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1998-1999-2000-2001
THE PARLIAMENT OF
THE COMMONWEALTH OF AUSTRALIA
THE
SENATE
INDUSTRY, SCIENCE AND RESOURCES LEGISLATION
AMENDMENT
(APPLICATION OF CRIMINAL CODE) BILL
2001
EXPLANATORY
MEMORANDUM
(Circulated by authority of
the Minister for Industry, Science and Resources,
Senator the Hon Nick
Minchin)
INDUSTRY, SCIENCE AND RESOURCES LEGISLATION AMENDMENT (APPLICATION OF THE
CRIMINAL CODE) ACT 2001
GENERAL OUTLINE
The purpose of
this bill is to make consequential amendments to certain offence provisions in
legislation administered within the Industry, Science and Resources portfolio to
reflect the application of the Criminal Code Act 1995 (the
Code).
The Code is Commonwealth legislation, which will alter the way in
which criminal offence provisions are interpreted, including offences contained
in legislation for which the Industry, Science and Resources portfolio is
responsible. While the Code was passed in 1995, it commenced to apply to new
offences from 1 January 1997. All new offences are now drafted according to the
requirements of the Code. Staggered implementation was considered necessary in
relation to existing offences to provide departments with sufficient time to
assess the effect of the Code on their offence provisions, and to make any
amendments necessary to their legislation. The Code is scheduled to apply to
existing offences from 15 December 2001.
If legislation containing
offence provisions is not amended to have regard to the Code, the Code may alter
the interpretation of existing offence provisions. The Code contains
subjective, fault-based principles of criminal responsibility. The defendant's
guilt will depend on what he or she thought or intended at the time of the
offence, rather than what a ‘reasonable person’ would have thought
or intended in the defendant's circumstances. The changes to be brought about
by the Code reflect the view that proof of a ‘guilty mind’ is
generally necessary before a person can be found guilty of an
offence.
The most significant effect of the Code is that it 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 this distinction in the Code.
The
prosecution bears the onus of proving each of the physical elements. The
physical elements provided in the Code are the conduct, the circumstance in
which it occurs, and the result of the conduct. Each offence must contain at
least one of these physical elements, but any combination of physical elements
may be present in an offence provision. For every physical element of an
offence, the prosecution must also prove a corresponding fault element. The
Code does not prevent an offence from specifying an alternative fault element,
but the Code indicates that the default fault element will apply in the absence
of a specified fault element. The Code establishes four default fault elements:
intention, knowledge, recklessness and negligence. The Code provides that for
conduct, the default fault element is intention. For circumstance or result,
the default fault element is recklessness.
The Industry, Science and
Resources Legislation (Application of Criminal Code) Bill 2001 makes amendments
to the Atomic Energy Act 1953, Bounty and Capitalisation Grants
(Textile Yarns) Act 1981, Bounty (Bed Sheeting) Act 1977, Bounty
(Books) Act 1986, Bounty (Citric Acid) Act 1991, Bounty (Computers) Act
1984, Bounty (Fuel Ethanol) Act 1994, Bounty (Machine Tools and
Robots) Act 1985, Bounty (Photographic Film) Act 1989, Bounty
(Printed Fabrics) Act 1981, Bounty (Ships) Act 1989, Designs Act
1906, Liquefied Petroleum Gas (Grants) Act 1980, Liquid Fuel Emergency
Act 1984, Management and Investment Companies Act 1983, National
Measurement Act 1960, Offshore Minerals Act 1994, Patents Act
1990, Petroleum Excise (Prices) Act 1987, Petroleum Retail
Marketing Sites Act 1980, Petroleum (Submerged Lands) Act 1967,
Petroleum (Timor Gap Zone of Cooperation) Act 1990, Pooled Development
Funds Act 1992, Scout Association Act 1924, Trade Marks Act 1995
and the Tradex Scheme Act 1999.
Amendments arise from:
• specifying that an offence is one of
strict liability (with an express statement on the face of the offence that is
an offence of strict liability, referring to section 6.1 of the Criminal
Code);
• restructuring offence provisions which include an
inappropriate fault element for conduct;
• restructuring offence
provisions which include an inappropriate fault element for
circumstance;
• restructuring offence provisions where part of the
conduct element of the offence includes breach of a
condition;
• restructuring offence provisions to proscribe the actions
of a person whose conduct causes damage, injury, destruction or obliteration of
prescribed property;
• restructuring criminal offence provisions
containing a defence, by putting the defence provisions in separate subsections,
in order to avoid a defence being mistakenly interpreted to be part of the
elements of the offence;
• specifying whether a defence places a legal
or evidential burden on a defendant;
• restructuring an offence to
resolve an internal conflict between the offence and the complicity provision of
the Criminal Code;
• restructuring ancillary offence provisions
so as to apply the relevant ancillary provisions of the Criminal
Code;
• extension of meaning of ‘engaging in conduct’
to include omissions;
• restructuring offence provisions so as not to
require knowledge of law;
• specifying in provisions which establish
criminal responsibility for corporations whether or not Part 2.5 of the
Criminal Code (dealing with corporate criminal responsibility) is
applicable.
The approach in this Bill is to make the minimal amendments
necessary to enable offences to operate in the same way after the Criminal
Code comes into effect as they operate before the Criminal Code
applies.
FINANCIAL IMPACT STATEMENT
The Bill is not
expected to have any significant financial impact on Commonwealth expenditure or
revenue.
NOTES
ON CLAUSES
Clause 1: Short title
1. This clause
provides the short title by which the Act may be cited.
Clause 2:
Commencement
2. Clause 2 provides that this Act will commence on the
day after the day on which it receives the Royal Assent.
Clause 3:
Schedule(s)
3. By virtue of this clause, each Act specified in a
Schedule to this Act is amended or repealed as set out in the Schedule, and any
other item in a Schedule has effect according to its terms.
Clause
4: Application of amendments
4. Subclause 4(1) provides that, subject to subclause 4(2), each amendment
made by this Act only applies to acts or omissions after commencement of the
amendment. Subclause 4(2) provides that if an act or omission is alleged to
have taken place between two dates, one before and one after commencement of a
particular amendment, the amendment does not apply to the alleged act or
omission.
Schedule 1 - Amendment of Acts
Atomic Energy Act
1953
Item 1 - At the end of Part 1
5. This item inserts
a new section 34A into the Atomic Energy Act 1953 to provide that Chapter
2 of the Criminal Code applies to all offences created by that Act. The item
also inserts a note after the section drawing attention to the provisions of
Chapter 2 of the Criminal Code relating to general principles of criminal
responsibility.
Item 2 - At the end of subsection
36(1)
6. This item provides the penalty for offences under subsection
36(1). The amendment is consequent upon the repeal of subsection 36(1A): see
item 3.
Item 3 - Subsection 36(1A)
7. This item repeals the
existing subsection 36(1A) of the Atomic Energy Act 1953. Subsection
36(1A) unnecessarily separates the requirement established in subsection 36(1)
from the offence of failing to comply with that requirement. The penalty
applicable to a contravention of the requirement in subsection 36(1) is added
after that subsection: see item 2.
8. This item also effectively
removes the defence of reasonable excuse from the offence in subsection 36(1).
The defence is recreated in a new subsection 36(3) (see item 4). The rationale
for this amendment is to prevent future interpretation that the reasonable
excuse element is an element of the offence, which would have to be disproved in
the negative by the prosecution, and puts it beyond doubt that it is a defence
to the offence.
Item 4 - At the end of section 36
9. This
item creates new subsections 36(3) and 36(4). Subsection 36(3) recreates the
defence of reasonable excuse in relation to the offence in subsection 36(1): see
item 3.
10. The note to this subsection provides that the defendant bears
an evidential burden in relation to the matters in subsection 36(3). It also
draws attention to the provisions of subsection 13.3(3) of the Criminal
Code.
11. New subsection 36(4) specifies that an offence against
subsection 36(1) is an offence of strict liability. This reflects the present
requirements of the former section 36(1A). A note on strict liability is
included and refers to the provisions of section 6.1 of the Criminal
Code.
12. Strict liability is defined in section 6.1 of the
Criminal Code and provides that where an offence is intended to be one of
strict liability, then it should be identified as such in the statute. Where
strict liability applies to an element of an offence or the complete offence,
there is a defence of mistake of fact under section 9.2 of the Criminal
Code. Section 9.2 provides that the person is not criminally responsible
for an offence of this nature if at or before the time of the conduct the person
considered whether or not a relevant fact existed and is under a mistaken but
reasonable belief about that fact and, had that fact existed, the conduct would
not constitute an offence. This would cover the situation where the defendant
made a mistake about some matter of fact. If there is a mistake of fact, the
evidential burden of proof is on the defence. It means that the defendant has
to adduce or point to the evidence that suggests a reasonable possibility that
the matter exists or does not exist. If the defendant is able to do this, the
prosecution is required to prove beyond the reasonable doubt that there was no
such mistake.
Item 5 - Subsection 37(2)
13. This item
repeals the existing subsection 37(2) of the Atomic Energy Act 1953 and
substitutes new subsections 37(2) to 37(6).
14. The offence provision has
been restructured to separate out the fault liability (“refuse to
comply”) and the strict liability (“fail to comply”) offences.
The reconstruction also separates the defence of reasonable excuse from the
offences and recreates it as a stand-alone defence to both
offences.
15. The new subsection 37(2) recreates the “refuse to
comply” offence from existing subsection 37(2). It provides that a
person must not refuse to comply with a notice served on the person under
subsection 37(1). The existing penalties are prescribed for a natural person and
a body corporate.
16. The new subsection 37(3) maintains a defence of
"reasonable excuse" which was provided for under the old subsection 37(2). It
has been separately recreated in a new subsection in order to avoid the defence
being mistakenly interpreted to be part of the elements of the offence in the
new subsection 37(2). The note to this subsection provides that the defendant
bears an evidential burden in relation to the matters in subsection 37(3). It
also draws attention to the provisions of subsection 13.3(3) of the Criminal
Code.
17. The new subsection 37(4) recreates the “fail to
comply” offence from existing subsection 37(2). It provides that a person
must not fail to comply with a notice served on the person under subsection
37(1). The existing penalties are prescribed for a natural person and a body
corporate.
18. The new subsection 37(5) maintains a defence of
"reasonable excuse" which was provided for under the old subsection 37(2). It
has been separately recreated in a new subsection in order to avoid the defence
being mistakenly interpreted to be part of the elements of the offence in the
new subsection 37(4). The note to this subsection provides that the defendant
bears an evidential burden in relation to the matters in subsection 36(5). It
also draws attention to the provisions of subsection 13.3(3) of the Criminal
Code.
19. This item inserts new subsection 37(6) which applies strict
liability to the offence recreated in subsection 37(4) of the Act. Subsection
37(4) provides that a person must not fail to comply with a notice served on the
person under subsection (1). The fine is $2,000 for a natural person or $10,000
for a body corporate. This is an administrative obligation with a low penalty
and is therefore the type of offence where strict liability is applied under the
existing law.
20. The standard note referring to section 6.1 of the
Criminal Code, which governs strict liability, is also added after this
provision. An explanation of “strict liability” appears at paragraph
12 above.
Item 6 - Subsection 41D(1)
21. This item omits
the term "shall not refuse or fail" from the existing subsection 41D(1) and
substitutes the term "must not refuse". Subsection 41D(1) currently provides
that a person who refuses to comply with a condition or restriction under Part
III of the Atomic Energy Act 1953 is guilty of an offence. The amendment
of this offence provision has been done so as to separate out the fault
liability and the strict liability offences. The new subsection 41D(1A)
mentioned below recreates the strict liability offence currently contained in
subsection 41D(1).
22. This item also replaces the heading to Section 41D
with the new heading “Offences relating to breach of condition
etc.”
Item 7 - After subsection 41D(2)
23. This
item repeals the existing subsection 41D(2) of the Atomic Energy Act 1953
and substitutes new subsections 41D(2) and 41D(3) into section 41D of the
Atomic Energy Act 1953.
24. New subsection 41D(2) provides that a
person, required to comply with a condition or restriction, subject to which an
authority has been conferred on the person under Part III of the Atomic
Energy Act 1953, is guilty of an offence if he or she fails to comply with
the requirement. The penalty mirrors the penalty prescribed in subsection
41D(1) and recreates the existing penalties for a natural person and a body
corporate. The new subsection 41D(2) further specifies that for the purposes of
this subsection it does not matter whether the authority was conferred before or
after the commencement of section 41D.
25. New subsection 41D(3) applies
strict liability to the offence in subsections 41D(1A), which carries a penalty
of $2,000 for a natural person or $10,000 for a body corporate. The offence
created by subsection 41D(2) is an administrative obligation with a low penalty
and is therefore the type of offence where strict liability is applied under the
existing law.
26. The standard note referring to section 6.1 of the
Criminal Code, which governs strict liability, is also added after this
provision. An explanation of “strict liability” appears at
paragraph 12 above.
Item 8 - After section 41D
27. This
item inserts a new subsection 41E containing subsections 41E(1) and (2), which
were embodied in the former 41D(2): see item 7.
28. New subsection 41E(1)
recreates the two offences in existing subsection 41D(2), namely that a person
is guilty of an offence if he or she enters, or is on land, of which another
person is in possession under Part III of the Atomic Energy Act 1953.
The subsection also provides the same penalty for this offence as was prescribed
under subsection 41D(2). New subsection 41E(2) recreates the defences from
existing 41D(2) to an offence under that subsection. The reconstruction made by
items 7 and 8 is made in order to avoid the defences being mistakenly
interpreted to be part of the elements of the offence under subsection 41E(1).
The note to this subsection provides that the defendant bears an evidential
burden in relation to the matters in subsection 41E(2). It also draws attention
to the provisions of subsection 13.3(3) of the Criminal
Code.
Bounty and Capitalisation Grants (Textile Yarns) Act
1981
Item 9 - At the end of Part 1
29. This item adds a
new section 3B into the Bounty and Capitalisation Grants (Textile Yarns) Act
1981 which provides that Chapter 2 of the Criminal Code applies to all
offences created by the Bounty and Capitalisation Grants (Textile Yarns) Act
1981.
30. It also inserts a note that says Chapter 2 of the Criminal
Code sets out general principles of criminal responsibility.
Item 10 -
Subsection 10B(1)
31. This item proposes that the words "becomes
aware" be omitted from subsection 10B(1) (which contains the physical element of
“becomes aware”) and be substituted with "subsequently knows". As
“becomes aware” is a circumstance, it attracts the default fault
element of recklessness. The proposed amendment changes the default element of
recklessness to a fault element of knowledge. This means that knowledge will
apply to the circumstance of “becoming
aware”.
