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1998 – 1999 – 2000 –
2001
THE PARLIAMENT OF THE COMMONWEALTH OF
AUSTRALIA
HOUSE OF
REPRESENTATIVES
MIGRATION LEGISLATION AMENDMENT
(APPLICATION OF
CRIMINAL CODE) BILL
2001
EXPLANATORY
MEMORANDUM
(Circulated by authority
of the
Minister for Immigration and Multicultural Affairs,
The Hon. Philip
Ruddock MP)
ISBN: 0642 468753
MIGRATION LEGISLATION AMENDMENT (APPLICATION OF CRIMINAL CODE) BILL
2001
OUTLINE
1. The Migration Legislation Amendment
(Application of Criminal Code) Bill 2001 (“the Bill”) amends
migration legislation to harmonise existing criminal offence provisions and
other related provisions with Chapter 2 of the Criminal Code (as
contained in the Criminal Code Act 1995).
2. Schedule 1 to the
Bill amends the Migration Act 1958 (“the Migration Act”),
Schedule 2 amends the Australian Citizenship Act 1948 (“the
Citizenship Act”) and Schedule 3 amends the Immigration (Guardianship
of Children) Act 1946 (“the Guardianship of Children Act”).
3. The Criminal Code contains a standard approach to the
formulation of criminal offences. It will apply to offence provisions and other
related provisions in the Migration Act, the Citizenship Act and the
Guardianship of Children Act on 15 December 2001 (as provided for in the
Criminal Code Amendment (Application) Act 2000).
4. The
application of the Criminal Code will improve Commonwealth criminal law
by clarifying important elements of offences, in particular, the fault
elements.
5. The major amendments in the Bill:
• replace references to certain general offence provisions in the
Crimes Act 1914 (“the Crimes Act”) with references to the
corresponding provisions of the Criminal Code;
• apply, where
appropriate, strict liability or absolute liability to the physical elements of
certain offences;
• reconstruct provisions in order to clarify the
physical and fault elements of offences;
• remove ancillary offences;
and
• remove the defence of lawful authority.
6. The
amendments have been kept to a minimum because to completely harmonise all
offences with all aspects of the Criminal Code would be an enormous and
lengthy task. The purpose of the Bill is to ensure that, in applying the
Criminal Code, the relevant offences continue to have the same meaning
and operate in the same way as they do now.
FINANCIAL IMPACT
STATEMENT
7. The amendments in the Bill will have minimal financial
impact.
MIGRATION LEGISLATION AMENDMENT (APPLICATION OF CRIMINAL CODE) BILL
2001
NOTES ON INDIVIDUAL CLAUSES
Clause
1 Short title
1. The short title by which this Act may be
cited is the Migration Legislation Amendment (Application of Criminal Code)
Act 2001.
Clause 2 Commencement
2. Subclause
2(1) provides that, subject to this section, this Act commences on the latest of
the following days:
• the 28th day after the day on
which this Act receives the Royal Assent;
• the 28th day
after the day on which the Law and Justice Legislation Amendment (Application
of Criminal Code) Act 2001 receives the Royal Assent.
3. Subclause 2(2) provides that item 98 of Schedule 1 does not commence if
the Migration Legislation Amendment (Immigration Detainees) Act 2001
commences before this Act. This is because item 8 of Schedule 1 to the
Migration Legislation Amendment (Immigration Detainees) Act 2001 repeals
section 491 of the Migration Act which is amended by item 98 of Schedule 1 to
this Act.
Clause
3 Schedule(s)
4. This clause provides that, subject to section
2, each Act specified in a Schedule to this Act is amended or repealed as set
out in the applicable items in the Schedule concerned. In addition, any other
item in a Schedule to this Act has effect according to its terms.
5. Subclause 4(1) provides that each amendment in the Act applies to acts
and omissions that take place after the amendment commences.
6. Subclause 4(2) provides that for the purposes of this section, if an act
or omission is alleged to have taken place between 2 dates, one before and one
on or after the day on which a particular amendment commences, the act or
omission is alleged to have taken place before the amendment commences.
1. This item inserts new section 4A after section 4 of the Migration Act.
New section 4A clarifies that Chapter 2 of the Criminal Code (except Part
2.5) applies to all offences against the Migration Act. Chapter 2 sets out the
general principles of criminal responsibility.
2. Part 2.5 of Chapter 2 deals with corporate criminal responsibility.
However, the Migration Act already has a specific provision dealing with
corporate criminal responsibility in relation to offences under the Act (see
section 493). In order to maintain the status quo, it has been decided to
exclude the operation of Part 2.5 of the Criminal Code and to rely on the
existing provision in the Migration Act concerning corporate criminal
responsibility.
Item 2 Subsection 5(1) (definition of offence
against this Act)
3. This item repeals the existing definition of
offence against this Act and substitutes a new definition. According to
this new definition, offence against this Act includes:
• an offence against section 6 of the Crimes Act that relates to an
offence against a provision of the Migration Act. In summary, section 6 makes
it an offence to render assistance to a person who has committed an offence
against a law of the Commonwealth; and
• an ancillary offence (within
the meaning of the Criminal Code) that is, or relates to, an offence
against a provision of the Migration Act.
4. This amendment is required
because sections 5 (aiding or abetting the commission of an offence), 7
(attempting to commit an offence), 7A (incitement of an offence) and 86
(conspiring to commit an offence) are scheduled for repeal on 15 December 2001
when the Criminal Code will apply to all offences against a law of the
Commonwealth.
Item 3 Subsection 21(1)
5. This item
removes the defence of “reasonable excuse” from subsection 21(1).
The rationale for the amendment is to put it beyond doubt that “reasonable
excuse” is a defence to, not an element of, the offence in subsection
21(1).
6. The defence of “reasonable excuse” is recreated
in new paragraph 21(1A)(b) (see item 5 of this Schedule).
Item
4 Subsection 21(1)
7. This item removes the defence “to the
extent that the person is capable of complying” with a subsection 18(1)
notice from subsection 21(1). The rationale for this amendment is to put it
beyond doubt that this is a defence to, not an element of, the offence in
subsection 21(1).
8. This defence is recreated in new paragraph 21(1A)(a)
(see item 5 of this Schedule).
Item 5 After subsection
21(1)
9. This item is consequential to the amendments in items 3 and
4 of this Schedule. It inserts new subsection 21(1A) which provides that the
offence in subsection 21(1) does not apply:
• to the extent that
the person is not capable of complying with a notice under subsection 18(1);
or
• if the person has a reasonable excuse.
10. The item also
adds the standard note about proof of criminal responsibility after new
subsection 21(1A). The note provides that, under subsection 13.3(3) of the
Criminal Code, a defendant bears an evidential burden in relation to the
matters in new subsection 21(1A).
11. This means that the defendant has
to adduce or point to evidence that suggests a reasonable possibility that a
matter in new subsection 21(1A) exists (see subsection 13.3(6) of the
Criminal Code).
12. If the defendant does this, then the
prosecution is required to prove beyond reasonable doubt that the matter does
not exist (see sections 13.1 and 13.2 of the Criminal Code).
Item 6 After subsection 21(2) (before the penalty)
13. The
intention behind the amendment in this item, and other similar items in this
Schedule, is to preserve the status quo in relation strict liability. In other
words, only those offences that are judged to be presently strict liability
offences are amended to provide expressly that they are offences of strict
liability.
14. In determining whether an offence is one of strict
liability, a number of factors need to be considered. The general position is
established by Brennan J in the High Court case of R v He Kaw Teh
(1984-85) 157 CLR 523 at 566:
“It is now firmly established that
mens rea is an essential element in every statutory offence unless,
having regard to the language of the statute and to its subject-matter, it is
excluded expressly or by necessary implication.”
15. Accordingly, an offence that expressly has a fault element of any nature,
or if one can be necessarily implied, cannot be an offence of strict liability.
16. An important consideration in determining whether an offence is one of
strict liability is the penalty for the offence. A penalty that is sufficiently
high – in terms of the pecuniary penalty or the prescribed maximum term of
imprisonment – indicates that Parliament intended that the offence be
fault-based.
