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1998-1999-2000-2001
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
SENATE
EXPLANATORY MEMORANDUM
(Circulated by authority of the Minister for Family and Community Services, Senator the Hon Amanda Vanstone)
FAMILY AND COMMUNITY SERVICES LEGISLATION AMENDMENT (APPLICATION OF CRIMINAL CODE) BILL 2001
The purpose of the Family and Community Services Legislation
Amendment (Application of Criminal Code) Bill 2001 (the Bill) is to make
consequential amendments to certain offence provisions in legislation
administered by the Minister for Family and Community Services and the Minister
for Community Services to reflect the application of the Criminal Code Act
1995 (the Code). The amendments are to ensure that the relevant offences
continue to have the same meaning and operation as they do at
present.
The Code is a Commonwealth Act which will alter the way in which
criminal offence provisions are interpreted, including offences contained in
legislation for with the Family and Community Services portfolio is responsible.
The Code contains a standard approach to the formulation of criminal offences.
Offences which have been developed over many years as part of the Commonwealth
statutory regime are by no means standard and it is therefore necessary to make
adjustment for when the Code applies to all Commonwealth offences from
15 December 2001 (as provided for in the Criminal Code Amendment
(Application) Act 2000).
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 application of the Code to all offences will
improve Commonwealth criminal law by clarifying important elements of
offences.
In particular, the Code clarifies the traditional distinction
between the actus reus (the physical act, now referred to as the
‘physical element’) and the mens rea (what the defendant
thought or intended, now referred to as the ‘fault element’) and
sets out that distinction in the Code. The physical elements provided for by
the Code are the conduct, the circumstance in which it occurs, and the result of
the conduct. For every physical element, there is a corresponding fault
element. The Code does not prevent an offence from specifying an alternative
fault element, but the Code indicates that a default element will apply in the
absence of a specified fault element. The Code establishes 4 default fault
elements: intention, knowledge, recklessness and negligence. The Code provides
that, for conduct, the default element is intention. For circumstance or
result, the default fault element is recklessness.
The major forms of
amendments provided for by this Bill are:
• making offence creating
and related provisions in the Family and Community Services portfolio comply
with the Code;
• applying strict liability or absolute liability to
individual offences or specified physical elements of offences where
necessary;
• removing the defences of lawful excuse and lawful
authority that appear in certain provisions and instead placing reliance on the
Code’s general defence of lawful authority and lawful excuse (see section
10.5 of the Code);
• consequentially deleting references to certain
provisions of the Crimes Act and replacing these with references to the
equivalent Code provisions; and
• reconstructing provisions in order to
clarify physical elements of conduct, circumstance and result.
The
legislation involved is the A New Tax System (Bonuses for Older
Australians) Act 1999, the A New Tax System (Family Assistance)
(Administration) Act 1999, the Child Support (Assessment) Act
1989, the Child Support (Registration and Collection) Act
1988, the Commonwealth Services Delivery Agency Act 1997,
the Data-matching Program (Assistance and Tax) Act 1990, the
Disability Services Act 1986, the Farm Household Support Act
1992, the First Home Owners Act 1983, the Home
Deposit Assistance Act 1982, the Home Savings Grant Act
1964, the Home Savings Grant Act 1976, the Social
Security Act 1991, the Social Security (Administration) Act
1999, the Social Welfare Commission (Repeal) Act
1976.
Schedule 1 makes consequential amendments to certain offence provisions
in legislation administered by the Minister for Family and Community Services
and the Minister for Community Services to reflect the application of the
Criminal Code Act 1995. The amendments are not intended to alter the
current meaning or operation of the relevant offence provisions.
Date
of Effect: Schedule 1 commences on the day after the day on which it
receives the Royal Assent.
Financial Impact: There is no financial
impact from these amendments.
FAMILY AND COMMUNITY SERVICES LEGISLATION AMENDMENT (APPLICATION OF CRIMINAL CODE) BILL 2001
Clause 1—Short Title
Clause 1 of the Family and
Community Services Legislation Amendment (Application of Criminal Code) Bill
2001 sets out how the amending Act is to be cited.
Clause
2—Commencement
Clause 2 specifies when the various clauses and
Schedules of the amending Act are to commence. Subclause 2(1) provides that,
subject to Clause 2, this Act commences on the day after the day on which it
receives the Royal Assent. Subclause 2(2) provides that, if Item 19 of Schedule
1 to the Family and Community Services Legislation (Simplification and Other
Measures) Act 2001 commences after this Act commences, Items 124 and 125
commence immediately after the commencement of that Item.
Clause
3—Schedule(s)
Clause 3 provides that each Act that is specified
in a Schedule to the Family and Community Services Legislation Amendment
(Application of Criminal Code)Bill 2001 is amended as set out in the
applicable Items in those Schedules.
Acts amended by this Bill
are:
• A New Tax System (Bonuses for Older Australians) Act
1999;
• A New Tax System (Family Assistance)
(Administration) Act 1999;
• Child Support (Assessment)
Act 1989;
• Child Support (Registration and Collection)
Act 1988;
• Commonwealth Services Delivery Agency Act
1997;
• Data-matching Program (Assistance and Tax) Act
1990;
• Disability Services Act
1986;
• Farm Household Support Act
1992;
• First Home Owners Act
1983;
• Home Deposit Assistance Act
1982;
• Home Savings Grant Act
1964;
• Home Savings Grant Act
1976;
• Social Security Act
1991;
• Social Security (Administration) Act
1999; and
• Social Welfare Commission (Repeal) Act
1976.
Subclause 4(1) provides that, subject to subsection 2, each amendment
made by this Act applies to acts and omissions that take place after the
amendment commences.
Subclause 4(2) provides that if an act or omission
is alleged to have taken place between two dates, one before and one on or after
the day on which a particular amendment commences, the amendment does not apply
to the alleged act or omission.
1. Summary of proposed changes
Schedule 1 makes consequential amendments to certain offence provisions
in legislation administered by the Minister for Family and Community Services
and the Minister for Community Services to reflect the application of the
Criminal Code Act 1995 (the Code).
2. Background
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.
Moreover, offences which have been developed over many years as part of the
Commonwealth statutory regime are by no means standard. The application of the
Code to all offences will improve Commonwealth criminal law by clarifying
important elements of offences and will provide a standard approach to the
formulation of criminal offences.
This Bill makes consequential
amendments to certain offence provisions in legislation administered by the
Minister for Family and Community Services and the Minister for Community
Services to reflect the application of the Code.
3. Explanation of the changes
Item 1 inserts proposed section 3AA which applies Chapter 2 of the Code
to the above Act. Chapter 2 establishes the codified general principles of
criminal responsibility.
Part 4 of the Act provides for bonus payments to be made to clients of
the Australian Taxation Office. In broad terms, section 55 creates an offence
in certain circumstances where a person uses, records, discloses or communicates
information relating to another person. One element of the offence relates to
the nature of the relevant information. It requires that the information must
be information that was acquired by the first person in the performance of a
function or obligation, or in the exercise of a power under Part 4. Item 2
repeals and substitutes section 55 of the Act. The substituted section 55
recreates the offence provision and subsection 55(2) provides that the element
of the offence relating to the nature of the information is one of strict
liability. Section 6.1 of the Code governs strict liability.
An
individual physical element would generally qualify for application of strict
liability where it describes something that a defendant would not ordinarily
consider in the course of committing the offence. In those circumstances, the
defendant would not have a fault element in relation to that physical element
and a prosecution would be defeated if the Crown was required to demonstrate
that the defendant did possess such a fault element. Where strict liability
applies to an offence, the prosecution does not have to prove fault on the part
of the defendant. The prosecution need only prove that the physical element of
the offence did occur. However, there is a defence of mistake of fact under
section 9.2 of the Code. Section 9.2 provides that a person is not
criminally responsible for an offence of this nature if, at the time of the
conduct constituting the physical element, the person considered whether or not
fact existed, and is under a mistaken but reasonable belief about those facts
and, had those facts existed, the conduct would not have constituted an offence.
According to subsection 13.3(2) of the Code, the person wishing to deny criminal
responsibility bears an evidential burden in relation to showing a mistake of
fact.
Item 3 inserts proposed section 3A which applies Chapter 2 of the Code to
the above Act. Chapter 2 establishes the codified general principles of
criminal responsibility.
In general terms, section 25 of the Act requires a claimant who becomes
eligible for family tax benefit to notify the Secretary in relation to the
occurrence of particular events or circumstances. The information must be
notified in the manner set out in a written notice given to the service under
section 25A. The information must be notified as soon as practicable after
the service becomes aware that the event or circumstance has happened or is
likely to happen. The penalty is imprisonment for 6 months.
The effect
of the Item is to add subsection 25(2) which provides that strict liability
applies to the element of an offence against subsection (1) to the extent that a
notice given under section 25A is such a notice. An individual physical element
would generally qualify for application of strict liability where it describes
something that a defendant would not ordinarily consider in the course of
committing the offence. In those circumstances, the defendant would not have a
fault element in relation to that physical element and a prosecution would be
defeated if the Crown was required to demonstrate that the defendant did possess
such a fault element.
Where strict liability applies to an offence, the
prosecution does not have to prove fault on the part of the defendant. The
prosecution need only prove that the physical element of the offence did occur.
However, there is a defence of mistake of fact under section 9.2 of
the Code. Section 9.2 provides that a person is not criminally responsible for
an offence of this nature if, at the time of the conduct constituting the
physical element, the person considered whether or not fact existed, and is
under a mistaken but reasonable belief about those facts and, had those facts
existed, the conduct would not have constituted an offence. According to
subsection 13.3(2) of the Code, the person wishing to deny criminal
responsibility bears an evidential burden in relation to showing a mistake of
fact. It is appropriate that strict liability apply in relation to the physical
element referred to above.
In general terms, subsection 56C(1) of the Act provides that, where a
determination of conditional eligibility under section 50F is in force in
respect of a claimant who is an individual, the claimant must notify the
Secretary in relation to the occurrence of particular events or circumstances.
The information must be notified in the manner set out in a written notice
given to the individual under section 57. The information must be
notified as soon as practicable after the claimant becomes aware that the event
or circumstance has happened or is likely to happen. The penalty is
imprisonment for 6 months.
The effect of the Item is to add
subsection 56(1A) which provides that strict liability applies to the element of
an offence against subsection (1) to the extent that a determination under
section 50F is such a determination and to the extent that a notice given under
section 57 is such a notice. An individual physical element would generally
qualify for application of strict liability where it describes something that a
defendant would not ordinarily consider in the course of committing the offence.
In those circumstances, the defendant would not have a fault element in relation
to that physical element and a prosecution would be defeated if the Crown was
required to demonstrate that the defendant did possess such a fault
element.
Where strict liability applies to an offence, the prosecution
does not have to prove fault on the part of the defendant. The prosecution need
only prove that the physical element of the offence did occur. However, there
is a defence of mistake of fact under section 9.2 of the Code.
Section 9.2 provides that a person is not criminally responsible for an offence
of this nature if, at the time of the conduct constituting the physical element,
the person considered whether or not fact existed, and is under a mistaken but
reasonable belief about those facts and, had those facts existed, the conduct
would not have constituted an offence. According to subsection 13.3(2) of the
Code, the person wishing to deny criminal responsibility bears an evidential
burden in relation to showing a mistake of fact. It is appropriate that strict
liability apply in relation to the physical elements referred to above.
In general terms, subsection 56C(2) of the Act requires claimants to
notify the Secretary in relation to the occurrence of particular events or
circumstances if:
• determinations of conditional eligibility
under section 50F and CCB% under section 50J are in force;
and
• the CCB% is calculated using Schedule 2 to the Family Assistance
Act.
The information must be notified in the manner set out in a written
notice given to the individual under section 57. The information must be
notified as soon as practicable after the claimant becomes aware that the event
or circumstance has happened or is likely to happen. The penalty is
imprisonment for 6 months.
The effect of the Item is to add
subsection 56C(2A) which provides that strict liability applies to certain
elements of an offence against subsection (2). Firstly, strict liability
applies to the element that a determination is a determination under section 50F
or 50J. Strict liability also applies to the element that Schedule 2 to the
Family Assistance Act is used to calculate CCB%. The Item also provides that
strict liability applies to the element that a notice is a notice given under
section 57.
An individual physical element would generally qualify for
application of strict liability where it describes something that a defendant
would not ordinarily consider in the course of committing the offence. In those
circumstances, the defendant would not have a fault element in relation to that
physical element and a prosecution would be defeated if the Crown was required
to demonstrate that the defendant did possess such a fault element. Where
strict liability applies to an offence, the prosecution does not have to prove
fault on the part of the defendant. The prosecution need only prove that the
physical element of the offence did occur. However, there is a defence of
mistake of fact under section 9.2 of the Code. Section 9.2 provides
that a person is not criminally responsible for an offence of this nature if, at
the time of the conduct constituting the physical element, the person considered
whether or not fact existed, and is under a mistaken but reasonable belief about
those facts and, had those facts existed, the conduct would not have constituted
an offence. According to subsection 13.3(2) of the Code, the person wishing to
deny criminal responsibility bears an evidential burden in relation to showing a
mistake of fact. It is appropriate that strict liability apply in relation to
the physical elements referred to above.
In general terms, subsection 56C(3) of the Act requires claimants to
notify the Secretary in relation to the occurrence of particular events or
circumstances if:
• determinations of conditional eligibility
under section 50F and a weekly limit of hours under section 50H
are in force; and
• the weekly limit of hours is more than 20 because a
circumstance set out in subsection 54(2), (4), (6) or (8) of the Act or
subsection 55(2) or (4) applies to the eligibility of the
claimant.
The information must be notified in the manner set out in a
written notice given to the individual under section 57. The information
must be notified as soon as practicable after the claimant becomes aware that
the event or circumstance has happened or is likely to happen. The penalty is
imprisonment for 6 months.
The effect of the Item is to add
subsection 56C(3A) which provides that strict liability applies to certain
elements of an offence against subsection (3). Firstly, strict liability
applies to the element that a determination is a determination under section 50F
or 50H. Strict liability also applies to the element that a circumstance is a
circumstance set out in subsection 54(2), (4), (6) or (8) of the Act or
subsection 55(2) or (4). The Item also provides that strict liability applies
to the element that a notice is a notice given under section 57.