Item 11 - Subsection 18(1)
32. In
order to avoid the defence of "without reasonable excuse" being mistakenly
interpreted to be part of the elements of the offence under subsection 18(1) the
words “without reasonable excuse” are being omitted from subsection
18(1). A new subsection 18(2) has been inserted (see Item 12) to provide for a
defence of “reasonable excuse”.
Item 12 -After subsection
18(1)
33. A new subsection 18(2) has been inserted to provide for a
defence of “reasonable excuse”. The note to this subsection
provides that the defendant bears an evidential burden in relation to the
matters in subsection 18(2). It also draws attention to the provisions of
subsection 13.3(3) of the Criminal Code.
Bounty (Bed
Sheeting) Act 1977
Item 13 - After section 4A
34. This
item inserts a new Section 4B into the Bounty (Bed Sheeting) Act 1977
which provides that Chapter 2 of the Criminal Code applies to all offences
created by the Bounty (Bed Sheeting) Act 1977.
35. It also inserts
a note that says Chapter 2 of the Criminal Code sets out general principles of
criminal responsibility.
Item 14 - Subsection
10C(1)
36. This item proposes that the words "becomes aware" be
omitted from subsection 10C(1) (which contains the physical element of
“becomes aware”) and be substituted with "subsequently knows". As
“becomes aware” is a circumstance, it attracts the default fault
element of recklessness. The proposed amendment changes the default element of
recklessness to a fault element of knowledge. This means that knowledge will
apply to the circumstance of “becoming aware”.
Item 15 -
Subsection 18(1)
37. In order to avoid the defence of "without
reasonable excuse" being mistakenly interpreted to be part of the elements of
the offence under subsection 18(1) the words “without reasonable
excuse” are being omitted from subsection 18(1). A new subsection 18(2)
has been inserted (see Item 16) to provide for a defence of “reasonable
excuse”.
Item 16 - After subsection 18(1)
38. A new
subsection 18(2) has been inserted to provide for a defence of “reasonable
excuse”. The note to this subsection provides that the defendant bears an
evidential burden in relation to the matters in subsection 18(2). It also draws
attention to the provisions of subsection 13.3(3) of the Criminal
Code.
Bounty (Books) Act 1986
Item 17 -
At the end of Part 1
39. This item adds a new Section 9A into the
Bounty (Books) Act 1986 which provides that Chapter 2 of the Criminal
Code applies to all offences created by the Bounty (Books) Act
1986.
40. It also inserts a note that says Chapter 2 of the Criminal
Code sets out general principles of criminal responsibility.
Item 18 -
Subsection 16(1)
41. This item proposes that the words "becomes
aware" be omitted from subsection 16(1) (which contains the physical element of
“becomes aware”) and be substituted with "subsequently knows". As
“becomes aware” is a circumstance, it attracts the default fault
element of recklessness. The proposed amendment changes the default element of
recklessness to a fault element of knowledge. This means that knowledge will
apply to the circumstance of “becoming aware”.
Item 19 -
Subsection 27(1)
42. In order to avoid the defence of "without
reasonable excuse" being mistakenly interpreted to be part of the elements of
the offence under subsection 27(1) the words “without reasonable
excuse” are being omitted from subsection 27(1). A new subsection 27(2)
has been inserted (see Item 20) to provide for a defence of “reasonable
excuse”.
Item 20 - After subsection 27(1)
43. A new
subsection 27(2) has been inserted to provide for a defence of “reasonable
excuse”. The note to this subsection provides that the defendant bears an
evidential burden in relation to the matters in subsection 27(2). It also draws
attention to the provisions of subsection 13.3(3) of the Criminal
Code.
Bounty (Citric Acid) Act 1991
Item 21 - At
the end of Part 1
44. This item adds a new Section 5A into the
Bounty (Citric Acid) Act 1991 which provides that Chapter 2 of the
Criminal Code applies to all offences created by the Bounty (Citric Acid) Act
1991.
45. It also inserts a note that says Chapter 2 of the Criminal
Code sets out general principles of criminal responsibility.
Item 22 -
Subsection 12(1)
46. This item proposes that the words "becomes
aware" be omitted from subsection 12(1) (which contains the physical element of
“becomes aware”) and be substituted with "subsequently knows". As
“becomes aware” is a circumstance, it attracts the default fault
element of recklessness. The proposed amendment changes the default element of
recklessness to a fault element of knowledge. This means that knowledge will
apply to the circumstance of “becoming aware”.
Item 23 -
Subsection 23(1)
47. In order to avoid the defence of "without
reasonable excuse" being mistakenly interpreted to be part of the elements of
the offence under subsection 23(1) the words “without reasonable
excuse” are being omitted from subsection 23(1). A new subsection 23(2)
has been inserted (see Item 24) to provide for a defence of “reasonable
excuse”.
Item 24 - After subsection 23(1)
48. A new
subsection 23(2) has been inserted to provide for a defence of “reasonable
excuse”. The note to this subsection provides that the defendant bears an
evidential burden in relation to the matters in subsection 23(2). It also draws
attention to the provisions of subsection 13.3(3) of the Criminal Code.
Bounty (Computers) Act 1984
Item 25 - At the end of
Part 1
49. This item adds a new Section 8A into the Bounty
(Computers) Act 1984 which provides that Chapter 2 of the Criminal Code
applies to all offences created by the Bounty (Computers) Act
1984.
50. It also inserts a note that says Chapter 2 of the Criminal
Code sets out general principles of criminal responsibility.
Item 26 -
Subsection 15(1)
51. This item proposes that the words "becomes
aware" be omitted from subsection 15(1) (which contains the physical element of
“becomes aware”) and be substituted with "subsequently knows". As
“becomes aware” is a circumstance, it attracts the default fault
element of recklessness. The proposed amendment changes the default element of
recklessness to a fault element of knowledge. This means that knowledge will
apply to the circumstance of “becoming aware”.
Item 27 -
Subsection 27(1)
52. In order to avoid the defence of "without
reasonable excuse" being mistakenly interpreted to be part of the elements of
the offence under subsection 27(1) the words “without reasonable
excuse” are being omitted from subsection 27(1). A new subsection 27(2)
has been inserted (see Item 28) to provide for a defence of “reasonable
excuse”.
Item 28 - After subsection 27(1)
53. A
new subsection 27(2) has been inserted to provide for a defence of
“reasonable excuse”. The note to this subsection provides that the
defendant bears an evidential burden in relation to the matters in subsection
27(2). It also draws attention to the provisions of subsection 13.3(3) of the
Criminal Code.
Bounty (Fuel Ethanol) Act
1994
Item 29 - At the end of Part 1
54. This item
inserts proposed section 9A which applies Chapter 2 of the Criminal Code
to all offences against the Act. Chapter 2 establishes the codified general
principles of criminal responsibility.
55. The standard note concerning
Chapter 2 of the Criminal Code setting out the principles of criminal
responsibility is also added after this provision.
Item 30 -
Subsection 30(1)
56. Subsection 30(1) provides that section 30
applies to a person who made a claim for payment of bounty and becomes aware
that the claim was, because of an inadvertent error, for an amount more than
$200 greater than the person's entitlement. Subsection 30(2) provides that the
person must, within 21 days after discovering the excess, acknowledge the excess
in the prescribed way. Following application of the Criminal Code a
circumstance such as 'becoming aware' will attract the default fault element of
recklessness, whereas the fault element of knowledge would appear to reflect the
legislative intent at the time the provision was enacted. This item therefore
proposes the replacement of the words "becomes aware" with "subsequently knows".
It is considered that subsection 30(1) will continue to operate in the same
manner as at present following this amendment.
Item 31 –
Subsection 55(1)
57. This item proposes the repeal and substitution
of subsection 55(1) and in order to achieve several amendments. First,
subsection 55(1) provides that a person must not, without reasonable excuse,
refuse or fail to attend before an authorised officer or take an oath or make an
affirmation or answer a question or produce an account or other document, when
required under the Act. The penalty for this offence is imprisonment for 6
months. Proposed subsections (1) and (3A) are used, respectively, to separate
the offences of 'fail' (which does not imply a fault element) and 'refuse'
(which implies a fault element). Proposed subsection (2) applies strict
liability to the 'fail' offence in subsection (1). The application of strict
liability to this offence preserves the existing situation, namely that the
offence is already one of strict liability. The offence concerns a statutory
obligation which could be difficult to establish if the prosecution was required
to prove intention with respect to the failure to comply with the required
actions. This is the type of statutory obligation which is usually interpreted
to mean that the legislature intended that strict liability should apply.
Another factor in determining whether strict liability applies is the penalty,
which in this case is low. The standard note referring to section 6.1 of the
Criminal Code, which governs strict liability, is also added after this
provision. An explanation of “strict liability” appears at
paragraph 12 above.
58. Second, the phrase "without reasonable excuse"
has not been retained in proposed subsections (1) and (3A) but has been
recreated in separate subsections (3) and (3B), in relation to the offences
proposed in subsections (1) and (3A), respectively. The rationale for these
amendments is to prevent future interpretation that the reasonable excuse
element of these provisions is an element of the offences, which would have to
be disproved in the negative by the prosecution. The proposed amendments will
put it beyond doubt that a reasonable excuse is a defence to the offences. This
item also adds the standard note after each of proposed subsections (3) and (3B)
concerning the imposition of an evidential burden on a defendant by subsection
13.3(3) of the Criminal Code if a defendant relies on the reasonable
excuse defence established, respectively, by subsection (3) or (3B).
Bounty (Machine Tools and Robots) Act 1985
Item 32
- At the end of Part 1
59. This item adds a new Section 15A into
the Bounty (Machine Tools and Robots) Act 1985 which provides that
Chapter 2 of the Criminal Code applies to all offences created by the Bounty
(Machine Tools and Robots) Act 1985.
60. It also inserts a note that
says Chapter 2 of the Criminal Code sets out general principles of criminal
responsibility.
Item 33 - Subsection 23(1)
61. This item
proposes that the words "becomes aware" be omitted from subsection 23(1) (which
contains the physical element of “becomes aware”) and be substituted
with "subsequently knows". As “becomes aware” is a circumstance, it
attracts the default fault element of recklessness. The proposed amendment
changes the default element of recklessness to a fault element of knowledge.
This means that knowledge will apply to the circumstance of “becoming
aware”.
Item 34 - Subsection 24(7)
62. This item
proposes the repeal of subsection 24(7) of the Bounty (Machine Tools and
Robots) Act 1985. Subsection 24(7) contains an offence relating to
providing information that is, to the knowledge of the producer, false or
misleading in a material particular.
63. The fault elements of this
offence are very similar to the general offence provision of providing false or
misleading information covered by Section 137.1 of the Criminal Code
which provides adequate coverage for these offences. Therefore it is being
proposed that subsection 24(7) of the Bounty (Machine Tools and Robots) Act
1985 be repealed.
Item 35 - Subsection 35(1)
64. In
order to avoid the defence of "without reasonable excuse" being mistakenly
interpreted to be part of the elements of the offence under subsection 35(1) the
words “without reasonable excuse” are being omitted from subsection
35(1). A new subsection 35(2) has been inserted (see below) to provide for a
defence of “reasonable excuse”.
Item 36 - After subsection
35(1)
65. A new subsection 35(2) has been inserted to provide for a
defence of “reasonable excuse”. The note to this subsection
provides that the defendant bears an evidential burden in relation to the
matters in subsection 35(2). It also draws attention to the provisions of
subsection 13.3(3) of the Criminal Code.
Bounty
(Photographic Film) Act 1989
Item 37 - At the end of Part
1
66. This item adds a new Section 6A into the Bounty
(Photographic Film) Act 1989 which provides that Chapter 2 of the Criminal
Code applies to all offences created by the Bounty (Photographic Film) Act
1989.
67. It also inserts a note that says Chapter 2 of the Criminal
Code sets out general principles of criminal responsibility.
Item 38 -
Subsection 13(1)
68. This item proposes that the words "becomes
aware" be omitted from subsection 13(1) (which contain the physical element of
“becomes aware”) and be substituted with "subsequently knows". As
“becomes aware” is a circumstance, it attracts the default fault
element of recklessness. The proposed amendment changes the default element of
recklessness to a fault element of knowledge. This means that knowledge will
apply to the circumstance of “becoming aware”.
Item 39 -
Subsection 24(1)
69. In order to avoid the defence of "without
reasonable excuse" being mistakenly interpreted to be part of the elements of
the offence under subsection 24(1) the words “without reasonable
excuse” are being omitted from subsection 24(1). A new subsection 24(2)
has been inserted (see Item 40) to provide for a defence of “reasonable
excuse”.
Item 40 - After subsection 24(1)
70. A new
subsection 24(2) has been inserted to provide for a defence of “reasonable
excuse”. The note to this subsection provides that the defendant bears an
evidential burden in relation to the matters in subsection 24(2). It also draws
attention to the provisions of subsection 13.3(3) of the Criminal Code.
Bounty (Printed Fabrics) Act 1981
Item 41 - After
section 4
71. This item adds a new Section 4A into the Bounty
(Printed Fabrics) Act 1981 which provides that Chapter 2 of the Criminal
Code applies to all offences created by the Bounty (Printed Fabrics) Act
1981.
72. It also inserts a note that says Chapter 2 of the Criminal
Code sets out general principles of criminal responsibility.
Item 42 -
Subsection 10B(1)
73. This item proposes that the words "becomes
aware" be omitted from subsection 10B(1) (which contains the physical element of
“becomes aware”) and be substituted with "subsequently knows". As
“becomes aware” is a circumstance, it attracts the default fault
element of recklessness. The proposed amendment changes the default element of
recklessness to a fault element of knowledge. This means that knowledge will
apply to the circumstance of “becoming aware”.
Item 43 -
Subsection 18(1)
74. In order to avoid the defence of "without
reasonable excuse" being mistakenly interpreted to be part of the elements of
the offence under subsection 18(1) the words “without reasonable
excuse” are being omitted from subsection 18(1). A new subsection 18(1A)
has been inserted (see Item 44) to provide for a defence of “reasonable
excuse”.
Item 44 - After subsection 18(1)
75. A new
subsection 18(1A) has been inserted to provide for a defence of
“reasonable excuse”. The note to this subsection provides that the
defendant bears an evidential burden in relation to the matters in subsection
18(1A). It also draws attention to the provisions of subsection 13.3(3) of the
Criminal Code.
