director of the Chemical Weapons
Convention Office. The maximum penalty for this offence is one penalty unit
($110). The application of strict liability to this offence reflects the most
likely way in which the current offence would be interpreted. The offence
concerns an administrative obligation which could be difficult to establish if
the prosecution was required to prove intention with respect to the failure to
return the card. This is the type of obligation which is usually interpreted to
mean that the legislature intended that strict liability should apply. Another
factor in determining whether strict liability applies is the penalty, which in
this case is very low.
This item also inserts the
standard notes concerning Chapter 2 of the Criminal Code setting out the
principles of criminal responsibility and referring to section 6.1 of the
Criminal Code, which governs strict
liability.
Item 10 - Reconstruction of
physical elements
This item proposes to
repeal section 102(3E) and replace it with a restructured offence that accords
with the Criminal Code.
The item breaks the
existing offence up into the physical elements of conduct ("a person engages in
conduct") and circumstance or result ("the conduct contravenes a subsection (2),
(3A) or (3C)").
The item also defines, by a new
proposed subsection (3F), the term "engage in conduct" to include an omission to
perform an act. This definition is consistent with the definition of this term
in the Criminal Code.
Item 11 -
Replacing references to certain Crimes Act 1914
provisions
Certain Crimes Act 1914
provisions, including sections 5, 7 and 7A, are scheduled for progressive
disapplication in relation to offence provisions to which the Criminal Code
applies, and ultimately for repeal on 15 December. It will be necessary to
replace references to these Crimes Act provisions with references to
relevant Criminal Code provisions. This item proposes that the
references in paragraph 102(4) to sections 5, 7 and 7A of the Crimes Act
1914, which concern aiding and abetting, attempt and incitement to commit
primary offences, be replaced by references to the Criminal Code
provisions which deal with attempt, incitement and conspiracy (sections 11.1,
11.4 and 11.5).
Comprehensive
Nuclear Test-Ban Treaty Act 1998
Item 12
- Strict liability applied
This item
proposes to insert subsection 67(4) which provides that the offence contained in
subsection 67(3) is an offence of strict liability. Subsection 67(3) provides
that as soon as practicable after a person ceases to be a national inspector
under the Act the person must return their identity card to Director of the
Australian Comprehensive Test Ban Office. The maximum penalty for a breach of
this provision is one penalty unit ($110). The application of strict liability
to this offence reflects the most likely way in which the current offence would
be interpreted. The offence concerns an administrative obligation which could
be difficult to establish if the prosecution was required to prove intention
with respect to the failure to return the card. This is the type of obligation
which is usually interpreted to mean that the legislature intended that strict
liability should apply. Another factor in determining whether strict liability
applies is the penalty, which in this case is very
low.
This item also inserts the standard notes
concerning Chapter 2 of the Criminal Code setting out the principles of
criminal responsibility and referring to section 6.1 of the Criminal
Code, which governs strict
liability.
Diplomatic and
Consular Missions Act 1978
Item 13 -
Application of Criminal Code
This item
inserts proposed section 3A, which applies Chapter 2 of the Criminal Code
to all offences against the Act. Chapter 2 establishes the codified general
principles of criminal
responsibility.
Export
Expansion Grants Act 1978
Item 14 -
Application of Criminal Code
This item
inserts proposed section 10A, which applies Chapter 2 of the Criminal
Code to all offences against the Act. Chapter 2 establishes the codified
general principles of criminal
responsibility.
Export Finance
and Insurance Corporation Act 1991
Item
15 - Application of Criminal Code
This
item inserts proposed section 5A, which applies Chapter 2 of the Criminal
Code to all offences against the Act. Chapter 2 establishes the codified
general principles of criminal
responsibility.
International
Organisations (Privileges and Immunities) Act
1963
Item 16 - Application of Criminal
Code
This item inserts proposed section
4A, which applies Chapter 2 of the Criminal Code to all offences against
the Act. Chapter 2 establishes the codified general principles of criminal
responsibility.