An
individual physical element would generally qualify for application of strict
liability where it describes something that a defendant would not ordinarily
consider in the course of committing the offence. In those circumstances, the
defendant would not have a fault element in relation to that physical element
and a prosecution would be defeated if the Crown was required to demonstrate
that the defendant did possess such a fault element. Where strict liability
applies to an offence, the prosecution does not have to prove fault on the part
of the defendant. The prosecution need only prove that the physical element of
the offence did occur. However, there is a defence of mistake of fact under
section 9.2 of the Code. Section 9.2 provides that a person is not
criminally responsible for an offence of this nature if, at the time of the
conduct constituting the physical element, the person considered whether or not
fact existed, and is under a mistaken but reasonable belief about those facts
and, had those facts existed, the conduct would not have constituted an offence.
According to subsection 13.3(2) of the Code, the person wishing to deny criminal
responsibility bears an evidential burden in relation to showing a mistake of
fact. It is appropriate that strict liability apply in relation to the physical
elements referred to above.
In part, subsection 56C(4) of the Act requires claimants to notify the
Secretary in relation to the occurrence of particular events or circumstances if
determinations of conditional eligibility under section 50F and a weekly
limit of hours under section 50H are in force. The information must be
notified in the manner set out in a written notice given to the claimant
under section 57. The information must be notified as soon as practicable
after the claimant becomes aware that the event or circumstance has happened or
is likely to happen. The penalty is imprisonment for 6 months.
The
effect of the Item is to add subsection 56C(4A) which provides that strict
liability applies to certain elements of an offence against subsection (4).
Firstly, strict liability applies to the element that a determination is a
determination under section 50F or 50H. The Item also provides that strict
liability applies to the element that a notice is a notice given under section
57.
An individual physical element would generally qualify for
application of strict liability where it describes something that a defendant
would not ordinarily consider in the course of committing the offence. In those
circumstances, the defendant would not have a fault element in relation to that
physical element and a prosecution would be defeated if the Crown was required
to demonstrate that the defendant did possess such a fault element. Where
strict liability applies to an offence, the prosecution does not have to prove
fault on the part of the defendant. The prosecution need only prove that the
physical element of the offence did occur. However, there is a defence of
mistake of fact under section 9.2 of the Code. Section 9.2 provides
that a person is not criminally responsible for an offence of this nature if, at
the time of the conduct constituting the physical element, the person considered
whether or not fact existed, and is under a mistaken but reasonable belief about
those facts and, had those facts existed, the conduct would not have constituted
an offence. According to subsection 13.3(2) of the Code, the person wishing to
deny criminal responsibility bears an evidential burden in relation to showing a
mistake of fact. It is appropriate that strict liability apply in relation to
the physical elements referred to above.
In part, subsection 56C(5) of the Act requires claimants to notify the
Secretary in relation to the occurrence of particular events or circumstances if
determinations of conditional eligibility under section 50F and schooling
% under section 50K are in force. The information must be notified in
the manner set out in a written notice given to the claimant under section
57. The information must be notified as soon as practicable after the
claimant becomes aware that the event or circumstance has happened or is likely
to happen. The penalty is imprisonment for 6 months.
The effect of
the Item is to add subsection 56C(5A) which provides that strict liability
applies to certain elements of an offence against subsection (5). Firstly,
strict liability applies to the element that a determination is a determination
under section 50F or 50K. The Item also provides that strict liability applies
to the element that a notice is a notice given under section 57.
An
individual physical element would generally qualify for application of strict
liability where it describes something that a defendant would not ordinarily
consider in the course of committing the offence. In those circumstances, the
defendant would not have a fault element in relation to that physical element
and a prosecution would be defeated if the Crown was required to demonstrate
that the defendant did possess such a fault element. Where strict liability
applies to an offence, the prosecution does not have to prove fault on the part
of the defendant. The prosecution need only prove that the physical element of
the offence did occur. However, there is a defence of mistake of fact under
section 9.2 of the Code. Section 9.2 provides that a person is not
criminally responsible for an offence of this nature if, at the time of the
conduct constituting the physical element, the person considered whether or not
fact existed, and is under a mistaken but reasonable belief about those facts
and, had those facts existed, the conduct would not have constituted an offence.
According to subsection 13.3(2) of the Code, the person wishing to deny criminal
responsibility bears an evidential burden in relation to showing a mistake of
fact. It is appropriate that strict liability apply in relation to the physical
elements referred to above.
In general terms, subsection 56C(6) of the Act requires claimants to
notify the Secretary in relation to the occurrence of particular events or
circumstances if:
• a determination of conditional eligibility
under section 50F is in force; and
• the claimant’s rate
of child care benefit is the rate determined by the Secretary under
subsection 81(2) of the Family Assistance Act.
The information must
be notified in the manner set out in a written notice given to the individual
under section 57. The information must be notified as soon as practicable
after the claimant becomes aware that the event or circumstance has happened or
is likely to happen. The penalty is imprisonment for 6 months.
The
effect of the Item is to add subsection 56C(6A) which provides that strict
liability applies to certain elements of an offence against subsection (3).
Firstly, strict liability applies to the element that a determination is a
determination under section 50F. Strict liability also applies to the element
that the determination of a rate is a determination under subsection 81(2) of
the Act. The Item also provides that strict liability applies to the element
that a notice is a notice given under section 57.
An individual physical
element would generally qualify for application of strict liability where it
describes something that a defendant would not ordinarily consider in the course
of committing the offence. In those circumstances, the defendant would not have
a fault element in relation to that physical element and a prosecution would be
defeated if the Crown was required to demonstrate that the defendant did possess
such a fault element. Where strict liability applies to an offence, the
prosecution does not have to prove fault on the part of the defendant. The
prosecution need only prove that the physical element of the offence did occur.
However, there is a defence of mistake of fact under section 9.2 of
the Code. Section 9.2 provides that a person is not criminally responsible for
an offence of this nature if, at the time of the conduct constituting the
physical element, the person considered whether or not fact existed, and is
under a mistaken but reasonable belief about those facts and, had those facts
existed, the conduct would not have constituted an offence. According to
subsection 13.3(2) of the Code, the person wishing to deny criminal
responsibility bears an evidential burden in relation to showing a mistake of
fact. It is appropriate that strict liability apply in relation to the physical
elements referred to above.
In general terms, subsection 56D(1) of the Act requires an approved child
care service that meets the requirements of paragraphs 56D(1)(a) to (d) to
notify the Secretary in relation to the occurrence of particular events or
circumstances. The information must be notified in the manner set out in a
written notice given to the service under section 57. The information
must be notified as soon as practicable after the service becomes aware that the
event or circumstance has happened or is likely to happen. The penalty is 60
penalty units.
Paragraphs 56D(1)(a) to (c) are respectively concerned
with the question of whether:
• the service is eligible under
section 47 of the Family Assistance Act for child care benefit by fee
reduction;
• a determination of a weekly limit of hours under
section 54C is in force;
• a circumstance under subsection
54(3), (5), (7), (9) or (12) or subsection 55(3), (5) or (8) of the Family
Assistance Act applies.
Item 11 inserts paragraphs 56D(1A)(a) to (d)
which apply strict liability to the following elements:
• that a
child care service’s eligibility for a child care benefit is an
eligibility under section 47 of the Family Assistance Act;
• that a
determination is a determination under section 54C;
• that a
circumstance is a circumstance under subsection 54(3), (5), (7), (9) or (12) or
subsection 55(3), (5) or (8) of the Family Assistance Act;
• that a
notice is a notice under section 57.
The rationale for the application of
strict liability in relation to elements of this nature is discussed above (see,
for example, the discussion at Item 4, 5, or 6).
In general terms, subsection 56D(2) of the Act requires an approved child
care service that meets the requirements of paragraphs 56D(2)(a) to (c) to
notify the Secretary in relation to the occurrence of particular events or
circumstances. The information must be notified in the manner set out in a
written notice given to the service under section 57. The information
must be notified as soon as practicable after the service becomes aware that the
event or circumstance has happened or is likely to happen. The penalty is 60
penalty units.
Paragraphs 56D(2)(a) and (b) are respectively concerned
with the question of whether:
• the service is eligible under
section 47 of the Family Assistance Act for child care benefit by fee
reduction;
• a rate, determined under subsection 81(4) of the
Family Assistance Act, is in force.
Item 12 inserts paragraphs
56D(2A)(a) to (c) which apply strict liability to the following
elements:
• that a child care service’s eligibility for a
child care benefit is an eligibility under section 47 of the Family Assistance
Act;
• that a determination of a rate is a determination under
subsection 81(4) of the Family Assistance Act;
• that a notice is
a notice under section 57.
The rationale for the application of strict
liability in relation to elements of this nature is discussed above (see, for
example, the discussion at Item 4, 5, or 6).
In general terms, subsection 56D(3) of the Act requires an approved child
care service who meets the requirements of paragraphs 56D(3)(a) to (d) to notify
the Secretary in relation to the occurrence of particular events or
circumstances. The information must be notified in the manner set out in a
written notice given to the service under section 57. The information
must be notified as soon as practicable after the service becomes aware that the
event or circumstance has happened or is likely to happen. The penalty is 60
penalty units.
Paragraphs 56D(3)(b) and (c) are respectively concerned
with the question of whether:
• a determination of conditional
eligibility under section 50F is in force; and
• the rate
applicable is as determined by the Secretary under subsection 81(3) of the
Family Assistance Act.
Item 13 inserts paragraphs 56D(3A)(a) to (c)
which apply strict liability to the following elements:
• that a
determination is a determination under section 50F;
• that a
determination of a rate is a determination under subsection 81(3) of the Family
Assistance Act;
• that a notice is a notice given under section
57.
The rationale for the application of strict liability in relation to
elements of this nature is discussed above (see, for example, the discussion at
Item 4, 5, or 6).
In general terms, where the requirements of paragraphs 56D(4)(a) to (d)
of the Act are met, an approved child care service is required to notify the
Secretary in relation to the occurrence of particular events or circumstances.
The information must be notified in the manner set out in a written notice
given to the service under section 57. The information must be notified
as soon as practicable after the service becomes aware that the event or
circumstance has happened or is likely to happen. The penalty is 60 penalty
units.
Paragraph 56D(4)(b) is concerned with the question of
whether:
• a determination of conditional eligibility under
section 50F is in force; and
• a determination of a weekly limit
of hours under section 50H is in force.
Paragraph 56D(4)(c) is
concerned with the question of whether a circumstance set out in subsection
54(12) or 55(8) of the Family Assistance Act applies.
Item 14 inserts
paragraphs 56D(4A)(a) to (d) which apply strict liability to the following
elements:
• that a determination is a determination under section
50F;
• that a determination is a determination under
50H;
• that a circumstance is a circumstance set out in subsection
54(12) or 55(8) of the Family Assistance Act; and
• that a notice is a
notice given under section 57.
The rationale for the application of
strict liability in relation to elements of this nature is discussed above (see,
for example, the discussion at Item 4, 5, or 6).
In general terms, subsection 56D(5) of the Act requires an approved child
care service that meets the requirements of paragraph 56D(5)(a) to notify the
Secretary in relation to the occurrence of particular events or circumstances.
The information must be notified in the manner set out in a written notice
given to the service under section 57. The information must be notified
as soon as practicable after the service becomes aware that the event or
circumstance has happened or is likely to happen. The penalty is 60 penalty
units.
Paragraph 56D(5)(a) is concerned with the question of whether a
determination under section 57 of the Family Assistance Act is in
force.
Item 15 inserts paragraphs 56D(5A)(a) and (b) which apply strict
liability in relation to the following elements:
• that a
determination is a determination under section 57 of the Family Assistance
Act;
• that a notice is a notice given under section 57.
The
rationale for the application of strict liability in relation to elements of
this nature is discussed above (see, for example, the discussion at Item 4, 5,
or 6).
Sections 5, 7, 7A, 14, 15D and 86 of the Crimes Act 1914 (the
Crimes Act) are being replaced in effect by sections 10.5, 11.1, 11.2, 11.4,
11.5, 13.3, 13.4 and 13.5 of the Code. As paragraph 75(c) contains
references to some of those Crimes Act provisions, Item 16 repeals
paragraph 75(c) and substitutes a new provision that contains references to the
relevant Code provisions.
Subsection 133(1) provides that the Executive Director may make an order
in certain circumstances. Subsection 133(2) provides that a person who
contravenes an order under subsection (1) is guilty of an offence. The
effect of Item 17 is to apply strict liability to subsection (2) to the element
of an offence against subsection (2) that an order is an order under subsection
(1).
The rationale for the application of strict liability in relation to
elements of this nature is discussed above (see, for example, the discussion at
Item 4, 5, or 6).
The Item recreates the offence provided for by existing section 159 by
removing the defences from the offence provision – the defences being
‘without reasonable excuse’ and ‘to the extent that the person
is capable of complying with the requirement’. The offence is that a
person must not refuse or fail to comply with a requirement under Division 1 to
give information or produce a document. The penalty is imprisonment for
12 months.
The defence of a person not being capable of complying
with the requirement is recreated in new subsection 159(2). The defence of a
person having a reasonable excuse is recreated in new subsection
159(3).
The rationale for these amendments is to prevent any future
interpretation that ‘without reasonable excuse’ and ‘being not
capable of complying’ are elements of the offence, which would have to be
disproved by the prosecution. The amendments put it beyond doubt that having a
reasonable excuse or not being capable of complying with the requirement is a
defence to the offence. Pursuant to subsection 13.3(3) of the Code, a defendant
who wishes to rely on such defences bears an evidential burden in relation to
the defence.
New subsection 159(4) provides that strict liability applies
to the element of an offence against subsection 159(1) that a requirement is a
requirement under Division 1. The rationale for the application of strict
liability in relation to elements of this nature is discussed above (see, for
example, the discussion at Item 4, 5, or 6).