17. Courts have generally presumed that Parliament would
not want strict liability if the consequences of conviction are likely to
involve imprisonment. If the maximum penalty for an offence is 6 months
imprisonment and the offence is stated to be a strict liability offence, it is
very unlikely that a court would impose any term of imprisonment.
18. However, this cannot be said to be the case where the maximum
penalty is more than 6 months imprisonment. Therefore, as a general rule, an
offence that prescribes a penalty of imprisonment of more than 6 months cannot
be an offence of strict liability.
19. The presence of an express
defence, in particular the defence of reasonable excuse, is another indicator
that fault need not be proved. It is accepted that the provision of a
broadly-based defence (such as the defence of reasonable excuse) is sufficient
grounds for the imposition of strict liability.
20. This is because it
creates an equitable public interest balance between the need for efficient
prosecution of offences and the need to provide a defence to persons who are
caught by an offence provision in circumstances where the apparent contravention
is excusable.
21. This item inserts new subsection 21(3) which provides
that an offence against subsection 21(1) is an offence of strict liability.
“Strict liability” is defined in section 6.1 of the Criminal Code
and if an offence is intended to be one of strict liability, it must
expressly state it.
22. Subsection 21(1) makes it an offence for a person to refuse or fail to comply with a subsection 18(1) notice. Strict liability means that the prosecution does not need to prove any fault element in relation to the offence in subsection 21(1) but the defence of mistake of fact is available to the defendant.
23. While there is a strong presumption that proof of fault is required
in relation to the offence in subsection 21(1), this presumption is displaced
here because:
• of the use of the term “without reasonable
excuse” and the existence of an express defence which indicate that
Parliament only wanted those defences and the defence of mistake of fact to
apply and not proof of fault;
• the penalty for the offence is
comparatively low – 6 months imprisonment;
• the offence does not
have an express fault element nor can one be necessarily implied;
and
• the offence is of a nature that is usually interpreted to be
strict liability.
24. Therefore, new subsection 21(3) ensures that the
offence in subsection 21(1) continues to operate as an offence of strict
liability.
Item 7 Subsection 137(7)
25. This item removes
the defence of “reasonable excuse” from subsection 137(7). The
rationale for the amendment is to put it beyond doubt that “reasonable
excuse” is a defence to, not an element of, the offence in subsection
137(7).
26. The defence of “reasonable excuse” is recreated
in new subsection 137(7A) (see item 8 of this Schedule).
Item
8 After subsection 137(7)
27. This item makes 2 separate amendments
to section 137 of the Migration Act.
28. First, it inserts new
subsection 137(7A) which is consequential to the amendment in item 7 of this
Schedule. New subsection 137(7A) provides that the offence in subsection 137(7)
does not apply if the person has a reasonable excuse. Under subsection 13.3(3)
of the Criminal Code, a defendant bears an evidential burden in relation
to the matter in new subsection 137(7A).
29. Second, in inserts new
subsection 137(7B) which provides that an offence against subsection 137(7) is
an offence of strict liability. “Strict liability” is defined in
section 6.1 of the Criminal Code and if an offence is intended to be one
of strict liability, it must expressly state it.
30. Subsection 137(7) makes it an offence for a person to fail to comply with
a subsection 137(1) notice. While there is a strong presumption that proof of
fault is required in relation to the offence in subsection 137(7), this
presumption is displaced here because:
• of the use of the term
“without reasonable excuse” which indicates that Parliament only
wanted this and the defence of mistake of fact to apply and not proof of fault;
• the maximum penalty for the offence is a relatively low pecuniary
penalty - a fine of $5,000;
• the offence does not have an express
fault element nor can one be necessarily implied; and
• the offence is
of a nature that is usually interpreted to be strict liability.
31. Therefore, new subsection 137(7B) ensures that the offence in
subsection 137(7) continues to operate as an offence of strict
liability.
Item 9 At the end of subparagraph
203(1)(c)(i)
32. This item makes a minor technical amendment to add
“or” at the end of subparagraph 203(1)(c)(i).
Item
10 Subparagraph 203(1)(c)(ii)
33. This item amends subparagraph
203(1)(c)(ii) to replace the references to sections 7 (attempt to commit an
offence) and 86 (conspiring to commit an offence) of the Crimes Act with
references to the corresponding provisions of the Criminal Code (sections
11.1 and 11.5, respectively).
34. This amendment is required because
sections 7 and 86 are scheduled for repeal on 15 December 2001 when the
Criminal Code will apply to all offences against a law of the
Commonwealth.
35. This item inserts new subsection 217(3) after subsection 217(2). It
provides that an offence against subsection 217(2) is an offence of strict
liability. “Strict liability” is defined in section 6.1 of the
Criminal Code and if an offence is intended to be one of strict
liability, it must expressly state it.
36. Under subsection 217(2), a controller of a vessel must comply with a
subsection 217(1) notice within 72 hours of the giving of the notice or such
further time as the Secretary allows. While there is a strong presumption that
proof of fault is required in relation to the offence in subsection 217(2), this
presumption is displaced here because:
• the express defence in
section 219 indicates that Parliament only wanted that defence and the defence
of mistake of fact to apply and not proof of fault;
• the maximum
penalty for the offence is a relatively low pecuniary penalty – a fine of
$11,000 (under section 4AA of the Crimes Act, a penalty unit is currently
$110);
• the offence does not have an express fault element nor can one
be necessarily implied; and
• the offence is of a nature that is
usually interpreted to be strict liability.
37. Therefore, new subsection
217(3) ensures that the offence in subsection 217(2) continues to operate as an
offence of strict liability.
38. This item inserts new subsection 218(3) after subsection 218(2). It
provides that an offence against subsection 218(2) is an offence of strict
liability. “Strict liability” is defined in section 6.1 of the
Criminal Code and if an offence is intended to be one of strict
liability, it must expressly state it.
39. Under subsection 218(2), a controller of a vessel must comply with a
subsection 218(1) notice within 72 hours of the giving of the notice or such
further time as the Secretary allows. While there is a strong presumption that
proof of fault is required in relation to the offence in subsection 218(2), this
presumption is displaced here because:
• the express defence in
section 219 indicates that Parliament only wanted that defence and the defence
of mistake of fact to apply and not proof of fault;
• the maximum
penalty for the offence is a relatively low pecuniary penalty – a fine of
$11,000;
• the offence does not have an express fault element nor can
one be necessarily implied; and
• the offence is of a nature that is
usually interpreted to be strict liability.
40. Therefore, new subsection
218(3) ensures that the offence in subsection 218(2) continues to operate as an
offence of strict liability.
41. This item makes a technical amendment to section 219. Both sections
217 and 218 are subject to section 219. However, currently, section 219 only
provides a defence for the offence against section 218. This amendment
clarifies that section 219 also provides a defence for section 217.
42. This item adds a note at the end of section 219 about proof of
criminal responsibility. It clarifies that, under section 13.4 of the
Criminal Code, the defendant bears a legal burden in relation to the
matters in section 219. This means that the defendant must prove the existence
of the matters in section 219 on the balance of probabilities (see section 13.5
of the Criminal Code).
Item 15 Subsection 222(8)
43. This item removes the defence of “reasonable excuse” from
subsection 222(8). The rationale for the amendment is to put it beyond doubt
that “reasonable excuse” is a defence to, not an element of, the
offence in subsection 222(8).
44. The defence of “reasonable
excuse” is recreated in new subsection 222(8A) (see item 16 of this
Schedule).
Item 16 After subsection 222(8)
45. This item
is consequential to the amendment in item 15 of this Schedule. It inserts new
subsection 222(8A) after subsection 222(8).
46. New subsection 222(8A)
provides that the offence in subsection 222(8) does not apply if the person has
a reasonable excuse. Under subsection 13.3(3) of the Criminal Code, a
defendant bears an evidential burden in relation to the matter in new subsection
222(8A).
Item 17 After subsection 223(7)
47. This item
inserts new subsection 223(7A) after subsection 223(7). It provides that an
offence against subsection 223(7) is an offence of strict liability.
“Strict liability” is defined in section 6.1 of the Criminal Code
and if an offence is intended to be one of strict liability, it must
expressly state it.
48. In summary, subsection 223(7) provides that a bank or other financial
institution served with a copy of a subsection 223(2) notice must not process
any transaction in relation any account held by an immigration detainee.
