Commonwealth of Australia Explanatory Memoranda Commonwealth of Australia Explanatory Memoranda[Index] [Search] [Download] [Bill] [Help]
1998-1999-2000-2001
THE PARLIAMENT OF THE
COMMONWEALTH OF AUSTRALIA
HOUSE OF REPRESENTATIVES
TRANSPORT AND REGIONAL SERVICES
LEGISLATION AMENDMENT (APPLICATION OF CRIMINAL CODE) BILL 2001
EXPLANATORY
MEMORANDUM
(Circulated by authority of the Minister for Transport and
Regional Services,
the Honourable John Anderson, MP)
GENERAL
OUTLINE...........................................................................3
FINANCIAL
IMPACT
STATEMENT........................................................6
NOTES
ON INDIVIDUAL
CLAUSES.......................................................7
SCHEDULE
1 – AIRPORTS ACT
1996.....................................................8
SCHEDULE 2
– NAVIGATION ACT
1912................................................39
SCHEDULE 3
– AMENDMENT OF OTHER TRANSPORT LEGISLATION....
Adelaide Airport
Curfew Act
2000..............................................................82
Aircraft
Noise levy Collection Act
1995........................................................84
Air
Navigation Act
1920..........................................................................85
Air
Services Act
1995..............................................................................91
Civil
Aviation Act
1988...........................................................................93
Civil
Aviation (Carriers’ Liability) Act
1959...................................................99
Explosives
Act
1961...............................................................................100
International
Air Services Commission Act
1992.............................................100
Interstate Road
Transport Act
1985............................................................103
Lighthouses
Act
1911.............................................................................110
Maritime
College Act
1978......................................................................113
Motor
Vehicle Standards Act
1989.............................................................113
Port
Statistics Act
1977..........................................................................119
Protection
of the Sea (Civil Liability) Act
1981..............................................120
Protection of
the Sea (Oil Pollution Compensation Fund) Act
1993......................123
Protection of the Sea (Powers of
Intervention) Act
1981....................................125
Protection of the Sea
(Prevention of Pollution from Ships) Act
1983.....................126
Protection of the Sea (Shipping Levy
Collection) Act 1981.................................137
Shipping
Registration Act
1981..................................................................138
Ships
(Capital Grants) Act
1987................................................................148
Submarine
Cables and Pipelines Protection Act
1963.......................................149
Sydney Airport Curfew
Act
1995................................................................150
SCHEDULE
4 – AMENDMENT OF TERRITORIES AND REGIONAL SERVICES
LEGISLATION.................................................................................
Albury-Wodonga
Development Act
1973.....................................................156
Ashmore
and Cartier Islands Acceptance Act
1933.........................................157
Australian Antarctic
Territory Act
1954......................................................157
Australian
Capital Territory Taxation (Administration) Act
1969........................158
Canberra Water Supply (Googong Dam)
Act 1974.........................................161
Christmas Island
Act
1958......................................................................163
Cocos
(Keeling) Islands Act
1955.............................................................165
Heard
Island and McDonald Islands Act
1953..............................................167
Jervis Bay
Territory Acceptance Act
1915....................................................168
Norfolk
Island Act
1979........................................................................168
Pay-roll
Tax (Territories) Assessment Act
1971.............................................169
SCHEDULE 5
– AMENDMENT OF TRANSPORT LEGISLATION................
Road Transport Reform (Heavy Vehicles Registration) Act
1997........................170
Road Transport Reform (Vehicles and
Traffic) Act 1993..................................170
TRANSPORT AND REGIONAL SERVICES LEGISLATION AMENDMENT (APPLICATION OF CRIMINAL CODE) BILL 2001
The purpose of this Bill is to make consequential amendments to certain
offence provisions in legislation, for which the Minister for Transport and
Regional Services has ministerial responsibility, to reflect the application of
the Criminal Code Act 1995. Some consequential amendments are also
proposed for provisions of the Australian Antarctic Territory Act 1954
and the Heard Island and McDonald Islands Act 1953. These Acts are
administered by the Minister for Environment and Heritage.
If legislation
containing offence provisions is not amended to have regard to the Criminal
Code, the Criminal Code may alter the interpretation of the existing
offence provisions. Chapter 2 of the Criminal Code contains the General
Principles of Criminal Responsibility that apply to the offence provisions
contained in the Criminal Code and all other Commonwealth offence
provisions. Chapter 2 has applied to new offence provisions since
1 January 1997. Staggered implementation was considered necessary in
relation to existing offences to provide Departments and Agencies with
sufficient time to assess the effect of the Criminal Code on their
offence provisions, and to make any necessary amendments to their legislation.
The Criminal Code is scheduled to apply to pre-existing offences from
15 December 2001.
Chapter 2 of the Criminal Code adopts the
common law approach of subjective fault based principles. It clarifies the
traditional distinction of dividing offences into actus reus (the
physical act, now referred to as the physical element) and mens rea (what
the defendant thought or intended, now referred to as the fault
element).
The prosecution bears the onus of proving each of the physical
elements. Each offence must contain at least one of the physical elements, but
any combination of the 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. Table 1 sets out the physical elements and the
corresponding fault elements.
Table 1:
Fault Elements |
Physical Elements |
||
|
|
Conduct |
Circumstance in which conduct occurs
|
Result of conduct |
Intention |
Defendant intends to engage in that conduct
|
Defendant believes that the circumstance exists or will exist
|
Defendant intends to bring about that result, or is aware that that result
will eventuate in the ordinary course of events
|
Knowledge |
Not available as fault element
|
Defendant is aware that the circumstance exists, or will exist in the
ordinary course of events
|
Defendant is aware that that result exists, or will exist in the ordinary
course of events
|
Recklessness |
Not available as fault element
|
Defendant is aware of a substantial risk that the circumstance exists or
will exist and, having regard to the circumstances known to him or her, it is
unjustifiable to take that risk
|
Defendant is aware of a substantial risk that the result will occur and,
having regard to the circumstances known to him or her, it is unjustifiable to
take that risk
|
Negligence |
Defendant’s conduct involves:
(a) such a great falling short of the standard of care that a reasonable person would exercise in the circumstances; and (b) such a high risk that the physical element exists or will exist; that the conduct merits criminal punishment for the offence. |
||
If legislation containing an offence provision does not specify a
fault element for a physical element of the offence, the Criminal Code
applies a default fault element under Section 5.6. Table 2 sets out the default
fault elements.
Table 2:
|
Fault element of:
|
Applies to physical element of:
|
|
Intention
|
Conduct
|
|
Recklessness
|
A circumstance
|
|
Recklessness
|
A result
|
A fault element can only be dispensed with in relation to an offence
(or in relation to a particular element of an offence) if the offence specifies
that it is a strict liability offence (or that a particular element is a strict
liability element). The defence of mistake of fact is available for a strict
liability offence (or a strict liability element of an offence). In the absence
of express reference to the fact that an offence is a strict liability offence,
a court will be obliged to interpret an offence provision as a fault offence
rather than a strict liability offence, and will require proof of fault elements
in relation to the physical elements.
This Bill amends the following Acts:
Airports Act
1996
Adelaide Airport Curfew Act 2000
Aircraft Noise Levy
Collection Act 1995
Air Navigation Act 1920
Air Services Act
1995
Albury-Wodonga Development Act 1973
Ashmore and Cartier
Islands Acceptance Act 1933
Australian Antarctic Territory Act
1954
Australian Capital Territory Taxation (Administration) Act
1969
Canberra Water Supply (Googong Dam) Act 1974
Christmas
Island Act 1958
Civil Aviation Act 1988
Civil Aviation
(Carriers’ Liability) Act 1959
Cocos (Keeling) Islands Act
1955
Explosives Act 1961
Heard Island and McDonald Islands
Act 1953
Interstate Road Transport Act 1985
Jervis Bay Territory
Acceptance Act 1915
Lighthouses Act 1911
Maritime College
Act 1978
Motor Vehicle Standards Act 1989
Navigation Act
1912
Norfolk Island Act 1979
Pay-roll Tax (Territories)
Assessment Act 1971
Port Statistics Act 1977
Protection of
the Sea (Civil Liability) Act 1981
Protection of the Sea (Oil
Pollution Compensation Fund) Act 1993
Protection of the Sea (Powers of
Intervention) Act 1981
Protection of the Sea (Prevention of Pollution
from Ships) Act 1983
Protection of the Sea (Shipping Levy Collection)
Act 1981
Road Transport Reform (Dangerous Goods) Act
1995
Road Transport Reform (Heavy Vehicles Registration)
1997
Road Transport Reform (Vehicles and Traffic) Act
1993
Shipping Registration Act 1981
Ships (Capital Grants)
Act 1987
Submarine Cables and Pipelines Protection Act
1963
Sydney Airport Curfew Act 1995
The amendments arise
from the requirement to:
(a) recognise the application (in whole or in
part) of the Criminal Code;
(b) recognise that the Criminal
Code does not apply to applied State and Territory offence
provisions;
(c) exempt certain legislation from the application of the
Criminal Code;
(d) specify that an offence is one of strict
liability;
(e) clarify the physical elements of an offence:
(f) clarify
the fault elements of an offence (especially where the fault elements vary from
those specified by the Criminal Code);
(g) separate defences from
offences and identify the evidential or legal burden in relation to a defence;
(h) repeal offence provisions that duplicate general offence provisions in
the Criminal Code; and
(i) replace references to provisions of the
Crimes Act 1914 with references to corresponding provisions in the
Criminal Code.