Section 163 creates an offence in relation to unauthorised access to
protected information. The Item recreates the offence by removing the defence
of lawful authority. Under section 10.5 of the Code there is a general defence
which provides that a person is not criminally responsible for an offence if the
conduct constituting the offence is justified or excused by a law.
New
subsection 163(2) provides that strict liability applies to the element of an
offence against subsection (1) that a person not authorised to do something is
not authorised under the family assistance law to do that thing. The rationale
for the application of strict liability in relation to elements of this nature
is discussed above (see, for example, the discussion at Item 4, 5, or
6).
Section 164 creates an offence in relation to unauthorised use of
protected information. One element of the offence, set out at paragraph
164(1)(b), is that the person is not authorised or required
under:
(i) the family assistance law;
(ii) the Social Security Act
1991; or
(iii) the Social Security (Administration) Act
1999;
to record, disclose or use the information.
New
subsection 164(2) provides that strict liability applies to the element of an
offence against subsection (1) that a person not authorised or required to do
something is not authorised or required to do that thing under:
(i) the
family assistance law;
(ii) the Social Security Act 1991;
or
(iii) the Social Security (Administration) Act 1999.
The
rationale for the application of strict liability in relation to elements of
this nature is discussed above (see, for example, the discussion at Item 4, 5,
or 6).
Section 165 creates an offence in relation to soliciting the disclosure
of protected information. One element of the offence, set out at paragraph
165(b), is that the disclosure would be in contravention of Division 2. This
Item inserts new subsection 165(2) which provides that strict liability
applies in relation to paragraph 165(1)(b). The rationale for the
application of strict liability in relation to elements of this nature is
discussed above (see, for example, the discussion at Item 4, 5, or 6).
Section 172 is concerned with the making of false statements in
connection with a claim. Currently the section applies the fault elements of
knowledge (or "knowingly") and recklessness (or “recklessly”) in
relation to the proscribed physical element of conduct, namely making a
statement. Following application of the Code,
the fault elements of knowledge and recklessness will be restricted to physical
elements of circumstance or result, and intention will be the sole fault element
that can be applied to a physical element of conduct: see Division 5 of Part 2.2
of the Code. Applying "knowingly" to a physical element of conduct in the
pre-Code environment is equivalent to applying the fault element of intention.
This Item recreates the offence so that intention is the fault element in
relation to the physical element of conduct. The offence is recreated so that
the fault element of recklessness applies in relation to other physical
elements.
Section 173 is also concerned with the making of false statements.
Currently the section applies the fault elements of knowledge (or "knowingly")
and recklessness (or “recklessly”) in relation to the proscribed
physical element of conduct, namely making a statement. Following application
of the Code,
the fault elements of knowledge and recklessness will be restricted to physical
elements of circumstance or result, and intention will be the sole fault element
that can be applied to a physical element of conduct: see Division 5 of Part 2.2
of the Code. Applying "knowingly" to a physical element of conduct in the
pre-Code environment is equivalent to applying the fault element of intention.
This Item recreates the offence so that intention is the fault element in
relation to the physical element of conduct. The offence is recreated so that
the fault element of recklessness applies in relation to other physical
elements.
For the purposes of an offence against section 177 that relates
to a contravention of subsection 173(1), new subsection (2) provides for strict
liability to apply to the elements set out in paragraphs (2)(a) and (2)(b). The
rationale for the application of strict liability in relation to elements of
this nature is discussed above (see, for example, the discussion at Item 4,
5, or 6).
Section 174 is concerned with the making of false statements or producing
documents that are false. Currently the section applies the fault elements of
knowledge (or "knowingly") and recklessness (or “recklessly”) in
relation to the proscribed physical element of conduct, namely making a
statement. Following application of the Code,
the fault elements of knowledge and recklessness will be restricted to physical
elements of circumstance or result, and intention will be the sole fault element
that can be applied to a physical element of conduct: see Division 5 of Part 2.2
of the Code. Applying "knowingly" to a physical element of conduct in the
pre-Code environment is equivalent to applying the fault element of intention.
This Item recreates the offence so that intention is the fault element in
relation to the physical element of conduct. The offence is recreated so that
the fault element of recklessness applies in relation to other physical
elements.
The broad effect of paragraph 174(1)(a) is that the statement
or document must be given to an officer or an approved child care service
exercising powers or performing duties or functions under the family assistance
law. For the purposes of an offence against section 177 that relates to a
contravention of subsection 174(1), new subsection (2) provides for strict
liability to apply to the element of the offence that a power, duty or function
is a power, duty or function under the family assistance law. The rationale for
the application of strict liability in relation to elements of this nature is
discussed above (see, for example, the discussion at Item 4, 5, or
6).
In broad terms, section 175 creates an offence where a person knowingly
obtains a payment of family assistance to which the person is not entitled or
only entitled in part. The section applies the fault element of knowledge (or
"knowingly") in relation to the proscribed physical element of conduct, namely
obtaining the payment. Following application of the Code,
the fault element of knowledge will be restricted to physical elements of
circumstance or result, and intention will be the sole fault element that can be
applied to a physical element of conduct: see Division 5 of Part 2.2 of the
Code. Applying "knowingly" to a physical element of conduct in the pre-Code
environment is equivalent to applying the fault element of intention. This Item
recreates the offence by omitting the word ‘knowingly’ so that
intention is the fault element in relation to the physical element of conduct.
The offence is recreated so that the fault element of knowledge applies in
relation to other physical elements.
In broad terms, subsections 175A(1) to (3) create an offence for an
individual or an approved child care service to knowingly obtain certain
benefits. The subsections apply the fault element of knowledge (or "knowingly")
in relation to the proscribed physical element of conduct, namely obtaining the
relevant benefits. Following application of the Code,
the fault element of knowledge will be restricted to physical elements of
circumstance or result, and intention will be the sole fault element that can be
applied to a physical element of conduct: see Division 5 of Part 2.2 of the
Code. Applying "knowingly" to a physical element of conduct in the pre-Code
environment is equivalent to applying the fault element of intention. This Item
recreates the offence by omitting the word ‘knowingly’ so that
intention is the fault element in relation to the physical element of
conduct.
In broad terms, subsection 175A(3) provides that, if an approved child
care service is not eligible under section 47 of the Family Assistance
Act for child care benefit, the service must not obtain an amount of an
advance paid under section 219R. For the purposes of an offence against
section 177 that relates to a contravention of subsection 175A(3), new
subsection (3A) provides for strict liability to apply to the elements set out
in paragraphs (3A)(a) and (3A)(b). The rationale for the application of
strict liability in relation to elements of this nature is discussed above (see,
for example, the discussion at Item 4, 5, or 6).
In broad terms, subsection 175A(4) creates an offence for an approved
child care service to knowingly obtain certain benefits. The subsection applies
the fault element of knowledge (or "knowingly") in relation to the proscribed
physical element of conduct, namely obtaining the relevant benefits. Following
application of the Code,
the fault element of knowledge will be restricted to physical elements of
circumstance or result, and intention will be the sole fault element that can be
applied to a physical element of conduct: see Division 5 of Part 2.2 of the
Code. Applying "knowingly" to a physical element of conduct in the pre-Code
environment is equivalent to applying the fault element of intention. This Item
recreates the offence by omitting the word ‘knowingly’ so that
intention is the fault element in relation to the physical element of
conduct.
In broad terms, subsection 175A(4) provides that, if an approved child
care service is eligible under section 47 of the Family Assistance Act
for child care benefit, the service must not obtain an incorrect amount of an
advance paid under section 219R. For the purposes of an offence against
section 177 that relates to a contravention of subsection 175(4), new
subsection (4A) provides for strict liability to apply to the elements set out
in paragraphs (4A)(a) and (4A)(b). The rationale for the application of strict
liability in relation to elements of this nature is discussed above (see, for
example, the discussion at Item 4, 5, or 6).
In broad terms, section 176 deals with payments or fee reductions
obtained by fraud. At present, the section applies the fault element of
knowledge (or "knowingly") in relation to the proscribed physical element of
conduct, namely obtaining one of the benefits set out in paragraphs (a) to (c).
Following application of the Code,
the fault element of knowledge will be restricted to physical elements of
circumstance or result, and intention will be the sole fault element that can be
applied to a physical element of conduct: see Division 5 of Part 2.2 of the
Code. Applying "knowingly" to a physical element of conduct in the pre-Code
environment is equivalent to applying the fault element of intention. This Item
recreates the offence by, firstly, omitting the word ‘knowingly’ so
that intention is the fault element in relation to the physical element of
conduct.
The Item also recreates the offence by separately providing for
situations where the relevant benefits are obtained as a result of false or
misleading statements. Currently the effect of paragraph (d) is to apply the
fault elements of knowledge (or "knowingly") and recklessness (or
“recklessly”) in relation to the proscribed physical element of
conduct, namely making a statement. Following application of the Code,
the fault elements of knowledge and recklessness will be restricted to physical
elements of circumstance or result, and intention will be the sole fault element
that can be applied to a physical element of conduct: see Division 5 of Part 2.2
of the Code. Applying "knowingly" to a physical element of conduct in the
pre-Code environment is equivalent to applying the fault element of intention.
This Item recreates the offence so that intention is the fault element in
relation to the physical element of conduct. The offence is recreated so that
the fault element of recklessness applies in relation to other physical
elements.
Subparagraphs 176(1)(a)(iii) and (3)(d)(iii) are concerned with
situations involving payment of an amount of an advance paid under section
219R. For the purposes of an offence against section 177 that relates to a
contravention of subsections 175(1) or (3), new subsections (2) and (4)
respectively provide for strict liability to apply to the element of the offence
that an amount of an advance paid to reimburse a service is an amount paid under
section 219R. The rationale for the application of strict liability in relation
to elements of this nature is discussed above (see, for example, the discussion
at Item 4, 5, or 6).
Currently the heading to Part 7 includes a reference to the liability of
corporations. As it is proposed that the relevant provisions of the family
assistance law be repealed so that Part 2.5 of the Code applies in relation to
corporations, this Item omits the reference to liability of corporations.
This Item repeals sections 186 to 188. Existing section 186 is concerned
with the term ‘director of a corporation’ while section 187 deals
with the term ‘engaging in conduct’. These provisions are repealed
as it is intended that the provisions of the Code which cover the subject matter
of these provisions be applied in relation to the family assistance
law.
Sections 5, 7, 7A, 14, 15D and 86 of the Crimes Act are being
replaced in effect by sections 10.5, 11.1, 11.2, 11.4, 11.5, 13.3, 13.4 and 13.5
of the Code. As section 188 contains references to some of those Crimes Act
provisions, Item 32 repeals section 188 and substitutes a new
provision that contains references to the relevant Code provisions.
Division 2 of Part 7 deals with proceedings against corporations. This
Item repeals the Division as it is intended that Part 2.5 of the Code, which
deals with corporate criminal responsibility, apply in relation to corporate
offences under the family assistance law.
Subsection 219A(2) sets out the obligations that apply to an approved
child care service that receives certain notices or gives a certificate under
the family assistance law. This Item applies strict liability in respect of
that subsection as it is considered that the provision presently attracts strict
liability. The provision is expressed in mandatory language and does not imply
that proof of fault is required. The penalty is monetary only.
Subsection 219B(1) sets out the obligations that apply to an approved
child care service that is eligible under section 47 of the Family Assistance
Act for child care benefit by fee reduction. This Item applies strict liability
in respect of that subsection as it is considered that the provision presently
attracts strict liability. The provision is expressed in mandatory language and
does not imply that proof of fault is required. The penalty is monetary
only.
Section 219C creates an obligation for approved child care services to
pay amounts to individuals where certain conditions are met. This Item applies
strict liability in respect of that section as it is considered that the
provision presently attracts strict liability. The provision is expressed in
mandatory language and does not imply that proof of fault is required. The
penalty is monetary only.
Subsections 219D(1) and (2) create certain obligations where an approved
child care service receives notice that its approval has been suspended or
cancelled (subsection (1)) or that its suspension has been revoked (subsection
(2)). This Item applies strict liability in respect of those subsections as it
is considered that the provisions presently attract strict liability. The
provisions are expressed in mandatory language and do not imply that proof of
fault is required. The penalty is monetary only.
Subsection 219E(1) creates an obligation for approved child care services
to issue receipts containing certain information. This Item applies strict
liability in respect of that subsection as it is considered that the provision
presently attracts strict liability. The provision is expressed in mandatory
language and does not imply that proof of fault is required. The penalty is
monetary only.
Subsection 219F(1) provides that an approved child care service must keep
certain records and subsection 219F(2) provides that the records must be kept
for 36 months. This Item applies strict liability in respect of those
subsections as it is considered that the provisions presently attract strict
liability. The provisions are expressed in mandatory language and do not imply
that proof of fault is required. The penalty is monetary only.
Subsection 219F(1) requires a person who operates an approved child care
service to keep records in certain circumstances. This Item applies strict
liability in respect of that subsection as it is considered that the provision
presently attracts strict liability. The provision is expressed in mandatory
language and does not imply that proof of fault is required. The penalty is
monetary only.
Subsections 219L(1) and (2) require the occupier of premises to produce
documents to an authorised officer in certain circumstances. Subsection 219L(3)
states that the occupier must assist the officer with certain matters. This
Item applies strict liability in respect of those subsections as it is
considered that the provisions presently attracts strict liability. The
provisions are expressed in mandatory language and do not imply that proof of
fault is required. The penalty is monetary only.
This Item inserts proposed section 4A which applies Chapter 2 of the Code
to the above Act. Chapter 2 establishes the codified general principles of
criminal responsibility.
The Item recreates the offence provided for by existing subsection 150(2)
by removing the defences from the offence provision. The offence is that a
person must not make a record of any protected information or (directly or
indirectly) communicate to a person any protected information concerning another
person. The penalty is imprisonment for 1 year.
New subsection
150(2A) provides defences where the record is made, or the information is
communicated:
• under or for the purposes of the Act;
or
• in the performance of duties under or in relation to this
Act.