Item 17 - Strict liability
applied
This item proposes to insert
subsection 12(2A) which provides that an offence under paragraphs 12(2) is an
offence of strict liability. Subsection 12(2) provides that, where, without the
consent in writing of the Minister, the name or an abbreviation of the name of
an international organisation, or a seal, emblem or device of an organisation is
used by an association, then (paragraph 12(2)(d)) if the association is a body
corporate - the association; or (paragraph 12(2)(e)) if the association is not a
body corporate - every member of the governing body of the association; is
guilty of an offence against this section and is punishable upon conviction by a
fine not exceeding $1,000.
This provision
establishes vicarious criminal responsibility for incorporated associations, or
the members of the governing body of unincorporated associations, as a result of
the conduct of their directors, servants or agents. Vicarious liability is not
a general principle of criminal responsibility recognised in the Criminal
Code (although a form of it exists in relation to Part
2.5).
While these provisions can operate in the
same way following the application of the Criminal Code, it is necessary
to amend the substantive provisions. However, as vicarious liability is a
variant of strict liability, it is necessary to define the offence in subsection
12(2) as an offence of strict liability. The application of strict liability to
this offence reflects the most likely way in which the current offence would be
interpreted. The offence concerns an administrative obligation which could be
difficult to establish if the prosecution was required to prove intention with
respect to persons in the association (other than the defendant) using
the name (or abbreviation of a name), seal, emblem or device of an international
organisation. This is the type of obligation which, as a form of vicarious
liability, is usually interpreted to mean that the legislature intended that
strict liability should apply.
This item also
inserts the standard notes concerning Chapter 2 of the Criminal Code
setting out the principles of criminal responsibility and referring to
section 6.1 of the Criminal Code, which governs strict
liability.
Nuclear
Non-Proliferation (Safeguards) Act
1987
Items 18 and 19 - Replacing
references to certain Crimes Act 1914
provisions
Certain Crimes Act 1914
provisions, including sections 7 and 7A and subsection 86(1), are scheduled
for progressive disapplication in relation to offence provisions to which the
Criminal Code applies, and ultimately for repeal on 15 December 2000. It
will be necessary to replace references to these Crimes Act provisions
with references to relevant Criminal Code provisions. Item 17 proposes
that the references in section 4 (the definition of "offence against this Act")
to sections 7 and 7A and subsection 86(1) of the Crimes Act 1914, which
concern attempt, incitement and conspiracy to commit primary offences, be
omitted. Item 19 would replace these references with references to the
Criminal Code provisions which deal with attempt, incitement and
conspiracy (sections 11.1, 11.4 and
11.5).
Item 20 - Application of Criminal
Code
This item inserts proposed section
8A, which applies Chapter 2 (other than part 2.5) of the Criminal Code to
all offences against the Act. Chapter 2 establishes the codified general
principles of criminal responsibility. Part 2.5 of the Criminal Code
deals with corporate criminal responsibility, however, this matter is already
dealt with in the Act under section 5. Part 2.5 of the Criminal Code is
therefore stated not to apply to the Act because it would affect the
interpretation of section 5 of the Act.
Item
21 - Reasonable excuse defence and amendment of physical
elements
This item would repeal subsection
25(1) of the Act and replace it with a reformulated offence that accords with
the Criminal Code.
Subsection 25(1)
currently provides that a person who, without reasonable excuse: (a) contravenes
a condition, or fails to observe a restriction, subject to which a permit or
authority (for example, a permit or authority to possess nuclear material) is
granted; or (b) contravenes a direction given or an order made under section 73;
is guilty of an offence against the subsection.
The
item breaks the existing offence up into the physical elements of conduct ("a
person engages in conduct") and circumstance or result ("the conduct contravenes
a condition, or fails to observe a restriction, subject to which a permit or
authority is granted; or contravenes a direction given or an order made under
section 73").
The statement of penalties is in
exactly the same terms as in the current wording of this provision.
A new proposed subsection (1A) is inserted by the
item to provide a defence of "reasonable excuse", and the item also adds the
standard note after this new proposed subsection concerning the imposition of an
evidential burden on a defendant by subsection 13.3(3) of the Criminal Code
if a defendant relies on the reasonable excuse defence established by
subsection 25(1A).