As the Bill merely makes consequential amendments to the criminal law,
there is no financial impact.
TRANSPORT AND REGIONAL SERVICES LEGISLATION AMENDMENT (APPLICATION OF CRIMINAL CODE) BILL 2001
This clause provides that the short title by which the Act may be cited
is the Transport and Regional Services Legislation Amendment (Application of
Criminal Code) Act 2001.
This clause provides that the Act commences on the day after the day on
which the Act receives the Royal Assent.
This clause makes it clear that any Act specified in a Schedule to the
Act is amended or repealed as set out in the relevant Schedule. It also
provides that Schedules may contain other provisions that have affect according
to their terms.
Subclause (1) provides that each amendment made by this Act applies to
acts and omissions that take place after the amendment
commences.
Subclause (2) provides that if an act or omission is alleged
to have taken place between two dates, one before and one on or after the day on
which a particular amendment commences, then the act or omission is alleged to
have taken place before the amendment commences.
This item defines “engage in conduct” to mean:
(a) do
an act; or
(b) omit to perform an act.
This definition is consistent
with the definition at subsection 4.1(2) of the Criminal Code.
This item inserts a new section 10A that provides that Chapter 2 of the
Criminal Code (except Part 2.5) applies to all offences against the
Airports Act 1996. It also inserts a note that says that Chapter 2 of
the Criminal Code sets out the general principles of criminal
responsibility.
Part 2.5 of the Criminal Code is the only Part of
Chapter 2 that does not automatically apply to offences. When the Criminal
Code was introduced into the Senate on 30 June 1994, it was stated that Part
2.5 would be the basis of corporate criminal liability if no other basis were
provided. Section 224 of the Airports Act 1996 deals with corporate
criminal responsibility by vicariously establishing criminal responsibility for
corporations as a result of the state of mind and conduct of its directors,
employees or agents. The disapplication of Part 2.5 is necessary to prevent
competing corporate criminal liability regimes operating in relation to the same
criminal offences.
This item replaces subsection 29(2) with a provision that more accurately
identifies the physical elements of circumstance, conduct and result in
the offence, to which the default fault elements of recklessness and
intention, will be applied by the Criminal Code.
This
amendment has rephrased the offence to clarify that:
• paragraph
29(2)(a) is the physical element of the circumstances of the
defendant’s conduct to which the default fault element of
recklessness will apply;
• paragraph 29(2)(b) is the physical
element of conduct to which the default fault element of intention
will apply; and
• paragraph 29(2)(c) is the physical element of
result to which the default element of recklessness will
apply.
The maximum penalty under this subsection is 400 penalty
units.
This item also inserts a provision at subsection 29(2A) that
strict liability applies to the physical element of circumstance at
paragraph 29(2)(a). This amendment ensures that the provision is not
interpreted as requiring the prosecution to prove, as part of the offence, that
the defendant had knowledge of a requirement to transfer a lease under
subsection (1) or (1A). Subsection 9.3(1) of the Criminal Code
provides that mistake or ignorance of statute law is no excuse. Subsection
9.3(2) however provides that 9.3(1) does not apply if the particular Act is
expressly or impliedly to the contrary effect. This amendment does not create a
new offence of strict liability. The amendment is necessary to maintain
the current operation of subsection 29(2), and ensure that it is not interpreted
to indicate a contrary intention for the purposes of section 9.3 of the
Criminal Code.
This item replaces subsection 32(3) with a provision that more accurately
identifies the physical elements of circumstance, conduct and result in
the offence to which the default fault elements of recklessness and intention
will be applied by the Criminal Code.
This amendment has
rephrased the offence to clarify that:
• paragraph 32(3)(a) is the
physical element of the circumstances of the defendant’s conduct to
which the default fault element of recklessness will
apply;
• paragraph 32(3)(b) is the physical element of conduct
to which the default fault element of intention will apply;
and
• paragraph 32(3)(c) is the physical element of result to
which the default element of recklessness will apply.
The maximum
penalty under this subsection is 2,000 penalty units.
This item also
inserts a provision at subsection 32(3A) that strict liability applies to
the physical element of circumstance at paragraph 32(3)(a). This
amendment ensures that the provision is not interpreted as requiring the
prosecution to prove, as part of the offence, that the defendant had knowledge
of a requirement under subsection (1) or (2). Subsection 9.3(1) of the
Criminal Code provides that mistake or ignorance of statute law is no
excuse. Subsection 9.3(2) however provides that 9.3(1) does not apply if the
particular Act is expressly or impliedly to the contrary effect. This amendment
does not create a new offence of strict liability. The amendment is
necessary to maintain the current operation of subsection 32(3), and ensure that
it is not interpreted to indicate a contrary intention for the purposes of
section 9.3 of the Criminal Code.
This item amends subsection 42(2) to delete the alternative fault
elements of knowingly or recklessly that currently apply to the physical
element of conduct in the offence. Under the Criminal Code the
fault elements of knowingly or recklessly can only apply to the physical
elements of circumstances of conduct or result of conduct (see
Division 5, Part 2.2, Chapter 2 of the Criminal Code). Once
omitted, the fault element of intention will apply to the physical
element of conduct in the offence. The fault element of
recklessness will apply to the physical element of circumstances
in the offence (see section 5.6 of the Criminal Code). Section 5.4 of
the Criminal Code provides that where recklessness is the fault
element for a physical element of an offence, proof of intention,
knowledge or recklessness will satisfy that fault element. Thus,
the actions of the defendant who either had the requisite knowledge or
recklessness will be criminalised.
The maximum penalty under this
subsection is 500 penalty units.
This item amends subsection 46(2) to delete the alternative fault
elements of knowingly or recklessly that currently apply to the physical
element of conduct in the offence. Under the Criminal Code the
fault elements of knowingly or recklessly can only apply to the physical
elements of circumstances of conduct or result of conduct (see
Division 5, Part 2.2, Chapter 2 of the Criminal Code). Once
omitted, the fault element of intention will apply to the physical
element of conduct in the offence. The fault element of
recklessness will apply to the physical element of circumstances
in the offence (see section 5.6 of the Criminal Code). Section 5.4 of
the Criminal Code provides that where recklessness is the fault
element for a physical element of an offence, proof of intention,
knowledge or recklessness will satisfy that fault element. Thus,
the actions of the defendant who either had the requisite knowledge or
recklessness will be criminalised.
The maximum penalty under this
subsection is 500 penalty units.
This item also inserts a provision at
subsection 46(3A) that strict liability applies to the physical element
of circumstance at paragraph 46(2)(a). This amendment ensures that the
provision is not interpreted as requiring the prosecution to prove, as part of
the offence, that the defendant had knowledge of the requirement to take
steps under subsection (1). Subsection 9.3(1) of the Criminal Code
provides that mistake or ignorance of statute law is no excuse. Subsection
9.3(2) however provides that 9.3(1) does not apply if the particular Act is
expressly or impliedly to the contrary effect. This amendment does not create a
new offence of strict liability. The amendment is necessary to maintain
the current operation of subsection 46(3), and ensure that it is not interpreted
to indicate a contrary intention for the purposes of section 9.3 of the
Criminal Code.