49. While there is a strong presumption that proof of fault is required
in relation to the offence in subsection 223(7), this presumption is displaced
here because:
• the maximum penalty for the offence is a relatively
low pecuniary penalty – a fine of $30,000;
• the offence does not
have an express fault element nor can one be necessarily implied;
and
• the offence is of a nature that is usually interpreted to be
strict liability.
50. Therefore, new subsection 223(7A) ensures that the
offence in subsection 223(7) continues to operate as an offence of strict
liability.
51. This item makes a minor technical amendment to the penalty at the end
of subsection 223(8).
Item 19 Subsection 225(5)
52. This
item removes the defence of “reasonable excuse” from subsection
225(5). The rationale for the amendment is to put it beyond doubt that
“reasonable excuse” is a defence to, not an element of, the offence
in subsection 225(5).
53. The defence of “reasonable
excuse” is recreated in new subsection 225(6) (see item 20 of this
Schedule).
54. This item makes 2 separate amendments to section 225 of the Migration
Act.
55. First, it inserts new subsection 225(6) which is consequential
to the amendment in item 19 of this Schedule. New subsection 225(6) provides
that the offence in subsection 225(5) does not apply if the person has a
reasonable excuse. Under subsection 13.3(3) of the Criminal Code, a
defendant bears an evidential burden in relation to the matter in new subsection
225(6).
56. Second, it inserts new subsection 225(7) which provides that
an offence against subsection 225(5) is an offence of strict liability.
“Strict liability” is defined in section 6.1 of the Criminal Code
and if an offence is intended to be one of strict liability, it must
expressly state it.
57. Subsection 225(5) provides that a person must not fail to comply with a
requirement made under section 225. While there is a strong presumption that
proof of fault is required in relation to the offence in subsection 225(5), this
presumption is displaced here because:
• of the use of the term
“without reasonable excuse” which indicates that Parliament only
wanted this and the defence of mistake of fact to apply and not proof of fault;
• the maximum penalty for the offence is a relative low pecuniary
penalty - a fine of $4,000;
• the offence does not have an express
fault element nor can one be necessarily implied; and
• the offence is
of a nature that is usually interpreted to be strict
liability.
58. Therefore, new subsection 225(7) ensures that the offence
in subsection 225(5) continues to operate as an offence of strict
liability.
Item 21 Subsection 226(5)
59. This item removes
the defence of “reasonable excuse” from subsection 226(5). The
rationale for the amendment is to put it beyond doubt that “reasonable
excuse” is a defence to, not an element of, the offence in subsection
226(5).
60. The defence of “reasonable excuse” is recreated
in new subsection 226(6) (see item 22 of this Schedule).
61. This item makes 2 separate amendments to section 226.
62. First, it inserts new subsection 226(6), which is consequential to
the amendment in item 21 of this Schedule. New subsection 226(6) provides that
the offence in subsection 226(5) does not apply if the person has a reasonable
excuse. Under subsection 13.3(3) of the Criminal Code, a defendant bears
an evidential burden in relation to the matter in new subsection 226(6).
63. Second, it inserts new subsection 226(7) which provides that an
offence against subsection 226(5) is an offence of strict liability.
“Strict liability” is defined in section 6.1 of the Criminal Code
and if an offence is intended to be one of strict liability, it must
expressly state it.
64. Subsection 226(5) provides that a person must not fail to comply with a
requirement made under section 226. While there is a strong presumption that
proof of fault is required in relation to the offence in subsection 226(5), this
presumption is displaced here because:
• of the use of the term
“without reasonable excuse” which indicates that Parliament only
wanted this and the defence of mistake of fact to apply and not proof of fault;
• the maximum penalty for the offence is a relatively low pecuniary
penalty – a fine of $4,000;
• the offence does not have an
express fault element nor can one be necessarily implied; and
• the
offence is of a nature that is usually interpreted to be strict
liability.
65. Therefore, new subsection 226(7) ensures that the offence
in subsection 226(5) continues to operate as an offence of strict
liability.
Item 23 Subsection 227(5)
66. This item removes
the defence of “reasonable excuse” from subsection 227(5). The
rationale for the amendment is to put it beyond doubt that “reasonable
excuse” is a defence to, not an element of, the offence in subsection
227(5).
67. The defence of “reasonable excuse” is recreated
in new subsection 227(6) (see item 24 of this Schedule).
68. This item makes 2 separate amendments to section 227.
69. First, it inserts new subsection 227(6), which is consequential to
the amendment in item 23 of this Schedule. New subsection 227(6) provides that
the offence in subsection 227(5) does not apply if the person has a reasonable
excuse. Under subsection 13.3(3) of the Criminal Code, a defendant bears
an evidential burden in relation to the matter in new subsection 227(6).
70. Second, it inserts new subsection 227(7) which provides that an
offence against subsection 227(5) is an offence of strict liability.
“Strict liability” is defined in section 6.1 of the Criminal Code
and if an offence is intended to be one of strict liability, it must
expressly state it.
71. Subsection 227(5) provides that a person must not fail to comply with a
requirement made under section 227. While there is a strong presumption that
proof of fault is required in relation to the offence in subsection 227(5), this
presumption is displaced here because:
• of the use of the term
“without reasonable excuse” which indicates that Parliament only
wanted this and the defence of mistake of fact to apply and not proof of fault;
• the maximum penalty for the offence is a relatively low pecuniary
penalty – a fine of $4,000;
• the offence does not have an
express fault element nor can one be necessarily implied; and
• the
offence is of a nature that is usually interpreted to be strict
liability.
72. Therefore, new subsection 227(7) ensures that the offence
in subsection 227(5) continues to operate as an offence of strict
liability.
73. This item inserts new subsection 228(2) at the end of section 228.
It provides that an offence against subsection 228(1) is an offence of strict
liability. “Strict liability” is defined in section 6.1 of the
Criminal Code and if an offence is intended to be one of strict
liability, it must expressly state it.
74. In summary, subsection 228(1) provides that a master of a vessel must
report the absence of a crew member at the time of departure from the port.
While there is a strong presumption that proof of fault is required in relation
to the offence in subsection 228(1), this presumption is displaced here
because:
• the maximum penalty for the offence is a relatively low
pecuniary penalty – a fine of $4,000;
• the offence does not have
an express fault element nor can one be necessarily implied; and
• the
offence is of a nature that is usually interpreted to be strict
liability.
75. Therefore, new subsection 228(2) ensures that the offence
in subsection 228(1) continues to operate as an offence of strict
liability.
Item 26 After subsection 229(2)
76. This item
inserts new subsection 229(3), which provides that an offence against subsection
229(1) is an offence of absolute liability. “Absolute liability” is
defined in section 6.2 of the Criminal Code and if an offence is intended
to be one of absolute liability, it must expressly state it.
77. Absolute liability means that the prosecution is not required to
prove any fault element in relation to the offence in subsection 229(1).
However, unlike strict liability, if absolute liability applies to an offence,
the defence of mistake of fact is not available to the defendant.
78. Absolute liability is more appropriate in situations where it is not
sensible to place the onus of demonstrating a fault element on the prosecution
and where the defence of mistake of fact should not be available to a defendant.
79. This is because the defence of mistake of fact, as established by
the Criminal Code, would overlap with the defence in subsection 229(5).
The defence of mistake of fact created by the Criminal Code places an
evidential burden on the defendant (see section 13.3 of the Criminal
Code). By comparison, the defence in subsection 229(5), which is a form of
the defence of mistake of fact, places a legal burden on the defendant (see item
27 of this Schedule).
80. Therefore, it is unsatisfactory to maintain
both the defence of mistake of fact established by the Criminal Code and
the defence in subsection 229(5) because of the differing burdens they place on
a defendant.
81. In summary, subsection 229(1) makes it an offence for a
master, owner, agent, charterer and operator of a vessel to bring a non-citizen
into Australia without documentation. It is appropriate to apply absolute
liability to such an offence because in most instances the person concerned will
not possess any fault element concerning the physical elements of the offence.
82. Accordingly, if the prosecution were obliged to prove fault, the
offence would become almost unenforceable. Further, the person’s degree
of culpability under this offence is not materially affected by the absence of
fault.