Item 45 - Subsection 18(2)
76. This
item proposes a change to the subclause from 'knowingly obtain or attempt to
obtain' to 'obtain'. Section 11.1 of the Criminal Code creates a general
offence of attempt, which will apply to all Commonwealth laws from 15 December
2001. This means that it is no longer necessary to include the words “or
attempt to obtain” in subsection 18(2).
Item 46 - Subsection
18(3)
77. This item proposes omitting 'or attempt to obtain' from
subclause 18(3) of the Bounty (Printed Fabrics) Act 1981. Section 11.1
of the Criminal Code creates a general offence of attempt, which will
apply to all Commonwealth laws from 15 December 2001. This means that it is no
longer necessary to include the words “or attempt to obtain” in
subsection 18(3).
Bounty (Ships) Act 1989
Item 47 -
At the end of Part 1
78. This item adds a new Section 7A into the
Bounty (Ships) Act 1989 which provides that Chapter 2 of the Criminal
Code applies to all offences created by the Bounty (Ships) Act
1989.
79. It also inserts a note that says Chapter 2 of the Criminal
Code sets out general principles of criminal responsibility.
Item 48 -
Subsection 14(1)
80. This item proposes that the words "becomes
aware" be omitted from subsection 14(1) (which contains the physical element of
“becomes aware”) and be substituted with "subsequently knows". As
“becomes aware” is a circumstance, it attracts the default fault
element of recklessness. The proposed amendment changes the default element of
recklessness to a fault element of knowledge. This means that knowledge will
apply to the circumstance of “becoming aware”.
Item 49 -
Subsection 25(1)
81. The offence provision has been restructured to
separate out the fault liability and the strict liability offences. The
reconstruction also provides for the defence of "reasonable excuse" to be
separately available for the fault liability and for the strict liable
offences.
82. The provision omits the words “shall not, without
reasonable excuse, refuse or fail” and substitutes the words “must
not refuse”. The words "without reasonable excuse" are being deleted to
avoid mistakenly interpreting these words to be part of the elements of the
offence. A new subsection 25(2) and subsection 25(4) have been inserted (see
Item 50) to provide for a defence of “reasonable
excuse”.
83. The amended subsection 25(1) provides that a person
must not refuse to comply with the conduct specified in paragraphs 25(1)(a),
(b), or (c). As the amended provision does not specify a fault element for this
offence, section 5.6 of the Criminal Code will impose a default fault
element.
84. The new subsection 25(3) (see Item 50) provides for the
situation where there is a failure to comply with the conduct elements as set
out in the new subsection 25(3).
Item 50 - After subsection
25(1)
85. A new subsection 25(2) has been inserted to provide for a
defence of “reasonable excuse” in respect to an offence under
subsection 25(1). The note to this subsection provides that the defendant bears
an evidential burden in relation to the matters in subsection 25(2). It also
draws attention to the provisions of subsection 13.3(3) of the Criminal
Code.
86. The new subsection 25(3) maintains the “fails”
element of the original subsection 25(1). It also refers to the same conduct as
does section 25(1). It also applies the same penalty as subsection
25(1).
87. A new subsection 25(4) has been inserted to provide for a
defence of “reasonable excuse” in respect to an offence under
subsection 25(3). The note to this subsection provides that the defendant bears
an evidential burden in relation to the matters in subsection 25(4). It also
draws attention to the provisions of subsection 13.3(3) of the Criminal
Code.
88. A new subsection 25(5) specifies that an offence against
subsection 25(5) is an offence of strict liability. This reflects the present
requirements of the former section 25(1). A note on strict liability is
included and refers to the provisions of section 6.1 of the Criminal
Code. An explanation of “strict liability” appears at paragraph
12 above.
Designs Act 1906
Item 51 - At the end of Part 1
89. This item amends Part 1 of
the Designs Act 1906 by inserting a new provision to apply Chapter 2 of
the Criminal Code to offences in that Act. Chapter 2 establishes the
codified general principles of criminal responsibility. The standard note
concerning Chapter 2 of the Criminal Code setting out the principles of
criminal responsibility is also added after this provision.
Item 52 -
Section 36
90. This item amends section 36 of the Designs Act
1906 to delete the word 'wilfully', so that the appropriate default fault
element or elements in section 5.6 of the Criminal Code will apply to the
offences of making false entries in the Register of Designs; or making,
producing or tendering in evidence any writing falsely purporting to be a copy
of an entry in the Register of Designs. The Criminal Code default fault
element that will apply in place of “wilfully”, namely intention, is
the Criminal Code’s equivalent fault element to the non-Criminal
Code fault element of “wilfully”.
Item 53 - Subsection
42B(1)
91. Items 53, 54 and 55 amend section 42B of the Designs
Act 1906 to set out the defence of lawful excuse in a new subsection. This
preserves the defence, currently set out in subsections 42B(1) and (2), but is
intended to avoid that defence being mistakenly interpreted to be part of the
elements of the offence to be proved by the prosecution. Item 53 removes the
words "shall not, without lawful excuse, and" from subsection 42B (1) and
replaces them with the words "must not,". Item 54 below makes the same amendment
to subsection 42B (2). Item 55 below will set out the defence of lawful excuse
to apply to offences under both of those subsections. Subsection 42B(1)
currently makes it an offence for witnesses summoned by the Registrar of Designs
to fail to comply with the summons, without lawful excuse.
Item 54 -
Subsection 42B(2)
92. As indicated above in respect of item 53, this
item amends subsection 42B(2) by removing the words "shall not, without lawful
excuse, and" from that subsection and replacing them with the words "must not,".
Subsection 42B(2) currently makes it an offence for a person required by the
Registrar to produce a document or article to fail to produce it, without lawful
excuse.
Item 55 - At the end of section 42B
93. As
indicated above in respect of item 53, this item sets out the defence of lawful
excuse applying to offences in subsections 42B(1) and (2) in a separate new
subsection 42B(3). The note to the new subsection states that the defendant
bears an evidential burden in relation to the defence, as set out in subsection
13.3(3) of the Criminal Code. This means that if the defendant wishes to
raise the defence of lawful excuse, the defendant need only adduce or point to
evidence that suggests a reasonable possibility that the defence exists —
see subsection 13.3 (6) of the Criminal Code.
Item 56 -
Section 42C
94. In the same manner as items 53-55 above, items 56 and
57 amend section 42C of the Designs Act 1906 to set out the defence of
lawful excuse in a new subsection. Item 56 removes the words "shall not,
without lawful excuse," from section 42C and replaces them with the words "must
not". Item 57 below will set out the defence of lawful excuse in the same
manner as item 55 above. Section 42C makes it an offence for a person appearing
before the Commissioner to refuse, without lawful excuse: to be sworn or make an
affirmation; to produce documents or articles that a person is lawfully required
to produce; or to answer questions that the person is lawfully required to
answer.
Item 57 - At the end of section 42C
95. As
indicated above in respect of item 56, this item sets out the defence of lawful
excuse to an offence under section 42C in a separate new subsection 42C(2), and
includes a note to the new subsection stating that the defendant bears an
evidential burden in relation to the defence.
Item 58 - Subsection
45(1)
96. This item amends subsection 45(1) of the Designs Act
1906 by deleting the fault element of “knowingly”. Subsection
45(1) currently applies the fault element of knowledge (“knowingly”)
in relation to the physical elements of conduct, namely falsely representing
that any design applied to any article sold by him is registered. Following
application of the Criminal Code, the fault element of knowledge will be
restricted to physical elements of circumstance or result, and intention will be
the sole Criminal Code fault element that can be applied to a physical
element of conduct: see sections 5.2 and 5.3 of the Criminal Code.
Applying “knowingly” to a physical element of conduct in the
pre-Criminal Code environment is equivalent to applying the Criminal
Code fault element of intention. Accordingly this item proposes the
deletion of “knowingly” in subsection 45(1), and the appropriate and
equivalent Criminal Code default fault element, namely intention, will
apply by operation of section 5.6 of the Criminal Code.
Item 59
- Subsections 45A(1) and (2)
97. This item repeals subsections 45A(1)
and (2) of the Designs Act 1906. Along with item 61 below, it amends
section 45A of the Designs Act 1906 to repeal the provisions in that
section providing for the vicarious liability of a body corporate for offences
against the Act committed by a director, servant or agent of the body corporate.
The vicarious liability of a body corporate will, instead, be determined under
the provisions of Part 2.5 of the Criminal Code. The remaining
provisions in section 45A will continue to provide for the vicarious liability
of a person other than a body corporate (i.e. a natural person) for offences
against the Act committed by a servant or agent of the person. To indicate to
the reader that the expression 'servant' encompasses all employees (and not
merely personal servants) the section is given the new heading: 'Conduct of
employees and agents of natural persons'.
Item 60 - Subsection
45A(6)
98. This item amends subsection 45A(6) of the Designs Act
1906 to remove a reference to subsection (1), consequentially on the repeal
of subsection 45A(1) by item 59 above.
Item 61 - Subsection
45A(7)
99. This item repeals subsection 45(7). Along with item 59
above, it amends section 45A of the Designs Act 1906 to repeal the
provisions in that section providing for the vicarious liability of a body
corporate for offences against the Act committed by a director, servant or agent
of the body corporate.
Item 62 - Subsection
45A(9)
100. This item amends subsection 45A(9) of the Designs Act
1906 consequentially on the repeal of sections 7 and 7A, and subsection
86(1) of the Crimes Act 1914 — which deal with the ancillary
offences of attempt, incitement and conspiracy — and their replacement by
sections 11.1, 11.4, and 11.5 of the Criminal Code — which deal
with the same ancillary offences.
Item 63 - At the end of section
45A
101. This item adds a note to the end of the amended section 45A
(see item 59 above) directing the reader to Part 2.5 of the Criminal Code
for provisions relating to the vicarious liability of a body corporate.
Liquefied Petroleum Gas (Grants) Act 1980
Item 64 - After
section 3B
102. This item inserts proposed section 3C which applies
Chapter 2 (except Part 2.5) of the Criminal Code to all offences against
the Act. Chapter 2 establishes the codified general principles of criminal
responsibility. There is an exception in relation to Part 2.5 of the
Criminal Code which concerns corporate criminal responsibility. The Act
already has separate provisions in relation to corporate criminal responsibility
in relation to offences under that Act (subsections 7A(19), (20) and (20A)).
Part 2.5 of the Criminal Code contains general principles of corporate
criminal responsibility which when it was introduced in 1995 was in appropriate
cases recognised as requiring supplementation with specific provisions. This
Bill reflects the status quo in relation to special provisions concerning
corporate criminal responsibility. Therefore it has been decided to take the
approach of retaining existing special provisions in relation to corporate
criminal responsibility by excluding operation of Part 2.5.
103. The
standard note concerning Chapter 2 of the Criminal Code setting out the
principles of criminal responsibility is also added after this
provision.
Item 65 - Subsection 7A(12)
104. This item proposes two amendments to subsection 7A(12). First, subsection 7A(12) applies the fault element of knowledge (or “knowingly”) in relation to the proscribed physical element of conduct, namely a corporation’s obtaining the benefit of a payment or payments under a scheme or schemes to which it is not entitled. Following application of the Criminal Code, the fault element of knowledge will be restricted to physical elements of circumstance or result, and intention will be the sole Criminal Code fault element that can be applied to a physical element of conduct: see sections 5.2 and 5.3 of the Criminal Code. Accordingly, this item proposes the removal of “knowingly” in subsection 7A(12). With the removal of “knowingly” the fault element of “intention” will become the default fault element to be proven by the prosecution. It is considered that subsection 7A(12) will continue to operate in the same manner as at present following this amendment.
105. Second, this item proposes to amend subsection 7A(12) by removing the
reference to attempting to commit the primary offence in paragraph 7A(12) of
obtaining a benefit to which there is no entitlement. Reliance will instead be
placed upon the relevant general ancillary provision in the Criminal
Code, namely section 11.1 (attempt). This ancillary provision is present in
Chapter 2 of the Criminal Code, which is being applied to this Act by
item 64 of this Schedule and thus will be made applicable to this Act
simultaneous with the amendment proposed by this item.
Liquid
Fuel Emergency Act 1984
Item 66 - Subsection 3(1) (definition of
relevant provision of this Act)
106. This item removes the reference to “section 28” in the
definition of a “relevant provision of this Act” consequent upon the
proposed repeal of section 28 (see item 64 of this Schedule).
Item 67
- At the end of Part 1
107. This item inserts proposed section 11A
which applies Chapter 2 (except Part 2.5) of the Criminal Code to all
offences against the Act. Chapter 2 establishes the codified general principles
of criminal responsibility. There is an exception in relation to Part 2.5 of
the Criminal Code which concerns corporate criminal responsibility. The
Act already has separate provisions in relation to corporate criminal
responsibility in relation to offences under that Act (section 40). Part 2.5 of
the Criminal Code contains general principles of corporate criminal
responsibility which when it was introduced in 1995 was in appropriate cases
recognised as requiring supplementation with specific provisions. This Bill
reflects the status quo in relation to special provisions concerning corporate
criminal responsibility. Therefore it has been decided to take the approach of
retaining existing special provisions in relation to corporate criminal
responsibility by excluding operation of Part 2.5.
108. The standard note
concerning Chapter 2 of the Criminal Code setting out the principles of
criminal responsibility is also added after this provision.
Item 68
– Subsections 14(5)
109. Subsection 14(5) applies the fault
element of knowledge (or “knowingly”) in relation to the proscribed
physical element of conduct, namely maintaining or making available information
in relation to liquid fuels that is false or misleading. Following application
of the Criminal Code, the fault element of knowledge will be restricted
to physical elements of circumstance or result, and intention will be the sole
Criminal Code fault element that can be applied to a physical element of
conduct: see sections 5.2 and 5.3 of the Criminal Code. Accordingly this
item proposes the deletion of “knowingly maintain or make available
statistical information that" in subsection 14(5) and its replacement with the
phrase " maintain or make available statistical information knowing that it".
With this change, "knowingly" has been replaced with the equivalent Code
fault of "intention" in relation to the physical element of conduct of
maintaining or making information available and the fault element of "knowledge"
has been preserved in relation to the physical element of circumstance that the
information maintained or made available is false or misleading in a material
particular.
110. It is considered that subsection 14(5) will continue to operate in the
same manner as at present following this amendment.
Item 69 –
Section 28
111. This item proposes the repeal of section 28 to remove
references to: attempting to contravene a relevant provision of the Act; aiding,
abetting, counselling or procuring a person to contravene such a provision;
inducing a person to contravene such a provision; being knowingly concerned in
such a contravention; or conspiring with others to contravene such a provision.