This item amends subsection 52(2) to delete the alternative fault
elements of knowingly or recklessly that currently apply to the physical
element of conduct in the offence. Under the Criminal Code the
fault elements of knowingly or recklessly can only apply to the physical
elements of circumstances of conduct or result of conduct (see
Division 5, Part 2.2, Chapter 2 of the Criminal Code). Once
omitted, the fault element of intention will apply to the physical
element of conduct in the offence. The fault element of
recklessness will apply to the physical element of circumstances
in the offence (see section 5.6 of the Criminal Code). Section 5.4 of
the Criminal Code provides that where recklessness is the fault
element for a physical element of an offence, proof of intention,
knowledge or recklessness will satisfy that fault element. Thus,
the actions of the defendant who either had the requisite knowledge or
recklessness will be criminalised.
The maximum penalty under this
subsection is 500 penalty units.
This item also inserts a provision at
subsection 52(3) that strict liability applies to the physical element of
circumstance at paragraph 52(2)(a). This amendment ensures that the
provision is not interpreted as requiring the prosecution to prove, as part of
the offence, that the defendant had knowledge of the requirement to take
steps under subsection (1). Subsection 9.3(1) of the Criminal Code
provides that mistake or ignorance of statute law is no excuse. Subsection
9.3(2) however provides that 9.3(1) does not apply if the particular Act is
expressly or impliedly to the contrary effect. This amendment does not create a
new offence of strict liability. The amendment is necessary to maintain
the current operation of subsection 52(2), and ensure that it is not interpreted
to indicate a contrary intention for the purposes of section 9.3 of the
Criminal Code.
Item 8 – Subsection 56(2)
This
item amends subsection 56(2) to delete the alternative fault elements of
knowingly or recklessly that currently apply to the physical element of
conduct in the offence. Under the Criminal Code the fault
elements of knowingly or recklessly can only apply to the physical
elements of circumstances of conduct or result of conduct (see
Division 5, Part 2.2, Chapter 2 of the Criminal Code). Once
omitted, the fault element of intention will apply to the physical
element of conduct in the offence. The fault element of
recklessness will apply to the physical element of circumstances
in the offence (see section 5.6 of the Criminal Code). Section 5.4 of
the Criminal Code provides that where recklessness is the fault
element for a physical element of an offence, proof of intention,
knowledge or recklessness will satisfy that fault element. Thus,
the actions of the defendant who either had the requisite knowledge or
recklessness will be criminalised.
The maximum penalty under this
subsection is 400 penalty units.
This item also inserts a provision at
subsection 56(3) that strict liability applies to the physical element of
circumstance at paragraph 56 (2)(a). This amendment ensures that the
provision is not interpreted as requiring the prosecution to prove, as part of
the offence, that the defendant had knowledge of the requirement to take
steps under subsection (1). Subsection 9.3(1) of the Criminal Code
provides that mistake or ignorance of statute law is no excuse. Subsection
9.3(2) however provides that 9.3(1) does not apply if the particular Act is
expressly or impliedly to the contrary effect. This amendment does not create a
new offence of strict liability. The amendment is necessary to maintain
the current operation of subsection 56(2), and ensure that it is not interpreted
to indicate a contrary intention for the purposes of section 9.3 of the
Criminal Code.
Item 9 – Subsection 60(4)
This
item replaces subsection 60(4) with a provision that more accurately identifies
the physical elements of circumstance, conduct and result in the offence
to which the default fault elements of recklessness and intention will be
applied by the Criminal Code.
This amendment has rephrased the
offence to clarify that:
• paragraph 60(4)(a) is the physical
element of the circumstances of the defendant’s conduct to which
the default fault element of recklessness will
apply;
• paragraph 60(4)(b) is the physical element of conduct
to which the default fault element of intention will apply;
and
• paragraph 60(4)(c) is the physical element of result to
which the default element of recklessness will apply.
The maximum
penalty under this subsection is 50 penalty units.
This item also inserts
a provision at subsection 60(4A) that strict liability applies to the
physical element of circumstance at paragraph 60(4)(a). This amendment
ensures that the provision is not interpreted as requiring the prosecution to
prove, as part of the offence, that the defendant had knowledge of the
requirement to keep and retain records and to give information under
subsection (1). Subsection 9.3(1) of the Criminal Code provides that
mistake or ignorance of statute law is no excuse. Subsection 9.3(2) however
provides that 9.3(1) does not apply if the particular Act is expressly or
impliedly to the contrary effect. This amendment does not create a new offence
of strict liability. The amendment is necessary to maintain the current
operation of subsection 60(4), and ensure that it is not interpreted to indicate
a contrary intention for the purposes of section 9.3 of the Criminal
Code.
Item 10 – Subsection 75(2)
This item
replaces subsection 75(2) with a provision that more accurately identifies the
physical elements of circumstance, conduct and result in the offence to
which the default fault elements of recklessness and intention will be
applied by the Criminal Code.
This amendment has rephrased the
offence to clarify that:
• paragraph 75(2)(a) is the physical
element of the circumstances of the defendant’s conduct to which
the default fault element of recklessness will
apply;
• paragraph 75(2)(b) is the physical element of conduct
to which the default fault element of intention will apply;
and
• paragraph 75(2)(c) is the physical element of result to
which the default element of recklessness will apply.
The maximum
penalty under this subsection is 250 penalty units.
This item also
inserts a provision at subsection 75(3) that strict liability applies to
the physical element of circumstance at paragraph 75(2)(a). This
amendment ensures that the provision is not interpreted as requiring the
prosecution to prove, as part of the offence, that the defendant had knowledge
of the requirement to give the Minister a draft master plan under subsection
(1). Subsection 9.3(1) of the Criminal Code provides that mistake or
ignorance of statute law is no excuse. Subsection 9.3(2) however provides that
9.3(1) does not apply if the particular Act is expressly or impliedly to the
contrary effect. This amendment does not create a new offence of strict
liability. The amendment is necessary to maintain the current operation of
subsection 75(2), and ensure that it is not interpreted to indicate a contrary
intention for the purposes of section 9.3 of the Criminal
Code.
Item 11 – Subsection 76(2)
This item
replaces subsection 76(2) with a provision that more accurately identifies the
physical elements of circumstance, conduct and result in the offence to
which the default fault elements of recklessness and intention will be
applied by the Criminal Code.
This amendment has rephrased the
offence to clarify that:
• paragraph 76(2)(a) is the physical
element of the circumstances of the defendant’s conduct to which
the default fault element of recklessness will
apply;
• paragraph 76(2)(b) is the physical element of conduct
to which the default fault element of intention will apply;
and
• paragraph 76 (2)(c) is the physical element of result to
which the default element of recklessness will apply.
The maximum
penalty under this subsection is 250 penalty units.
This item also
inserts a provision at subsection 76(3) that strict liability applies to
the physical element of circumstance at paragraph 76(2)(a). This
amendment ensures that the provision is not interpreted as requiring the
prosecution to prove, as part of the offence, that the defendant had knowledge
of the requirement to give the Minister a draft master plan under subsection
(1). Subsection 9.3(1) of the Criminal Code provides that mistake or
ignorance of statute law is no excuse. Subsection 9.3(2) however provides that
9.3(1) does not apply if the particular Act is expressly or impliedly to the
contrary effect. This amendment does not create a new offence of strict
liability. The amendment is necessary to maintain the current operation of
subsection 76(2), and ensure that it is not interpreted to indicate a contrary
intention for the purposes of section 9.3 of the Criminal
Code.
Item 12 – Subsection 78(3)
This item
replaces subsection 78(3) with a provision that more accurately identifies the
physical elements of circumstance, conduct and result in the offence to
which the default fault elements of recklessness and intention will be
applied by the Criminal Code.
This amendment has rephrased the
offence to clarify that:
• paragraph 78(3)(a) is the physical
element of the circumstances of the defendant’s conduct to which
the default fault element of recklessness will
apply;
• paragraph 78(3)(b) is the physical element of conduct
to which the default fault element of intention will apply;
and
• paragraph 78(3)(c) is the physical element of result to
which the default element of recklessness will apply.
The maximum
penalty under this subsection is 250 penalty units.
This item also
inserts a provision at subsection 78(4) that strict liability applies to
the physical element of circumstance at paragraph 78(3)(a). This
amendment ensures that the provision is not interpreted as requiring the
prosecution to prove, as part of the offence, that the defendant had knowledge
of the requirement to give the Minister a draft master plan under subsection
(2). Subsection 9.3(1) of the Criminal Code provides that mistake or
ignorance of statute law is no excuse. Subsection 9.3(2) however provides that
9.3(1) does not apply if the particular Act is expressly or impliedly to the
contrary effect. This amendment does not create a new offence of strict
liability. The amendment is necessary to maintain the current operation of
subsection 78(3), and ensure that it is not interpreted to indicate a contrary
intention for the purposes of section 9.3 of the Criminal
Code.