83. This inserts new subsection 229(6) at the end of section 229. It
clarifies that, under section 13.4 of the Criminal Code, the defendant
bears a legal burden in relation to the matters in subsection 229(5).
84. This means that the defendant must prove the existence of the
matters in subsection 229(5) on the balance of probabilities (section 13.5 of
the Criminal Code).
Item 28 After subsection
230(1A)
85. This item inserts new subsection 230(1B), which provides
that an offence against subsection 230(1) or 230(1A) is an offence of strict
liability. “Strict liability” is defined in section 6.1 of the
Criminal Code and if an offence is intended to be one of strict
liability, it must expressly state it.
86. In summary, the offences in
subsections 230(1) and 230(1A) relate to the carriage of concealed persons on a
vessel when it arrives in Australia. While there is a strong presumption that
proof of fault is required in relation to the offences in subsections 230(1) and
230(1A), this presumption is displaced here because:
• the express
defences in subsections 230(2) and 230(2A) indicate that Parliament only wanted
those defences and the defence of mistake of fact to apply and not proof of
fault;
• the maximum penalty for the offence is a relatively low
pecuniary penalty – a fine of $10,000;
• the offence does not
have an express fault element nor can one be necessarily implied;
and
• the offence is of a nature that is usually interpreted to be
strict liability.
87. Therefore, new subsection 230(1B) ensures that the
offences in subsections 230(1) and 230(1A) continue to operate as offences of
strict liability.
Item 29 At the end of subsection 230(2)
88. This item adds a note after subsection 230(2). The note
provides that, under subsection 13.3(3) of the Criminal Code, a defendant
bears an evidential burden in relation to the matters in subsection 230(2).
Item 30 At the end of subsection 230(2A)
89. This item
adds a note at the end of subsection 230(2A). The note provides that, under
subsection 13.3(3) of the Criminal Code, a defendant bears an evidential
burden in relation to the matters in subsection 230(2A).
Item
31 After subsection 232(1)
90. This item inserts new subsection
232(1A), which provides that an offence against subsection 232(1) is an offence
of absolute liability. “Absolute liability” is defined in section
6.2 of the Criminal Code and if an offence is intended to be one of
absolute liability, it must expressly state it.
91. Absolute liability
means that the prosecution is not required to prove any fault element in
relation to the offence in subsection 232(1). However, unlike strict liability,
where absolute liability applies to an offence, the defence of mistake of fact
is not available to the defendant.
92. Absolute liability is more
appropriate in situations where it is not sensible to place the onus of
demonstrating a fault element on the prosecution and where the defence of
mistake of fact should not be available to a defendant.
93. This is
because the defence of mistake of fact, as established by the Criminal
Code, would overlap with the defence in subsection 232(2). The defence of
mistake of fact created by the Criminal Code places an evidential burden
on the defendant (see section 13.3 of the Criminal Code). By comparison,
the defence in subsection 232(2), which is a form of the defence of mistake of
fact, places a legal burden on the defendant (see item 32 of this Schedule).
94. Therefore, it is unsatisfactory to maintain both the defence of
mistake of fact established by the Criminal Code and the defence in
subsection 232(2) because of the differing burdens they place on a
defendant.
95. In summary, subsection 232(1) creates an offence relating
to the entry of a non-citizen, removee or deportee into Australia on a vessel
that applies to a master, owner, agent and charterer of the vessel. It is
appropriate to apply absolute liability to such an offence because in most
instances the person concerned will not possess any fault element concerning the
physical elements of the offence.
96. Accordingly, if the prosecution
were obliged to prove fault, the offence would become almost unenforceable.
Further, the person’s degree of culpability under this offence is not
materially affected by the absence of fault.
97. This inserts new subsection 232(3) at the end of section 232. It
clarifies that, under section 13.4 of the Criminal Code, the defendant
bears a legal burden in relation to the matters in subsection 232(2).
98. This means that the defendant must prove the existence of the
matters in subsection 232(2) on the balance of probabilities (section 13.5 of
the Criminal Code).
Item 33 Subsection
233(2)
99. This item amends the offence in subsection 233(2) to
clarify its physical and fault elements.
100. Currently, subsection
233(2) applies the fault elements of knowledge and recklessness to the
proscribed physical element of conduct, namely, harbouring an unlawful
non-citizen, a removee or a deportee.
101. Following the application of
the Criminal Code, the fault elements of knowledge and recklessness will
both be restricted to the physical elements of circumstance or result (see
sections 5.3 and 5.4 of the Criminal Code).
102. 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.
103. Upon application of the Criminal Code,
its default fault provision (see subsection 5.6) will apply the following fault
elements to the physical elements of subsection 233(2):
• intention
to the proscribed conduct of harbouring a person; and
• recklessness
to the circumstance that this person is an unlawful non-citizen, a remove or a
deportee.
104. Section 5.4(4) of the Criminal Code provides that
if recklessness is a fault element for a physical element of an offence, proof
of intention, knowledge or recklessness will satisfy that fault
element.
105. The amended subsection 233(2) will continue to operate in
the same manner as it currently does.
Item 34 At the end of
subsection 235(4A)
106. This item adds a note at the end of
subsection 235(4A). The note provides that, under subsection 13.3(3) of the
Criminal Code, a defendant bears an evidential burden in relation to the
matters in subsection 235(4A).
Item 35 After subsection
235(4A)
107. This item inserts new subsection 235(4B), which provides
that an offence against subsection 235(1), 235(3) or 235(4) is an offence of
strict liability. “Strict liability” is defined in section 6.1 of
the Criminal Code and if an offence is intended to be one of strict
liability, it must expressly state it.
108. In summary, subsections
235(1), 235(3) and 245(4) relate to offences in relation work. While there is a
strong presumption that proof of fault is required in relation to the offences
in subsections 235(1), 235(3) and 235(4), this presumption is displaced here
because:
• the maximum penalty for the offence is a relatively low
pecuniary penalty – a fine of $10,000;
• the offence does not
have an express fault element nor can one be necessarily implied;
and
• the offence is of a nature that is usually interpreted to be
strict liability.
109. Therefore, new subsection 235(4B) ensures that the
offences in subsections 235(1), 235(3) and 235(4) continue to operate as
offences of strict liability.
110. This item makes a number of amendments to the offence in section
236. In summary, section 236 makes it an offence for a person to do certain
things relating to visas.
New Subsection 236(1)
111. The
phrase “for the purpose of” in existing paragraph 236(a) is replaced
with the phrase “with the intention of” in new subsection 236(1).
The phrase “for the purpose of” is removed because it is possible to
interpret it in two ways.
112. The phrase could be interpreted to
denote the physical element of result, namely, that the outcome of the
person’s use of a visa is travelling to Australia, remaining in Australia
or identification. On this interpretation, the fault element of recklessness
would attach to this physical element of result by virtue of section 5.6 of the
Criminal Code.
113. This would mean that the prosecution would
merely have to prove that the person acted being reckless as to whether he or
she would travel to Australia, remain in Australia or be identified as a result
of his or her actions.
114. Alternatively, the phrase could be
interpreted to refer to the fault element of intention that attaches to the
physical element of conduct, namely, that the person intends to use the visa to
travel to Australia, remain in Australia or for identification purposes.
115. This would require the prosecution to prove a higher degree of
culpability, namely, that the person acted with intention of travelling to
Australia, remaining in Australia or being identified.
116. It follows
that the phrase “for the purposes of” has the potential to create
significant confusion in interpreting an offence provision. Accordingly, if a
physical element of result is intended to be part of the offence, then it should
be described. For example, the words “to achieve the result of”
could be used in the place of “for the purposes of”.
117. Conversely, if the phrase “for the purposes of” is
meant to denote an additional fault element of intention that attaches to the
physical element of conduct then the phrase “with the intention of”
could be used instead.
118. In relation to existing paragraph 236(a), the correct interpretation is
that:
• the person uses a visa to:
- travel to Australia;
or
- remain in Australia; or
- identify himself or herself;
and
• the visa is a visa that was granted to another person.
119. New subsection 236(1) gives effect to this interpretation of
existing paragraph 236(a).