The rationale for these amendments is to prevent any future
interpretation that these defences are elements of the offence, which would have
to be disproved in the negative by the prosecution. The amendments put it
beyond doubt that these are defences to the offence. Pursuant to subsection
13.3(3) of the Code, a defendant who wishes to rely on such defences bears an
evidential burden in relation to the defence.
This Item repeals and substitutes subsections 159A(1) and (2). New
subsection 159A(1) recreates the offence created at existing subsection 159A(1)
by separating the physical element of conduct from the physical elements of
circumstance which are converted into discrete subparagraphs.
At present,
the section applies the fault element of recklessness (or "recklessly") in
relation to the proscribed physical element of conduct, namely making the
statement or omitting matter from the statement. Following application of the
Code,
the fault element of recklessness will be restricted to physical elements of
circumstance or result, and intention will be the sole fault element that can be
applied to a physical element of conduct: see Division 5 of Part 2.2 of the
Code. The Item therefore recreates the offence by separating the physical
element of conduct from the physical elements of circumstance or
result.
The Item also amends subsection 159A(2) by omitting the word
‘wilful’ and replacing it with the word ‘intentional’.
At present, subsection (2) uses the non-Code fault element of wilfulness in
relation to the physical element of conduct, namely acting with disregard to
certain requirements. This is equivalent to applying the Code fault element of
intention. It is possible that future courts may attempt to distinguish
wilfulness from intention on the basis that wilfulness appears to differ from
the basic Code fault element. Accordingly this Item proposes the
replacement of "wilful" by the appropriate and equivalent Code fault element,
namely intention. Subsection (2) will continue to operate in the same manner as
at present following this amendment.
At present, subsection (2) refers to
the person being taken to have acted recklessly in making the statement. This
approach applies the fault element of recklessness (or "recklessly") in relation
to a physical element of conduct, namely making the statement. The Item
therefore reconstructs subsection (2) so that the fault element of recklessness
applies in relation to the physical element of circumstance, namely whether the
statement is false or misleading in a material particular.
This Item repeals and substitutes section 159B. New subsection 159B(1)
recreates the offence created at existing subsection 159B(1) by separating the
physical element of conduct from the physical elements of circumstance which are
converted into discrete subparagraphs.
At present, the section applies
the fault elements of intention (or “intentionally”) and
recklessness (or "recklessly") in relation to the proscribed physical element of
conduct, namely failing to notify. Following application of the Code,
the fault element of recklessness will be restricted to physical elements of
circumstance or result, and intention will be the sole fault element that can be
applied to a physical element of conduct: see Division 5 of Part 2.2 of the
Code. The Item therefore recreates the offence by separating the physical
element of conduct from the physical elements of circumstance or result. By
omitting the words ‘intentionally’ and ‘recklessly’, the
Code will provide for intention to be the fault element in relation to the
physical element of conduct.
New subsection 159B(2) applies strict
liability to paragraph (1)(b). The rationale for the application of strict
liability in relation to elements of this nature is discussed above (see, for
example, the discussion at Item 4, 5, or 6).
The Item also amends
subsection 159B(2) by omitting the word ‘wilful’ and replacing it
with the word ‘intentional’. Currently, subsection (2) uses the
non-Code fault element of wilfulness in relation to the physical element of
conduct, namely acting with disregard in relation to the requirement to notify.
This is equivalent to applying the Code fault element of intention. It is
possible that future courts may attempt to distinguish wilfulness from intention
on the basis that wilfulness appears to differ from the basic Code fault
element. Accordingly this Item proposes the replacement of "wilful" by the
appropriate and equivalent Code fault element, namely intention. Subsection (2)
will continue to operate in the same manner as at present following this
amendment.
At present, subsection (2) refers to the person being taken to
have acted recklessly in failing to notify the Register. This approach applies
the fault element of recklessness (or "recklessly") in relation to a physical
element of conduct, namely failing to notify. The Item therefore reconstructs
subsection (2) so that the fault element of recklessness applies in relation to
the physical element of circumstance, namely the requirement to notify.
The Item recreates the offence provided for by existing subsection 160(3)
by removing the defences from the offence provision – the defences being
‘without reasonable excuse’ and ‘to the extent that the person
is capable of complying’. The offence is that a person must not refuse or
fail to comply with a notice under subsection (1). The penalty is imprisonment
for a period not exceeding 6 months.
The defence of a person not
being capable of complying is recreated in new subsection 160(3A). The
defence of a person having a reasonable excuse is recreated in new subsection
160(3B). The rationale for these amendments is to prevent any future
interpretation that ‘without reasonable excuse’ and ‘being not
capable of complying’ are elements of the offence, which would have to be
disproved in the negative by the prosecution. The amendments put it beyond
doubt that having a reasonable excuse or not being capable of complying with the
requirement is a defence to the offence. Pursuant to subsection 13.3(3) of the
Code, a defendant who wishes to rely on such defences bears an evidential burden
in relation to the defence.
New subsection 160(3C) provides that
subsection (3) is an offence of strict liability as it is considered that the
provision presently attracts strict liability. The reference to ‘without
reasonable excuse’ suggests that the legislature only wanted the general
defences and mistake of fact to apply, not proof of fault. The penalty is
imprisonment for a period not exceeding 6 months.
The Item recreates the offence provided for by existing subsection 161(3)
by removing the defences from the offence provision – the defences being
‘without reasonable excuse’ and ‘to the extent that the person
is capable of complying’. The offence is that a person must not refuse or
fail to comply with a requirement under subsection (1). The penalty is
imprisonment for a period not exceeding 6 months.
The defence of a
person not being capable of complying is recreated in new
subsection 161(3A). The defence of a person having a reasonable excuse is
recreated in new subsection 161(3B). The rationale for these amendments is to
prevent any future interpretation that ‘without reasonable excuse’
and ‘being not capable of complying’ are elements of the offence,
which would have to be disproved in the negative by the prosecution. The
amendments put it beyond doubt that having a reasonable excuse or not being
capable of complying with the requirement is a defence to the offence. Pursuant
to subsection 13.3(3) of the Code, a defendant who wishes to rely on such
defences bears an evidential burden in relation to the defence.
New
subsection 161(3C) provides that subsection (3) is an offence of strict
liability as it is considered that the provision presently attracts strict
liability. The reference to ‘without reasonable excuse’ suggests
that the legislature only wanted the general defences and mistake of fact to
apply, not proof of fault. The penalty is imprisonment for a period not
exceeding 6 months.
In broad terms, subsection 162(1) provides that, where the circumstances
contemplated in the subsection exist, a court may make an order requiring a
person to comply with certain requirements. Subsection 162(3) creates an
offence where a person contravenes an order under subsection (1). This Item
provides that strict liability applies to the element of an offence against
subsection (3) that an order is an order under subsection (1). The rationale
for the application of strict liability in relation to elements of this nature
is discussed above (see, for example, the discussion at Item 4, 5, or
6).
Child Support (Registration and Collection) Act 1988
This Item inserts proposed section 3A which applies Chapter 2 of the Code
(except Part 2.5) to the above Act. Chapter 2 establishes the codified
general principles of criminal responsibility. Part 2.5 of the Code covers
corporate criminal responsibility. However, the above Act already provides for
proof of fault in relation to corporate criminal liability and it is proposed
that the operation of those provisions be retained.
Existing subsection 16(2) essentially creates an offence where a person
makes a record of protected information or communicates such information and the
recording or communication is not for the purposes of the Act or does not occur
in the performance of duties under the Act. This Item reconstructs the offence
by removing the defences from the offence provision and providing for those
defences in new subsection 16(2A). The rationale for that approach is to
prevent any future interpretation that the defences are an element of the
offence, which would have to be disproved in the negative by the prosecution.
Pursuant to subsection 13.3(3) of the Code, a defendant who wishes to rely on
such defences bears an evidential burden in relation to the
defence.
Item 51
In broad terms, subsections 23(2) and (5)
respectively require the payee and the payer of a registrable maintenance
liability to give notice to the Registrar in relation to the order or agreement.
Subsection (7) provides that a person who contravenes either of those
subsections is guilty of an offence punishable by a fine not exceeding $1000.
This Item applies strict liability in respect of subsection (7) as it is
considered that the provision presently attracts strict liability. The
provision is expressed in mandatory language and does not imply that proof of
fault is required. The penalty is monetary only.
In broad terms, subsection 33(1) requires the payee of a registrable
maintenance liability to give notice to the Registrar in relation to a Court
order or agreement varying the registrable maintenance liability.
Subsection (2) provides that a person who contravenes subsection (1) is
guilty of an offence punishable by a fine not exceeding $1000. This Item
applies strict liability in respect of subsection (2) as it is considered that
the provision presently attracts strict liability. The provision is expressed
in mandatory language and does not imply that proof of fault is required. The
penalty is monetary only.
In broad terms, subsection 34(1) requires the payee of an enforceable
maintenance liability to give notice to the Registrar in relation to any
affecting event in relation to the liability. Subsection (2) provides that
a person who contravenes subsection (1) is guilty of an offence punishable by a
fine not exceeding $1000. This Item applies strict liability in respect of
subsection (2) as it is considered that the provision presently attracts strict
liability. The provision is expressed in mandatory language and does not imply
that proof of fault is required. The penalty is monetary only.
In broad terms, subsection 46(1) provides that, where an employer pays
wages to an employee in relation to whom a notice given to the employer under
subsection 45(1) is in force, the employer is to make certain deductions
from the wages. A penalty of $1000 applies for contravention. This Item
applies strict liability in respect of subsection (1) as it is considered that
the provision presently attracts strict liability. The provision is expressed
in mandatory language and does not imply that proof of fault is required. The
penalty is monetary only.
Subsections 47(1A), (2) and (3) create offences for employers who
contravene those provisions. Unlike subsection (1), which provides penalties of
$5000 or imprisonment for 12 months, subsection (1A) to (3) provide for a
maximum penalty of $1000. This Item applies strict liability in respect of
those subsections as it is considered that the provisions presently attract
strict liability. The provisions are expressed in mandatory language and do not
imply that proof of fault is required. The penalties are monetary only.
In broad terms, section 57 is concerned with ensuring employers do not
prejudice employees who are payers of registrable maintenance liabilities or, in
relation to whom, the employer has received a notice under subsection 45(1).
New subsection 57(1A) provides that strict liability applies to the element of
an offence against subsection (1) that a notice is a notice given under
subsection 45(1). The rationale for the application of strict liability in
relation to elements of this nature is discussed above (see, for example, the
discussion at Item 4, 5, or 6).
The Item recreates the offence provided for by existing subsection 58 by
removing the defences from the offence provision. In general terms, the offence
is that a person must not divulge or communicate to a person any protected
information concerning another person.
New subsection 58(2) provides that
subsection (1) if the information is divulged or
communicated:
• for the purposes of the Part; or
• in the
performance of the employer’s duties under this Part or in connection with
the carrying on of the employer’s affairs.
The rationale for these
amendments is to prevent any future interpretation that these defences are
elements of the offence, which would have to be disproved in the negative by the
prosecution. The amendments put it beyond doubt that these are defences to the
offence. Pursuant to subsection 13.3(3) of the Code, a defendant who wishes to
rely on such defences bears an evidential burden in relation to the
defence.
New subsection (3) provides that strict liability applies to the
element of an offence against subsection (1) that a disclosure or obtaining of
information is a disclosure or obtaining under or for the purposes of the Part.
The rationale for the application of strict liability in relation to elements of
this nature is discussed above (see, for example, the discussion at Item 4,
5, or 6).
Subsection 59(1) requires employers to keep certain records. Generally,
subsection (2) provides that the records must be kept in a certain form or
manner. A penalty of $2000 applies.
This Item applies strict liability
in respect of those subsections as it is considered that the provisions
presently attract strict liability. The provisions are expressed in mandatory
language and do not imply that proof of fault is required. The penalty is
monetary only.
Subsection 60(1) creates an offence where an employer does not keep
records in such a way as to correctly record and explain the matters or acts to
which they relate. A penalty of $2000 applies.
This Item applies strict
liability in respect of those subsections as it is considered that the
provisions presently attract strict liability. The provisions are expressed in
mandatory language and do not imply that proof of fault is required. The
penalty is monetary only.
Item 60
In general terms, section
61 creates an offence where the occupier of premises which are proposed to be
entered by an authorised officer does not provide the officer with all
reasonable facilities and assistance that the occupier is capable of providing
for the purpose of enabling the effective exercise of the officer’s powers
under section 61. A $1000 penalty applies. The Item reconstructs the offence
by separating the various physical elements into discrete
paragraphs.
Paragraph 61(3)(b) provides the physical element of conduct.
This element is that the person does not provide the officer with all reasonable
facilities and assistance that the occupier is capable of providing. New
subsection 61(4) applies strict liability in relation to the element that the
person does not provide those facilities or assistance in circumstances where
the officer is exercising his or her powers under section 61. The rationale for
the application of strict liability in relation to elements of this nature is
discussed above (see, for example, the discussion at Item 4, 5, or 6).
Section 72A is essentially concerned with the use of garnishee notices
for the purposes of debt recovery. Subsection 72A(2) creates an offence where a
person fails to comply with a notice ‘without reasonable excuse’.
This Item recreates the offence by omitting that defence from the offence and
the defence is recreated in new subsection 72A(2A) (see Item 62). The
rationale for this amendment is to prevent any future interpretation that
‘without reasonable excuse’ is an element of the offence, which
would have to be disproved in the negative by the prosecution. The amendment,
in combination with Item 62, puts it beyond doubt that having a reasonable
excuse is a defence to the offence. Pursuant to subsection 13.3(3) of the Code,
a defendant who wishes to rely on such defences bears an evidential burden in
relation to the defence.
Section 72A is concerned with the use of garnishee notices for the
purposes of debt recovery. Subsection 72A(2) creates an offence where a person
fails to comply with a notice ‘without reasonable excuse’. Item 61
recreates the offence by omitting that defence from the offence. This Item
reconstructs the defence in new subsection 72A(2A). The rationale for that
approach is discussed at Item 61.
New subsection 72A(2B) provides that
subsection (2) is an offence of strict liability. It is considered that the
provision presently attracts strict liability. The reference to ‘without
reasonable excuse’ suggests that the legislature only wanted the general
defences and mistake of fact to apply, not proof of fault. The penalty, $1000,
is monetary only.