Item 13 – Subsection 81(9)
This item
replaces subsection 81(9) with a provision that more accurately identifies the
physical elements of circumstance, conduct and result in the offence to
which the default fault elements of recklessness and intention will be
applied by the Criminal Code.
This amendment has rephrased the
offence to clarify that:
• paragraph 81(9)(a) is the physical
element of the circumstances of the defendant’s conduct to which
the default fault element of recklessness will
apply;
• paragraph 81(9)(b) is the physical element of conduct
to which the default fault element of intention will apply;
and
• paragraph 81(9)(c) is the physical element of result to
which the default element of recklessness will apply.
The maximum
penalty under this subsection is 250 penalty units.
Item 14 –
Subsection 85(2)
This item replaces subsection 85(2) with a provision
that more accurately identifies the physical elements of circumstance,
conduct and result in the offence to which the default fault elements of
recklessness and intention will be applied by the Criminal
Code.
This amendment has rephrased the offence to clarify
that:
• paragraph 85(2)(a) is the physical element of the
circumstances of the defendant’s conduct to which the default fault
element of recklessness will apply;
• paragraph 85(2)(b) is the
physical element of conduct to which the default fault element of
intention will apply; and
• paragraph 85(2)(c) is the physical
element of result to which the default element of recklessness
will apply.
The maximum penalty under this subsection is 100 penalty
units.
This item also inserts a provision at subsection 85(3) that
strict liability applies to the physical element of circumstance
at paragraph 85(2)(a). This amendment ensures that the provision is not
interpreted as requiring the prosecution to prove, as part of the offence, that
the defendant had knowledge of the requirement to give the Minister a draft
master plan under subsection (2). Subsection 9.3(1) of the Criminal
Code provides that mistake or ignorance of statute law is no excuse.
Subsection 9.3(2) however provides that 9.3(1) does not apply if the particular
Act is expressly or impliedly to the contrary effect. This amendment does not
create a new offence of strict liability. The amendment is necessary to
maintain the current operation of subsection 85(2), and ensure that it is not
interpreted to indicate a contrary intention for the purposes of section 9.3 of
the Criminal Code.
Item 15 – Subsection
86(3)
This item replaces subsection 86(3) with a provision that more
accurately identifies the physical elements of circumstance, conduct and
result in the offence to which the default fault elements of recklessness
and intention will be applied by the Criminal Code.
This
amendment has rephrased the offence to clarify that:
• paragraph
86(3)(a) is the physical element of the circumstances of the
defendant’s conduct to which the default fault element of
recklessness will apply;
• paragraph 86(3)(b) is the physical
element of conduct to which the default fault element of intention
will apply; and
• paragraph 86(3)(c) is the physical element of
result to which the default element of recklessness will
apply.
The maximum penalty under this subsection is 250 penalty
units.
This item also inserts a provision at subsection 86(4) that
strict liability applies to the physical element of circumstance
at paragraph 86(3)(a). This amendment ensures that the provision is not
interpreted as requiring the prosecution to prove, as part of the offence, that
the defendant had knowledge of the requirement to publish a notice and make a
plan or variation available for inspection under subsection (2). Subsection
9.3(1) of the Criminal Code provides that mistake or ignorance of statute
law is no excuse. Subsection 9.3(2) however provides that 9.3(1) does not apply
if the particular Act is expressly or impliedly to the contrary effect. This
amendment does not create a new offence of strict liability. The
amendment is necessary to maintain the current operation of subsection 86(3),
and ensure that it is not interpreted to indicate a contrary intention for the
purposes of section 9.3 of the Criminal Code.
Item 16 –
Subsection 90(3)
This item replaces subsection 90(3) with a provision
that more accurately identifies the physical elements of circumstance,
conduct and result in the offence to which the default fault elements of
recklessness and intention will be applied by the Criminal
Code.
This amendment has rephrased the offence to clarify
that:
• paragraph 90(3)(a) is the physical element of the
circumstances of the defendant’s conduct to which the default fault
element of recklessness will apply;
• paragraph 90(3)(b) is the
physical element of conduct to which the default fault element of
intention will apply; and
• paragraph 90(3)(c) is the physical
element of result to which the default element of recklessness
will apply.
The maximum penalty under this subsection is 2,000 penalty
units.
This item also notes that the defendant bears an evidential burden
of proof with regard to the matters at paragraphs 90(1)(c) and (d). Criminal
Code policy is that the prosecution should prove every element of the
offence relevant to the guilt of the person charged (see subsection 13.1(1) of
the Criminal Code). However, there are some instances where it is
appropriate for a defendant to bear a burden of proof, such as where a matter is
peculiarly within the knowledge of the defendant. In those instances, the
Criminal Code policy is that the burden should be an evidential burden
rather than a legal burden (see subsection 13.3(1) of the Criminal Code).
An evidential burden is lighter than a legal burden. Subsection 13.3(1) of the
Criminal Code provides that, subject to section 13.4, a burden of
proof that a law imposes on a defendant is an evidential burden only. An
evidential burden is the burden of adducing or pointing to evidence
that suggests a reasonable possibility that the matter exists or does not exist
(see subsection 13.3(6) of the Criminal Code), whereas a legal burden
is the burden of proving the existence of the matter (see subsection
13.1(3) of the Criminal Code).
Subsection 13.3(3) of the
Criminal Code provides that a defendant who wishes to rely on any
exception, exemption, excuse, qualification or justification provided by law
creating an offence bears an evidential burden in such
circumstances.
This item also inserts a provision at subsection 90(3A)
that strict liability applies to the physical element of
circumstance at paragraph 90(3)(a). This amendment ensures that the
provision is not interpreted as requiring the prosecution to prove, as part of
the offence, that the defendant had knowledge of a requirement
under subsection (1). Subsection 9.3(1) of the Criminal
Code provides that mistake or ignorance of statute law is no excuse.
Subsection 9.3(2) however provides that 9.3(1) does not apply if the particular
Act is expressly or impliedly to the contrary effect. This amendment does not
create a new offence of strict liability. The amendment is necessary to
maintain the current operation of subsection 90(3), and ensure that it is not
interpreted to indicate a contrary intention for the purposes of section 9.3 of
the Criminal Code.
Item 17 – Subsection
90(6)
This item replaces subsection 90(6) with a provision that more
accurately identifies the physical elements of circumstance, conduct and
result in the offence to which the default fault elements of recklessness
and intention will be applied by the Criminal Code.
This
amendment has rephrased the offence to clarify that:
• paragraph
90(6)(a) is the physical element of the circumstances of the
defendant’s conduct to which the default fault element of
recklessness will apply;
• paragraph 90(6)(b) is the physical
element of conduct to which the default fault element of intention
will apply; and
• paragraph 90(6)(c) is the physical element of
result to which the default element of recklessness will
apply.
The maximum penalty under this subsection is 400 penalty
units.
This item also notes that the defendant bears an evidential burden
of proof with regard to the matters at paragraphs 90(4)(c) and (d). Criminal
Code policy is that the prosecution should prove every element of the
offence relevant to the guilt of the person charged (see subsection 13.1(1) of
the Criminal Code). However, there are some instances where it is
appropriate for a defendant to bear a burden of proof, such as where a matter is
peculiarly within the knowledge of the defendant. In those instances, the
Criminal Code policy is that the burden should be an evidential burden
rather than a legal burden (see subsection 13.3(1) of the Criminal Code).
An evidential burden is lighter than a legal burden. Subsection 13.3(1) of the
Criminal Code provides that, subject to section 13.4, a burden of
proof that a law imposes on a defendant is an evidential burden only. An
evidential burden is the burden of adducing or pointing to evidence
that suggests a reasonable possibility that the matter exists or does not exist
(see subsection 13.3(6) of the Criminal Code), whereas a legal burden
is the burden of proving the existence of the matter (see subsection
13.1(3) of the Criminal Code).
Subsection 13.3(3) of the
Criminal Code provides that a defendant who wishes to rely on any
exception, exemption, excuse, qualification or justification provided by law
creating an offence bears an evidential burden in such
circumstances.