New Subsection 236(2)
120. New subsection 236(2) replaces existing paragraph 236(b). It is in
a different form to existing paragraph 236(b) but its operation remains
unchanged.
121. In addition, unlike existing paragraph 236(b), the
defence of “reasonable excuse” is not contained within new
subsection 236(2). The rationale for this difference between the existing and
new provision is to put it beyond doubt that “reasonable excuse” is
a defence to, not an element of, the offence in new subsection 236(2).
122. The defence of “reasonable excuse” is recreated in new
subsection 236(3).
New Subsection 236(3)
123. New
subsection 236(3) provides that the offence in new subsection 236(3) does not
apply if the person has a reasonable excuse. Under subsection 13.3(3) of the
Criminal Code, a defendant bears an evidential burden in relation to the
matter in new subsection 236(3).
New Subsection
236(4)
124. New subsection 236(4) clarifies that the fault element
for new paragraph 236(2)(a) is intention. “Intention” is defined in
section 5.2 of the Criminal Code.
Item 37 Subsection
240(1)
125. This item amends subsection 240(1) to replace the phrase
“for the purpose of” with the phrase “with the intention
of”. In summary, subsection 240(1) makes it an offence for a person to
arrange a marriage to help other person(s) to obtain permanent residence. An
explanation of why this amendment is necessary is at item 36 of this Schedule.
126. The correct interpretation of subsection 240(1) is that a person
must not arrange a marriage between other persons with the intention of
assisting one of those persons to obtain permanent residence.
Item 38 Subsection
240(2)
127. This item also amends subsection 240(2) as a
consequence of the amendment in item 37 to subsection 240(1). It clarifies that
subsection 240(1) applies whether or not the intention is achieved.
Item 39 At the end of subsection 240(3)
128. This item
adds a note at the end of subsection 240(3). The note provides that, under
subsection 13.4 of the Criminal Code, a defendant bears a legal burden in
relation to the matter in subsection 240(3).
129. This means that the
defendant must prove the existence of the matter in subsection 240(3) on the
balance of probabilities (see section 13.5 of the Criminal Code).
Item 40 Subsection 241(1)
130. This item amends subsection
241(1) to replace the phrase “for the purpose of” with the phrase
“with the intention of”. In summary, new subsection 241(1) makes it
an offence for a person to arrange a pretended de facto relationship to help
other persons to obtain permanent residence. An explanation of why this
amendment is necessary is at item 36 of this Schedule.
131. The correct
interpretation of subsection 241(1) is that a person must not make arrangements
that make, or help make, it look as if other persons are de facto spouses with
the intention of assisting one of those other persons to obtain permanent
residence.
Item 41 Subsection 241(2)
132. This item
amends subsection 241(2) as a consequence of the amendment in item 40 to
subsection 241(1). It clarifies that subsection 241(1) applies whether or not
the intention is achieved.
Item 42 Subsection
242(1)
133. This item amends subsection 242(1) to replace the phrase
“for the purpose of” with the phrase “with the intention
of”. In summary, new subsection 242(1) makes it an offence for a person
to arrange a pretended interdependency relationship to help other persons to
obtain permanent residence. An explanation of why this amendment is necessary
is at item 36 of this Schedule.
134. The correct interpretation of
subsection 242(1) is that a person must not make arrangements that make, or help
make, it look as if other persons are in an interdependency relationship with
the intention of assisting one of those other persons to obtain permanent
residence.
Item 43 Subsection 242(2)
135. This item
amends subsection 242(2) as a consequence of the amendment in item 42 to
subsection 242(1). It clarifies that subsection 242(1) applies whether or not
the intention is achieved.
Item 44 Subsection
245(1)
136. This item amends subsection 245(1) as a consequence of
the repeal of subsection 245(2) by item 45 of this Schedule. It adds new
paragraph (e) to subsection 245(1) which duplicates existing subsection 245(2).
Item 45 Subsection 245(2)
137. This item repeals
subsection 245(2) which is inserted into subsection 245(1) as new paragraph (e)
by item 44 of this Schedule.
Item 46 At the end of subsection 245(3)
(before the penalty)
138. This item amends subsection 245(3) as a
consequence of the repeal of subsection 245(4) by item 47 of this Schedule. It
adds new paragraph (f) to subsection 245(3) which duplicates subsection 245(4).
Item 47 Subsection 245(4)
139. This item repeals
subsection 245(4) which is inserted into subsection 245(3) as new paragraph (f)
by item 46 of this Schedule.
Item 48 Subsection
245B(10)
140. This item removes the defence of “reasonable
excuse” from subsection 245B(10). The rationale for the amendment is to
put it beyond doubt that “reasonable excuse” is a defence to, not an
element of, the offence in subsection 245B(10).
141. The defence of
“reasonable excuse” is recreated in new subsection 245B(11) (see
item 49 of this Schedule).
Item 49 At the end of subsection
245B
142. This item is consequential to the amendment in item 48 of
this Schedule. It inserts new subsection 245B(11) after subsection 245B(10).
143. New subsection 245B(11) provides that the offence in subsection
245B(10) does not apply if the master of a vessel has a reasonable excuse.
Under subsection 13.3(3) of the Criminal Code, a defendant bears an
evidential burden in relation to the matter in new subsection
245B(11).
Item 50 Subsection 245E(6)
144. This item
removes the defence of “reasonable excuse” from subsection 245E(6).
The rationale for the amendment is to put it beyond doubt that “reasonable
excuse” is a defence to, not an element of, the offence in subsection
245E(6).
145. The defence of “reasonable excuse” is
recreated in new subsection 245E(7) (see item 51 of this Schedule).
Item 51 At the end of section 245E
146. This item is
consequential to the amendment in item 50 of this Schedule. It inserts new
subsection 245E(7) after subsection 245E(6).
147. New subsection 245E(7)
provides that the offence in subsection 245E(6) does not apply if the pilot has
a reasonable excuse. Under subsection 13.3(3) of the Criminal Code, a
defendant bears an evidential burden in relation to the matter in new subsection
245E(7).
Item 52 Subsection 245F(15)
148. This item removes the defence of “reasonable excuse” from
subsection 245F(15). The rationale for the amendment is to put it beyond doubt
that “reasonable excuse” is a defence to, not an element of, the
offence in subsection 245F(15).
149. The defence of “reasonable
excuse” is recreated in new subsection 245F(15A) (see item 53 of this
Schedule).
Item 53 After subsection 245F(15)
150. This
item makes 2 separate amendments to section 245F.
151. Firstly, it
inserts new subsection 245F(15A), which is consequential to the amendment in
item 52 of this Schedule. New subsection 245(15A) provides that the offence in
subsection 245(15) does not apply if the person has a reasonable excuse. Under
subsection 13.3(3) of the Criminal Code, a defendant bears an evidential
burden in relation to the matter in new subsection 245F(15).
152. Secondly, it inserts new subsection 245F(15B), which provides that
an offence against subsection 245F(15) is an offence of strict liability.
“Strict liability” is defined in section 6.1 of the Criminal Code
and if an offence is intended to be one of strict liability, it must
expressly state it.
153. Subsection 245F(15) provides that a person must not refuse or fail to
comply with a requirement made by an officer under section 245F. While there is
a strong presumption that proof of fault is required in relation to the offence
in subsection 245F(15), this presumption is displaced here
because:
• of the use of the term “without reasonable
excuse” which indicates that Parliament only wanted this and the defence
and mistake of fact to apply and not proof of fault;
• the maximum
penalty for the offence is a relative low pecuniary penalty - a fine of
$11,000;
• the offence does not have an express fault element nor can
one be necessarily implied; and
• the offence is of a nature that is
usually interpreted to be strict liability.
154. Therefore, new
subsection 245F(15B) ensures that the offence in subsection 245F(15) continues
to operate as an offence of strict liability.
Item 54 Subsection
247(1)
155. This item removes the defence of “stress of weather or other
reasonable cause” from subsection 247(1). The rationale for the amendment
is to put it beyond doubt that “stress of weather or other reasonable
cause” is a defence to, not an element of, the offence in subsection
247(1).
156. The defence of “stress of weather or other reasonable cause”
is recreated by the amendment to subsection 247(5) in item 57 of this Schedule.