In general terms, section 111 is concerned with the duties of payers of
enforceable maintenance liabilities. Subsections (1) and (2) requires payers to
notify the Register of certain matters within 14 days and subsection (3) creates
an offence where a person contravenes those subsections. The penalty cannot
exceed $1000.
This Item applies strict liability in respect of those
subsections as it is considered that the provisions presently attract strict
liability. The provisions are expressed in mandatory language and do not imply
that proof of fault is required. The penalty is monetary only.
In general terms, section 120 is concerned with the powers of the
Registrar in relation to obtaining information and evidence. Subsection (3)
creates an offence where a person refuses or fails to comply with a requirement
made under subsection (1) ‘to the extent that the person is capable of
doing so’.
The Item recreates the offence in section 120 by
removing the defence ‘to the extent that the person is capable of
complying with the requirement’. The offence is that a person must not
refuse or fail to comply with a requirement to give information or produce
documents. The penalty is a fine not exceeding $2000.
The defence of a
person not being capable of complying is recreated in new
subsection 120(4). The rationale for this amendment is to prevent any
future interpretation that ‘to the extent that the person is capable of
complying with the requirement’ is an element of the offence, which would
have to be disproved in the negative by the prosecution. The amendment puts it
beyond doubt that not being capable of complying with the requirement is a
defence to the offence. Pursuant to subsection 13.3(3) of the Code, a
defendant who wishes to rely on such defences bears an evidential burden in
relation to the defence.
This Item applies strict liability in respect of
subsection (3) as it is considered that the provisions presently attract strict
liability. The provisions are expressed in mandatory language and do not imply
that proof of fault is required. The penalty is monetary only. The reference
to ‘to the extent that the person was capable of complying’ suggests
that the legislature only wanted the general defences and mistake of fact to
apply, not proof of fault.
This Item applies strict liability to the element of an offence against
subsection 121(3) that an order is an order under subsection 121(1). The
rationale for the application of strict liability in relation to elements of
this nature is discussed above (see, for example, the discussion at Item 4,
5, or 6).
Commonwealth Services Delivery Agency Act 1997
This Item inserts proposed section 2A which applies Chapter 2 of the Code
to the above Act. Chapter 2 establishes the codified general principles of
criminal responsibility.
Section 38 is concerned with the use of the name and the official symbol
of the Commonwealth Services Delivery Agency (ie Centrelink). Subsection (1)
provides for a penalty of 30 units for contravention. This Item applies strict
liability in respect of that subsection as it is considered that the provision
presently attracts strict liability. The provision is expressed in mandatory
language and does not imply that proof of fault is required. The penalty is
monetary only.
Data-matching Program (Assistance and Tax) Act 1990
This Item inserts proposed section 2A which applies Chapter 2 of the Code
to the above Act. Chapter 2 establishes the codified general principles of
criminal responsibility.
Section 15 provides that a person must not make a record or disclose
information except:
(a) in the course of carrying out functions and
duties under this Act; or
(b) with the consent of the person to whom the
information relates.
The penalty for contravention is imprisonment for 2
years.
The Item recreates the offence in section 15 by removing the
defences from the offence provision. The rationale for this approach is to
prevent any future interpretation that those defences are elements of the
offence, which would have to be disproved in the negative by the prosecution.
The amendments put it beyond doubt that recording or disclosing information is
not an offence where that disclosure or recording occurs in the circumstances
contemplated by either paragraph (a) or (b) above. Pursuant to
subsection 13.3(3) of the Code, a defendant who wishes to rely on such
defences bears an evidential burden in relation to the defence.
Disability Services Act 1986
This Item inserts proposed section 3A which applies Chapter 2 of the Code
to the above Act. Chapter 2 establishes the codified general principles of
criminal responsibility.
In broad terms, section 27 allows the Secretary, by notice served on the
person, to require a person to furnish information or produce documents.
Subsection 27(3) provides that a person shall not refuse or fail to comply with
a notice to the extent that the person is capable of complying with it or, in
purported compliance, knowingly furnish information that is false or misleading.
The penalty is a fine of $1000 or imprisonment for 6 months.
The Item
recreates the offence by omitting that defence from the offence and the defence
is recreated in new subsection 27(3A) (see Item 73). The rationale for
this amendment is to prevent any future interpretation that ‘to the extent
that the person is capable of complying with the notice’ is an element of
the offence, which would have to be disproved in the negative by the
prosecution. The amendment, in combination with Item 73, puts it beyond
doubt that not being capable of complying with the notice is a defence to the
offence. Pursuant to subsection 13.3(3) of the Code, a defendant who wishes to
rely on such defences bears an evidential burden in relation to the
defence.
In broad terms, section 27 allows the Secretary, by notice served on the
person, to require a person to furnish information or produce documents. In
part, subsection 27(3) provides that a person shall not, in purported compliance
with the notice, knowingly furnish information that is false or misleading. The
penalty is a fine of $1000 or imprisonment for 6 months.
At present,
subsection (3) applies the fault element of knowledge (or "knowingly") in
relation to the proscribed physical element of conduct, namely furnishing
information. Following application of the Code,
the fault element of knowledge will be restricted to physical elements of
circumstance or result, and intention will be the sole fault element that can be
applied to a physical element of conduct: see Division 5 of Part 2.2 of the
Code. Applying "knowingly" to a physical element of conduct in the pre-Code
environment is equivalent to applying the fault element of intention. This Item
recreates the offence by omitting the word ‘knowingly’ so that
intention is the fault element in relation to the physical element of conduct.
The fault element of knowledge is applied in relation to the physical element of
circumstance, namely that the information or evidence is false or
misleading.
In broad terms, section 27 allows the Secretary, by notice served on the
person, to require a person to furnish information or produce documents. In
part, subsection 27(3) provides that a person shall not refuse or fail to comply
with a notice to the extent that the person is capable of complying with
it.
Item 71 recreates the offence by omitting that defence from the
offence and the defence is recreated in by this Item in a discrete provision,
subsection 27(3A). The rationale for this amendment is to prevent any
future interpretation that ‘to the extent that the person is capable of
complying with the notice’ is an element of the offence, which would have
to be disproved in the negative by the prosecution. The amendment, in
combination with Item 71, puts it beyond doubt that not being capable of
complying with the notice is a defence to the offence. Pursuant to subsection
13.3(3) of the Code, a defendant who wishes to rely on such defences bears an
evidential burden in relation to the defence.
Existing subsection 28(2) essentially creates an offence where a person
makes a record of, or divulges, information with respect to the affairs of
another person that was acquired by the first person in the performance of
duties under Part III. An exception exists where the disclosure occurs in the
performance of duties under Part III or for the purposes of the administration
of the Social Security Act 1991.
This Item reconstructs the
offence by removing the defences from the offence provision and the defence is
recreated in new subsection 28(2A) (see Item 75). The rationale for that
approach is to prevent any future interpretation that the defences are an
element of the offence, which would have to be disproved in the negative by the
prosecution. Pursuant to subsection 13.3(3) of the Code, a defendant who wishes
to rely on such defences bears an evidential burden in relation to the
defence.
Existing subsection 28(2) essentially creates an offence where a person
makes a record of, or divulges, information with respect to the affairs of
another person that was acquired by the first person in the performance of
duties under Part III. An exception exists where the disclosure occurs in the
performance of duties under Part III or for the purposes of the administration
of the Social Security Act 1991.
Item 74 reconstructs the offence
by removing the defences from the offence provision and the defence is recreated
by this Item in new subsection 28(2A). The rationale for that approach is to
prevent any future interpretation that the defences are an element of the
offence, which would have to be disproved in the negative by the prosecution.
Pursuant to subsection 13.3(3) of the Code, a defendant who wishes to rely on
such defences bears an evidential burden in relation to the defence.
Existing subsection 28(2) essentially creates an offence where a person
makes a record of, or divulges, information with respect to the affairs of
another person that was acquired by the first person in the performance of
duties or the exercise of powers under Part III. This Item applies strict
liability to the element of an offence against subsection (2) that an
acquisition of information is an acquisition in the performance of duties or
exercise of powers under Part III. The rationale for the application of strict
liability in relation to elements of this nature is discussed above (see, for
example, the discussion at Item 4, 5, or 6).
Farm Household Support Act 1992
This Item inserts proposed section 2A which applies Chapter 2 of the Code
to the above Act. Chapter 2 establishes the codified general principles of
criminal responsibility.
In broad terms, subsection 41(1) provides that the Secretary may give a
person a notice that requires the person to inform the Department if a specified
event or change of circumstances occurs. Subsection 41(5) creates an offence
where a person fails or refuses to comply with a notice under subsection (1).
This Item recreates the offence by removing the defence of ‘without
reasonable excuse’.
The defence of a person having a reasonable
excuse is recreated in new subsection 41(6A) (see Item 80). The rationale for
this amendment is to prevent any future interpretation that ‘without
reasonable excuse’ is an element of the offence, which would have to be
disproved in the negative by the prosecution. The amendment puts it beyond
doubt that having a reasonable excuse is a defence to the offence. Pursuant to
subsection 13.3(3) of the Code, a defendant who wishes to rely on such defences
bears an evidential burden in relation to the defence.
In broad terms, subsection 41(1) provides that the Secretary may give a
person a notice that requires the person to inform the Department if a specified
event or change of circumstances occurs. Subsection 41(5) creates an offence
where a person fails or refuses to comply with a notice under subsection (1).
This Item recreates the offence by removing the defence of ‘to the extent
that the person is capable of complying with the notice’.
The
defence of a person not being capable of complying is recreated in new
subsection 41(6) (see Item 80). The rationale for this amendment is to
prevent any future interpretation that ‘to the extent that the person is
capable of complying with the notice’ is an element of the offence, which
would have to be disproved in the negative by the prosecution. The amendment
puts it beyond doubt that not being capable of complying with the notice is a
defence to the offence. Pursuant to subsection 13.3(3) of the Code, a defendant
who wishes to rely on such defences bears an evidential burden in relation to
the defence.
New subsections 41(6) and (6A) recreate the defences in current section
41, the defences being ‘without reasonable excuse’ and ‘to the
extent that the person is capable of complying with the notice’. The
rationale for this amendment is to prevent any future interpretation that
‘without reasonable excuse’ or ‘to the extent that the person
is capable of complying with the notice’ are elements of the offence,
which would have to be disproved in the negative by the prosecution. The
amendments put it beyond doubt that having a reasonable excuse or not being
capable of complying with the notice is a defence to the offence. Pursuant to
subsection 13.3(3) of the Code, a defendant who wishes to rely on such defences
bears an evidential burden in relation to the defence.
In broad terms,
subsection 41(1) provides that the Secretary may give a person a notice that
requires the person to inform the Department if a specified event or change of
circumstances occurs. Subsection 41(5) creates an offence where a person fails
or refuses to comply with a notice under subsection (1). New subsection 41(6B)
provides that subsection (5) is an offence of strict liability as it is
considered that the provision presently attracts strict liability. The
reference to ‘without reasonable excuse’ suggests that the
legislature only wanted the general defences and mistake of fact to apply, not
proof of fault.
In broad terms, subsection 42(1) provides that the Secretary may give a
person a notice that requires the person to give the Department a statement
about a matter that might affect payment. Subsection 42(5) creates an offence
where a person fails or refuses to comply with a notice under subsection (1).
This Item recreates the offence by removing the defence of ‘without
reasonable excuse’.
The defence of a person having a reasonable
excuse is recreated in new subsection 42(6A) (see Item 83). The rationale
for this amendment is to prevent any future interpretation that ‘without
reasonable excuse’ is an element of the offence, which would have to be
disproved in the negative by the prosecution. The amendment puts it beyond
doubt that having a reasonable excuse is a defence to the offence. Pursuant to
subsection 13.3(3) of the Code, a defendant who wishes to rely on such defences
bears an evidential burden in relation to the defence.
In broad terms, subsection 42(1) provides that the Secretary may give a
person a notice that requires the person to give the Department a statement
about a matter that might affect payment. Subsection 42(5) creates an offence
where a person fails or refuses to comply with a notice under subsection (1).
This Item recreates the offence by removing the defence of ‘to the extent
that the person is capable of complying with the notice’.
The
defence of a person not being capable of complying is recreated in new
subsection 42(6) (see Item 83). The rationale for this amendment is to
prevent any future interpretation that ‘to the extent that the person is
capable of complying with the notice’ is an element of the offence, which
would have to be disproved in the negative by the prosecution. The amendment
puts it beyond doubt that not being capable of complying with the notice is a
defence to the offence. Pursuant to subsection 13.3(3) of the Code, a defendant
who wishes to rely on such defences bears an evidential burden in relation to
the defence.
New subsections 42(6) and (6A) recreate the defences in current section
42, the defences being ‘without reasonable excuse’ and ‘to the
extent that the person is capable of complying with the notice’. The
rationale for this amendment is to prevent any future interpretation that
‘without reasonable excuse’ or ‘to the extent that the person
is capable of complying with the notice’ are elements of the offence,
which would have to be disproved in the negative by the prosecution. The
amendments put it beyond doubt that having a reasonable excuse or not being
capable of complying with the notice is a defence to the offence. Pursuant to
subsection 13.3(3) of the Code, a defendant who wishes to rely on such defences
bears an evidential burden in relation to the defence.
In broad terms,
subsection 42(1) provides that the Secretary may give a person a notice that
requires the person to give the Department a statement about a matter that might
affect payment. Subsection 42(5) creates an offence where a person fails or
refuses to comply with a notice under subsection (1). New subsection 42(6B)
provides that subsection (5) is an offence of strict liability as it is
considered that the provision presently attracts strict liability. The
reference to ‘without reasonable excuse’ suggests that the
legislature only wanted the general defences and mistake of fact to apply, not
proof of fault.
Section 54 deals with the Secretary’s powers to obtain information
and to require a person to produce documents. Subsection 54(7) creates an
offence where a person fails or refuses to comply with a notice under section
54. This Item recreates the offence by removing the defence of ‘without
reasonable excuse’.