This item also inserts a provision at subsection 90(7)
that strict liability applies to the physical element of
circumstance at paragraph 90(6)(a). This amendment ensures that the
provision is not interpreted as requiring the prosecution to prove, as part of
the offence, that the defendant had knowledge of a requirement
under subsection (1). Subsection 9.3(1) of the Criminal
Code provides that mistake or ignorance of statute law is no excuse.
Subsection 9.3(2) however provides that 9.3(1) does not apply if the particular
Act is expressly or impliedly to the contrary effect. This amendment does not
create a new offence of strict liability. The amendment is necessary to
maintain the current operation of subsection 90(6), and ensure that it is not
interpreted to indicate a contrary intention for the purposes of section 9.3 of
the Criminal Code.
Item 18 – Subsection
96(3)
This item replaces subsection 96(3) with a provision that more
accurately identifies the physical elements of circumstance, conduct and
result in the offence to which the default fault elements of recklessness
and intention will be applied by the Criminal Code.
This
amendment has rephrased the offence to clarify that:
• paragraph
96(3)(a) is the physical element of the circumstances of the
defendant’s conduct to which the default fault element of
recklessness will apply;
• paragraph 96(3)(b) is the physical
element of conduct to which the default fault element of intention
will apply; and
• paragraph 96(3)(c) is the physical element of
result to which the default element of recklessness will
apply.
The maximum penalty under this subsection is 250 penalty
units.
This item also inserts a provision at subsection 96(4) that
strict liability applies to the physical element of circumstance
at paragraph 96(3)(a). This amendment ensures that the provision is not
interpreted as requiring the prosecution to prove, as part of the offence, that
the defendant had knowledge of the requirement that to publish a notice and
make a plan or variation available for inspection under subsection (2).
Subsection 9.3(1) of the Criminal Code provides that mistake or ignorance
of statute law is no excuse. Subsection 9.3(2) however provides that 9.3(1)
does not apply if the particular Act is expressly or impliedly to the contrary
effect. This amendment does not create a new offence of strict
liability. The amendment is necessary to maintain the current operation of
subsection 96(3), and ensure that it is not interpreted to indicate a contrary
intention for the purposes of section 9.3 of the Criminal
Code.
Item 19 – Subsection 99(2)
This item
replaces subsection 99(2) with a provision that more accurately identifies the
physical elements of circumstance, conduct and result in the offence to
which the default fault elements of recklessness and intention will be
applied by the Criminal Code.
This amendment has rephrased the
offence to clarify that:
• paragraph 99(2)(a) is the physical
element of the circumstances of the defendant’s conduct to which
the default fault element of recklessness will
apply;
• paragraph 99(2)(b) is the physical element of conduct
to which the default fault element of intention will apply;
and
• paragraph 99(2)(c) is the physical element of result to
which the default element of recklessness will apply.
The maximum
penalty under this subsection is 250 penalty units.
This item also notes
that the defendant bears an evidential burden of proof with regard to the
matters at paragraphs 99(1)(c) and (d). Criminal Code policy is that the
prosecution should prove every element of the offence relevant to the guilt of
the person charged (see subsection 13.1(1) of the Criminal Code).
However, there are some instances where it is appropriate for a defendant to
bear a burden of proof, such as where a matter is peculiarly within the
knowledge of the defendant. In those instances, the Criminal Code policy
is that the burden should be an evidential burden rather than a legal burden
(see subsection 13.3(1) of the Criminal Code). An evidential burden is
lighter than a legal burden. Subsection 13.3(1) of the Criminal Code
provides that, subject to section 13.4, a burden of proof that a law imposes
on a defendant is an evidential burden only. An evidential burden is the
burden of adducing or pointing to evidence that suggests a reasonable
possibility that the matter exists or does not exist (see subsection 13.3(6)
of the Criminal Code), whereas a legal burden is the burden of proving
the existence of the matter (see subsection 13.1(3) of the Criminal
Code).
Subsection 13.3(3) of the Criminal Code provides that a
defendant who wishes to rely on any exception, exemption, excuse, qualification
or justification provided by law creating an offence bears an evidential burden
in such circumstances.
This item also inserts a provision at subsection
99(2A) that strict liability applies to the physical element of
circumstance at paragraph 99(2)(a). This amendment ensures that the
provision is not interpreted as requiring the prosecution to prove, as part of
the offence, that the defendant had knowledge of a requirement
under subsection (1). Subsection 9.3(1) of the Criminal
Code provides that mistake or ignorance of statute law is no excuse.
Subsection 9.3(2) however provides that 9.3(1) does not apply if the particular
Act is expressly or impliedly to the contrary effect. This amendment does not
create a new offence of strict liability. The amendment is necessary to
maintain the current operation of subsection 99(2), and ensure that it is not
interpreted to indicate a contrary intention for the purposes of section 9.3 of
the Criminal Code.
Item 20 – Subsection
99(4)
This item replaces subsection 99(4) with a provision that more
accurately identifies the physical elements of circumstance, conduct and
result in the offence to which the default fault elements of recklessness
and intention will be applied by the Criminal Code.
This
amendment has rephrased the offence to clarify that:
• paragraph
99(4)(a) is the physical element of the circumstances of the
defendant’s conduct to which the default fault element of
recklessness will apply;
• paragraph 99(4)(b) is the physical
element of conduct to which the default fault element of intention
will apply; and
• paragraph 99(4)(c) is the physical element of
result to which the default element of recklessness will
apply.
The maximum penalty under this subsection is 50 penalty
units.
This item also notes that the defendant bears an evidential burden
of proof with regard to the matters at paragraphs 99(3)(c) and (d). Criminal
Code policy is that the prosecution should prove every element of the
offence relevant to the guilt of the person charged (see subsection 13.1(1) of
the Criminal Code). However, there are some instances where it is
appropriate for a defendant to bear a burden of proof, such as where a matter is
peculiarly within the knowledge of the defendant. In those instances, the
Criminal Code policy is that the burden should be an evidential burden
rather than a legal burden (see subsection 13.3(1) of the Criminal Code).
An evidential burden is lighter than a legal burden. Subsection 13.3(1) of the
Criminal Code provides that, subject to section 13.4, a burden of
proof that a law imposes on a defendant is an evidential burden only. An
evidential burden is the burden of adducing or pointing to evidence
that suggests a reasonable possibility that the matter exists or does not exist
(see subsection 13.3(6) of the Criminal Code), whereas a legal burden
is the burden of proving the existence of the matter (see subsection
13.1(3) of the Criminal Code).
Subsection 13.3(3) of the
Criminal Code provides that a defendant who wishes to rely on any
exception, exemption, excuse, qualification or justification provided by law
creating an offence bears an evidential burden in such
circumstances.
This item also inserts a provision at subsection 99(5)
that strict liability applies to the physical element of
circumstance at paragraph 99(4)(a). This amendment ensures that the
provision is not interpreted as requiring the prosecution to prove, as part of
the offence, that the defendant had knowledge of a requirement
under subsection (1). Subsection 9.3(1) of the Criminal
Code provides that mistake or ignorance of statute law is no excuse.
Subsection 9.3(2) however provides that 9.3(1) does not apply if the particular
Act is expressly or impliedly to the contrary effect. This amendment does not
create a new offence of strict liability. The amendment is necessary to
maintain the current operation of subsection 99(4), and ensure that it is not
interpreted to indicate a contrary intention for the purposes of section 9.3 of
the Criminal Code.
Item 21 – Section 102
This
item replaces subsection 102(1) with a provision that more accurately identifies
the physical elements of circumstance, conduct and result in the offence
to which the default fault elements of recklessness and intention will be
applied by the Criminal Code.
This amendment has rephrased the
offence to clarify that:
• paragraph 102(1)(a) is the physical
element of the circumstances of the defendant’s conduct to which
the default fault element of recklessness will
apply;
• paragraph 102(1)(b) is the physical element of conduct
to which the default fault element of intention will apply;
and
• paragraph 102(1)(c) is the physical element of result to
which the default element of recklessness will apply.
The maximum
penalty under this subsection is 50 penalty units.
This item also inserts
a provision at subsection 102(2) that strict liability applies to the
physical element of circumstance at paragraph 102(1)(a). This amendment
ensures that the provision is not interpreted as requiring the prosecution to
prove, as part of the offence, that the defendant had knowledge of the
approval under the regulations for the purposes of this subdivision.