Item 22 - Strict liability
applied
This item proposes to insert
subsection 58(3) which provides that the offence contained in subsection 58(2)
is an offence of strict liability. Subsection 58(2) provides after a person
ceases to be a national inspector under the Act the person must forthwith return
their identity card to Director of Safeguards. The maximum penalty for a breach
of this provision is one hundred dollars ($100). The application of strict
liability to this offence reflects the most likely way in which the current
offence would be interpreted. The offence concerns an administrative obligation
which could be difficult to establish if the prosecution was required to prove
intention with respect to the failure to return the card. This is the type of
obligation which is usually interpreted to mean that the legislature intended
that strict liability should apply. Another factor in determining whether
strict liability applies is the penalty, which in this case is very
low.
This item also inserts the standard notes
concerning Chapter 2 of the Criminal Code setting out the principles of
criminal responsibility and referring to section 6.1 of the Criminal
Code, which governs strict
liability.
Item 23 - Strict liability
applied
This item proposes to insert
subsection 66(5), which provides that the offence contained in subsection 66(4)
is an offence of strict liability. Subsection 66(4) provides that, subject to
the inspector producing his or her identity card for inspection by the person, a
person who, without reasonable excuse, fails to comply with a request made of
the person by an inspector under subsection (1) or (2) (that is, a request to
provide certain information) is guilty of an offence against this section
punishable, on conviction, by a fine not exceeding
$1,000.
The application of strict liability to this
offence reflects the most likely way in which the current offence would be
interpreted. The offence concerns an obligation which could be difficult to
establish if the prosecution was required to prove intention with respect to the
failure to provide information to the inspector. This is the type of obligation
which is usually interpreted to mean that the legislature intended that strict
liability should apply. Another factor in determining whether strict liability
applies is the penalty, which in this case is quite
low.
This item also inserts the standard notes
concerning Chapter 2 of the Criminal Code setting out the principles of
criminal responsibility and referring to section 6.1 of the Criminal
Code, which governs strict
liability.
Passports Act
1938
Item 24 - Application of Criminal
Code
This item inserts proposed section 5A,
which applies Chapter 2 of the Criminal Code to all offences against the
Act. Chapter 2 establishes the codified general principles of criminal
responsibility.
Item 25 - Replacement of the
term "for the purposes of"
This item
restructures the offences in Paragraphs 9A(a) and (b) of the Act by replacing
the term "for the purposes of" with the phrase "in connection with travel or
identification". The phrase “for the purpose/s of” should no longer
be used in offence provisions because of the potential confusion which could
arise as to the applicable fault element. This confusion could arise because
most offences do not specify the fault element and because the phrase “for
the purpose/s of” could be interpreted to refer to be either an
additional fault element for the physical element of conduct or part of a
physical element of result which would thereby attract the default fault element
of recklessness.
The phrase can be construed to be
a reference to a motive or intention of the person when performing the
proscribed conduct or it could refer to the result which the person may wish the
conduct to lead to. In most cases it is intended to describe a state of mind or
motive and means “with the intention
of”.
One provision employing the phrase
“for the purposes of” is subsection 9A(a) of the Passports Act
1938. There are two possible interpretations in relation to this
subsection:
(a) a result - that is, the
accused’s use of the cancelled passports is to achieve the result
of travel or identification; or
(b) a motive - the
use of the cancelled passport is done with the intention of travelling or
for identification purposes.
In the first
instance, the phrase would be part of a physical element of result and the
default fault element as to that physical element would be recklessness. On this
interpretation the prosecution would merely have to prove that the defendant
used the cancelled passport being reckless as to whether he or she would
be able to travel or be identified. In the second instance the phrase would be
an additional fault element for the physical element of conduct - that is,
additional to the default fault element of intention for the conduct of using
the cancelled passport. The prosecution would be required to prove a higher
degree of culpability, namely that the defendant used the cancelled passport
with intention of travelling or being identified.