These matters are ancillary to the primary offence of contravening a relevant
provision of the Act. Reliance will instead be placed upon the relevant general
ancillary provision in the Criminal Code, namely sections 11.1 (attempt),
11.2 (aiding, abetting, counselling or procuring the commission of a primary
offence), 11.4 (incitement) and 11.5 (conspiracy). These ancillary provisions
are present in Chapter 2 of the Criminal Code, which is being applied to
this Act by item 67 of this schedule and thus will be made applicable to this
Act simultaneous with the amendment proposed by this item.
Item 70
– After subsection 29(5)
112. This item inserts proposed subsection 29(5A) which applies strict liability to the offence contained in subsection 29(5) of the Act. The offence concerns the return of an identity card by a person authorised to exercise powers under the Act in the event that the person ceases to be an authorised person for the purposes of the Act. The maximum penalty for this offence is $100. The application of strict liability to this offence preserves the existing situation, namely that the offence is already one of strict liability. The offence concerns an administrative obligation which could be difficult to establish if the prosecution was required to prove intention with respect to the failure to return the card. This is the type of obligation which is usually interpreted to mean that the legislature intended that strict liability should apply. Another factor in determining whether strict liability applies is the penalty, which in this case is very low.
113. The standard note referring to section 6.1 of the Criminal
Code, which governs strict liability, is also added after this provision.
An explanation of “strict liability” appears at paragraph 12 above.
Item 71 – Subsection 30(2)
114. This item proposes
several amendments to subsection 30(2), which are achieved by the repeal and
substitution of new subsections 30(2), (2A) and (2B). First, subsection 30(2)
provides that a person shall not refuse or fail to comply with a notice under
section 30, concerning the furnishing of information or documents, to the extent
that the person is capable of complying with it. The penalty for this offence
is $1,000. Proposed paragraphs 30(2)(a) and (b) are used, respectively, to
separate the offences of 'refuse' (which implies a fault element) and 'fail'
(which does not imply a fault element). Proposed subsection 30(2B) applies
strict liability to the 'fail' offence. The application of strict liability to
this offence preserves the existing situation, namely that the offence is
already one of strict liability. The offence concerns a statutory obligation
which could be difficult to establish if the prosecution was required to prove
intention with respect to the failure to furnish information or documents. This
is the type of statutory obligation which is usually interpreted to mean that
the legislature intended that strict liability should apply. Another factor in
determining whether strict liability applies is the penalty, which in this case
is low. The standard note referring to section 6.1 of the Criminal Code,
which governs strict liability, is also added after this provision. An
explanation of “strict liability” appears at paragraph 12 above.
115. Second, the phrase "to the extent that the person is capable of
complying with it" has not been retained in proposed subsection 30(2) but has
been recreated by subsection 30(2A) which proposes that subsection (2) does not
apply to the extent that the person is not capable of complying with the notice.
The rationale for this amendment is to prevent future interpretation that the
capacity to comply element of this provision is an element of the offence, which
would have to be disproved in the negative by the prosecution. The proposed
amendment will put it beyond doubt that, to the extent that a person is
incapable of complying with a notice, this is a defence to the offence. This
item also adds the standard note after proposed subsection 30(2A) concerning the
imposition of an evidential burden on a defendant by subsection 13.3(3) of the
Criminal Code if a defendant relies on the incapacity to comply defence
established by subsection 30(2A).
Item 72 – Subsection
30(3)
116. Subsection 30(3) applies the fault element of knowledge
(or “knowingly”) in relation to the proscribed physical element of
conduct namely, in purported compliance with a notice under section 30,
furnishing information that is false or misleading in a material particular.
Following application of the Criminal Code, the fault element of
knowledge will be restricted to physical elements of circumstance or result, and
intention will be the sole Criminal Code fault element that can be
applied to a physical element of conduct: see sections 5.2 and 5.3 of the
Criminal Code. Accordingly this item proposes the deletion of
“knowingly furnish information that” in subsection 30(3) and its
replacement with the phrase "furnish information knowing that it". With this
change, "knowingly" has been replaced with the equivalent Code fault of
"intention" in relation to the physical element of conduct of furnishing
information and the fault element of "knowledge" has been preserved in relation
to the physical element of circumstance that the information furnished is false
or misleading in a material particular.
117. It is considered that subsection 30(3) will continue to operate in the
same manner as at present following this amendment.
Item 73 –
Subsection 34(3)
118. Consequent upon the proposed repeal of section 28 (see item 69 of this
Schedule) this item amends subsection 34(3), the net effect of which is to
update references to ancillary conduct by reference to the Criminal Code.
The substituted provision refers to Part 2.4 of the Criminal Code, which
governs ancillary offence provisions.
Management and Investment
Companies Act 1983
Item 74 – at the end of Part
1
119. This item inserts proposed section 4A which applies Chapter 2
of the Criminal Code to all offences against the Act. Chapter 2
establishes the codified general principles of criminal responsibility. The
standard note concerning Chapter 2 of the Criminal Code setting out the
principles of criminal responsibility is also added after this
provision.
National Measurement Act 1960
Item 75
– at the end of Part 1
120. This item inserts proposed section
6A which applies Chapter 2 of the Criminal Code to all offences against
the Act. Chapter 2 establishes the codified general principles of criminal
responsibility. The standard note concerning Chapter 2 of the Criminal Code
setting out the principles of criminal responsibility is also added after
this provision.
Item 76 –Section 18J
121. This item
proposes the repeal of section 18J, which applies Chapter 2 of the Criminal
Code only to Part VA of the National Measurement Act 1960. It is
consequential to the proposed amendment made by item 75.
Offshore
Minerals Act 1994
Item 77 - Section 11(1)
122. Subsection 11(1) currently applies
the fault elements of intention and recklessness (identified as "intentionally
or recklessly") to the physical element of conduct in relation to offence
provisions in subsections 364(3), 372(1), 385(1)(2) and 423(1) of the Act.
123. Following application of the Criminal Code, the fault element of
recklessness will be restricted to physical elements of circumstance or result,
and intention will be the sole Criminal Code fault element that can be applied
to a physical element of conduct: see sections 5.2 and 5.3 of the Criminal Code.
Accordingly this item proposes the deletion of recklessness from this provision,
as its present form would not operate in the same manner following application
of the Criminal Code. However the Criminal Code's default fault provision
(section 5.6) will preserve the operation of the fault element of recklessness
by applying it to all physical elements of circumstance in relation to
subsections 364(3), 372(1), 385(1)(2) and 423(1) of the Act. Similarly, the
fault element of intention will still continue to apply to the physical element
of conduct by virtue of section 5.6.
124. It is considered that
subsection 11(1) will continue to operate in the same manner as at present
following this amendment.
Item 78 - After section
11
125. This item adds a new section 11A which applies Chapter 2 of
the Criminal Code to all offences against the Offshore Minerals Act 1994.
Chapter 2 establishes the codified general principles of criminal
responsibility.
126. A standard note concerning Chapter 2 of the Criminal
Code setting out the general principles of criminal responsibility is also added
after this provision to clarify that this particular Chapter of the Code
applies.
Item 79 - Section 44(b)
127. Section 44 deals with
persons who unnecessarily interfere with other activities in a licence area or
special purpose consent granted under the Act. Paragraph 44(b) currently
applies the fault elements of intention and recklessness (identified as
"intentionally or recklessly") to the physical element of conduct in relation to
section 44 of the Act.
128. Following application of the Criminal Code,
the fault element of recklessness will be restricted to physical elements of
circumstance or result, and intention will be the sole Criminal Code fault
element that can be applied to a physical element of conduct: see sections 5.2
and 5.3 of the Criminal Code. Accordingly this item proposes the deletion of
recklessness from this provision, as its present form would not operate in the
same manner following application of the Criminal Code. However the Criminal
Code's default fault provision (section 5.6) will preserve the operation of the
fault element of recklessness by applying it to all physical elements of
circumstance in relation to sections 44 of the Act. Similarly, the fault
element of intention will still continue to apply to the physical element of
conduct by virtue of section 5.6 of the Criminal Code. Section 44 will
continue to operate in the same manner as at present following this
amendment.
Item 80 - Subsection 364(3)
129. This
subsection empowers the Designated Authority (the relevant State/Territory
Minister) to request the production of documents in respect to an application
for a transfer in a licence. This item proposes to repeal subsection 364(3) and
place the defence of reasonable excuse into a new subsection 364(4). The
rationale for this amendment is to prevent future interpretation that the
"reasonable excuse" element of this provision may be interpreted as an element
of the offence, which would have to be disproved in the negative by the
prosecution. The new subsection 364(4) puts it beyond doubt that "reasonable
excuse" is a defence to the offence.
130. A standard note advising that
a defendant bears an evidential burden in relation to the defence of "reasonable
excuse" has been added following subsection 364(4) to assist the
reader.
Item 81 - Subsection 372(1);and
Item 82 - After
subsection 372(1)
131. Subsection 372(1) requires a person to comply
with a request under section 367, 368, 370, or 371. Item 310 proposes to repeal
the words “without reasonable excuse” from subsection 371(1) and
place the defence of reasonable excuse into a new subsection 372(1A). The
rationale for this amendment is to prevent future interpretation that the
"reasonable excuse" element of this provision may be interpreted as an element
of the offence, which would have to be disproved in the negative by the
prosecution.
132. Item 315 inserts a new subsection 372(1A), which puts
it beyond doubt that "reasonable excuse" is a defence to the offence under
subsection 372(1). A standard note advising that a defendant bears an
evidential burden in relation to the defence of "reasonable excuse" has been
added to following subsection 364 (4) to assist the reader.
Item 83 -
At the end of subsection 404(4)
133. A standard note has been added
that clarifies the present situation in respect of the burden of proof in
respect a defence under subsection 404(4). It advises that a defendant bears a
legal burden as is the case at present in relation to a matter in subsection
404(4).
Item 84 - Subsection 404(5)
134. This item effectively amends subsection 404(5) by deleting references to
the ancillary offence elements of aiding, abetting, counselling or procuring the
primary offence in subsection 404(3). These ancillary offences are being
replaced by the equivalent ancillary offences contained in section 11.2 of the
Criminal Code, which will apply to this Act, by operation of this
Bill.
135. The substituted subsection 404(5) maintains the existing legal
burden on the defendant if he or she raises the defence as is the case at
present. The defence is reworded in language that is compliant with the
Criminal Code's principles of construction.
136. This change is
consistent with the minimalist approach to the harmonisation of existing
offences with the Criminal Code because it does not require any revisiting of
the original policy.
Item 85 - Section 423
137. Section
423 places an obligation on an inspector to return their identity card to the
Designated Authority as soon as possible after the termination of their
appointment to ensure the integrity of the identity card system is maintained.
138. This item proposes to insert the defence of reasonable excuse into
a new subsection (2). The rationale for this amendment is that the provision,
as it currently stands, could be interpreted so that the "reasonable excuse"
element of this provision could be considered as an element of the offence. The
prosecution, would have to prove that there was no "reasonable excuse" in order
to successfully prove that the offence was committed. The proposed amendment
puts it beyond doubt that it is a defence to the offence.
139. A
standard note advising that a defendant bears an evidentiary burden in relation
to the matter has been added to clarify the nature of the burden where a
defendant relies on the reasonable excuse defence, established by the proposed
subsection 423(2).
Patents Act 1990
Item 86 - At the
end of Chapter 1
140. This item amends Chapter 1 of the Patents
Act 1990 by inserting a new provision to apply Chapter 2 of the Criminal
Code to offences in that Act. Chapter 2 establishes the codified general
principles of criminal responsibility. The standard note concerning Chapter 2
of the Criminal Code setting out the principles of criminal
responsibility is also added after this provision.
Item 87 - Section
179
141. Items 87 and 88 amend section 179 of the Patents Act
1990 to set out the defence of lawful excuse in a new subsection. This
preserves the defence, currently set out in section 179, but avoids that defence
being mistakenly interpreted to be part of the elements of the offence to be
proved by the prosecution. Item 87 removes the words "without lawful excuse"
from section 179. Item 88 below will set out the defence of lawful excuse.
Section 179 currently makes it an offence for witnesses summoned by the
Commissioner of Patents (the Commissioner) to fail to comply with the summons,
without lawful excuse.
Item 88 - At the end of section
179
142. As indicated above in respect of item 87, this item sets out
the defence of lawful excuse in a separate new subsection 179(2). The note to
the new subsection states that the defendant bears an evidential burden in
relation to the defence, as set out in subsection 13.3(3) of the Criminal
Code. This means that if the defendant wishes to raise the defence of
lawful excuse, the defendant need only adduce or point to evidence that suggests
a reasonable possibility that the defence exists — see subsection 13.3 (6)
of the Criminal Code.
Item 89 - Section
180
143. In the same manner as items 87 and 88 above, items 89 and 90
amend section 180 of the Patents Act 1990 to set out the defence of
lawful excuse, currently in that section, in a new subsection. Item 89 removes
the words "without lawful excuse" from section 180. Item 90 below will set out
the defence of lawful excuse. Section 180 makes it an offence for a person
appearing before the Commissioner to refuse, without lawful excuse, to be sworn
or make an affirmation; or to refuse, without lawful excuse, to answer questions
that the person is lawfully required to answer.
Item 90 At the end of
section 180
144. As indicated above in respect of item 89, this item
sets out the defence of lawful excuse in a separate new subsection 180(2), and
includes a note to the new subsection stating that the defendant bears an
evidential burden in relation to the defence.
Item 91 - Section
181
145. In the same manner as items 87 and 88 above, items 91 and 92
amend section 181 of the Patents Act 1990 to set out the defence of
lawful excuse, currently in that section, in a new subsection. Item 91 removes
the words "without lawful excuse" from section 180. Item 92 below will set out
the defence of lawful excuse. Section 181 makes it an offence for a person
required by the Commissioner to produce a document or article to fail to produce
it, without lawful excuse.
Item 92 - At the end of section
181
146. As indicated above in respect of item 91, this item sets out
the defence of lawful excuse in a separate new subsection 181(2), and includes a
note to the new subsection stating that the defendant bears an evidential burden
in relation to the defence.
Item 93 - Section
191
147. Section 191 of the Patents Act 1990 currently applies
the fault elements of knowledge and recklessness (“knowingly or
recklessly”) in relation to the physical elements of conduct, namely the
physical elements described in paragraphs (a), (b) or (c) — making a false
entry in the Register of Patents; causing a false entry to be made in the
Register; or tendering in evidence a document that falsely purports to be a copy
of, or extract from, an entry in the Register. Following application of the
Criminal Code, the fault elements of knowledge and recklessness will be
restricted to physical elements of circumstance or result, and intention will be
the sole Criminal Code fault element that can be applied to a physical
element of conduct: see sections 5.2 and 5.3 of the Criminal Code.