Subsection 9.3(1) of the Criminal Code provides that mistake or ignorance
of statute law is no excuse. Subsection 9.3(2) however provides that 9.3(1)
does not apply if the particular Act is expressly or impliedly to the contrary
effect. This amendment does not create a new offence of strict
liability. The amendment is necessary to maintain the current operation of
section 102, and ensure that it is not interpreted to indicate a contrary
intention for the purposes of section 9.3 of the Criminal
Code.
Item 22 – Subsection 103(3)
This item
replaces subsection 103(3) with a provision that more accurately identifies the
physical elements of circumstance, conduct and result in the offence to
which the default fault elements of recklessness and intention will be
applied by the Criminal Code.
This amendment has rephrased the
offence to clarify that:
• paragraph 103(3)(a) is the physical
element of the circumstances of the defendant’s conduct to which
the default fault element of recklessness will
apply;
• paragraph 103(3)(b) is the physical element of conduct
to which the default fault element of intention will apply;
and
• paragraph 103(3)(c) is the physical element of result to
which the default element of recklessness will apply.
The maximum
penalty under this subsection is 50 penalty units.
This item also inserts
a provision at subsection 103(4) that strict liability applies to the
physical element of circumstance at paragraph 103(3)(a). This amendment
ensures that the provision is not interpreted as requiring the prosecution to
prove, as part of the offence, that the defendant had knowledge of a
direction under subsection (1). Subsection 9.3(1) of the Criminal
Code provides that mistake or ignorance of statute law is no excuse.
Subsection 9.3(2) however provides that 9.3(1) does not apply if the particular
Act is expressly or impliedly to the contrary effect. This amendment does not
create a new offence of strict liability. The amendment is necessary to
maintain the current operation of section 103(3), and ensure that it is not
interpreted to indicate a contrary intention for the purposes of section 9.3 of
the Criminal Code.
Item 23 – Subsection
106(3)
This item omits the reference to intentionally or
recklessly in subsection 106(3). Following application of the Criminal
Code it will not be possible to apply a fault element of recklessness (that
is, recklessly) to a physical element of conduct (see Part 2.2,
Division 5 of the Criminal Code). The fault element of
recklessness can only be applied to the physical elements of
circumstance or result. The reference to intentionally is
omitted as it is superfluous – the Criminal Code will apply the
default fault element of intention to the physical element of
conduct.
Item 24 – At the end of subsection
106(3)
This item notes that the defendant bears an evidential burden
of proof with regard to the matters at paragraphs 106(1)(c) and (d).
Criminal Code policy is that the prosecution should prove every element
of the offence relevant to the guilt of the person charged (see subsection
13.1(1) of the Criminal Code). However, there are some instances where
it is appropriate for a defendant to bear a burden of proof, such as where a
matter is peculiarly within the knowledge of the defendant. In those instances,
the Criminal Code policy is that the burden should be an evidential
burden rather than a legal burden (see subsection 13.3(1) of the Criminal
Code). An evidential burden is lighter than a legal burden. Subsection
13.3(1) of the Criminal Code provides that, subject to section 13.4, a
burden of proof that a law imposes on a defendant is an evidential burden
only. An evidential burden is the burden of adducing or pointing
to evidence that suggests a reasonable possibility that the matter exists or
does not exist (see subsection 13.3(6) of the Criminal Code), whereas
a legal burden is the burden of proving the existence of the matter (see
subsection 13.1(3) of the Criminal Code).
Subsection 13.3(3) of
the Criminal Code provides that a defendant who wishes to rely on any
exception, exemption, excuse, qualification or justification provided by law
creating an offence bears an evidential burden in such
circumstances.
Item 25 – Subsection 106(6)
This item
omits the reference to intentionally or recklessly in subsection 106(6).
Following application of the Criminal Code it will not be possible to
apply a fault element of recklessness (that is, recklessly) to a physical
element of conduct (see Part 2.2, Division 5 of the Criminal
Code). The fault element of recklessness can only be applied to the
physical elements of circumstance or result. The reference to
intentionally is omitted as it is superfluous – the Criminal
Code will apply the default fault element of intention to the
physical element of conduct.
Item 26 – At the end of
subsection 106(6)
This item notes that the defendant bears an
evidential burden of proof with regard to the matters at paragraphs 106(4)(c),
(d) and (e). Criminal Code policy is that the prosecution should prove
every element of the offence relevant to the guilt of the person charged (see
subsection 13.1(1) of the Criminal Code). However, there are some
instances where it is appropriate for a defendant to bear a burden of proof,
such as where a matter is peculiarly within the knowledge of the defendant. In
those instances, the Criminal Code policy is that the burden should be an
evidential burden rather than a legal burden (see subsection 13.3(1) of the
Criminal Code). An evidential burden is lighter than a legal burden.
Subsection 13.3(1) of the Criminal Code provides that, subject to section
13.4, a burden of proof that a law imposes on a defendant is an evidential
burden only. An evidential burden is the burden of adducing or
pointing to evidence that suggests a reasonable possibility that the matter
exists or does not exist (see subsection 13.3(6) of the Criminal
Code), whereas a legal burden is the burden of proving the existence of
the matter (see subsection 13.1(3) of the Criminal
Code).
Subsection 13.3(3) of the Criminal Code provides that a
defendant who wishes to rely on any exception, exemption, excuse, qualification
or justification provided by law creating an offence bears an evidential burden
in such circumstances.
Item 27 – Section 108
This
item replaces 108 with a provision that more accurately identifies the physical
elements of circumstance, conduct and result in the offence to which the
default fault elements of recklessness and intention will be applied by
the Criminal Code.
This amendment has rephrased the offence to
clarify that:
• subsection 108(a) is the physical element of the
circumstances of the defendant’s conduct to which the default fault
element of recklessness will apply;
• paragraph 108(b) is the
physical element of conduct to which the default fault element of
intention will apply; and
• paragraph 108(c) is the physical
element of result to which the default element of recklessness
will apply.
The maximum penalty under this subsection is 50 penalty
units.
Item 28 – Subsection 109(3)
This item replaces
subsection 109(3) with a provision that more accurately identifies the physical
elements of circumstance, conduct and result in the offence to which the
default fault elements of recklessness and intention will be applied by
the Criminal Code.
This amendment has rephrased the offence to
clarify that:
• paragraph 109(3)(a) is the physical element of the
circumstances of the defendant’s conduct to which the default fault
element of recklessness will apply;
• paragraph 109(3)(b) is the
physical element of conduct to which the default fault element of
intention will apply; and
• paragraph 109(3)(c) is the physical
element of result to which the default element of recklessness
will apply.
The maximum penalty under this subsection is 50 penalty
units.
Item 29 – Subsection 120(2)
This item replaces
subsection 120(2) with a provision that more accurately identifies the physical
elements of circumstance, conduct and result in the offence to which the
default fault elements of recklessness and intention will be applied by
the Criminal Code.
This amendment has rephrased the offence to
clarify that:
• paragraph 120(2)(a) is the physical element of the
circumstances of the defendant’s conduct to which the default fault
element of recklessness will apply;
• paragraph 120(2)(b) is the
physical element of conduct to which the default fault element of
intention will apply; and
• paragraph 120(2)(c) is the physical
element of result to which the default element of recklessness
will apply.
The maximum penalty under this subsection is 250 penalty
units.
This item also inserts a provision at subsection 120(3) that
strict liability applies to the physical element of circumstance
at paragraph 120(2)(a). This amendment ensures that the provision is not
interpreted as requiring the prosecution to prove, as part of the offence, that
the defendant had knowledge of the requirement to give the Minister a draft
environment strategy under subsection (1). Subsection 9.3(1) of the
Criminal Code provides that mistake or ignorance of statute law is no
excuse. Subsection 9.3(2) however provides that 9.3(1) does not apply if the
particular Act is expressly or impliedly to the contrary effect. This amendment
does not create a new offence of strict liability. The amendment is
necessary to maintain the current operation of subsection 120(2), and ensure
that it is not interpreted to indicate a contrary intention for the purposes of
section 9.3 of the Criminal Code.
Item 30 – Subsection
121(2)
This item replaces subsection 121(2) with a provision that
more accurately identifies the physical elements of circumstance, conduct and
result in the offence to which the default fault elements of recklessness
and intention will be applied by the Criminal Code.
This
amendment has rephrased the offence to clarify that:
• paragraph
121(2)(a) is the physical element of the circumstances of the
defendant’s conduct to which the default fault element of
recklessness will apply;
• paragraph 121(2)(b) is the physical
element of conduct to which the default fault element of intention
will apply; and
• paragraph 121(2)(c) is the physical element of
result to which the default element of recklessness will
apply.