It follows that the phrase “for the purposes
of” is quite confusing and should be avoided. In paragraph 9A(a) the term
has been replaced with the term "in connection with ... " which specifies that
the physical element of the offence is one of circumstance or result, that is,
it is enough to show that the defendant was reckless as to whether he or she was
travelling on or being identified by the
passport.
The phrase “for the purposes
of” is also employed in paragraph 9A(b) of the Act and this item replaces
that phrase in that provision with the phrase "in connection with ... " for the
same reasons.
Item 26 - Removal of reasonable
excuse defence
This item proposes to remove
the defence of reasonable excuse from paragraph 9A(c). The defence is recreated
in a new subsection 9A(2) (see item 30). The rationale for this amendment is to
prevent future interpretation that the reasonable excuse element of this
provision is an element of the offence, which would have to be disproved in the
negative by the prosecution, and puts it beyond doubt that it is a defence to
the offence.
Item 27 - Replacement of the
term "for the purposes of"
Paragraph 9A(c)
provides that a person who, being a person to whom an Australian passport has
been issued, permits, without reasonable excuse, another person to use that
passport for purposes of travel or identification; is guilty of an
offence.
This item restructures the offences in
paragraphs 9A(c) of the Act by replacing the term "for the purposes of [travel
or identification]" with the phrase "in connection with [travel or
identification]". The phrase “for the purpose/s of” should no
longer be used in offence provisions because of the potential confusion which
could arise as to the applicable fault element. This confusion could arise
because most offences do not specify the fault element and because the phrase
“for the purpose/s of” could be interpreted to refer to be
either an additional fault element for the physical element of conduct
or part of a physical element of result which would thereby attract the
default fault element of recklessness.
The phrase
can be construed to be a reference to a motive or intention of the person when
performing the proscribed conduct or it could refer to the result which the
person may wish the conduct to lead to. In most cases it is intended to
describe a state of mind or motive and means “with the intention
of”.
There are two possible interpretations
of the phrase “for the purposes of” in relation to this paragraph
9A(c):
(a) a result - that is, the accused’s
use of the passports is to achieve the result of travel or
identification; or
(b) a motive - the use of the
passport is done with the intention of (another) travelling or for
identification purposes.
In the first instance,
the phrase would be part of a physical element of result and the default fault
element as to that physical element would be recklessness. On this
interpretation the prosecution would merely have to prove that the defendant
used the cancelled passport being reckless as to whether he or she would
be able to travel or be identified. In the second instance the phrase would be
an additional fault element for the physical element of conduct - that is,
additional to the default fault element of intention for the conduct of
permitting the use of the persons' passport by another. The prosecution would be
required to prove a higher degree of culpability, namely that the defendant
permitted the use of his or her passport with intention of another person
travelling or being identified.
It follows that
the phrase “for the purposes of” is quite confusing and should be
avoided. In paragraph 9A(c) the term has been replaced with the term "in
connection with" which specifies that the physical element of the offence is one
of circumstance or result, that is, it is enough to show that the defendant was
reckless as to whether the other person was travelling on or being identified by
the defendant's passport.
Item 28 - Removal
of reasonable excuse defence
This item
proposes to remove the defence of reasonable excuse from paragraphs 9A(d), (e)
and (f). The defence is recreated in a new subsection 9A(2) (see item 30). The
rationale for this amendment is to prevent future interpretation that the
reasonable excuse element of this provision is an element of the offence, which
would have to be disproved in the negative by the prosecution, and puts it
beyond doubt that it is a defence to the
offence.
Item 29 - Replacement of phrase
"wilfully defaces or destroys"
This item
replaces the phrase "wilfully defaces or destroys [an Australian passport]"
where it occurs in paragraph 9A(g) of the Act and replaces it with the phrase
"intentionally does an act that causes the defacing or destruction of [an
Australian passport]".