Item 55 Paragraph 247(2)(b)
157. This item removes the
defence of “except for the purpose of leaving that port” from
paragraph 247(2)(b). The rationale for the amendment is to put it beyond doubt
that “except for the purpose of leaving that port” is a defence to,
not an element of, the offence in paragraph 247(2)(b).
158. The defence of “except for the purpose of leaving that port”
is recreated in new subsection 247(2A) (see item 56 of this
Schedule).
Item 56 After subsection 247(2)
159. This item is consequential to the amendment in item 55 of this
Schedule. It inserts new subsection 247(2A) after subsection 247(2).
160. New subsection 247(2A) provides that the offence in subsection
247(2) does not apply if the master moves the vessel from the boarding station
with the intention of leaving the port. Under subsection 13.3(3) of the
Criminal Code, a defendant bears an evidential burden in relation to the
matter in new subsection 247(2A).
Item 57 Subsection
247(5)
161. This item is consequential to the amendment in item 54 of
this Schedule. It clarifies that it is also a defence to a prosecution for an
offence against subsection 247(1) if the person charged proves that he or she
was prevented from complying with the subsection by stress of weather or other
reasonable cause.
Item 58 Subsection 247(5)
162. This
item makes a technical amendment to subsection 247(5).
Item 59
At the end of subsection 247(5)
163. This item adds a note at the
end of subsection 247(5). The note clarifies that, under subsection 13.4 of the
Criminal Code, a defendant bears a legal burden in relation to the
matters in subsection 247(5). This means that the defendant must prove the
existence of the matters in subsection 247(5) on the balance of probabilities
(see section 13.5 of the Criminal Code).
Item 60 After
subsection 247(5)
164. This item inserts new subsection 247(5A),
which provides that an offence against any of the subsections 247(1) to 247(4)
is an offence of strict liability. “Strict liability” is defined in
section 6.1 of the Criminal Code and if an offence is intended to be one
strict liability, it must expressly state it.
165. Subsections 247(1) to 247(4) create a number of offences relating to the entry of a vessel into, or the arrival of an aircraft in, Australia. While there is a strong presumption that proof of fault is required in relation to the offences in subsections 247(1) to 247(4), this presumption is displaced here because:
• the express defence in subsection 247(5) indicates that
Parliament only wanted that defence and the defence of mistake of fact to apply
and not proof of fault;
• the maximum penalty for the offence is a
relatively low pecuniary penalty – a fine of $22,000;
• the
offence does not have an express fault element nor can one be necessarily
implied; and
• the offence is of a nature that is usually interpreted
to be strict liability.
166. Therefore, new subsection 247(5A) ensures that the offences in subsections 247(1) to 247(4) continue to operate as offences of strict liability.
Item 61 At the end of section 247
167. This item inserts new subsection 247(8), which provides that an
offence against subsection 247(7) is an offence of strict liability.
“Strict liability” is defined in section 6.1 of the Criminal
Code and if an offence is intended to be one strict liability, it must
expressly state it.
168. Subsection 247(7) requires the master of a
vessel to do all things reasonably required by an officer to facilitate the
boarding of a vessel under section 247 and the performance by the officer of
duties for the purposes of the Migration Act. While there is a strong
presumption that proof of fault is required in relation to the offence in
subsection 247(7), this presumption is displaced here because:
• the
maximum penalty for the offence is a relatively low pecuniary penalty – a
fine of $11,000;
• the offence does not have an express fault element
nor can one be necessarily implied; and
• the offence is of a nature
that is usually interpreted to be strict liability.
169. Therefore, new
subsection 247(8) ensures that the offence in subsection 247(7) continues to
operate as an offence of strict liability.
Item 62 After subsection
251(2)
170. This item inserts new subsection 251(2A), which provides
that an offence against subsection 251(2) is an offence of strict liability.
“Strict liability” is defined in section 6.1 of the Criminal
Code and if an offence is intended to be one strict liability, it must
expressly state it.
171. Subsection 251(2) requires a master of a vessel
to do all things reasonably required by an officer to facilitate the boarding
and searching of the vessel by the officer under subsection 251(1). While there
is a strong presumption that proof of fault is required in relation to the
offence in subsection 251(2), this presumption is displaced here
because
• the maximum penalty for the offence is a relatively low
pecuniary penalty – a fine of $10,000;
• the offence does not
have an express fault element nor can one be necessarily implied;
and
• the offence is of a nature that is usually interpreted to be
strict liability.
172. Therefore, new subsection 251(2A) ensures that the
offence in subsection 251(2) continues to operate as an offence of strict
liability.
Item 63 After the subsection 257(2)
173. This item inserts new
subsection 257(2A), which provides that an offence against subsection 257(2) is
an offence of strict liability. “Strict liability” is defined in
section 6.1 of the Criminal Code and if an offence is intended to be one
strict liability, it must expressly state it.
174. In summary, subsection
257(2) makes it an offence for a person to refuse or fail to answer a question
or, in answer to the question, to make a statement that is false or misleading
in a material particular. While there is a strong presumption that proof of
fault is required in relation to the offence in subsection 257(2), this
presumption is displaced here because:
• the penalty for
offence is comparatively low – 6 months imprisonment;
• the
offence does not have an express fault element nor can one be necessarily
implied; and
• the offence is of a nature that is usually interpreted
to be strict liability.
175. Therefore, new subsection 257(2A) ensures
that the offence in subsection 257(2) continues to operate as an offence of
strict liability.
176. This item inserts new subsection 259(3), which provides that an
offence against subsection 259(2) is an offence of strict liability.
“Strict liability” is defined in section 6.1 of the Criminal
Code and if an offence is intended to be one strict liability, it must
expressly state it.
177. In summary, subsection 259(2) makes it an
offence for a master of a vessel, in respect of which an order under section 259
is in force, to move the vessel without the consent of the Secretary. While
there is a strong presumption that proof of fault is required in relation to the
offence in subsection 259(2), this presumption is displaced here
because:
• the maximum penalty for the offence is a relatively low
pecuniary penalty – a fine of $20,000;
• the offence does not
have an express fault element nor can one be necessarily implied;
and
• the offence is of a nature that is usually interpreted to be
strict liability.
178. Therefore, new subsection 259(3) ensures that the offence in subsection 259(2) continues to operate as an offence of strict liability.
Item 65 Section 268AC
Item 66 Subsection 268BH(1) (note)
179. These items repeal section 268AC and the note at the end
of subsection 268BH(1) as a consequence of the insertion of new section 4A into
the Migration Act (see item 1 of this Schedule).
Item 67 At the end of section 268BH
180. This item inserts new subsection 268BH(3), which provides that an
offence against subsection 268BH(1) is an offence of strict liability.
“Strict liability” is defined in section 6.1 of the Criminal
Code and if an offence is intended to be one strict liability, it must
expressly state it.
181. Subsection 268BH(1) provides that it is an
offence for a person to refuse or fail to comply with a production or attendance
notice. While there is a strong presumption that proof of fault is required in
relation to the offence in subsection 268BH(1), this presumption is displaced
here because:
• the penalty for the offence is comparatively low
– 6 months imprisonment;
• the offence does not have an express
fault element nor can one be necessarily implied; and
• the offence is
of a nature that is usually interpreted to be strict liability.
182. Therefore, new subsection 268BH(3) ensures that the offence in
subsection 268BH(1) continues to operate as an offence of strict liability.
Item 68 Section 268BI (note)
Item 69 Subsections
268BJ(1) and 268CL(1) (notes)
183. These items repeal the notes at the end of section 268BI and subsections
268BJ(1) and 268CL(1) as a consequence of the insertion of new section 4A into
the Migration Act (see item 1 of this Schedule).
Item 70 At the end of section 268CL
184. This item inserts new subsection 268CL(3), which provides that an
offence against subsection 268CL(1) is an offence of strict liability.
“Strict liability” is defined in section 6.1 of the Criminal
Code and if an offence is intended to be one strict liability, it must
expressly state it.
185. Subsection 268CL(1) provides that it is an
offence for a person to refuse or fail to comply with a requirement under
section 268CK. While there is a strong presumption that proof of fault is
required in relation to the offence in subsection 268CL(1), this presumption is
displaced here because:
• the penalty for offence is comparatively
low – 6 months imprisonment;
• the offence does not have an
express fault element nor can one be necessarily implied; and
• the
offence is of a nature that is usually interpreted to be strict
liability.