The maximum penalty under this subsection is 250 penalty
units.
This item also inserts a provision at subsection 121(3) that
strict liability applies to the physical element of circumstance
at paragraph 121(2)(a). This amendment ensures that the provision is not
interpreted as requiring the prosecution to prove, as part of the offence, that
the defendant had knowledge of the requirement to give the Minister a draft
environment strategy under subsection (1). Subsection 9.3(1) of the
Criminal Code provides that mistake or ignorance of statute law is no
excuse. Subsection 9.3(2) however provides that 9.3(1) does not apply if the
particular Act is expressly or impliedly to the contrary effect. This amendment
does not create a new offence of strict liability. The amendment is
necessary to maintain the current operation of subsection 121(2), and ensure
that it is not interpreted to indicate a contrary intention for the purposes of
section 9.3 of the Criminal Code.
Item 31 – Subsection
123(3)
This item replaces subsection 123(3) with a provision that
more accurately identifies the physical elements of circumstance, conduct and
result in the offence to which the default fault elements of recklessness
and intention will be applied by the Criminal Code.
This
amendment has rephrased the offence to clarify that:
• paragraph
123(3)(a) is the physical element of the circumstances of the
defendant’s conduct to which the default fault element of
recklessness will apply;
• paragraph 123(3)(b) is the physical
element of conduct to which the default fault element of intention
will apply; and
• paragraph 123(3)(c) is the physical element of
result to which the default element of recklessness will
apply.
The maximum penalty under this subsection is 250 penalty
units.
Item 32 – Subsection 126(9)
This item replaces
subsection 126(9) with a provision that more accurately identifies the physical
elements of circumstance, conduct and result in the offence to which the
default fault elements of recklessness and intention will be applied by
the Criminal Code.
This amendment has rephrased the offence to
clarify that:
• paragraph 126(9)(a) is the physical element of the
circumstances of the defendant’s conduct to which the default fault
element of recklessness will apply;
• paragraph 126(9)(b) is the
physical element of conduct to which the default fault element of
intention will apply; and
• paragraph 126(9)(c) is the physical
element of result to which the default element of recklessness
will apply.
The maximum penalty under this subsection is 250 penalty
units.
Item 33 – Subsection 131(3)
This item replaces
subsection 131(3) with a provision that more accurately identifies the physical
elements of circumstance, conduct and result in the offence to which the
default fault elements of recklessness and intention will be applied by
the Criminal Code.
This amendment has rephrased the offence to
clarify that:
• paragraph 131(3)(a) is the physical element of the
circumstances of the defendant’s conduct to which the default fault
element of recklessness will apply;
• paragraph 131(3)(b) is the
physical element of conduct to which the default fault element of
intention will apply; and
• paragraph 131(3)(c) is the physical
element of result to which the default element of recklessness
will apply.
The maximum penalty under this subsection is 250 penalty
units.
This item also inserts a provision at subsection 131(4) that
strict liability applies to the physical element of circumstance at
paragraph 131(3)(a). This amendment ensures that the provision is not
interpreted as requiring the prosecution to prove, as part of the offence, that
the defendant had knowledge of the requirement to publish a notice and make a
strategy or variation available for inspection and purchase by members of the
public under subsection (2). Subsection 9.3(1) of the Criminal Code
provides that mistake or ignorance of statute law is no excuse. Subsection
9.3(2) however provides that 9.3(1) does not apply if the particular Act is
expressly or impliedly to the contrary effect. This amendment does not create a
new offence of strict liability. The amendment is necessary to maintain
the current operation of subsection 131(3), and ensure that it is not
interpreted to indicate a contrary intention for the purposes of section 9.3 of
the Criminal Code.
Item 34 – Subsection
131B(1)
This item redrafts subsection 131B(1) to omit the phrase
must not, by act or omission, directly or indirectly cause and substitute
commits an offence if the person engages in conduct that directly or
indirectly results in. The amendment more accurately identifies the
physical elements of circumstance, conduct and result in the offence to
which the default fault elements of recklessness and intention will be
applied by the Criminal Code.
This item also inserts a note that
the heading to section 131B is altered by omitting of causing and
substituting resulting in.
Item 35 – At the end of
subsection 131B(1)
This item adds Penalty: 500 penalty units
to the end of subsection 131B(1). This is a consequence of items 34 and 36.
Item 36 – Subsection 131B(2)
This item repeals
subsection 131B(2). The amendment is a consequence of item 34.
Item
37 – Subsection 131C(1)
This item redrafts subsection 131C(1)
to omit the phrase must not, by act or omission, directly or indirectly
cause and substitute commits an offence if the person engages in conduct
that directly or indirectly results in. The amendment more accurately
identifies the physical elements of circumstance, conduct and result in
the offence to which the default fault elements of recklessness and intention
will be applied by the Criminal Code.
This item also inserts a
note that the heading to section 131C is altered by omitting of causing
and substituting resulting in.
Item 38 – At the end
of subsection 131C(1)
This item adds Penalty: 200 penalty
units to the end of subsection 131C(1). This is a consequence of items 37
and 39.
Item 39 – Subsection 131C(2)
This item
repeals subsection 131B(2). The amendment is a consequence of item
37.
Item 40 – Subsection 131D(1)
This item redrafts
subsection 131D(1) to omit the phrase must not, by act or omission, directly
or indirectly cause and substitute commits an offence if the person
engages in conduct that directly or indirectly results in. The amendment
more accurately identifies the physical elements of circumstance, conduct and
result in the offence to which the default fault elements of recklessness
and intention will be applied by the Criminal Code.
This item
also inserts a note that the heading to section 131D is altered by omitting
of causing and substituting resulting in.
Item 41
– Subsection 131D(1)
This item omits the phrase if the act
or omission is not authorised by or under this Act or another law of the
Commonwealth. The effect of this phrase is to provide a defence of
lawful authority. The defence of lawful authority is now included
in the Criminal Code (see section 10.5 of the Criminal Code). The
defence applies to all offence provisions under Commonwealth law, and the
specific mention in subsection 131D(1) is redundant.
Item 42 –
At the end of subsection 131D(1)
This item adds Penalty: 50
penalty units to the end of subsection 131D(1). This is a consequence of
items 40 and 43.
Item 43 – Subsection 131D(2)
This
item repeals subsection 131D(2). The amendment is a consequence of item
40.
Item 44 – Subsection 131D(3)
This item omits the
phrase an act or omission of a person, even if the act or omission and
substitutes conduct of a person, even if the conduct. The amendment is
consistent with subsection 4.1(2) of the Criminal Code which defines
conduct to mean an act, an omission to perform an act or a state of
affairs.
Item 45 – Subsection 141(6)
This item
replaces subsection 141(6) with a provision that more accurately identifies the
physical elements of circumstance, conduct and result in the offence to
which the default fault elements of recklessness and intention will be
applied by the Criminal Code.
This amendment has rephrased the
offence to clarify that:
• paragraph 141(6)(a) is the physical
element of the circumstances of the defendant’s conduct to which
the default fault element of recklessness will
apply;
• paragraph 141(6)(b) is the physical element of conduct
to which the default fault element of intention will apply;
and
• paragraph 141(6)(c) is the physical element of result to
which the default element of recklessness will apply.
The maximum
penalty under this subsection is 100 penalty units.
This item also
inserts a provision at subsection 141(6A) that strict liability applies to the
physical element of circumstance at paragraph 141(6)(a). This amendment
ensures that the provision is not interpreted as requiring the prosecution to
prove, as part of the offence, that the defendant had knowledge of the
requirement under this section . Subsection 9.3(1) of the
Criminal Code provides that mistake or ignorance of statute law is no
excuse. Subsection 9.3(2) however provides that 9.3(1) does not apply if the
particular Act is expressly or impliedly to the contrary effect. This amendment
does not create a new offence of strict liability. The amendment is
necessary to maintain the current operation of subsection 141(6), and ensure
that it is not interpreted to indicate a contrary intention for the purposes of
section 9.3 of the Criminal Code.
Item 46 – Subsection
142(4)
This item replaces subsection 142(4) with a provision that
more accurately identifies the physical elements of circumstance, conduct and
result in the offence to which the default fault elements of recklessness
and intention will be applied by the Criminal Code.