Subsection 9A(g) of the
Act uses the fault element “wilfully” in relation to the physical
element of conduct, which is akin to “intentionally”. The fault
element of “intention” is the equivalent used in the Criminal
Code. The Criminal Code allows the use of new fault elements and the
offence will still operate in the same manner following application of the
Criminal Code (see subsection 5.1(2)). However it is possible that
future courts may attempt to distinguish “wilfulness” from
“intention” on the basis that it appears to differ from the basic
Criminal Code fault element. It is therefore necessary to amended
paragraph 9A(g) by deleting “wilfully”, in which instance the
default fault element of recklessness will apply (see section 5.6 of the
Criminal Code) to the physical element of circumstance or result, namely
"causing the defacing or destruction of [an Australian passport]"
This item is consequent upon items 26 (paragraph 9A(c))
and 28 (paragraphs 9A(d), (e) and (f)). It inserts proposed subsection 9A(2)
which recreates the defence of reasonable excuse in relation to an offence
against paragraphs 9A(1)(a) to (f)
(inclusive).
This item also adds the standard note
after proposed subsection 9A(2) concerning the imposition of an evidential
burden on a defendant by subsection 13.3(3) of the Criminal Code if a
defendant relies on the reasonable excuse defence established by subsection
9A(2).
Item 31 - Replacement of inappropriate
fault element
This item omits the term
"knowingly" from paragraph 9C(2)(a) of the Act and replaces it with the term
"intentionally".
Paragraph 9C(2)(a) of the Act
currently provides that an authorised officer shall not knowingly issue an
Australian passport in contravention of section 7A, 7B, 7C, 7D, or
7E.
Following application of the Criminal
Code, it will not be possible to apply a fault element of
“knowledge” (i.e. “knowingly”) to a physical element
consisting of conduct: see Part 2.2, Division 5 of the Criminal Code
generally. The fault element of knowledge can only be applied to physical
elements of circumstance or
result.
Item 32 -
Replacement of inappropriate fault
elements
This item would remove the words
"knowingly or recklessly" from subsection 10(1) of the Act. Subsection 10(1)
currently provides that a person shall not knowingly or recklessly make any
false or misleading statement, whether orally or in writing: (a) for the purpose
of obtaining an Australian Passport or a renewal or endorsement of an Australian
Passport; or (b) in support of an application by another person for an
Australian Passport or for a renewal or endorsement of an Australian
Passport.
The fault elements "knowingly or
recklessly" are inappropriately applied in this provision to the physical
element of conduct (that is, making a statement).
Following application of the Criminal Code,
it will not be possible to apply a fault elements of knowledge or recklessness
to a physical element consisting of conduct: see Part 2.2, Division 5 of the
Criminal Code generally. These fault elements will only be able to be
applied to physical elements of circumstance or result. Recklessness will be
the default fault element applied to physical elements of circumstance or result
(in this case, the circumstance being that the statement is false or
misleading). Hence by removing the term "knowingly or recklessly" from this
provision, the application of the Criminal Code will operate to ensure
that it is interpreted in the same manner as it is currently: the fault element
of intention will apply to the conduct of making a statement, and, by operation
of the Criminal Code, the fault element of recklessness will apply to the
physical element of circumstance (that is, the statement being false or
misleading).
Item 33 - Replacement of the
term "for the purposes of"
Paragraph
10(1)(a) currently provides that a person shall not knowingly or recklessly make
any false or misleading statement, whether orally or in writing: (a) for the
purpose of obtaining an Australian Passport or a renewal or endorsement of an
Australian Passport.
This item restructures the
offence in paragraph 10(1)(a) of the Act by replacing the term "for the purpose
of obtaining [an Australian passport etc]" with the phrase "in the course of
obtaining or attempting to obtain [an Australian passport etc]". The phrase
“for the purpose/s of” should no longer be used in offence
provisions because of the potential confusion which could arise as to the
applicable fault element. This confusion could arise because most offences do
not specify the fault element and because the phrase “for the purpose/s
of” could be interpreted to refer to be either an additional fault
element for the physical element of conduct or part of a physical element
of result which would thereby attract the default fault element of
recklessness.