Accordingly this item proposes the deletion of “knowingly or
recklessly” in section 191 and the appropriate default fault element,
namely intention, will apply by operation of Criminal Code section 5.6.
The fault element of intention is the direct Criminal Code equivalent of
“knowingly” where the latter has been applied to physical elements
of conduct, and the fault element of recklessness will apply by default to each
physical element of circumstance or result in section 191.
Item 94 Subsections 225(1) and (2)
148. This item
repeals subsections 225(1) and (2) of the Patents Act 1990. Along with
item 97 below it amends section 225 of the Patents Act 1990 to remove the
provisions in that section providing for the vicarious liability of a company
for offences against the Act committed by a director, servant or agent of the
company. The vicarious liability of a company will, instead, be determined under
the provisions of Part 2.5 of the Criminal Code. The remaining provisions
in section 225 will continue to provide for the vicarious liability of a person
other than a company (i.e. a natural person) for offences against the Act
committed by a servant or agent of the person. To indicate to the reader that
the expression 'servant' encompasses all employees (and not merely personal
servants) the section is given the new heading: 'Conduct of employees and agents
of natural persons'.
Item 95 Subsection 225(5)
149. This
item amends subsection 225(5) of the Patents Act 1990 consequentially on
the repeal of sections 5, 7 and 7A, and subsection 86(1) of the Crimes Act
1914 — which deal with the ancillary offences of aiding, abetting,
attempt, incitement and conspiracy — and their replacement by sections
11.1, 11.2, 11.4, and 11.5 of the Criminal Code — which deal with
the same ancillary offences.
Item 96 Subsection
225(7)
150. This item amends subsection 225(7) of the Patents Act
1990 to remove a reference to subsection (1), consequentially on the repeal
of subsection 225(1) by item 94 above.
Item 97 Subsection
225(8)
151. This item repeals subsection 225(8) of the Patents Act
1990 — see item 94 above.
Item 98 At the end of section
225
152. This item adds a note to the end of the amended section 225
(see item 94 above) directing the reader to Part 2.5 of the Criminal Code
for provisions relating to the vicarious liability of a body corporate (i.e. a
company).
Petroleum Excise (Prices) Act 1987
Item 99
- At the end of Part 1
153. This item inserts proposed section 4A
which applies Chapter 2 (except Part 2.5) of the Criminal Code to the
Act. Chapter 2 establishes the codified general principles of criminal
responsibility. There is an exception in relation to Part 2.5 of the Criminal
Code which concerns corporate criminal responsibility. The Act already has
a separate provision in relation to corporate criminal responsibility in
relation to offences under that Act (section 11). Part 2.5 of the Criminal
Code contains general principles of corporate criminal responsibility which
when it was introduced in 1995 was in appropriate cases recognised as requiring
supplementation with specific provisions. This Bill reflects the status quo in
relation to special provisions concerning corporate criminal responsibility.
Therefore it has been decided to take the approach of retaining the existing
special provisions in relation to corporate criminal responsibility by excluding
the operation of Part 2.5.
154. The standard note concerning Chapter 2 of
the Criminal Code setting out the principles of criminal responsibility
is also added after this provision.
Item 100 – At the end of
section 10
155. This item inserts proposed
subsection 10(8) which applies strict liability to the offence in subsection
10(7) of the Act. Subsection 10(7) provides that a person shall not fail to
comply with a requirement made of the person under section 10. Section 10
provides that a person may be required, by notice in writing, to furnish the
Minister or an authorised person with required information, to attend before the
Minister or authorised person to then and there answer questions, to produce to
the Minister or authorised person any documents in the custody or under the
control of the person, and to give an oath or affirmation that the information
or answers that the person will give will be true. In the case of a natural
person the offence carries a fine of $1,000 or imprisonment for 6 months, or
both. In the case of a body corporate the offence carries a fine of $5,000.
The application of strict liability to this offence preserves the existing
situation, namely that the offence is already one of strict liability. The
offence concerns statutory obligations which could be difficult to establish if
the prosecution was required to prove intention with respect to the failure to
meet requirements to provide information or evidence. This is the type of
obligation which is usually interpreted to mean that the legislature intended
that strict liability should apply. Another factor in determining whether
strict liability applies is the penalty, which in this case is
low.
156. The standard note referring to section 6.1 of the Criminal
Code, which governs strict liability, is also added after this provision.
An explanation of “strict liability” appears at paragraph 12 above.
Petroleum Retail Marketing Sites Act 1980
Item 101
– After section 8
157. This item inserts proposed section 9
which applies Chapter 2 of the Criminal Code to all offences against the
Act. Chapter 2 establishes the codified general principles of criminal
responsibility.
158. The standard note concerning Chapter 2 of the
Criminal Code setting out the principles of criminal responsibility is
also added after this provision.
Item 102 – Subsection 14(2)
159. This item proposes to remove the defence of reasonable excuse
from subsection 14(2). The defence is recreated in a new subsection 14(2A) (see
item 103 of this Schedule). The rationale for this amendment is to prevent
future interpretation that the reasonable excuse element of this provision is an
element of the offence, which would have to be disproved in the negative by the
prosecution. The proposed amendment will put it beyond doubt that a reasonable
excuse is a defence to the offence.
Item 103 – After subsection
14(2)
160. This item proposes the insertion of two new subsections.
First, consequent upon item 102 of this Schedule, this item inserts proposed
subsection 14(2A) which recreates the defence of reasonable excuse in relation
to an offence against subsection 14(2). This item also adds the standard note
after proposed subsection 14(2A) concerning the imposition of an evidential
burden on a defendant by subsection 13.3(3) of the Criminal Code if a
defendant relies on the reasonable excuse defence established by subsection
14(2A).
161. Second, this item inserts proposed subsection 14(2B) which
applies strict liability to the offence contained in subsection 14(2). The
application of strict liability to this offence preserves the existing
situation, namely that the offence is already one of strict liability.
Subsection 14(2) provides that a person must not fail to comply with a
requirement under section 14. The person can claim a defence if he or she has a
reasonable excuse. The offence carries a penalty of a fine not exceeding
$1,000. Section 14 gives an authorized officer the power to require a person to
produce books in the custody or under the control of a person that may be
relevant to retail sales of motor fuel and, if the books are not produced, may
require the person to state, to best knowledge and belief, where the books may
be found and to identify the person who last had custody of the books and where
that person may be found. This is a statutory obligation which could be
difficult to establish if the prosecution was required to prove intention with
respect to the failure to assist the inspector. This is the type of obligation
which is usually interpreted to mean that the legislature intended that strict
liability should apply. Another factor in determining whether strict liability
applies is the penalty, which in this case is low. The standard note referring
to section 6.1 of the Criminal Code, which governs strict liability, is
also added after this provision. An explanation of “strict
liability” appears at paragraph 12 above.
Petroleum
(Submerged Lands) Act 1967
Item 104 - At the end of Part
1
162. This item inserts proposed subsections 8AB(1) and (2). First,
subsection 8AB(1) applies Chapter 2 of the Criminal Code to the Act,
subject to subsection 8AB(2). Chapter 2 establishes the codified general
principles of criminal responsibility. The standard note concerning Chapter 2 of
the Criminal Code setting out the principles of criminal responsibility
is also added after this provision.
163. Second, subsection 8AB(2)
provides an exception in relation to Part 2.5 of the Criminal Code, which
concerns corporate criminal responsibility. The Act already has a separate
provision in relation to corporate criminal responsibility in relation to an
offence under Schedule 7 of that Act (Clause 50). Part 2.5 of the Criminal
Code contains general principles of corporate criminal responsibility which
when it was introduced in 1995 was in appropriate cases recognised as requiring
supplementation with specific provisions. This Bill reflects the status quo in
relation to special provisions concerning corporate criminal responsibility.
Therefore it has been decided to take the approach of retaining the existing
special provisions in relation to corporate criminal responsibility by excluding
the operation of Part 2.5.
Item 105 - Subsection
82(1)
164. This item proposes to insert subsection 82(1A) which
provides that strict liability is applied to the physical element of the offence
in subsection 82(1) that the instrument is an instrument of the kind referred to
in paragraph 81(4)(b). Subsection 82(1) prohibits a person from lodging with
the Designated Authority an instrument in relation to a transfer or dealing that
contains a statement that, to the knowledge of the person, is false or
misleading in a material particular in relation to the consideration paid or in
relation to any other fact or circumstance affecting the amount of fee
payable.
165. This physical element is an appropriate candidate for the
application of strict liability because in most applicable instances the person
concerned will not possess any fault element concerning this physical element,
and accordingly the offence would become almost unenforceable if the prosecution
were obliged to demonstrate fault. Further, the person’s degree of
culpability under this offence is not materially affected by absence of the
subject fault. However the defence of mistake of fact should be available to
the defendant, as this provision should not operate so as to criminalise the
conduct of persons who made a reasonable mistake of fact in relation to the
identity of the affected person. Accordingly strict liability, and not absolute
liability, is the appropriate application.
166. The standard note
referring to section 6.1 of the Criminal Code, which governs strict
liability, is also added after this provision. An explanation of “strict
liability” appears at paragraph 12 above.
Item 106 -
Subsection 84(2)
167. Subsection 84(2) applies the fault element of
knowledge (or “knowingly”) in relation to the proscribed physical
element of conduct, namely furnishing information to the Designated Authority
that is false or misleading. Following application of the Criminal Code,
the fault element of knowledge will be restricted to physical elements of
circumstance or result, and intention will be the sole Criminal Code
fault element that can be applied to a physical element of conduct: see
sections 5.2 and 5.3 of the Criminal Code. Accordingly this item proposes
the deletion of the phrase “shall not knowingly furnish information
that” in subsection 84(2) and its replacement with the phrase "must not
furnish information knowing that it". With this change, "knowingly" has been
replaced with the equivalent Code fault of "intention" in relation to the
physical element of conduct of furnishing information and the fault element of
"knowledge" has been preserved in relation to the physical element of
circumstance that the information furnished is false or misleading in a material
particular.
168. It is considered that subsection 84(2) will continue to
operate in the same manner as at present following this
amendment.
Item 107 - Subsection 85(2)
169. This item
proposes several amendments to subsection 85(2), which are achieved by the
repeal and substitution of subsection 85(2) and adding new subsections 85(3) and
(4). Subsection 85(2) provides that a person shall not fail or refuse to comply
with a requirement given under subsection (1) or (1A). These subsections
provide that the Designated Authority may require a person to produce documents
concerning a change in title due to devolution; a change in a company name; or a
change of a titleholder’s interests or rights in a title. The maximum
penalty for this offence is 50 penalty units. Proposed subsections 85(2) and (4)
are used, respectively, to separate the offences of 'fail' (which does not imply
a fault element) and 'refuse' (which implies a fault element). Proposed
subsection 85(3) applies strict liability to the 'fail' offence. The
application of strict liability to this offence preserves the existing
situation, namely that the offence is already one of strict liability. The
offence concerns a statutory obligation which could be difficult to establish if
the prosecution was required to prove intention with respect to the failure to
produce documents, or make them available for inspection. This is the type of
statutory obligation which is usually interpreted to mean that the legislature
intended that strict liability should apply. Another factor in determining
whether strict liability applies is the penalty, which in this case is
low.
170. The standard note referring to section 6.1 of the Criminal
Code, which governs strict liability, is also added after this provision.
An explanation of “strict liability” appears at paragraph 12 above.
Item 108 - Section 90
171. Section 90 uses the
non-Criminal Code fault element “wilfully” in relation to the
physical element of conduct, namely making, causing to be made, or concurring in
making, a false entry in a Register or producing or tendering in evidence a
document falsely purporting to be a copy or extract from an instrument or from
an entry in a Register. This is akin to applying the fault element of intention,
which is the equivalent used in the Criminal Code. This item proposes
the deletion of the word "wilfully" in section 90. The default fault element of
intention will then apply (see section 5.6 of the Criminal Code). It is
considered that section 90 will continue to operate in the same manner as at
present following this amendment.
Item 109 – At the end of
subsection 97(6) (before the penalty)
172. Section 97 provides that
a permittee, lessee, licensee or holder of a special prospecting authority shall
carry out activities in a proper and workmanlike manner and in keeping with good
oil-field practice. Subsection 97(6) provides that it is a defence if a person
charged with failing to comply with a provision of this section (or a defendant
in an action arising out of failure to comply) can prove that he took all
reasonable steps to comply with the provision. This provision imposes a legal
burden on the person or defendant (section 13.4 of the Code refers). This
means that the defendant must prove the existence of the matter. The note to
the subsection provides, as is the case, that the defendant bears a legal burden
in relation to the matters in subsection (6).
Item 110 – After
subsection 98(3)
173. This item inserts proposed subsection 98(3A)
which applies strict liability to the offences contained in subsections 98(2)
and (3) of the Act. The offences concern failure to maintain or remove
prescribed property. The maximum penalty for these offences is 100 penalty
units. The application of strict liability to these offences preserves the
existing situation, namely that the offences are already ones of strict
liability. The offences concern statutory obligations which could be difficult
to establish if the prosecution was required to prove intention with respect to
the failure to maintain or remove the property. This is the type of obligation
which is usually interpreted to mean that the legislature intended that strict
liability should apply. Another factor in determining whether strict liability
applies is the penalty, which in this case is low.
174. The standard note
referring to section 6.1 of the Criminal Code, which governs strict
liability, is also added after this provision. An explanation of “strict
liability” appears at paragraph 12 above.
Item 111 - After
subsection 101(7)
175. This item inserts proposed subsection 101(7A)
which applies strict liability to the offence contained in subsection 101(7) of
the Act. Subsection 101(7) provides that a person who fails to comply with a
direction in force under subsection 101(1) is guilty of an offence punishable,
upon conviction, by a fine not exceeding $10,000. Subsection 101(1) gives the
Designated Authority the power to give a titleholder a direction as to any
matter with respect to which regulations may be made. The application of strict
liability to the offence proscribed by subsection 101(7) preserves the existing
situation, namely that the offence is already one of strict liability. The
offence concerns a statutory obligation which could be difficult to establish if
the prosecution was required to prove intention with respect to the failure to
comply with a direction. This is the type of obligation which is usually
interpreted to mean that the legislature intended that strict liability should
apply.
176. The standard note referring to section 6.1 of the
Criminal Code, which governs strict liability, is also added after this
provision. An explanation of “strict liability” appears at
paragraph 12 above.
Item 112 - After subsection
101(8)
177. This item inserts the standard note after subsection (8)
concerning the imposition of an evidential burden on a defendant if a defendant
relies on the defence established by paragraph 101(8)(b).