186. Therefore, new subsection 268CL(3) ensures that the
offence in subsection 268CL(1) continues to operate as an offence of strict
liability.
Item 71 Section 268CM (note)
Item 72 Subsection
268CN(1) (note)
Item 73 Subsection 268CV(2) (notes 1 and
2)
Item 74 Subsection 268CZA(2) (notes 1 and
2)
Item 75 Section 279A
Item 76 Subsection 280(1)
(note)
187. These items repeal the notes at the end of the above
provisions as a consequence of the insertion of new section 4A into the
Migration Act (see item 1 of this Schedule).
Item 77 After subsection 280(1)
188. This item inserts new
subsection 280(1A), which provides that an offence against subsection 280(1) is
an offence of strict liability. “Strict liability” is defined in
section 6.1 of the Criminal Code and if an offence is intended to be one
strict liability, it must expressly state it.
189. Subsection 280(1)
provides that a person who is not a registered agent must not give immigration
assistance. While there is a strong presumption that proof of fault is required
in relation to the offence in subsection 280(1), this presumption is displaced
here because:
• the maximum penalty for the offence is a relatively
low pecuniary penalty – a fine of $5,500;
• the offence does not
have an express fault element nor can one be necessarily implied;
and
• the offence is of a nature that is usually interpreted to be
strict liability.
190. Therefore, new subsection 280(1A) ensures that the
offence in subsection 280(1) continues to operate as an offence of strict
liability.
Item 78 Subsections 281(1) and (2),
282(1) and (2), 283(2), 284(1) and 285(1)
(notes)
Item 79 Section 306H
(note)
191. These items repeal the notes at the end of the
above provisions as a consequence of the insertion of new section 4A into the
Migration Act (see item 1 of this Schedule).
192. This item inserts new subsection 306H(2), which provides that an
offence against subsection 306H(1) is an offence of strict liability.
“Strict liability” is defined in section 6.1 of the Criminal
Code and if an offence is intended to be one strict liability, it must
expressly state it.
193. Subsection 306H(1) provides that a person is
guilty of an offence if the person is subject to a requirement under section
306D, 306E or 306F and he or she contravenes the requirement. While there is a
strong presumption that proof of fault is required in relation to the offence in
subsection 306H(1), this presumption is displaced here
because:
• the maximum penalty for the offence is a relatively low
pecuniary penalty – a fine of $3,300;
• the offence does not have
an express fault element nor can one be necessarily implied; and
• the
offence is of a nature that is usually interpreted to be strict
liability.
194. Therefore, new subsection 306H(2) ensures that the
offence in subsection 306H(1) continues to operate as an offence of strict
liability.
Item 81 Section 312 (note)
195. This item
repeals the note at the end of section 312 as a consequence of the insertion of
new section 4A into the Migration Act (see item 1 of this Schedule).
196. This item inserts new subsection 312(2), which provides that an
offence against subsection 312(1) is an offence of strict liability.
“Strict liability” is defined in section 6.1 of the Criminal
Code and if an offence is intended to be one strict liability, it must
expressly state it.
197. Subsection 312(1) requires a registered agent to
notify the Migration Agents Registration Authority, as soon as is reasonably
possible, if certain events occur. While there is a strong presumption that
proof of fault is required in relation to the offences in subsection 312(1),
this presumption is displaced here because:
• the maximum penalty
for the offence is a relatively low pecuniary penalty – a fine of
$11,000;
• the offence does not have an express fault element nor can
one be necessarily implied; and
• the offence is of a nature that is
usually interpreted to be strict liability.
198. Therefore, new
subsection 312(2) ensures that the offence in subsection 312 continues to
operate as an offence of strict liability.
199. This item repeals section 334 and substitutes a new section 334 to
clarify the physical and fault elements of the offences contained in the
section.
200. Currently, subsections 334(1) and 334(2) apply the fault
elements of knowledge and recklessness to the proscribed physical element of
conduct, namely, the making of a statement about certain matters.
201. Following the application of the Criminal Code, the fault
elements of knowledge and recklessness will both be restricted to the physical
elements of circumstance or result (see sections 5.3 and 5.4 of the Criminal
Code).
202. 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.
203. Upon
application of the Criminal Code, its default fault provision (see
subsection 5.6) will apply the following fault elements to the physical elements
of section 334:
• intention to the proscribed conduct of making of
a statement about certain matters; and
• recklessness to the
circumstance that the statement is about certain matters; and
• recklessness to the circumstance that the statement is false or
misleading.
204. Section 5.4(4) of the Criminal Code provides
that if recklessness is a fault element for a physical element of an offence,
proof of intention, knowledge or recklessness will satisfy that fault
element.
205. New section 334 will continue to operate in the same manner
as it currently does.
206. This item removes the defence of “reasonable excuse”
from subsection 370(1). The rationale for the amendment is to put it beyond
doubt that “reasonable excuse” is a defence to, not an element of,
the offence in subsection 370(1).
207. The defence of “reasonable
excuse” is recreated in new subsection 370(1A) (see item 85 of this
Schedule).
208. This item makes 2 separate amendments to section 370.
209. Firstly, it inserts new subsection 370(1A), which is consequential
to the amendment in item 84 of this Schedule. New subsection 370(1A) provides
that the offence in subsection 370(1) does not apply if the person has a
reasonable excuse. Under subsection 13.3(3) of the Criminal Code, a
defendant bears an evidential burden in relation to the matter in new subsection
370(1A).
210. Secondly, it inserts new subsection 370(1B), which
provides that an offence against subsection 370(1) is an offence of strict
liability. “Strict liability” is defined in section 6.1 of the
Criminal Code and if an offence is intended to be one of strict
liability, it must expressly state it.
211. In summary, subsection
370(1) provides that a person who has been served with a summons to appear
before the Migration Review Tribunal to give evidence must not fail to attend or
appear as required. While there is a strong presumption that proof of fault is
required in relation to the offence in subsection 370(1), this presumption is
displaced here because:
• the penalty for offence is comparatively
low – 6 months imprisonment;
• the offence does not have an
express fault element nor can one be necessarily implied; and
• the
offence is of a nature that is usually interpreted to be strict
liability.
212. Therefore, new subsection 370(1A) ensures that the
offence in subsection 370(1) continues to operate as an offence of strict
liability.
213. This item removes the defence of “reasonable excuse”
from subsection 371(1). The rationale for the amendment is to put it beyond
doubt that “reasonable excuse” is a defence to, not an element of,
the offence in subsection 371(1).
214. The defence of “reasonable
excuse” is recreated in new subsection 371(1A) (see item 87 of this
Schedule).
Item 87 After subsection 371(1)
215. This item
inserts new subsection 371(1A), which is consequential to the amendment in item
86 of this Schedule. New subsection 371(1A) provides that the offence in
subsection 371(1) does not apply if the person has a reasonable excuse. Under
subsection 13.3(3) of the Criminal Code, a defendant bears an evidential
burden in relation to the matter in new subsection 371(1A).
Item
88 Subsection 371(2)
216. This item removes the defence of
“reasonable excuse” from subsection 371(2). The rationale for the
amendment is to put it beyond doubt that “reasonable excuse” is a
defence to, not an element of, the offence in subsection 371(2).
217. The defence of “reasonable excuse” is recreated in new
subsection 371(2A) (see item 89 of this Schedule).
Item 89 After
subsection 371(2)
218. This item makes 2 separate amendments to
section 371.
219. Firstly, it inserts new subsection 371(2A), which is
consequential to the amendment in item 88 of this Schedule. New subsection
371(2A) provides that the offence in subsection 371(2) does not apply if the
person has a reasonable excuse. Under subsection 13.3(3) of the Criminal
Code, a defendant bears an evidential burden in relation to the matter in
new subsection 371(2A).
220. Secondly, it inserts new subsection
371(2B), which provides that an offence against subsection 371(1) or 371(2) is
an offence of strict liability. “Strict liability” is defined in
section 6.1 of the Criminal Code and if an offence is intended to be one
of strict liability, it must expressly state it.