In the case of paragraph 10(1)(a) of
the Act, the phrase could have one of two meanings,
either:
(a) a result - that is, the accused’s
false or misleading statement is to achieve the result of obtaining an
Australian passport (etc); or
(b) a motive - the
accused’s false or misleading statement is done with the intention
of obtaining an Australian passport (etc).
In the
first instance, the phrase would be part of a physical element of result and the
default fault element as to that physical element would be recklessness. On this
interpretation the prosecution would merely have to prove that the defendant
used the cancelled passport being reckless as to whether the false or
misleading statement would help him or her obtain a passport. In the second
instance the phrase would be an additional fault element for the physical
element of conduct - that is, additional to the default fault element of
intention for the conduct of making the statement. The prosecution would be
required to prove a higher degree of culpability, namely that the defendant made
the statement with intention of obtaining a passport.
It follows that the phrase “for the purpose
of obtaining ... ” is quite confusing and should be avoided. In paragraph
10(1)(a) the term has been replaced with the term "in the course of obtaining or
attempting to obtain ... " which specifies that the physical element of the
offence is one of circumstance or result, that is, it is enough to show that the
defendant was reckless as to whether he or she was making the statement to
obtain a passport.
Item 34 - Replacement of
term "in support of"
Paragraph 10(1)(b)
currently provides that a person shall not knowingly or recklessly make any
false or misleading statement, whether orally or in writing in support of an
application by another person for an Australian Passport or for a renewal or
endorsement of an Australian Passport.
This item
restructures the offences in paragraphs 10(1)(a) of the Act by replacing the
term "in support of [another person obtaining an Australian passport etc]" with
the phrase "in the course of supporting [another person obtaining an Australian
passport etc]". The phrase “in support of” should no longer be used
in offence provisions because of the potential confusion that could arise as to
the applicable fault element. This confusion could arise because most offences
do not specify the fault element and because the phrase “in support
of” could be interpreted to refer to be either an additional fault
element for the physical element of conduct or part of a physical element
of result which would thereby attract the default fault element of
recklessness.
In the case of paragraph 10(1)(b) of
the Act, the phrase could have one of two meanings,
either:
(a) a result - that is, the accused’s
false or misleading statement is to achieve the result of another person
obtaining an Australian passport (etc); or
(b) a
motive - the accused’s false or misleading statement is done with the
intention of another person obtaining an Australian passport (etc).
In the first instance, the phrase would be part of
a physical element of result and the default fault element as to that physical
element would be recklessness. On this interpretation the prosecution would
merely have to prove that the defendant used the cancelled passport being
reckless as to whether the false or misleading statement would help him
or her obtain a passport. In the second instance the phrase would be an
additional fault element for the physical element of conduct - that is,
additional to the default fault element of intention for the conduct of making
the statement. The prosecution would be required to prove a higher degree of
culpability, namely that the defendant made the statement with intention
of obtaining a passport.
It follows that the
phrase “in support of ... ” is quite confusing and should be
avoided. In paragraph 10(1)(a) the term has been replaced with the term "in the
course of supporting ... " which specifies that the physical element of the
offence is one of circumstance or result, that is, it is enough to show that the
defendant was reckless as to whether he or she was making the statement to
obtain a passport.
Item 35 - Replacement of
term "for the purpose of"
Paragraph
10(2)(a) currently provides that a person shall not, with intent to defeat the
provisions of a law of the Commonwealth or of a Territory, make, within
Australia, a false or misleading statement, whether orally or in writing: (a)
for the purpose of obtaining a passport other than an Australian passport or
renewal or endorsement of a passport other than an Australian
passport.
This item restructures the offence in
paragraph 10(2)(a) of the Act by replacing the term "for the purpose of
obtaining [a non-Australian passport etc]" with the phrase "in the course of
obtaining, or attempting to obtain [a non-Australian passport etc]". The phrase
“for the purpose/s of” should no longer be used in offence
provisions because of the potential confusion that could arise as to the
applicable fault element. This confusion could arise because most offences do
not specify the fault element and because the phrase “for the purpose/s
of” could be interpreted to refer to be either an additional fault
element for the physical element of conduct or part of a physical element
of result which would thereby attract the default fault element of
recklessness.