Item 113 -
Section 117
178. This item proposes the repeal and substitution of
section 117 in order to achieve several amendments. First, subsection 117(a)
makes it an offence to refuse or fail to comply with an instrument under section
115 to the extent the person is capable of complying with it. Section 115 gives
the Designated Authority or an inspector the power to require a person to
furnish information in writing or to attend to answer questions on matters
relating to petroleum exploration, recovery and ancillary operations. The
maximum penalty for this offence is a fine of 100 penalty units. Proposed
paragraphs 117(1)(a) and (b) are used, respectively, to separate the offences of
'refuse' (which implies a fault element) and 'fail' (which does not imply a
fault element). Proposed subsection 117(3) applies strict liability to the
'fail' offence. The application of strict liability to this offence preserves
the existing situation, namely that the offence is already one of strict
liability. The offence concerns a statutory obligation which could be difficult
to establish if the prosecution was required to prove intention with respect to
the failure to comply with an instrument. This is the type of statutory
obligation which is usually interpreted to mean that the legislature intended
that strict liability should apply. Another factor in determining whether
strict liability applies is the penalty, which in this case is low. The
standard note referring to section 6.1 of the Criminal Code, which
governs strict liability, is also added after this provision. An explanation of
“strict liability” appears at paragraph 12 above.
179. Second, subsections 117(b) and (c) apply the fault element of
knowledge (or “knowingly”) in relation to the proscribed physical
element of conduct, namely furnishing information that is false or misleading,
or making a statement or producing a document that is false or misleading in a
material particular. Following application of the Criminal Code, the
fault element of knowledge will be restricted to physical elements of
circumstance or result, and intention will be the sole Criminal Code
fault element that can be applied to a physical element of conduct: see
sections 5.2 and 5.3 of the Criminal Code. Accordingly the repeal of this
section has the effect of deleting the phrase “knowingly furnish
information that is false and misleading” in subsection 117(b) and the
phrase "knowingly make a statement or produce a document that is false or
misleading" in subsection 117(c) and substituting the phrase "furnish
information knowing that it is false or misleading" in proposed paragraph
117(1)(c) and the phrase "make a statement or produce a document knowing that it
is false or misleading" in proposed paragraph 117(1)(d). With this change,
"knowingly" has been replaced with the equivalent Code fault of
"intention" in relation to the physical element of conduct of furnishing
information or making a statement and the fault element of "knowledge" has been
preserved in relation to the physical element of circumstance that the
information furnished or statement made is false or misleading in a material
particular. It is considered that proposed paragraphs 117(1)(c) and (d) will
operate in the same manner as subsections 117(b) and (c), respectively, operate
at present following this amendment.
180. Third, the phrase "to the
extent to which he is capable of complying with it" has not been retained in
proposed paragraphs 117(1)(a) and (b) but has been recreated by subsection
117(2) which proposes that paragraph (1)(a) or (b) does not apply to the extent
to which the person is not capable of complying with the requirement. The
rationale for this amendment is to prevent future interpretation that the
capacity to comply element of this provision is an element of the offence, which
would have to be disproved in the negative by the prosecution. The proposed
amendment will put it beyond doubt that, to the extent that a person is
incapable of complying with a notice, this is a defence to the offence. This
item also adds the standard note after proposed subsection 117(2) concerning the
imposition of an evidential burden on a defendant by subsection 13.3(3) of the
Criminal Code if a defendant relies on the incapacity to comply defence
established by subsection 117(2).
Item 114 - At the end of section
119
181. This item inserts proposed subsection 119(4) which applies
strict liability to the offence in subsection 119(3) of the Act. Subsection
119(3) provides that where a vessel enters or remains in a prohibited safety
zone (that has been gazetted for the purpose of protecting a well, structure or
any equipment) the owner and the person in command or in charge of the vessel
are each guilty of an offence against section 119 and are punishable, upon
conviction, by imprisonment for not more than 10 years. This subsection imposes
vicarious liability on both the owner and person in command of a vessel and, as
any defendant would not have the relevant fault, this is an offence of strict
liability. The application of strict liability to this offence preserves the
existing situation, namely that the offence is already one of strict liability.
The penalty for the offence is high (up to 10 years). The penalty is in keeping
with the potential for extensive injury/loss of human life and the potential
catastrophic damage to the environment should an unauthorised vessel in a safety
zone collide with a well, structure or any equipment associated with petroleum
exploration, development or ancillary activities.
182. The standard note
referring to section 6.1 of the Criminal Code, which governs strict
liability, is also added after this provision. An explanation of “strict
liability” appears at paragraph 12 above.
Item 115 –
Subsection 124A(1)
183. This item proposes to repeal and replace
subsection 124A(1) in order to achieve two amendments. First, paragraphs 124(a)
and (b) make it an offence to "damage" or "interfere" with a structure or vessel
or activities on a structure or vessel. These provisions are being amended to
remove the words "damage" and "interfere" as the active verbs and rephrased to
proscribe the actions of a person whose conduct, by performance of an act,
causes damage to, or interference with, the prescribed property. The rationale
for these amendments is that a person does not damage or interfere something,
rather the damage is the result of the person’s action and is not in
itself a physical element of conduct. It follows that retaining
“damage” or "interfere" as the active verbs in a criminal offence
may lead to real difficulties in interpreting the offence following application
of the Criminal Code. Constructing the offence in the amended form will
better identify the physical elements of conduct and result, and the fault
elements that attach to these physical elements. The fault element of intention
will still apply to the physical element of conduct by virtue of the Criminal
Code’s default fault provision (section 5.6). Similarly, the fault
element of recklessness will attach to the result of the person’s conduct,
namely the resultant interference or damage, and it will be necessary for the
prosecution to demonstrate that the person was reckless as to whether his or her
conduct would cause the resultant lack of maintenance or removal. Second, given
the reliance on the default fault elements, the words "intentionally or
recklessly" are deleted.
Item 116 - At the end of subsection
126(2)
184. This item inserts a penalty of 50 penalty units at the
end of subsection 126(2) to clarify that the penalty at the end of section 126
applies equally to subsection 126(2). This puts it beyond doubt that subsection
2 creates a criminal offence.
Item 117 – Subsection
126(3)
185. This item proposes to remove the defence of reasonable
excuse from subsection 126(3). The defence is recreated in a new subsection
126(4) (see item 118 of this Schedule). The rationale for this amendment is to
prevent future interpretation that the reasonable excuse element of this
provision is an element of the offence, which would have to be disproved in the
negative by the prosecution. The proposed amendment will put it beyond doubt
that a reasonable excuse is a defence to the offence.
Item 118 - At
the end of section 126
186. Consequent to item 117 of this Schedule, this item inserts proposed subsection 126(4) which recreates the defence of reasonable excuse in relation to an offence against subsection 126(3). This item also adds the standard note after proposed subsection 126(4) concerning the imposition of an evidential burden on a defendant by subsection 13.3(3) of the Criminal Code if a defendant relies on the reasonable excuse defence established by subsection 126(4).
Item 119 - Paragraph 133(1)(b)
187. This item repeals
paragraph 133(1)(b) of the Petroleum (Submerged Lands) Act and inserts
new paragraphs 133(1)(b) and (ba). Proposed paragraph (1)(b) retains the
existing reference to section 6 of the Crimes Act 1914 but paragraph
(1)(ba) substitutes references to section 11.1, 11.4 or 11.5 of the Criminal
Code for the existing references to sections 7 or 7A or subsection 86(1) of
the Crimes Act 1914.
188. Sections 7, 7A and 86(1) of the
Crimes Act 1914 are concerned with the offences of attempt, inciting or
urging and conspiracy. These sections of the Crimes Act 1914 are
repealed by the Law and Justice Legislation Amendment (Application of
Criminal Code) Act 2000. These offences are replaced by equivalent
provisions of the Criminal Code in the new paragraph
133(1)(ba).
Item 120 - After subsection 140D(1)
189. This
item inserts proposed subsection 140D(1A) which applies strict liability to the
offence in subsection 140D(1) of the Act. Subsection 140D(1) provides that
where a vessel (not being an exempt vessel) enters or remains without
authorisation in a gazetted area to be avoided, the owner and master of the
vessel are each guilty of an offence punishable, on conviction, by a fine not
exceeding $50,000 or imprisonment for a period not exceeding 5 years, or both.
This subsection imposes vicarious liability on both the owner and master of a
vessel and, as any defendant would not have the relevant fault, this is an
offence of strict liability. The application of strict liability to this
offence preserves the existing situation, namely that the offence is already one
of strict liability. The penalty for the offence is high (up to 5 years
imprisonment or a fine, or both). The penalty is in keeping with the potential
for extensive injury/loss of human life and the potential catastrophic damage to
the environment should an unauthorised vessel in an area to be avoided collide
with a well, pipeline, structure or any equipment associated with petroleum
exploration, development or ancillary activities.
190. The standard note
referring to section 6.1 of the Criminal Code, which governs strict
liability, is also added after this provision. An explanation of “strict
liability” appears at paragraph 12 above.
Item 121 - After
subsection 140D(2)
191. Subsection 140D(2) provides that it is a
defence to a prosecution for an offence against subsection (1) in relation to a
vessel, without authorisation, entering, or remaining in, the area to be avoided
if the person charged satisfies the court that an unforseen emergency rendered
it necessary for the vessel to enter or remain in the area for specified safety
purposes or the vessel entered or remained in the area in circumstances not
under the control of the person who was in charge of the navigational watch of
the vessel. This provision imposes a legal burden on the person or defendant
(section 13.4 of the Code refers). This means that the defendant must
prove the existence of the matter. The note to the subsection provides, as is
the case, that the defendant bears a legal burden in relation to the matters in
subsection (2).
Item 122 - After subsection
140E(2)
192. This item inserts proposed subsection 140E(2A) which
applies strict liability to the offence contained in paragraph 140E(2)(a) of the
Act. The offence concerns the failure of a person to facilitate by all
reasonable means the boarding of a vessel by an authorised person pursuant to
subsection (1). The maximum penalty for this offence is a fine not exceeding 50
penalty units. The application of strict liability to this offence preserves
the existing situation, namely that the offence is already one of strict
liability. The offence concerns a statutory obligation which could be difficult
to establish if the prosecution was required to prove intention with respect to
the failure to facilitate boarding of the vessel. This is the type of
obligation which is usually interpreted to mean that the legislature intended
that strict liability should apply. Another factor in determining whether
strict liability applies is the penalty, which in this case is low.
193. The standard note referring to section 6.1 of the Criminal Code,
which governs strict liability, is also added after this provision. An
explanation of “strict liability” appears at paragraph 12 above.
Item 123 - Clause 2 of Schedule 7 (definition of
contravention)
194. This item repeals the definition of
'contravention' in clause 2 of Schedule 7 of the Petroleum (Submerged Lands)
Act 1967 and inserts a new definition. The new definition retains the
existing reference to section 6 of the Crimes Act 1914 but substitutes
references to section 11.1, 11.4 or 11.5 of the Criminal Code for the
existing references to sections 7 or 7A or subsection 86(1) of the Crimes Act
1914.
195. Sections 7, 7A and 86(1) of the Crimes Act 1914 are
concerned with the offences of attempt, inciting or urging and conspiracy.
These sections of the Crimes Act 1914 are repealed by the Law and
Justice Legislation Amendment (Application of Criminal Code) Act 2000.
These offences are replaced by equivalent provisions of the Criminal Code
in the definition of contravention.
Item 124 - Subclause 32(2) of Schedule 7
196. This
item proposes to remove the defence of reasonable excuse from subclause 32(2).
The defence is recreated in a new subclause 32(2A) (see item 125 of this
Schedule). The rationale for this amendment is to prevent future interpretation
that the reasonable excuse element of this provision is an element of the
offence, which would have to be disproved in the negative by the prosecution.
The proposed amendment will put it beyond doubt that a reasonable excuse is a
defence to the offence.
Item 125 - After subclause 32(2) of Schedule
7
197. This item proposes two further amendments to clause
32. First, consequent upon item 124 of this Schedule, this item inserts
proposed subclause 32(2A) which recreates the defence of reasonable excuse in
relation to an offence against subclause 32(2). This item also adds the standard
note after proposed subclause 32(2A) concerning the imposition of an evidential
burden on a defendant by subclause 13.3(3) of the Criminal Code if a
defendant relies on the reasonable excuse defence established by subclause
32(2A).
198. Second, this item inserts proposed subclause 32(2B) which
applies strict liability to the offence contained in subclause 32(2). Subclause
32(2) provides that a person must not fail to comply with a requirement under
clause 32. The person can claim a defence if he or she has a reasonable excuse.
The application of strict liability to this offence preserves the existing
situation, namely that the offence is already one of strict liability. The
offence carries a penalty of imprisonment for 6 months. Clause 32 gives an
inspector, to the extent that it is reasonably necessary to do so in connection
with an investigation, the power to require a prescribed person to give to the
investigator reasonable assistance, answers to questions and documents
requested. This is a statutory obligation which could be difficult to establish
if the prosecution was required to prove intention with respect to the failure
to assist the inspector. This is the type of obligation which is usually
interpreted to mean that the legislature intended that strict liability should
apply. Another factor in determining whether strict liability applies is the
penalty, which in this case is low. The standard note referring to section 6.1
of the Criminal Code, which governs strict liability, is also added after
this provision. An explanation of “strict liability” appears at
paragraph 12 above.
Item 126 - Subclause 32(3) of Schedule
7
199. Subclause 32(3) applies the fault element of knowledge
(“knowingly”) and recklessness ("recklessly") in relation to the
proscribed physical element of conduct, namely, furnishing information to an
inspector, in connection with the conduct of an investigation, that is false or
misleading in a material particular. The use of 'knowingly' is akin to applying
the fault element of intention, which is the equivalent used in the Criminal
Code. Following application of the Criminal Code, the fault elements
of knowledge and recklessness will be restricted to physical elements of
circumstance or result, and intention will be the sole Criminal Code
fault element that can be applied to a physical element of conduct: see
sections 5.2 and 5.3 of the Criminal Code. Accordingly this item proposes
the deletion of “knowingly or recklessly” in subclause 32(3). Upon
application of the Criminal Code, its default fault provision (section
5.6) will apply the fault element of intention to each physical element of
conduct and the fault element of recklessness to each physical element of
circumstance or result in subclause 32(3). It is considered that subclause
32(3) will continue to operate in the same manner as at present following this
amendment.