The defence of a person having a reasonable
excuse is recreated in new subsection 54(8) (see Item 85). The rationale for
this amendment is to prevent any future interpretation that ‘without
reasonable excuse’ is an element of the offence, which would have to be
disproved in the negative by the prosecution. The amendment puts it beyond
doubt that having a reasonable excuse is a defence to the offence. Pursuant to
subsection 13.3(3) of the Code, a defendant who wishes to rely on such defences
bears an evidential burden in relation to the defence.
New subsection 54(8) recreates the defence in current section 54, the
defence being ‘without reasonable excuse’. The rationale for this
amendment is to prevent any future interpretation that ‘without reasonable
excuse’ is an element of the offence, which would have to be disproved in
the negative by the prosecution. The amendment puts it beyond doubt that having
a reasonable excuse is a defence to the offence. Pursuant to subsection 13.3(3)
of the Code, a defendant who wishes to rely on such defences bears an evidential
burden in relation to the defence.
Section 54 deals with the
Secretary’s powers to obtain information and to require a person to
produce documents. Subsection 54(7) creates an offence where a person fails or
refuses to comply with a notice under section 54. New subsection 54(8A)
provides that subsection (7) is an offence of strict liability as it is
considered that the provision presently attracts strict liability. The
reference to ‘without reasonable excuse’ suggests that the
legislature only wanted the general defences and mistake of fact to apply, not
proof of fault.
First Home Owners Act 1983
This Item inserts proposed section 3A which applies Chapter 2 of the Code
to the above Act. Chapter 2 establishes the codified general principles of
criminal responsibility.
Existing subsection 29(1) essentially creates an offence where a person
makes a record of, or divulges, information with respect to the affairs of
another person that was acquired by the first person in the performance of
duties under the Act. An exception exists where the disclosure occurs for the
purposes of the Act. The penalty is a $2000 fine, imprisonment for 12 months,
or both.
This Item reconstructs the offence by removing the defence from
the offence provision and the defence is recreated in new subsection 29(1A) (see
Item 88). The rationale for that approach is to prevent any future
interpretation that the defence is an element of the offence, which would have
to be disproved in the negative by the prosecution. Pursuant to subsection
13.3(3) of the Code, a defendant who wishes to rely on such defences bears an
evidential burden in relation to the defence.
Existing subsection 29(1) essentially creates an offence where a person
makes a record of, or divulges, information with respect to the affairs of
another person that was acquired by the first person in the performance of
duties under the Act. An exception exists where the disclosure occurs for the
purposes of the Act. The penalty is a $2000 fine, imprisonment for 12 months,
or both.
Item 87 reconstructs the offence by removing the defence from
the offence provision and the defence is recreated by this Item in new
subsection 29(1A). The rationale for that approach is to prevent any future
interpretation that the defence is an element of the offence, which would have
to be disproved in the negative by the prosecution. Pursuant to subsection
13.3(3) of the Code, a defendant who wishes to rely on such defences bears an
evidential burden in relation to the defence.
This Item also applies
strict liability to the element of an offence against subsection (1) that an
acquisition of information is an acquisition in the exercise of powers, or the
performance of duties or functions, under the Act. The rationale for the
application of strict liability in relation to elements of this nature is
discussed above (see, for example, the discussion at Item 4, 5, or
6).
Subsection 30(1) provides that the Secretary may require a person to
furnish a confidential report in certain circumstances. In part, subsection
30(2) states that a person shall not, without lawful excuse, refuse or fail to
comply with the notice.
This Item recreates the offence by removing the
defence of lawful excuse. Under section 10.5 of the Code there is a
general defence which provides that a person is not criminally responsible for
an offence if the conduct constituting the offence is justified or excused by a
law.
Subsection 31(1) provides that the Secretary may, for the purposes of the
Act, summon witnesses, receive evidence and require the production of documents.
Subsection (2) provides that a person who has been summoned shall not, without
lawful excuse, fail to appear.
This Item recreates the offence by
removing the defence of lawful excuse. Under section 10.5 of the Code
there is a general defence which provides that a person is not criminally
responsible for an offence if the conduct constituting the offence is justified
or excused by a law.
Subsection 31(1) provides that the Secretary may, for the purposes of the
Act, summon witnesses, receive evidence and require the production of documents.
In broad terms, subsection (3) provides that a person shall not, without lawful
excuse, fail to answer questions or fail to produce documents.
This Item
recreates the offence by removing the defence of lawful excuse. Under
section 10.5 of the Code there is a general defence which provides that a
person is not criminally responsible for an offence if the conduct constituting
the offence is justified or excused by a law.
Subsection 31(1) provides that the Secretary may, for the purposes of the
Act, summon witnesses, receive evidence and require the production of documents.
Subsection (2) provides that a person who has been summoned shall not, without
lawful excuse, fail to appear. In broad terms, subsection (3) provides that a
person shall not, without lawful excuse, fail to answer questions or fail to
produce documents. A penalty of $1000 applies.
This Item applies strict
liability in respect of those subsections as it is considered that the
provisions presently attract strict liability. The provisions are expressed in
mandatory language and do not imply that proof of fault is required. The
penalty is monetary only.
Section 35 applies where assistance has been paid in respect of a
dwelling whose purchase or construction had not been completed on the date on
which the application was made. In broad terms, the effect of subsection (2) is
that the applicant for the grant must notify the Secretary of certain matters if
the purchase or construction of the dwelling is not completed within a specified
period of time. The penalty is a fine not exceeding $1000 or imprisonment for a
period not exceeding 6 months or both. This Item applies strict liability in
respect of subsection (2) as it is considered that the provision presently
attracts strict liability. The provision is expressed in mandatory language,
does not imply that proof of fault is required and is satisfied by notice being
sent to the Secretary.
The broad intention of section 36 is that, where a person has notified
the Secretary of his or her taxable income and the person has subsequently
received notification that the amount notified to the Secretary was incorrect,
the person is required to provide the Secretary with further notification of the
correct amount of his or her taxable income. There is a penalty of $1000 or
imprisonment for 6 months, or both.
Currently, there is potential
ambiguity in the operation of subsection 36(1) of the Act. This Item and Item
95 redraft the provision to clarify its operation and to clarify the physical
elements of the offence provision. This Item omits the words “, or a
further certificate, as the case may be,”.
The broad intention of section 36 is that, where a person has notified
the Secretary of his or her taxable income and the person has subsequently
received notification that the amount notified to the Secretary was incorrect,
the person is required to provide the Secretary with further notification of the
correct amount of his or her taxable income. There is a penalty of $1000 or
imprisonment for 6 months, or both.
Currently, there is potential
ambiguity in the operation of subsection 36(1) of the Act. This Item and Item
94 redraft the provision to clarify its operation and to clarify the physical
elements of the offence provision. This Item makes it clear that the person is
required to provide the subsequently received notification to the
Secretary.
This Item applies strict liability to the element of an offence against
subsection 36(1) that a statement is a statement under paragraph 20(2)(b). The
rationale for the application of strict liability in relation to elements of
this nature is discussed above (see, for example, the discussion at Item 4,
5, or 6).
Home Deposit Assistance Act 1982
This Item inserts proposed section 3A which applies Chapter 2 of the Code
to the above Act. Chapter 2 establishes the codified general principles of
criminal responsibility.
Existing subsection 50(1) essentially creates an offence where a person
makes a record of, or divulges, information with respect to the affairs of
another person that was acquired by the first person in the performance of
duties under the Act. An exception exists where the disclosure occurs for the
purposes of the Act. The penalty is a $2000 fine, imprisonment for 12 months,
or both.
This Item reconstructs the offence by removing the defence from
the offence provision and the defence is recreated in new subsection 50(1A) (see
Item 99). The rationale for that approach is to prevent any future
interpretation that the defence is an element of the offence, which would have
to be disproved in the negative by the prosecution. Pursuant to subsection
13.3(3) of the Code, a defendant who wishes to rely on such defences bears an
evidential burden in relation to the defence.
Existing subsection 50(1) essentially creates an offence where a person
makes a record of, or divulges, information with respect to the affairs of
another person that was acquired by the first person in the performance of
duties under the Act. An exception exists where the disclosure occurs for the
purposes of the Act. The penalty is a $2000 fine, imprisonment for 12 months,
or both.
Item 98 reconstructs the offence by removing the defence from
the offence provision and the defence is recreated by this Item in new
subsection 50(1A). The rationale for that approach is to prevent any future
interpretation that the defence is an element of the offence, which would have
to be disproved in the negative by the prosecution. Pursuant to subsection
13.3(3) of the Code, a defendant who wishes to rely on such defences bears an
evidential burden in relation to the defence.
This Item also applies
strict liability to the element of an offence against subsection (1) that an
acquisition of information is an acquisition in the exercise of powers, or the
performance of duties or functions, under the Act. The rationale for the
application of strict liability in relation to elements of this nature is
discussed above (see, for example, the discussion at Item 4, 5, or
6).
Subsection 51(1) provides that the Secretary may, by notice in writing,
require a person to furnish a confidential report in certain circumstances.
Paragraph 51(2)(a) states that a person shall not, without lawful excuse, refuse
or fail to comply with the notice.
This Item recreates the offence by
removing the defence of lawful excuse. Under section 10.5 of the Code
there is a general defence which provides that a person is not criminally
responsible for an offence if the conduct constituting the offence is justified
or excused by a law.
Subsection 52(1) provides that the Secretary may, for the purposes of the
Act, summon witnesses, receive evidence and require the production of documents.
Subsection (2) provides that a person who has been summoned shall not, without
lawful excuse, fail to appear.
This Item recreates the offence by
removing the defence of lawful excuse. Under section 10.5 of the Code
there is a general defence which provides that a person is not criminally
responsible for an offence if the conduct constituting the offence is justified
or excused by a law.
Subsection 52(1) provides that the Secretary may, for the purposes of the
Act, summon witnesses, receive evidence and require the production of documents.
In broad terms, subsection (3) provides that a person shall not, without lawful
excuse, fail to answer questions or fail to produce documents.
This Item
recreates the offence by removing the defence of lawful excuse. Under
section 10.5 of the Code there is a general defence which provides that a
person is not criminally responsible for an offence if the conduct constituting
the offence is justified or excused by a law.
Subsection 52(1) provides that the Secretary may, for the purposes of the
Act, summon witnesses, receive evidence and require the production of documents.
Subsection (2) provides that a person who has been summoned shall not fail to
appear. In broad terms, subsection (3) provides that a person shall not fail to
answer questions or fail to produce documents. A penalty of $1000
applies.
This Item applies strict liability in respect of those
subsections as it is considered that the provisions presently attract strict
liability. The provisions are expressed in mandatory language. The reference
to ‘without reasonable excuse’ suggests that the legislature only
wanted the general defences and mistake of fact to apply, not proof of fault.
The penalty is monetary only.
Section 58 applies where a grant has been paid in respect of a dwelling
whose purchase or construction had not been completed on the date on which the
application for the grant was made. In broad terms, the effect of subsection
(2) is that the applicant for the grant must notify the Secretary of certain
matters if the purchase or construction of the dwelling is not completed within
a specified period of time. The penalty is a fine not exceeding $1000 or
imprisonment for a period not exceeding 6 months or both. This Item applies
strict liability in respect of subsection (2) as it is considered that the
provision presently attracts strict liability. The provision is expressed in
mandatory language, does not imply that proof of fault is required and is
satisfied by notice being sent to the Secretary.
Section 59 creates an offence where, in the circumstances contemplated by
the provision, a person fails to provide the Secretary with details of taxable
income. A penalty of $1000 or imprisonment for 6 months, or both applies. This
Item applies strict liability to the element of an offence against subsection
59(1) that a statement is a statement under paragraph 34(2)(b). The rationale
for the application of strict liability in relation to elements of this nature
is discussed above (see, for example, the discussion at Item 4, 5, or
6).
Home Savings Grant Act 1964
This Item inserts proposed section 2A which applies Chapter 2 of the Code
to the above Act. Chapter 2 establishes the codified general principles of
criminal responsibility.
Subsection 12(1) provides that the Secretary may, for the purposes of the
Act, summon witnesses, receive evidence and require the production of documents.
Subsection (2) provides that a person who has been summoned shall not, without
lawful excuse, fail to appear.
This Item recreates the offence by
removing the defence of lawful excuse. Under section 10.5 of the Code
there is a general defence which provides that a person is not criminally
responsible for an offence if the conduct constituting the offence is justified
or excused by a law.
Subsection 12(1) provides that the Secretary may, for the purposes of the
Act, summon witnesses, receive evidence and require the production of documents.
Subsection (2) provides that a person who has been summoned shall not fail to
appear. In broad terms, subsection (3) provides that a person shall not fail to
answer questions or fail to produce documents. A penalty of $40
applies.
This Item applies strict liability in respect of those
subsections as it is considered that the provisions presently attract strict
liability. The provisions are expressed in mandatory language and do not imply
that proof of fault is required. The penalty is monetary only.
Existing subsection 13(2) essentially creates an offence where a person
makes a record of, or divulges, information with respect to the affairs of
another person that was acquired by the first person in the performance of
duties under the Act. An exception exists where the disclosure occurs in the
performance of duties under the Act. A penalty of $500 applies.
This
Item reconstructs the offence by removing the defence from the offence provision
and the defence is recreated in new subsection 13(2A) (see Item 110). The
rationale for that approach is to prevent any future interpretation that the
defence is an element of the offence, which would have to be disproved in the
negative by the prosecution. Pursuant to subsection 13.3(3) of the Code, a
defendant who wishes to rely on such defences bears an evidential burden in
relation to the defence.
Existing subsection 13(2) essentially creates an offence where a person
makes a record of, or divulges, information with respect to the affairs of
another person that was acquired by the first person in the performance of
duties under the Act. An exception exists where the disclosure occurs in the
performance of duties under the Act. A penalty of $500 applies.
Item 109
reconstructs the offence by removing the defence from the offence provision and
the defence is recreated by this Item in new subsection 13(2A). The rationale
for that approach is to prevent any future interpretation that the defence is an
element of the offence, which would have to be disproved in the negative by the
prosecution. Pursuant to subsection 13.3(3) of the Code, a defendant who wishes
to rely on such defences bears an evidential burden in relation to the
defence.