221. In summary,
subsection 371(1) provides that a person appearing before the Migration Review
Tribunal must not refuse or fail to swear or affirm or answer a question and
subsection 371(2) provides that a person must not refuse or fail to produce a
document. While there is a strong presumption that proof of fault is required
in relation to the offences in subsections 371(1) and 371(2), this presumption
is displaced here because:
• the penalty for offence is
comparatively low – 6 months imprisonment;
• the offence does not
have an express fault element nor can one be necessarily implied;
and
• the offence is of a nature that is usually interpreted to be
strict liability.
222. Therefore, new subsection 371(2B) ensures that the
offences in subsections 371(1) and 371(2) continue to operate as offences of
strict liability.
Item 90 Subsection 371(3)
223. This item
amends the offence in subsection 371(3) to clarify its fault element.
224. Currently, subsection 371(3) applies the fault element of knowledge
to the proscribed physical element of conduct, namely, giving evidence to the
Migration Review Tribunal that is false or misleading in a material particular.
225. Following the application of the Criminal Code, the fault
element of knowledge will be restricted to the physical elements of circumstance
or result (see sections 5.3 and 5.4 of the Criminal Code).
226. 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 amends
subsection 371(3) to replace the fault element of “knowingly” with
the equivalent, and more appropriate, fault element of intention.
Item 91 Subsection 432(1)
227. This item removes the
defence of “reasonable excuse” from subsection 432(1). The
rationale for the amendment is to put it beyond doubt that “reasonable
excuse” is a defence to, not an element of, the offence in subsection
432(1).
228. The defence of “reasonable excuse” is
recreated in new subsection 432(1A) (see item 92 of this
Schedule).
Item 92 After subsection 432(1)
229. This item
makes 2 separate amendments to section 432.
230. Firstly, it inserts new
subsection 432(1A), which is consequential to the amendment in item 91 of this
Schedule. New subsection 432(1A) provides that the offence in subsection 432(1)
does not apply if the person has a reasonable excuse. Under subsection 13.3(3)
of the Criminal Code, a defendant bears an evidential burden in relation
to the matter in new subsection 432(1A).
231. Secondly, it inserts new
subsection 432(1B), which provides that an offence against subsection 432(1) is
an offence of strict liability. “Strict liability” is defined in
section 6.1 of the Criminal Code and if an offence is intended to be one
of strict liability, it must expressly state it.
232. In summary,
subsection 432(1) provides that a person who has been served with a summons to
appear before the Refugee Review Tribunal to give evidence must not fail to
attend or appear as required. While there is a strong presumption that proof of
fault is required in relation to the offence in subsection 432(1), this
presumption is displaced here because:
• the penalty for offence is
comparatively low – 6 months imprisonment;
• the offence does not
have an express fault element nor can one be necessarily implied;
and
• the offence is of a nature that is usually interpreted to be
strict liability.
233. Therefore, new subsection 432(1B) ensures that the
offence in subsection 432(1) continues to operate as an offence of strict
liability.
Item 93 Subsection 433(1)
234. This item
removes the defence of “reasonable excuse” from subsection 433(1).
The rationale for the amendment is to put it beyond doubt that “reasonable
excuse” is a defence to, not an element of, the offence in subsection
433(1).
235. The defence of “reasonable excuse” is
recreated in new subsection 433(1A) (see item 94 of this
Schedule).
Item 94 After subsection
433(1)
236. This item is consequential to the amendment in
item 93 of this Schedule. It inserts new subsection 433(1A) after subsection
433(1).
237. New subsection 433(1A) provides that the offence in
subsection 433(1) does not apply if the pilot has a reasonable excuse. Under
subsection 13.3(3) of the Criminal Code, a defendant bears an evidential
burden in relation to the matter in new subsection
433(1A).
Item 95 Subsection
433(2)
238. This item removes the defence of “reasonable
excuse” from subsection 433(2). The rationale for the amendment is to put
it beyond doubt that “reasonable excuse” is a defence to, not an
element of, the offence in subsection 433(2).
239. The defence of
“reasonable excuse” is recreated in new subsection 433(2A) (see item
96 of this Schedule).
Item 96 After subsection
433(2)
240. This item makes 2 separate amendments to section 433.
241. Firstly, it inserts new subsection 433(2A), which is consequential
to the amendment in item 95 of this Schedule. New subsection 433(2A) provides
that the offence in subsection 433(2) does not apply if the person has a
reasonable excuse. Under subsection 13.3(3) of the Criminal Code, a
defendant bears an evidential burden in relation to the matter in new subsection
371(2A).
242. Secondly, it inserts new subsection 433(2B), which
provides that an offence against subsection 433(1) or 433(2) is an offence of
strict liability. “Strict liability” is defined in section 6.1 of
the Criminal Code and if an offence is intended to be one of strict
liability, it must expressly state it.
243. In summary, subsection
433(1) provides that a person appearing before the Refugee Review Tribunal must
not refuse or fail to swear or affirm or answer a question and subsection 433(2)
provides that a person must not refuse or fail to produce a document.
244. While there is a strong presumption that proof of fault is required
in relation to the offences in subsections 433(1) and 433(2), this presumption
is displaced here because:
• the penalty for offences is
comparatively low – 6 months imprisonment;
• the offence does not
have an express fault element nor can one be necessarily implied;
and
• the offence is of a nature that is usually interpreted to be
strict liability.
245. Therefore, new subsection 433(2B) ensures that the
offences in subsections 433(1) and 433(2) continue to operate as offences of
strict liability.
Item 97 Subsection
433(3)
246. This item amends the offence in subsection 433(3)
to clarify its fault element.
247. Currently, subsection 433(3) applies
the fault element of knowledge to the proscribed physical element of conduct,
namely, giving evidence to the Refugee Review Tribunal that is false or
misleading in a material particular.
248. Following the application of
the Criminal Code, the fault element of knowledge will be restricted to
the physical elements of circumstance or result (see sections 5.3 and 5.4 of the
Criminal Code).
249. 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 amends subsection 433(3) to replace the fault element of
“knowingly” with the equivalent, and more appropriate, fault element
of intention.
Item 98 Subsection
491(1)
250. This item amends subsection 491(1) to remove the
ancillary offence of attempting to escape from immigration detention. The
general ancillary provision in section 11.1 of the Criminal Code will
apply as a consequence of the insertion of new section 4A into the Migration Act
(see item 1 of this Schedule).
Item 99 Subsection
493(9)
251. This item repeals subsection 493(9) as a
consequence of the insertion of new section 4A into the Migration Act (see item
1 of this Schedule).
1. This item inserts new section 3 after section 2 of the Citizenship
Act. New section 3 clarifies that Chapter 2 of the Criminal Code applies
to all offences against the Citizenship Act. Chapter 2 sets out the general
principles of criminal responsibility.
2. This item removes the defence of “lawful authority” from
section 49 of the Citizenship Act.
3. The general defence of lawful
authority will be inserted into Chapter 2 of the Criminal Code as section 10.5
by the Criminal Code Amendment (Theft, Fraud, Bribery and Related Offences)
Act 2000. Therefore, following the application of the Criminal Code,
section 49 will be unnecessary because it duplicates section 10.5.
4. Section 10.5 will differ from the present general lawful authority
defence provision in one important respect – the degree of burden placed
upon a defendant who intends to raise the defence. Currently, section 15D of
the Crimes Act imposes a legal burden of proof on a person raising the defence
of lawful authority. By contrast, after the application of the Criminal
Code, an evidential burden of proof will be imposed on a defendant raising
the defence of lawful authority (see subsection 13.3(3) of the Criminal
Code).
5. This means that the defendant has to adduce or point to
evidence that suggests a reasonable possibility that the defence exists (see
subsection 13.3(6) of the Criminal Code). If the defendant does this,
then the prosecution is required to prove beyond reasonable doubt that the
defence does not exist (see sections 13.1 and 13.2 of the Criminal Code).
1. This item inserts new section 3 after section 2 of the Guardianship of
Children Act. New section 3 clarifies that Chapter 2 of the Criminal
Code applies to all offences against the Guardianship of Children Act.
Chapter 2 sets out the general principles of criminal responsibility.