Item 127 - Clause 39 of Schedule 7
200. This
item proposes to remove the defence of reasonable excuse from clause 39 of
Schedule 7. The defence is recreated in a new subclause 39(2), see item 128 of
this Schedule. The rationale for this amendment is to prevent future
interpretation that the reasonable excuse element of this provision is an
element of the offence, which would have to be disproved in the negative by the
prosecution. The proposed amendment will put it beyond doubt that a reasonable
excuse is a defence to the offence.
Item 128 - At the end of clause 39
of Schedule 7
201. This item inserts two new subclauses.
First, consequent upon item 127 of this Schedule, this item inserts proposed
subclause 39(2) which recreates the defence of reasonable excuse in relation to
an offence against subclause 39(1). This item also adds the standard note after
proposed subclause 39(2) concerning the imposition of an evidential burden on a
defendant by subsection 13.3(3) of the Criminal Code if a defendant
relies on the reasonable excuse defence established by subclause
39(2).
202. Second, this item inserts proposed subclause 39(3) which
applies strict liability to the offence contained in subclause 39(1) of the Act.
The offence concerns tampering with a written notice issued by an inspector in
conducting an investigation while that notice is displayed, or removing a notice
before prescribed actions have been completed, or before the notice has ceased
to have effect. The penalty for this offence is imprisonment for 6 months. The
application of strict liability to this offence preserves the existing
situation, namely that the offence is already one of strict liability. The
offence concerns a statutory obligation which could be difficult to establish if
the prosecution was required to prove intention with respect to tampering with
or removing the notice. This is the type of obligation which is usually
interpreted to mean that the legislature intended that strict liability should
apply. Another factor in determining whether strict liability applies is the
penalty, which in this case is low.
203. The standard note referring to
section 6.1 of the Criminal Code, which governs strict liability, is also
added after this provision. An explanation of “strict liability”
appears at paragraph 12 above.
Item 129 - Clause 45 of Schedule
7
204. This item proposes several amendments to subclause 45 of
Schedule 7 which are achieved by the repeal of clause 45 and its substitution
with proposed subclauses 45(1) and (2). Clause 45 provides that a person must
not, without reasonable excuse, wilfully or recklessly, interfere with or render
ineffective, or require or cause another person to interfere with or render
ineffective, prescribed protective equipment or safety devices. First, this
clause applies the fault element of recklessness and the non-Criminal
Code element of wilfully in relation to the physical element of conduct,
namely interfering with, or rendering ineffective, prescribed protective
equipment or safety devices. The use of 'wilfully' is akin to applying the fault
element of intention, which is the equivalent used in the Criminal Code.
Following application of the Criminal Code, intention will be the sole
Criminal Code fault element that can be applied to a physical element of
conduct (see sections 5.2 and 5.5 of the Criminal Code.) This item
therefore omits the words "wilfully or recklessly" from proposed subclause
45(1), which proposes that a person must not perform an act that results in the
interference with or the rendering ineffective of, prescribed equipment or
devices. With this amendment the fault element of intention will apply by
default to each physical element of conduct and the fault element of
recklessness will apply by default to each physical element of circumstance or
result in clause 45.
205. Second, clause 45 is being amended to remove
the phrase “interfere with or render ineffective” as the active
verbs and rephrased to provide that a person must not "perform an act that
results in the interference with, or rendering ineffective of, any protective
equipment or safety device". The rationale for this amendment is that a person
does not interfere with or render ineffective prescribed equipment and devices,
rather the interference or rendering ineffective is the result of the person's
conduct, by performance of an act, and is not in itself a physical element of
conduct. It follows that retaining “interfere” or "render" as the
active verbs in a criminal offence may lead to real difficulties in interpreting
the offence following application of the Criminal Code. Constructing the
offence in the amended form will better identify the physical elements of
conduct and result, and the fault elements that attach to these physical
elements. As stated in the first paragraph of the Note for this item, the fault
element of intention will still apply to the physical element of conduct by
virtue of the Criminal Code’s default fault provision (section
5.6). Similarly, the fault element of recklessness will attach to the result of
the person’s conduct, namely the resultant interference or rendering
ineffective and it will be necessary for the prosecution to demonstrate that the
person was reckless as to whether his or her conduct would cause the resultant
interference or rendering ineffective of the prescribed equipment or
devices.
206. Third, this item moves the defence of reasonable excuse
from clause 45 to proposed subclause 45(2). The rationale for this amendment is
to prevent future interpretation that the reasonable excuse element of this
provision is an element of the offence, which would have to be disproved in the
negative by the prosecution. The proposed amendment will put it beyond that a
reasonable excuse is a defence to the offence. This item also adds the standard
note after proposed subclause 45(2) concerning the imposition of an evidential
burden on a defendant by subsection 13.3(3) of the Criminal Code if a
defendant relies on the reasonable excuse defence established by subclause
45(2).
207. Fourth, this item proposes to amend subclause 45 by not
retaining the reference to requiring or otherwise causing another person to
interfere with or render ineffective prescribed protective equipment or safety
devices. Reliance will instead be placed upon the relevant general ancillary
provision in the Criminal Code, namely section 11.2 (aiding, abetting,
counselling or procuring the commission of a primary offence) and 11.4
(incitement). These ancillary provisions are present in Chapter 2 of the
Criminal Code, which is being applied to this Act by item 104 of this
schedule and thus will be made applicable to this Act simultaneous with the
amendment proposed by this item.
Item 130 - Paragraphs 48(1)(b) and
(c) of Schedule 7
208. This item proposes to repeal and replace
paragraphs 48(1)(b) and (c) of Schedule 7 in order to achieve two amendments.
First, paragraph 48(1)(b) is being amended to remove the word
“injure” as the active verb and rephrased to provide that an
employer must not "perform an act that results in injury to an employee in his
or her employment". Second, paragraph 48(1)(c) is being amended to remove the
word "[prejudicially] alter" as the active verb and rephrased to provide that an
employer must not "perform an act that prejudicially alters the employee's
position...". The rationale for these two amendments is that an employer does
not injure an employee or prejudicially alter the employee's position, rather
the injury or alteration is the result of the employer's conduct, by performance
of an act, and is not in itself a physical element of conduct. It follows that
retaining “injure” or "alter" as the active verb in a criminal
offence may lead to real difficulties in interpreting the offence following
application of the Criminal Code. Constructing the offence in the
amended form will better identify the physical elements of conduct and result,
and the fault elements that attach to these physical elements. The fault
element of intention will still apply to the physical element of conduct by
virtue of the Criminal Code’s default fault provision (section
5.6). Similarly, the fault element of recklessness will attach to the result of
the person’s conduct, namely the resultant injury or prejudicial
alteration of position, and it will be necessary for the prosecution to
demonstrate that the person was reckless as to whether his or her conduct would
cause the resultant injury or prejudicial alteration of position.
Item
131 - At the end of subclause 48(2) of Schedule 7
209. Subclause
48(1) of Schedule 7 provides that an employee must not dismiss an employee or
act in certain prescribed ways detrimental to the employee because the employee
has complained, or proposes to complain, about a matter concerning the health,
safety or welfare of employees at work or because the employee has assisted, or
proposes to assist, in the conduct of an investigation or because the employee
has ceased, or proposes to cease, to perform work in accordance with a (valid
and current) direction by a health and safety representative. Subclause 48(2)
provides that in proceedings for an offence against subclause (1), if all the
relevant facts and circumstances, other than the reason for an action alleged in
the charge, are proved, it lies upon the defendant to establish that the action
was not taken for that reason.
210. This provision imposes a legal burden
on the person or defendant (section 13.4 of the Code refers). This means
that the defendant must prove the existence of the matter. The note to the
subclause provides, as is the case, that the defendant bears a legal burden in
relation to the matters in subclause (2).
Item 132 - At the end of
clause 52 of Schedule 7
211. Clause 52 provides that it is a defence
to a prosecution for refusing or failing to do anything required by the Act or
the regulations (insofar as Schedule 7 is applicable pursuant to subsection
140H(2) of the Act) if the defendant proves that it was not practicable to do it
because of an emergency prevailing at the relevant time.
212. This
provision imposes a legal burden on the person or defendant (section 13.4 of the
Code refers). This means that the defendant must prove the existence of
the matter. The note to the clause provides, as is the case, that the defendant
bears a legal burden in relation to the matters in clause
52.
Petroleum (Timor Gap Zone of Cooperation) Act 1990
Item 133 – At the end of Part 1
213. This item
inserts proposed section 5A which applies Chapter 2 of the Criminal Code
to all offences against the Act. Chapter 2 establishes the codified general
principles of criminal responsibility.
214. The standard note concerning
Chapter 2 of the Criminal Code setting out the principles of criminal
responsibility is also added after this provision.
Item 134 - At the
end of subsection 9(2)
215. This item inserts a penalty of $5,000 at
the end of subsection 9(2) to clarify that the penalty at the end of section 9
applies equally to subsection 9(2). This puts it beyond doubt that subsection 2
creates a criminal offence.
Item 135 – Subsection
9(3)
216. This item proposes the removal of the defence of reasonable
excuse from subsection 9(3). The defence is recreated in a new subsection 9(4),
see item 136 of this Schedule. The rationale for this amendment is to prevent
future interpretation that the reasonable excuse element of this provision is an
element of the offence, which would have to be disproved in the negative by the
prosecution. The proposed amendment will put it beyond doubt that a reasonable
excuse is a defence to the offence.
Item 136 - At the end of section
9
217. Consequent upon item 135, this item inserts proposed
subsection 9(4) which recreates the defence of reasonable excuse in relation to
an offence against subsection 9(3). This item also adds the standard note after
subsection 9(4) concerning the imposition of an evidential burden on a defendant
by subsection 13.3(3) of the Code if a defendant relies on the reasonable
excuse defence established by subsection 9(4).
Pooled Development
Funds Act 1993
Item 137 – At the end of Part
1
218. This item inserts proposed section 4B which applies Chapter 2
of the Criminal Code to all offences against the Act. Chapter 2
establishes the codified general principles of criminal responsibility. The
standard note concerning Chapter 2 of the Criminal Code setting out the
principles of criminal responsibility is also added after this
provision.
Item 138 – Subsection 28(2B)
219. This
item reconstructs subsection 28(2B), which is effected by repealing and
replacing the subsection. The reconstruction is made to clarify the
offence’s physical elements, which are described in paragraphs (a) to (d),
and to ensure that the correct default fault element of intention or
recklessness applies to each physical element as appropriate.
Item 139
– Subsection 28(3)
220. This item inserts a new subsection
28(3) which creates a definition of “engage in conduct” for the
purposes of section 28. The definition provides that “engage in
conduct” means to do an act or omit to perform an act. The definition,
which is drawn from the Criminal Code, is utilised in the offence in
reconstructed subsection 28(2B) (see item 138) where it is intended that the
offence shall capture the conduct of a defendant who contravenes subsection
28(2B) through active conduct or through omission to comply.
Item 140
– Subsection 42(1)
221. This item amends subsection 42(1) by
replacing “becoming aware” with “the PDF knows”. This
amendment is necessary because, if left unamended, then following application of
the Criminal Code the phrase “becoming aware” would
constitute a physical element of circumstance, to which the default fault
element of recklessness would attach. The effect would be that the prosecution
would be required to prove that the defendant was reckless as to becoming aware
of the relevant event – in other words reckless as to knowing the relevant
fact – which would be an unworkable proposition. The amendment ensures
that this element of the offence remains a simple fault element of knowing the
relevant fact.
Item 141 – Section 49
222. This item
amends section 49 by replacing “becomes aware” with
“knows”. This amendment is necessary because, if left unamended,
then following application of the Criminal Code the phrase “becomes
aware” would constitute a physical element of circumstance, to which the
default fault element of recklessness would attach. The effect would be that
the prosecution would be required to prove that the defendant was reckless as to
becoming aware of the relevant event – in other words reckless as to
knowing the relevant fact – which would be an unworkable proposition. The
amendment ensures that this element of the offence remains a simple fault
element of knowing the relevant fact.
Item 142 – Paragraphs
50(3)(a), (b) and (d)
223. Paragraphs 50(3)(a), (b) and (d) apply the fault elements of knowledge
and recklessness (“knowingly or recklessly”) in relation to the
physical elements of conduct in these paragraphs. Following application of the
Criminal Code, the fault elements of knowledge and recklessness will be
restricted to physical elements of circumstance or result, and intention will be
the sole Criminal Code fault element that can be applied to a physical
element of conduct: see sections 5.2 and 5.3 of the Criminal Code.
Accordingly this item proposes the deletion of “knowingly or
recklessly” in paragraphs 50(3)(a), (b) and (d) and the appropriate fault
element, namely intention, will apply by operation of the Criminal
Code’s default fault provision (section 5.6). The fault element of
intention is the direct Criminal Code equivalent of pre-Criminal Code
“knowingly” where the latter has been applied to physical
elements of conduct, and the fault element of recklessness will apply by default
to each physical element of circumstance or result in paragraphs 50(3)(a), (b)
and (d): see Criminal Code section 5.6. It is considered that
paragraphs 50(3)(a), (b) and (d) will continue to operate in the same manner as
at present following this amendment.
Item 143 – Subsections
51(1) and (2), and
Item 144 – At the end of sections 51.
224. These items propose to remove the defences of reasonable excuse from subsections 51(1) and (2) and recreate them in a new subsection 51(3). The rationale for this amendment is to prevent future interpretation that the reasonable excuse element of this provision is an element of the offence, which would have to be disproved in the negative by the prosecution, and puts it beyond doubt that it is a defence to the offence.
225. The standard note is added after proposed subsection 51(3) concerning
the imposition of an evidential burden on a defendant by subsection 13.3(3) of
the Criminal Code if a defendant relies on the reasonable excuse defence
established by subsection 51(3).
Scout Association Act 1924
Item 145 - After section 1
226. This item amends the
Scout Association Act 1924 by inserting a new provision to apply
Chapter 2 of the Criminal Code to offences in that Act. Chapter 2
establishes the codified general principles of criminal responsibility. The
standard note concerning Chapter 2 of the Criminal Code setting out the
principles of criminal responsibility is also added after this
provision.
Item 146 - At the end of section 4 (after the
penalty)
227. This item adds a note to section 4 of the Scout
Association Act 1924, stating that the defendant bears a legal burden, and
directing the reader to section 13.4 of the Criminal Code — which sets out
the circumstances in which a law may impose such a burden.
228. Section
4 of the Scout Association Act 1924 currently imposes on a defendant the
legal burden of proving that the defendant was authorised by the Scout
Association, or the Local Branch (e.g. the Scout Association of Australia), to
use any uniform, emblem, badge etc. registered in the Register of
Designs.