In the case of paragraph 10(2)(a) of
the Act, the phrase could have one of two meanings,
either:
(a) a result - that is, the accused’s
false or misleading statement is to achieve the result of obtaining a
non-Australian passport (etc); or
(b) a motive -
the accused’s false or misleading statement is done with the
intention of obtaining a non- Australian passport (etc).
In the first instance, the phrase would be part of
a physical element of result and the default fault element as to that physical
element would be recklessness. On this interpretation the prosecution would
merely have to prove that the defendant used the cancelled passport being
reckless as to whether the false or misleading statement would help him
or her obtain a passport. In the second instance the phrase would be an
additional fault element for the physical element of conduct - that is,
additional to the default fault element of intention for the conduct of making
the statement. The prosecution would be required to prove a higher degree of
culpability, namely that the defendant made the statement with intention
of obtaining a passport.
It follows that the
phrase “for the purpose of obtaining ... ” is quite confusing and
should be avoided. In paragraph 10(2)(a) the term has been replaced with the
term "in the course of obtaining, or attempting to obtain ... " which specifies
that the physical element of the offence is one of circumstance or result, that
is, it is enough to show that the defendant was reckless as to whether he or she
was making the statement to obtain a
passport.
Item 36 - Replacement of term "in
support of"
Paragraph 10(2)(b) currently
provides that a person shall not, with intent to defeat the provisions of a law
of the Commonwealth or of a Territory, make, within Australia, a false or
misleading statement, whether orally or in writing, in support of an application
by another person for a passport other than an Australian passport or for
renewal or endorsement of a passport other than an Australian
passport
This item restructures the offences in
paragraphs 10(1)(a) of the Act by replacing the term "in support of [of another
person obtaining a non-Australian passport etc]" with the phrase "in the course
of supporting [another person obtaining a non-Australian passport etc]". The
phrase “in support of” should no longer be used in offence
provisions because of the potential confusion that could arise as to the
applicable fault element. This confusion could arise because most offences do
not specify the fault element and because the phrase “in support of”
could be interpreted to refer to be either an additional fault element
for the physical element of conduct or part of a physical element of
result which would thereby attract the default fault element of
recklessness.
In the case of paragraph 10(2)(b) of
the Act, the phrase could have one of two meanings,
either:
(a) a result - that is, the accused’s
false or misleading statement is to achieve the result of another person
obtaining a non-Australian passport (etc); or
(b) a
motive - the accused’s false or misleading statement is done with the
intention of another person obtaining a non-Australian passport (etc).
In the first instance, the phrase would be part of
a physical element of result and the default fault element as to that physical
element would be recklessness. On this interpretation the prosecution would
merely have to prove that the defendant used the cancelled passport being
reckless as to whether the false or misleading statement would help him
or her obtain a passport. In the second instance the phrase would be an
additional fault element for the physical element of conduct - that is,
additional to the default fault element of intention for the conduct of making
the statement. The prosecution would be required to prove a higher degree of
culpability, namely that the defendant made the statement with intention
of obtaining a passport.
It follows that the
phrase “in support of ... ” is quite confusing and should be
avoided. In paragraph 10(2)(a) the term has been replaced with the term "in the
course of supporting ... " which specifies that the physical element of the
offence is one of circumstance or result, that is, it is enough to show that the
defendant was reckless as to whether he or she was making the statement to
obtain a passport.
Registration
of Deaths Abroad Act 1984
Item 37 -
Application of Criminal Code
This item
inserts proposed section 4A, which applies Chapter 2 of the Criminal Code
to all offences against the Act. Chapter 2 establishes the codified general
principles of criminal responsibility.
Item
38 - Repeal of duplicating provision
This
item repeals subsections 24(1) and (2). The offences contained in these
subsections, relating to making false or misleading statements, are equivalent
to the proposed general offences at 136.1, 137.1 and 137.2 of Schedule 1 of the
Criminal Code Amendment (Theft, Fraud, Bribery and Related Offences) Bill
1999 which was introduced into the House of Representatives on 24 November
1999, and hence can be repealed on enactment of that
Bill.