The Item also applies strict liability to the element of an
offence against subsection (2) that an acquisition of information is an
acquisition in the exercise of powers, or in the performance of duties or
functions under the Act. The rationale for the application of strict liability
in relation to elements of this nature is discussed above (see, for example, the
discussion at Item 4, 5, or 6).
Section 24 applies where a grant under the Act has been paid to an
eligible person in respect of a dwelling-house the purchase of which had not
been completed, or the construction of which had not been completed, at the time
when the application for the grant was made. In broad terms, the effect of
subsection (1A) is that the applicant for the grant must notify the Secretary of
certain matters if the purchase or construction of the dwelling is not completed
within a specified period of time. The penalty is a fine of $100. This Item
applies strict liability in respect of subsection (1A) as it is considered that
the provision presently attracts strict liability. The provision is expressed
in mandatory language, does not imply that proof of fault is required and is
satisfied by notice being sent to the Secretary. The penalty is monetary
only.
The broad effect of subsections 26A(1) to (3) is that a credit union that
is not an approved credit union for the purposes of the Act must not represent
itself as an approved credit union and, where approval of the credit union has
been withdrawn, it must notify members that approval has been withdrawn. A
penalty of $500 applies in situations of non-compliance. This Item applies
strict liability in respect of those subsections as it is considered that the
provisions presently attracts strict liability. The provisions are expressed in
mandatory language and do not imply that proof of fault is required. The
penalty is monetary only.
Home Savings Grant Act 1976
This Item inserts proposed section 3A which applies Chapter 2 of the Code
to the above Act. Chapter 2 establishes the codified general principles of
criminal responsibility.
Existing subsection 41(2) essentially creates an offence where a person
makes a record of, or divulges, information with respect to the affairs of
another person that was acquired by the first person in the performance of
duties under the Act. An exception exists where the disclosure occurs in the
performance of duties under the Act. A penalty of $500 applies.
This
Item reconstructs the offence by removing the defence from the offence provision
and the defence is recreated in new subsection 41(2A) (see Item 115). The
rationale for that approach is to prevent any future interpretation that the
defence is an element of the offence, which would have to be disproved in the
negative by the prosecution. Pursuant to subsection 13.3(3) of the Code, a
defendant who wishes to rely on such defences bears an evidential burden in
relation to the defence.
Existing subsection 41(2) essentially creates an offence where a person
makes a record of, or divulges, information with respect to the affairs of
another person that was acquired by the first person in the performance of
duties under the Act. An exception exists where the disclosure occurs in the
performance of duties under the Act. A penalty of $500 applies.
Item 114
reconstructs the offence by removing the defence from the offence provision and
the defence is recreated by this Item in new subsection 41(2A). The rationale
for that approach is to prevent any future interpretation that the defence is an
element of the offence, which would have to be disproved in the negative by the
prosecution. Pursuant to subsection 13.3(3) of the Code, a defendant who wishes
to rely on such defences bears an evidential burden in relation to the
defence.
The Item also applies strict liability to the element of an
offence against subsection (2) that an acquisition of information is an
acquisition in the exercise of powers, or in the performance of duties or
functions, under the Act. The rationale for the application of strict liability
in relation to elements of this nature is discussed above (see, for example, the
discussion at Item 4, 5, or 6).
Subsection 42(1) provides that the Secretary may, by notice in writing,
require a person to furnish a confidential report in certain circumstances.
Paragraph 42(2) states that a person shall not, without lawful excuse, refuse or
fail to comply with the notice. A penalty of $100 applies.
This Item
recreates the offence by removing the defence of lawful excuse. Under
section 10.5 of the Code there is a general defence which provides that a
person is not criminally responsible for an offence if the conduct constituting
the offence is justified or excused by a law.
Subsection 43(1) provides that the Secretary may, for the purposes of the
Act, summon witnesses, receive evidence and require the production of documents.
Subsection (2) provides that a person who has been summoned shall not, without
lawful excuse, fail to appear. A penalty of $100 applies.
This Item
recreates the offence by removing the defence of lawful excuse. Under
section 10.5 of the Code there is a general defence which provides that a
person is not criminally responsible for an offence if the conduct constituting
the offence is justified or excused by a law.
Subsection 43(1) provides that the Secretary may, for the purposes of the
Act, summon witnesses, receive evidence and require the production of documents.
In broad terms, subsection (3) provides that a person shall not, without lawful
excuse, fail to answer questions or fail to produce documents. A penalty of
$100 applies.
This Item recreates the offence by removing the defence of
lawful excuse. Under section 10.5 of the Code there is a general defence
which provides that a person is not criminally responsible for an offence if the
conduct constituting the offence is justified or excused by a law.
Subsection 43(1) provides that the Secretary may, for the purposes of the
Act, summon witnesses, receive evidence and require the production of documents.
Subsection (2) provides that a person who has been summoned shall not fail to
appear. In broad terms, subsection (3) provides that a person shall not fail to
answer questions or fail to produce documents. A penalty of $100
applies.
This Item applies strict liability in respect of those
subsections as it is considered that the provisions presently attract strict
liability. The provisions are expressed in mandatory language. The reference
to ‘without reasonable excuse’ suggests that the legislature only
wanted the general defences and mistake of fact to apply, not proof of fault.
The penalty is monetary only.
Section 35 applies where a grant has been paid in respect of a
dwelling-house the purchase of which had not been completed, or the construction
of which had not been completed, on the date on which the application for the
grant was made. In broad terms, the effect of subsection (2) is that the
applicant for the grant must notify the Secretary of certain matters if the
purchase or construction of the dwelling is not completed within a specified
period of time. The penalty is a fine not exceeding $500. This Item applies
strict liability in respect of subsection (2) as it is considered that the
provision presently attracts strict liability. The provision is expressed in
mandatory language, does not imply that proof of fault is required and is
satisfied by notice being sent to the Secretary. The penalty is monetary
only.
Social Security Act 1991
This Item inserts proposed section 3 which applies Chapter 2 of the Code
to the above Act. Chapter 2 establishes the codified general principles of
criminal responsibility.
Section 1061ZZBW is concerned with refusal or failure to comply with
notices. Currently the provision applies the fault elements of intention (or
"intentionally") and recklessness (or “recklessly”) in relation to
the proscribed physical element of conduct, namely the refusal or failure to
comply. Following application of the Code,
the fault element of recklessness will be restricted to physical elements of
circumstance or result, and intention will be the sole fault element that can be
applied to a physical element of conduct: see Division 5 of Part 2.2 of the
Code. This Item recreates the offence so that intention is the only fault
element in relation to the physical element of conduct. The Item also
reconstructs the offence so that the fault element of recklessness applies in
relation to the physical element of circumstance, namely the requirement to
comply.
The Item also recreates the offence by removing the defences of
‘to the extent that the person is capable of complying with the
notice’ and ‘without reasonable excuse’. The defences are
recreated in new subsections 1061ZZBW(2) and (3). The rationale for these
amendments is to prevent any future interpretation that the defences are an
element of the offence, which would have to be disproved in the negative by the
prosecution. The amendments put it beyond doubt that having a reasonable excuse
or not being capable of complying with the notice is a defence to the offence.
Pursuant to subsection 13.3(3) of the Code, a defendant who wishes to rely on
such defences bears an evidential burden in relation to the defence.
New
subsection (4) provides that strict liability applies to paragraph (1)(b). The
rationale for the application of strict liability in relation to elements of
this nature is discussed above (see, for example, the discussion at Item 4,
5, or 6).
Section 1061ZZCD is concerned with refusal or failure to comply with
notices. Currently the provision applies the fault elements of intention (or
"intentionally") and recklessness (or “recklessly”) in relation to
the proscribed physical element of conduct, namely the refusal or failure to
comply. Following application of the Code,
the fault element of recklessness will be restricted to physical elements of
circumstance or result, and intention will be the sole fault element that can be
applied to a physical element of conduct: see Division 5 of Part 2.2 of the
Code. This Item recreates the offence so that intention is the only fault
element in relation to the physical element of conduct. The Item also
reconstructs the offence so that the fault element of recklessness applies in
relation to the physical element of circumstance, namely the requirement to
comply.
The Item also recreates the offence by removing the defences of
‘to the extent that the person is capable of complying with the
notice’ and ‘without reasonable excuse’. The defences are
recreated in new subsections 1061ZZCD(2) and (3). The rationale for these
amendments is to prevent any future interpretation that the defences are an
element of the offence, which would have to be disproved in the negative by the
prosecution. These amendments put it beyond doubt that having a reasonable
excuse or not being capable of complying with the notice is a defence to the
offence. Pursuant to subsection 13.3(3) of the Code, a defendant who wishes to
rely on such defences bears an evidential burden in relation to the
defence.
New subsection (4) provides that strict liability applies to
paragraph (1)(b). The rationale for the application of strict liability in
relation to elements of this nature is discussed above (see, for example, the
discussion at Item 4, 5, or 6).
In part, Item 19 of Schedule 1 to the Family and Community Services
Legislation (Simplification and Other Measures) Act 2001 inserts new section
1184D into the Act. That Item commences from 20 September 2001. The broad
effect of subsections (1) and (2) respectively is that a potential compensation
payer or an insurer must not make payments if a notice under section 1182 or
1184 has been issued. A penalty of imprisonment for 12 months applies.
Paragraphs 1184D(1)(a) to (c) and (2)(a) to (c) create certain exceptions in
relation to the offence.
This Item recreates the offence by removing the
defences in subsection (1) from the offence and recreating them as discrete
paragraphs in new subsection (1A). The rationale for this amendment is to
prevent any future interpretation that those defences are elements of the
offence, which would have to be disproved in the negative by the prosecution.
The amendment puts it beyond doubt that the relevant exceptions are defences to
the offence. Pursuant to subsection 13.3(3) of the Code, a defendant who wishes
to rely on such defences bears an evidential burden in relation to the
defence.
In part, Item 19 of Schedule 1 to the Family and Community Services
Legislation (Simplification and Other Measures) Act 2001 inserts new section
1184D into the Act. That Item commences from 20 September 2001. The broad
effect of subsections (1) and (2) respectively is that a potential compensation
payer or an insurer must not make payments if a notice under section 1182 or
1184 has been issued. A penalty of imprisonment for 12 months applies.
Paragraphs 1184D(1)(a) to (c) and (2)(a) to (c) create certain exceptions in
relation to the offence.
This Item recreates the offence by removing the
defences in subsection (2) from the offence and recreating them as discrete
paragraphs in new subsection (2A). The rationale for this amendment is to
prevent any future interpretation that those defences are elements of the
offence, which would have to be disproved in the negative by the prosecution.
The amendment puts it beyond doubt that the relevant exceptions are defences to
the offence. Pursuant to subsection 13.3(3) of the Code, a defendant who wishes
to rely on such defences bears an evidential burden in relation to the
defence.
Sections 5, 7, 7A, 14, 15D and 86 of the Crimes Act are being replaced in
effect by sections 10.5, 11.1, 11.2, 11.4, 11.5, 13.3, 13.4 and 13.5 of the
Code. As section 1224AB contains references to some of those Crimes Act
provisions, Item 126 substitutes the relevant Code references.
Section 1233 is concerned with the use of garnishee notices for the
purposes of debt recovery. Subsection 1233(3) creates an offence where a person
fails to comply with a notice ‘to the extent that the person is capable of
doing so’. The Item recreates the offence by omitting that defence from
the offence and the defence is recreated in new subsection 1233(3A) (see
Item 128). The rationale for this amendment is to prevent any future
interpretation that ‘to the extent that the person is capable of complying
with the notice’ is an element of the offence, which would have to be
disproved in the negative by the prosecution. The amendment, in combination
with Item 128, puts it beyond doubt that not being capable of complying with the
notice is a defence to the offence. Pursuant to subsection 13.3(3) of the Code,
a defendant who wishes to rely on such defences bears an evidential burden in
relation to the defence.
Section 1233 is concerned with the use of garnishee notices for the
purposes of debt recovery. Subsection 1233(3) creates an offence where a person
fails to comply with a notice ‘to the extent that the person is capable of
doing so’. Item 127 recreates the offence by omitting that defence from
the offence. This Item reconstructs the defence in new
subsection 1233(3A). The rationale for that approach is discussed at Item
127.
New subsection 1233(3B) provides that strict liability applies to
the element of an offence against subsection (3) that a notice is a notice under
subsection (1). The rationale for the application of strict liability in
relation to elements of this nature is discussed above (see, for example, the
discussion at Item 4, 5, or 6).
Social Security (Administration) Act 1999
This Item inserts proposed section 2A which applies Chapter 2 of the Code
to the above Act. Chapter 2 establishes the codified general principles of
criminal responsibility.
Section 72 of the Act contains provisions relating to notices. In
general terms, subsection 72(8) currently provides that a person is taken
to have failed to comply with a notice if the person, in response to the notice,
knowingly or recklessly gives information or a statement that is false or
misleading. Section 74 creates an offence where a person refuses or rails to
comply with a notice.
Currently subsection 72(a) applies the fault
elements of knowledge (or "knowingly") and recklessness (or
“recklessly”) in relation to the proscribed physical element of
conduct, namely giving information or a statement. Following application of the
Code,
the fault elements of knowledge and recklessness will be restricted to physical
elements of circumstance or result, and intention will be the sole fault element
that can be applied to a physical element of conduct: see Division 5 of Part 2.2
of the Code. Applying "knowingly" to a physical element of conduct in the
pre-Code environment is equivalent to applying the fault element of intention.
This Item recreates the offence so that intention is the fault element in
relation to the physical element of conduct. The offence is recreated so that
the fault element of recklessness applies in relation to other physical
elements.
This Item recreates the offence provided for by existing section 74 by
removing the defence of ‘without reasonable excuse’. The offence is
that a person must not refuse or fail to comply with a notice under certain
provisions of the Act. The penalty is imprisonment for a period not exceeding
6 months.