Trade Marks Act 1995
Item 147 - Reader's
Guide (last paragraph under the heading "Crimes Act
1914")
229. This item repeals that paragraph from the Reader's
Guide to the Trade Marks Act 1995, consequentially on the application of
the Criminal Code to Commonwealth legislation.
Item 148 -
Reader's Guide (before the heading "Trade Marks Act
1955")
230. This item inserts new text into the Reader's Guide to
the Trade Marks Act 1995, consequentially on the application of the
Criminal Code to Commonwealth legislation.
Item 149 - After
section 4
231. This item amends Part 1 of the Trade Marks Act
1995 by inserting a new provision to apply Chapter 2 of the Criminal
Code to offences in the Act. Chapter 2 establishes the codified general
principles of criminal responsibility. The standard note concerning Chapter 2
of the Criminal Code setting out the principles of criminal
responsibility is also added after this provision.
Item 150 -
Subsection 143(2)
232. This item amends subsection 143(2) of the
Trade Marks Act 1995 by deleting “intentionally or
recklessly”. Subsection 143(2) currently applies the fault elements of
intention and recklessness (“intentionally or recklessly”) to the
physical element of conduct — namely, the importer or their agent failing
to comply with the Customs CEO’s request for information or documents.
Following application of the Criminal Code, the fault element of
recklessness will be restricted to physical elements of circumstance or result,
and intention will be the sole Criminal Code fault element that can be
applied to a physical element of conduct: see sections 5.2 and 5.3 of the
Criminal Code. Accordingly this item proposes the deletion of the fault
elements from subsection 143(2), as its present form would not operate in the
same manner following application of the Criminal Code. However the
Criminal Code’s default fault provision (section 5.6) will preserve
the operation of the fault elements of intention and recklessness by applying
them respectively to the physical elements of conduct and circumstance in
subsection 143(2).
Item 151 - Subsection 145(1)
233. In the
same manner as item 150 above, this item amends subsection 145(1) by deleting
“intentionally or recklessly”. Subsection 145(1) currently applies
the fault elements of intention and recklessness (“intentionally or
recklessly”) to the physical element of conduct — namely falsifying
or unlawfully removing a registered trade mark, knowing that, or reckless of
whether or not, the trade mark is registered.
Item 152 - Subsection
146(1)
234. In the same manner as item 150 above, this item amends
subsection 146(1) by deleting “intentionally or recklessly”.
Subsection 146(1) currently applies the fault elements of intention and
recklessness (“intentionally or recklessly”) to the physical element
of conduct — namely, falsely applying a registered trade mark to goods, or
in relation to goods or services, knowing that, or reckless of whether or not,
the trade mark is registered.
Item 153 - At the end of section
147
235. This item proposes to insert new subsection 147(4) which
provides that strict liability is applied to the physical element of the
offences in subsection 147(1), (2) and (3) - that the offence referred to in
paragraph (1)(a), (1)(b), (2)(a), (2)(b) or subsection (3) is an offence against
section 145 or 146. The offences set out in sections 145, 146 and 147 relate to
the counterfeiting and forgery of trade marks, serving to protect the commercial
activities of the registered owner of a trade mark and preventing deception of
consumers.
236. This physical element is an appropriate candidate for the
application of strict liability because in most applicable instances the person
concerned will not possess any fault element concerning this physical element,
and accordingly the offence would become almost unenforceable if the prosecution
were obliged to demonstrate fault. Further, the person’s degree of
culpability under this offence is not materially affected by absence of the
subject fault.
237. The standard note referring to section 6.1 of the
Criminal Code, which governs strict liability, is also added after this
provision.
Item 154 - Subsection 150(2)
238. This item
amends subsection 150(2) of the Trade Marks Act 1995 consequentially on
the repeal of section 5 of the Crimes Act 1914 — which deals with
the ancillary offence of aiding, abetting, counselling or procuring an
offence— and its replacement by section 11.2 of the Criminal Code
— which deals with same ancillary offence, now called complicity and
common purpose.
Item 155 - Subsections 151(1), (2), (3) and
(4)
239. In the same manner as item 150 above, this item amends
subsections 151(1), (2), (3) and (4) by deleting “intentionally or
recklessly". Those subsections apply the fault elements of intention and
recklessness (“intentionally or recklessly”) to the physical
elements of conduct in those subsections — making certain representations
regarding trade marks (including whether a trade mark is registered in
Australia), unless the person has knowledge, or has reasonable grounds for their
belief.
Item 156 - Subsections 153(1) and (2)
240. Items 156 and 157 amend section 153 of the Trade Marks Act 1995
to set out the defence of reasonable excuse in a new subsection. This
preserves the defence, currently set out in subsections 153(1) and (2), but is
intended to avoid that defence being mistakenly interpreted to be part of the
elements of the offence to be proved by the prosecution. Item 156 removes the
words "without reasonable excuse" from subsections 153(1) and (2). Item 157
below will set out the defence of reasonable excuse to apply to offences under
both of those subsections. Section 153 provides that it is an offence for a
person to disobey a summons to appear as a witness before the Registrar, or to
fail to produce a document or thing when required to do so by the Registrar of
Trade Marks (the Registrar).
Item 157 - After subsection
153(2)
241. As indicated above in respect of item 156, this item sets
out the defence of reasonable excuse applying to offences in subsections 153(1)
and (2) in a separate new subsection 153(2A). The note to the new subsection
states that the defendant bears an evidential burden in relation to the defence,
as set out in subsection 13.3(3) of the Criminal Code. This means that if
the defendant wishes to raise the defence of lawful excuse, the defendant need
only adduce or point to evidence that suggests a reasonable possibility that the
defence exists — see subsection 13.3 (6) of the Criminal Code.
Item 158 - Subsection 153(3) (note 2)
242. This item
repeals note 2 to subsection 153(3), which defines an offence of strict
liability, and replaces it with a note referring to section 6.1 of the
Criminal Code — which sets out the consequences of an offence being
of strict liability. Subsection 153(3) currently provides that an offence under
section 153 is an offence of strict liability. An explanation of “strict
liability” appears at paragraph 12 above.
Item 159 - Subsection
154(1)
243. In the same manner as items 156 and 157 above, items 159
and 160 amend section 154 of the Trade Marks Act 1995 to set out the
defence of reasonable excuse in a new subsection. Item 159 removes the words
"without reasonable excuse" from subsection 154(1). Item 160 below will set out
the defence of reasonable excuse to apply to an offence under that subsection.
Section 154 provides that it is an offence for a person appearing before the
Registrar as a witness: to refuse to be sworn or to make an affirmation; to
refuse to answer questions that the person is lawfully required to answer; or to
fail to produce a document or thing that the person is lawfully required to
produce.
Item 160 - After subsection 154(1)
244. As
indicated above in respect of item 159, this item sets out the defence of
reasonable excuse to an offence under subsection 154(1) of the Trade Marks
Act 1995 in a separate new subsection 154(1A), and includes a note to the
new subsection stating that the defendant bears an evidential burden in relation
to the defence.
Item 161 - Subsection 154(2) (note
2)
245. In the same manner as item 158, this item repeals note 2 to
subsection 154(2) and replaces it with a note referring to section 6.1 of the
Criminal Code. Subsection 154(2) currently provides that an offence under
section 154 is an offence of strict liability. An explanation of “strict
liability” appears at paragraph 12 above.
Item 162 - Paragraph
156(3)(b)
246. This item amends paragraph 156(3)(b) of the Trade
Marks Act 1995 by deleting the fault element of “knowingly”.
Paragraph 156(3)(b) applies the fault element of knowledge
(“knowingly”) in relation to the physical elements of conduct,
namely being a party to a body corporate's offence against section 156.
Following application of the Criminal Code, the fault element of
knowledge will be restricted to physical elements of circumstance or result, and
intention will be the sole Criminal Code fault element that can be
applied to a physical element of conduct: see sections 5.2 and 5.3 of the
Criminal Code. Applying “knowingly” to a physical element of
conduct in the pre-Criminal Code environment is equivalent to applying
the Criminal Code fault element of intention. Accordingly this item
proposes the deletion of “knowingly” in paragraph 156(3)(b), and the
appropriate and equivalent Criminal Code default fault element, namely
intention, will apply by operation of section 5.6 of the Criminal
Code.
Item 163 - Subsection 156(6) (note)
247. In the
same manner as item 158, this item repeals the note to subsection 156(6) of the
Trade Marks Act 1995 and replaces it with a note referring to section 6.1
of the Criminal Code. Subsection 156(6) currently provides that an
offence under section 156 is an offence of strict liability. An explanation of
“strict liability” appears at paragraph 12 above.
Item
164 - Subsection 157(2) (note 2)
248. In the same manner as item 158,
this item repeals note 2 to subsection 157(2) of the Trade Marks Act 1995
and replaces it with a note referring to section 6.1 of the Criminal
Code. Subsection 157(2) currently provides that an offence under section
157 is an offence of strict liability.
Item 165 - Paragraph
160(1)(b)
249. This item amends subsection 160(1) of the Trade
Marks Act 1995 consequentially on the repeal of sections 7 and 7A, and
subsection 86(1) of the Crimes Act 1914 — which deal with the
ancillary offences of attempt, incitement and conspiracy — and their
replacement by sections 11.1, 11.4, and 11.5 of the Criminal Code —
which deal with the same ancillary offences.
250. The note to this item
gives section 166 below the new heading: 'Conduct of employees and agents of
natural persons' — see item 167 below.
Item 166 - At the end of
subsection 160(1)
251. This item adds a note at the end of subsection
160(1) of the Trade Marks Act 1995. Items 167 and 168 below amend
section 160 of the Trade Marks Act 1995 to remove the provisions
currently in that section providing for the vicarious liability of a body
corporate for offences against the Trade Marks Act 1995 committed by a
director, servant or agent of the body corporate. The vicarious liability of a
body corporate will, instead, be determined under the provisions of Part 2.5 of
the Criminal Code — as indicated by the note. The remaining
provisions in section 160 will continue to provide for the vicarious liability
of a person other than a body corporate (i.e. a natural person) for offences
against the Act committed by a servant or agent of the person. The heading to
section 160 is amended by the note to item 165 — to indicate to the reader
that the expression 'servant' encompasses all employees (and not merely personal
servants).
Item 167 - Subsections 160(2) and (3)
252. This
item repeals subsections 160(2) and (3) of the Trade Marks Act 1995
— see item 166 above.
Item 168 - Subsection 160(7) (definition
of director)
253. This item repeals the definition of
director in subsection 160(7) of the Trade Marks Act 1995 —
see item 166
above.
Tradex
Scheme Act 1999
Item 169 - At the end of section
26
254. This item proposes to insert subsection 26(2) which provides
that strict liability will apply to the physical element of the offence in
paragraph 26(1)(b) that the requirement is a requirement made by subsection
9(6). The offence in section 26(1) provides that a holder of a tradex order who
is required to notify the Secretary of the details of a change in any of the
particulars entered in the Register in respect of the order must comply with
that requirement. The offence carries a fine of 30 penalty units. Following
application of the Criminal Code, the prosecution will still be required to
demonstrate that the defendant possessed the relevant fault, namely
recklessness, that he or she was required to notify the Secretary of the details
described in paragraph 26(1)(b).
255. This physical element is an
appropriate candidate for the application of strict liability because in most
applicable instances the person concerned will not possess any fault element
concerning this physical element, and accordingly the offence would become
almost unenforceable if the prosecution were obliged to demonstrate fault.
Further, the person’s degree of culpability under this offence is not
materially affected by the absence of the subject fault. However the defence of
mistake of fact should be available to the defendant, as this provision should
not operate so as to criminalise the conduct of persons who made a reasonable
mistake of fact in relation to the identified physical element of circumstance.
Accordingly strict liability, and not absolute liability, is the appropriate
action.
256. The standard note referring to section 6.1 of the Criminal
Code, which governs strict liability, is also added after this provision. An
explanation of “strict liability” appears at paragraph 12 above.
Item 170 - At the end of section 27
257. This item
proposes to insert subsection 27(2) into the Tradex Scheme Act which provides
that strict liability will apply to the physical element of the offence in
paragraph 27(1)(b) that the requirement is a requirement made by section 15.
The offence in section 27(1) provides that a holder of a tradex order who is
required to give a notice to the Secretary if they become ineligible to hold the
order must comply with that requirement. The offence carries a fine of 30
penalty units. Following application of the Criminal Code, the prosecution will
still be required to demonstrate that the defendant possessed the relevant
fault, namely recklessness, that he or she was required to notify the Secretary
of the details described in paragraph 27(1)(b).
258. This physical
element is an appropriate candidate for the application of strict liability
because in most applicable instances the person concerned will not possess any
fault element concerning this physical element, and accordingly the offence
would become almost unenforceable if the prosecution were obliged to demonstrate
fault. Further, the person’s degree of culpability under this offence is
not materially affected by the absence of the subject fault. However the
defence of mistake of fact should be available to the defendant, as this
provision should not operate so as to criminalise the conduct of persons who
made a reasonable mistake of fact in relation to the identified physical element
of circumstance. Accordingly strict liability, and not absolute liability, is
the appropriate action.
259. The standard note referring to section 6.1
of the Criminal Code, which governs strict liability, is also added after this
provision. An explanation of “strict liability” appears at
paragraph 12 above.
Item 171 - At the end of section
29
260. This item proposes to insert subsection 29(2) into the Tradex
Scheme Act which provides that strict liability will apply to the physical
element of the offence in paragraph 29(1)(a) that the requirement is a
requirement made by section 22. The offence in section 29(1) provides that a
holder of a tradex order who is required to keep records in relation to
nominated goods must comply with that requirement. The offence carries a fine
of 30 penalty units. Following application of the Criminal Code, the
prosecution will still be required to demonstrate that the defendant possessed
the relevant fault, namely recklessness, that he or she was required to keep
records as described in paragraph 29(1)(a).
261. This physical element is
an appropriate candidate for the application of strict liability because in most
applicable instances the person concerned will not possess any fault element
concerning this physical element, and accordingly the offence would become
almost unenforceable if the prosecution were obliged to demonstrate fault.
Further, the person’s degree of culpability under this offence is not
materially affected by the absence of the subject fault. However the defence of
mistake of fact should be available to the defendant, as this provision should
not operate so as to criminalise the conduct of persons who made a reasonable
mistake of fact in relation to the identified physical element of circumstance.
Accordingly strict liability, and not absolute liability, is the appropriate
action.
262. The standard note referring to section 6.1 of the Criminal
Code, which governs strict liability, is also added after this provision. An
explanation of “strict liability” appears at paragraph 12 above.