Item 39 - Replacement of phrase
"wilfully mutilate"
This item replaces the
phrase "wilfully mutilate" [a Certificate of Death Abroad, a copy of a Certificate of Death Abroad, the
Register of Deaths Abroad, or a copy of, or
extract from, an entry in the Register of Deaths
Abroad]" where it occurs in subsection 24(4) of the Act and replaces it with the
phrase "intentionally does an act that causes the mutilation of [a Certificate of Death Abroad, a copy of a Certificate of Death Abroad, the
Register of Deaths Abroad, or a copy of, or
extract from, an entry in the Register of Deaths
Abroad]". The provision makes it an offence to mutilate the specified documents
or register.
Subsection 24(4) of the Act uses the
fault element “wilfully” in relation to the physical element of
conduct, which is akin to “intentionally”. The fault element of
“intention” is the equivalent used in the Criminal Code. The
Criminal Code allows the use of new fault elements and the offence will
still operate in the same manner following application of the Criminal
Code (see subsection 5.1(2)). However it is possible that future courts may
attempt to distinguish “wilfulness” from “intention” on
the basis that it appears to differ from the basic Criminal Code fault
element. It is therefore necessary to amended subsection 24(4) by deleting
“wilfully”, in which instance the default fault element of
recklessness will apply (see section 5.6 of the Criminal Code) to the
physical element of circumstance or result, namely causing the mutilation of a
specified document or
register.
South Pacific Nuclear
Free Zone Treaty Act 1986
Item 40 -
Application of Criminal Code
This item
inserts proposed section 7A, which applies Chapter 2 (other than part 2.5) of
the Criminal Code to all offences against the Act. Chapter 2 establishes
the codified general principles of criminal responsibility. Part 2.5 of the
Criminal Code deals with corporate criminal responsibility, however, this
matter is already dealt with in the Act under section 5. Part 2.5 of the
Criminal Code is therefore stated not to apply to the Act because it would
affect the interpretation of section 5 of the
Act.
Item 41 - Strict liability
applied
This item proposes to insert
subsection 20(3), which provides that the offence contained in subsection 20(2)
is an offence of strict liability. Subsection 20(2) provides that, a person who
does not return his or her identity card to the Minister forthwith on ceasing to
be an "authorised officer" under the Act, is guilty of an offence against this
section punishable, on conviction, by a fine not exceeding
$100.
The application of strict liability to this
offence reflects the most likely way in which the current offence would be
interpreted. The offence concerns an obligation which could be difficult to
establish if the prosecution was required to prove intention with respect to the
failure to provide information to the inspector. This is the type of obligation
which is usually interpreted to mean that the legislature intended that strict
liability should apply. Another factor in determining whether strict liability
applies is the penalty, which in this case is very
low.
This item also inserts the standard notes
concerning Chapter 2 of the Criminal Code setting out the principles of
criminal responsibility and referring to section 6.1 of the Criminal
Code, which governs strict
liability.
Item 42 - Strict liability
applied
This item proposes to insert
subsection 24(4), which provides that the offence contained in subsection 24(3)
is an offence of strict liability. Subsection 24(3) provides that, subject to
the inspector producing his or her identity card for inspection by the person, a
person who, without reasonable excuse, fails to comply with a request made of
the person by an inspector under subsection (1) (that is, a request to provide
the person's full name and usual place of residence) is guilty of an offence
against this section punishable, on conviction, by a fine not exceeding
$1,000.
The application of strict liability to this
offence reflects the most likely way in which the current offence would be
interpreted. The offence concerns an obligation which could be difficult to
establish if the prosecution was required to prove intention with respect to the
failure to provide information to the inspector. This is the type of obligation
which is usually interpreted to mean that the legislature intended that strict
liability should apply. Another factor in determining whether strict liability
applies is the penalty, which in this case is quite
low.
This item also inserts the standard notes
concerning Chapter 2 of the Criminal Code setting out the principles of
criminal responsibility and referring to section 6.1 of the Criminal
Code, which governs strict liability.