The defence of a person having a reasonable excuse is
recreated in new subsection 74(3) (see Item 133). The rationale for this
amendment is to prevent any future interpretation that ‘without reasonable
excuse’ is an element of the offence, which would have to be disproved in
the negative by the prosecution. The amendment puts it beyond doubt that having
a reasonable excuse is a defence to the offence. Pursuant to subsection 13.3(3)
of the Code, a defendant who wishes to rely on such defences bears an evidential
burden in relation to the defence.
The Item recreates the offence provided for by existing section 74 by
removing the defence of ‘to the extent that the person is capable of
complying with the notice’. The offence is that a person must not refuse
or fail to comply with a notice under certain provisions of the Act. The
penalty is imprisonment for a period not exceeding 6 months.
The
defence of a person not being capable of complying is recreated in new
subsection 74(2) (see Item 133). The rationale for this amendment is to
prevent any future interpretation that ‘to the extent that the person is
capable of complying with the notice’ is an element of the offence, which
would have to be disproved in the negative by the prosecution. The amendment
puts it beyond doubt that not being capable of complying with the notice is a
defence to the offence. Pursuant to subsection 13.3(3) of the Code, a defendant
who wishes to rely on such defences bears an evidential burden in relation to
the defence.
New subsections 74(2) and (3) recreate the defences in current section
74, the defences being ‘without reasonable excuse’ and ‘to the
extent that the person is capable of complying with the notice’. The
rationale for this amendment is to prevent any future interpretation that
‘without reasonable excuse’ or ‘to the extent that the person
is capable of complying with the notice’ are elements of the offence,
which would have to be disproved in the negative by the prosecution. The
amendments put it beyond doubt that having a reasonable excuse or not being
capable of complying with the notice is a defence to the offence. Pursuant to
subsection 13.3(3) of the Code, a defendant who wishes to rely on such defences
bears an evidential burden in relation to the defence.
New subsection
74(4) provides that subsection (1) is an offence of strict liability as it is
considered that the provision presently attracts strict liability. The
reference to ‘without reasonable excuse’ suggests that the
legislature only wanted the general defences and mistake of fact to apply, not
proof of fault.
This Item recreates the offence in existing section 197 by removing the
defence of ‘without reasonable excuse’. The offence is that a
person must not refuse or fail to comply with a requirement to give information
or produce documents. The penalty is imprisonment for a period not exceeding
12 months.
The defence of a person having a reasonable excuse is
recreated in new subsection 197(3) (see Item 138). The rationale for this
amendment is to prevent any future interpretation that ‘without reasonable
excuse’ is an element of the offence, which would have to be disproved in
the negative by the prosecution. The amendment puts it beyond doubt that having
a reasonable excuse is a defence to the offence. Pursuant to subsection 13.3(3)
of the Code, a defendant who wishes to rely on such defences bears an evidential
burden in relation to the defence.
The Item recreates the offence in existing section 197 by removing the
defence ‘to the extent that the person is capable of complying with the
requirement’. The offence is that a person must not refuse or fail to
comply with a requirement to give information or produce documents. The penalty
is imprisonment for a period not exceeding 12 months.
The defence of
a person not being capable of complying is recreated in new
subsection 197(2) (see Item 136). The rationale for this amendment is to
prevent any future interpretation that ‘to the extent that the person is
capable of complying with the requirement’ is an element of the offence,
which would have to be disproved in the negative by the prosecution. The
amendment puts it beyond doubt that not being capable of complying with the
requirement is a defence to the offence. Pursuant to subsection 13.3(3) of
the Code, a defendant who wishes to rely on such defences bears an evidential
burden in relation to the defence.
New subsections 197(2) and (3) recreate the defences in current section
197, the defences being ‘without reasonable excuse’ and ‘to
the extent that the person is capable of complying with the notice’. The
rationale for this amendment is to prevent any future interpretation that
‘without reasonable excuse’ or ‘to the extent that the person
is capable of complying with the notice’ are elements of the offence,
which would have to be disproved in the negative by the prosecution. The
amendments put it beyond doubt that having a reasonable excuse or not being
capable of complying with the notice is a defence to the offence. Pursuant to
subsection 13.3(3) of the Code, a defendant who wishes to rely on such defences
bears an evidential burden in relation to the defence.
Existing subsection 200(1) creates an offence in circumstances where a
person makes a request under section 199 and a former employer fails to comply
with that request. This Item adds new subsection 200(2) which applies strict
liability to the element of an offence against subsection (1) that a request is
a request under section 199. The rationale for the application of strict
liability in relation to elements of this nature is discussed above (see, for
example, the discussion at Item 4, 5, or 6).
Section 203 creates an offence in relation to unauthorised access to
information. Paragraph 203(1)(b) requires that the person was not authorised by
or under the social security law or the Farm Household Support Act 1992
to obtain the information and has no other lawful authority to obtain the
information. The Item recreates the offence by removing the defence of lawful
authority. Under section 10.5 of the Code there is a general defence which
provides that a person is not criminally responsible for an offence if the
conduct constituting the offence is justified or excused by a law.
New subsection 203(3) provides that strict liability applies to the
element of an offence against subsection (1) that a person not authorised to do
something is not authorised by or under the social security law or the Farm
Household Support Act 1992 to do that thing. The rationale for the
application of strict liability in relation to elements of this nature is
discussed above (see, for example, the discussion at Item 4, 5, or 6).
Section 204 creates an offence in relation to unauthorised use of
protected information. Paragraph 204(1)(b) requires that the person was not
authorised or required by or under the social security law or the Farm
Household Support Act 1992 to make the record, disclosure or use of the
information that is made by the person. New subsection 204(3) provides that
strict liability applies to the element of an offence against subsection (1)
that a person not authorised or required to do something is not authorised or
required by or under the social security law or the Farm Household Support
Act 1992 to do that thing. The rationale for the application of strict
liability in relation to elements of this nature is discussed above (see, for
example, the discussion at Item 4, 5, or 6).
Section 205 creates an offence for soliciting the disclosure of protected
information. Paragraph 205(1)(b) requires that the disclosure would be in
contravention of the Division. New subsection 205(3) provides that strict
liability applies to the element of an offence against subsection (1) that a
contravention is a contravention of this Division. The rationale for the
application of strict liability in relation to elements of this nature is
discussed above (see, for example, the discussion at Item 4, 5, or 6).
In general terms, section 212 is concerned with false statements made in
connection with a claim or hardship request. Currently the provision applies
the fault elements of knowledge (or "knowingly") and recklessness (or
“recklessly”) in relation to the proscribed physical element of
conduct, namely making a statement. Following application of the Code,
the fault elements of knowledge and recklessness will be restricted to physical
elements of circumstance or result, and intention will be the sole fault element
that can be applied to a physical element of conduct: see Division 5 of
Part 2.2 of the Code. Applying "knowingly" to a physical element of
conduct in the pre-Code environment is equivalent to applying the fault element
of intention. This Item recreates the offence so that intention is the fault
element in relation to the physical element of conduct.
For the purposes
of an offence against section 217 that relates to subsection 212(1), new
subsection (2) provides for strict liability to apply to the elements set out in
paragraphs (2)(a) to (2)(d). The rationale for the application of strict
liability in relation to elements of this nature is discussed above (see, for
example, the discussion at Item 4, 5, or 6).
In general terms, section 213 is concerned with false statements made to
deceive or affect rates. Currently the provision applies the fault elements of
knowledge (or "knowingly") and recklessness (or “recklessly”) in
relation to the proscribed physical element of conduct, namely making a
statement. Following application of the Code,
the fault elements of knowledge and recklessness will be restricted to physical
elements of circumstance or result, and intention will be the sole fault element
that can be applied to a physical element of conduct: see Division 5 of Part 2.2
of the Code. Applying "knowingly" to a physical element of conduct in the
pre-Code environment is equivalent to applying the fault element of intention.
This Item recreates the offence so that intention is the fault element in
relation to the physical element of conduct.
For the purposes of an
offence against section 217 that relates to subsection 213(1), new subsection
(2) provides for strict liability to apply to the elements set out in
paragraphs (2)(a) and (2)(b). The rationale for the application of strict
liability in relation to elements of this nature is discussed above (see, for
example, the discussion at Item 4, 5, or 6).
In general terms, section 214 is concerned with false statements and the
production of documents. Currently the provision applies the fault elements of
knowledge (or "knowingly") and recklessness (or “recklessly”) in
relation to the proscribed physical element of conduct, namely making a
statement. Following application of the Code,
the fault elements of knowledge and recklessness will be restricted to physical
elements of circumstance or result, and intention will be the sole fault element
that can be applied to a physical element of conduct: see Division 5 of Part 2.2
of the Code. Applying "knowingly" to a physical element of conduct in the
pre-Code environment is equivalent to applying the fault element of intention.
This Item recreates the offence so that intention is the fault element in
relation to the physical element of conduct. The Item also reconstructs the
offence so that the fault element of recklessness applies in relation to any
physical elements of circumstance or result.
In broad terms, section 215 creates an offence where a person knowingly
obtains a social security payment which is not payable or only payable in part.
At present, the section applies the fault element of knowledge (or "knowingly")
in relation to the proscribed physical element of conduct, namely obtaining the
payment. Following application of the Code,
the fault element of knowledge will be restricted to physical elements of
circumstance or result, and intention will be the sole fault element that can be
applied to a physical element of conduct: see Division 5 of Part 2.2 of the
Code. Applying "knowingly" to a physical element of conduct in the pre-Code
environment is equivalent to applying the fault element of intention. This Item
recreates the offence by omitting the word ‘knowingly’ so that
intention is the fault element in relation to the physical element of
conduct.
In broad terms, section 215 creates an offence where a person knowingly
obtains a social security payment which is not payable or only payable in part.
The effect of Item 145 is to recreate the offence by omitting the word
‘knowingly’ so that intention is the fault element in relation to
the physical element of conduct. The effect of this Item is to make it clear
that the fault element of knowledge applies in relation to the physical elements
of paragraph (c) and (d).
For the purposes of an offence against section 217 that relates to
subsection 215(1), new subsection (2) provides for strict liability to apply to
the elements set out in paragraphs (2)(a) and (2)(b). The rationale for
the application of strict liability in relation to elements of this nature is
discussed above (see, for example, the discussion at Item 4, 5, or
6).
In general terms, section 216 deals with payments knowingly obtained by
fraud. At present, the section applies the fault element of knowledge (or
"knowingly") in relation to the proscribed physical element of conduct, namely
obtaining the relevant payment. Following application of the Code,
the fault element of knowledge will be restricted to physical elements of
circumstance or result, and intention will be the sole fault element that can be
applied to a physical element of conduct: see Division 5 of Part 2.2 of the
Code. Applying "knowingly" to a physical element of conduct in the pre-Code
environment is equivalent to applying the fault element of intention. This Item
recreates the offence by, firstly, omitting the word ‘knowingly’ so
that intention is the fault element in relation to the physical element of
conduct.
The Item also recreates the offence by separately providing for
situations where the relevant payments are obtained as a result of false or
misleading statements (in contrast to impersonation or fraudulent device).
Currently the effect of paragraph (c) is to apply the fault elements of
knowledge (or "knowingly") and recklessness (or “recklessly”) in
relation to the proscribed physical element of conduct, namely making a
statement. Following application of the Code,
the fault elements of knowledge and recklessness will be restricted to physical
elements of circumstance or result, and intention will be the sole fault element
that can be applied to a physical element of conduct: see Division 5 of
Part 2.2 of the Code. Applying "knowingly" to a physical element of
conduct in the pre-Code environment is equivalent to applying the fault element
of intention. This Item recreates the offence so that intention is the fault
element in relation to the physical element of conduct. The offence is
recreated so that the fault element of recklessness applies in relation to other
physical elements.
The effect of paragraphs 216(1)(a) and (3)(d) is that
the relevant payment must be either:
(a) a social security payment under
the social security law; or
(b) an instalment of a social security payment
under the social security law.
For the purposes of an offence against
section 217 that relates to subsections 216(1) or (3), new subsections (2) and
(4) respectively provide for strict liability to apply to the following elements
of the offence:
(a) that a payment is a social security payment under the
social security law; and
(b) that an instalment is an instalment of a social
security payment under the social security law.
The rationale for the
application of strict liability in relation to elements of this nature is
discussed above (see, for example, the discussion at Item 4, 5, or
6).
Currently the heading to Division 5 of Part 6 includes a reference to the
liability of corporations. As it is proposed that the relevant provisions of
the social security law be repealed so that Part 2.5 of the Code applies in
relation to corporations, this Item omits the reference to liability of
corporations.
This Item repeals sections 226 to 228. Existing section 226 is concerned
with the term ‘director of a corporation’ while section 227 deals
with the term ‘engaging in conduct’. These provisions are repealed
as it is intended that the provisions of the Code which cover the subject matter
of these existing provisions be applied in relation to the social security
law.
Sections 5, 7, 7A, 14, 15D and 86 of the Crimes Act are being
replaced in effect by sections 10.5, 11.1, 11.2, 11.4, 11.5, 13.3, 13.4 and 13.5
of the Code. As section 228 contains references to some of those Crimes Act
provisions, Item 150 repeals section 228 and substitutes a new
provision that contains references to the relevant Code provisions.
Subdivision B of Division 5 of Part 6 is concerned with proceedings against
corporations. Subdivision B is repealed as it is intended that the provisions
of the Code which cover the issue of corporate liability be applied in relation
to the social security law.
Social Welfare Commission (Repeal) Act 1976
This Item inserts proposed section 3A which applies Chapter 2 of the Code
to the above Act. Chapter 2 establishes the codified general principles of
criminal responsibility.
In general terms, subsection 8(2) provides that a person shall
not:
(a) make a record or divulge certain information acquired by the
person by reason of his office or employment under or for the purposes of
certain enactments; or
(b) produce certain documents that were furnished for
the purposes of those enactments.
The effect of this Item is to apply
strict liability in relation to the elements of the offence relating to the
matters in paragraphs (a) and (b). The rationale for the application of strict
liability in relation to elements of this nature is discussed above (see, for
example, the discussion at Item 4, 5, or 6).