This
amendment has rephrased the offence to clarify that:
• paragraph
142(4)(a) is the physical element of the circumstances of the
defendant’s conduct to which the default fault element of
recklessness will apply;
• paragraph 142(4)(b) is the physical
element of conduct to which the default fault element of intention
will apply; and
• paragraph 142(4)(c) is the physical element of
result to which the default element of recklessness will
apply.
The maximum penalty under this subsection is 100 penalty
units.
This item also inserts a provision at subsection 142(4A) that
strict liability applies to the physical element of circumstance at
paragraph 142(4)(a). This amendment ensures that the provision is not
interpreted as requiring the prosecution to prove, as part of the offence, that
the defendant had knowledge of the requirement to make arrangements under
subsection (3). Subsection 9.3(1) of the Criminal Code provides that
mistake or ignorance of statute law is no excuse. Subsection 9.3(2) however
provides that 9.3(1) does not apply if the particular Act is expressly or
impliedly to the contrary effect. This amendment does not create a new offence
of strict liability. The amendment is necessary to maintain the current
operation of subsection 142(4), and ensure that it is not interpreted to
indicate a contrary intention for the purposes of section 9.3 of the Criminal
Code.
Item 47 – Subsection 142(6)
This item
replaces subsection 142(6) with a provision that more accurately identifies the
physical elements of circumstance, conduct and result in the offence to
which the default fault elements of recklessness and intention will be
applied by the Criminal Code.
This amendment has rephrased the
offence to clarify that:
• paragraph 142(6)(a) is the physical
element of the circumstances of the defendant’s conduct to which
the default fault element of recklessness will
apply;
• paragraph 142(6)(b) is the physical element of conduct
to which the default fault element of intention will apply;
and
• paragraph 142(6)(c) is the physical element of result to
which the default element of recklessness will apply.
The maximum
penalty under this subsection is 50 penalty units.
This item also inserts
a provision at subsection 142(7) that strict liability applies to the physical
element of circumstance at paragraph 142(6)(a). This amendment ensures
that the provision is not interpreted as requiring the prosecution to prove, as
part of the offence, that the defendant had knowledge of the requirement to
give a company certificate under subsection (5). Subsection 9.3(1) of the
Criminal Code provides that mistake or ignorance of statute law is no
excuse. Subsection 9.3(2) however provides that 9.3(1) does not apply if the
particular Act is expressly or impliedly to the contrary effect. This amendment
does not create a new offence of strict liability. The amendment is
necessary to maintain the current operation of subsection 142(6), and ensure
that it is not interpreted to indicate a contrary intention for the purposes of
section 9.3 of the Criminal Code.
Item 48 – Subsection
143(3)
This item replaces subsection 143(3) with a provision that
more accurately identifies the physical elements of circumstance, conduct and
result in the offence to which the default fault elements of recklessness
and intention will be applied by the Criminal Code.
This
amendment has rephrased the offence to clarify that:
• paragraph
143(3)(a) is the physical element of the circumstances of the
defendant’s conduct to which the default fault element of
recklessness will apply;
• paragraph 143(3)(b) is the physical
element of conduct to which the default fault element of intention
will apply; and
• paragraph 143(3)(c) is the physical element of
result to which the default element of recklessness will
apply.
The maximum penalty under this subsection is 100 penalty
units.
This item also inserts a provision at subsection 143(4) that
strict liability applies to the physical element of circumstance
at paragraph 143(3)(a). This amendment ensures that the provision is not
interpreted as requiring the prosecution to prove, as part of the offence, that
the defendant had knowledge of the requirement under this section.
Subsection 9.3(1) of the Criminal Code provides that mistake or
ignorance of statute law is no excuse. Subsection 9.3(2) however provides that
9.3(1) does not apply if the particular Act is expressly or impliedly to the
contrary effect. This amendment does not create a new offence of strict
liability. The amendment is necessary to maintain the current operation of
subsection 143(3), and ensure that it is not interpreted to indicate a contrary
intention for the purposes of section 9.3 of the Criminal
Code.
Item 49 – Subsection 145(2)
This item
replaces subsection 145(2) with a provision that more accurately identifies the
physical elements of circumstance, conduct and result in the offence to
which the default fault elements of recklessness and intention will be
applied by the Criminal Code.
This amendment has rephrased the
offence to clarify that:
• paragraph 145(2)(a) is the physical
element of the circumstances of the defendant’s conduct to which
the default fault element of recklessness will
apply;
• paragraph 145(2)(b) is the physical element of conduct
to which the default fault element of intention will apply;
and
• paragraph 145(2)(c) is the physical element of result to
which the default element of recklessness will apply.
The maximum
penalty under this subsection is 50 penalty units.
This item also inserts
a provision at subsection 145(3) that strict liability applies to the
physical element of circumstance at paragraph 145(2)(a). This amendment
ensures that the provision is not interpreted as requiring the prosecution to
prove, as part of the offence, that the defendant had knowledge of the
requirement under the regulations to give the ACCC written reports
about the airport. Subsection 9.3(1) of the Criminal Code provides
that mistake or ignorance of statute law is no excuse. Subsection 9.3(2)
however provides that 9.3(1) does not apply if the particular Act is expressly
or impliedly to the contrary effect. This amendment does not create a new
offence of strict liability. The amendment is necessary to maintain the
current operation of subsection 145(2), and ensure that it is not interpreted to
indicate a contrary intention for the purposes of section 9.3 of the Criminal
Code.
Item 50 – Subsection 146(2)
This item
replaces subsection 146(2) with a provision that more accurately identifies the
physical elements of circumstance, conduct and result in the offence to
which the default fault elements of recklessness and intention will be
applied by the Criminal Code.
This amendment has rephrased the
offence to clarify that:
• paragraph 146(2)(a) is the physical
element of the circumstances of the defendant’s conduct to which
the default fault element of recklessness will
apply;
• paragraph 146(2)(b) is the physical element of conduct
to which the default fault element of intention will apply;
and
• paragraph 146(2)(c) is the physical element of result to
which the default element of recklessness will apply.
The maximum
penalty under this subsection is 50 penalty units.
This item also inserts
a provision at subsection 146(3) that strict liability applies to the
physical element of circumstance at paragraph 146(2)(a). This amendment
ensures that the provision is not interpreted as requiring the prosecution to
prove, as part of the offence, that the defendant had knowledge of the
requirement under the regulations to keep and retain records.
Subsection 9.3(1) of the Criminal Code provides that mistake or
ignorance of statute law is no excuse. Subsection 9.3(2) however provides that
9.3(1) does not apply if the particular Act is expressly or impliedly to the
contrary effect. This amendment does not create a new offence of strict
liability. The amendment is necessary to maintain the current operation of
subsection 146(2), and ensure that it is not interpreted to indicate a contrary
intention for the purposes of section 9.3 of the Criminal
Code.
Item 51 – Subsection 156(5)
This item
replaces subsection 156(5) with a provision that more accurately identifies the
physical elements of circumstance, conduct and result in the offence to
which the default fault elements of recklessness and intention will be
applied by the Criminal Code.
This amendment has rephrased the
offence to clarify that:
• paragraph 156(5)(a) is the physical
element of the circumstances of the defendant’s conduct to which
the default fault element of recklessness will
apply;
• paragraph 156(5)(b) is the physical element of conduct
to which the default fault element of intention will apply;
and
• paragraph 156(5)(c) is the physical element of result to
which the default element of recklessness will apply.
The maximum
penalty under this subsection is 50 penalty units.
This item also inserts
a provision at subsection 156(5A) that strict liability applies to the
physical element of circumstance at paragraph 156(5)(a). This amendment
ensures that the provision is not interpreted as requiring the prosecution to
prove, as part of the offence, that the defendant had knowledge of the
requirement under the regulations to keep and retain records and give
information to the ACCC. Subsection 9.3(1) of the Criminal Code
provides that mistake or ignorance of statute law is no excuse. Subsection
9.3(2) however provides that 9.3(1) does not apply if the particular Act is
expressly or impliedly to the contrary effect. This amendment does not create a
new offence of strict liability. The amendment is necessary to maintain
the current operation of subsection 156(5), and ensure that it is not
interpreted to indicate a contrary intention for the purposes of section 9.3 of
the Criminal Code.
Item 52 – Section 167
This
item amends section 167 to delete the alternative fault elements of knowingly
or recklessly that currently apply to the physical element of conduct
in the offence. Under the Criminal Code the fault elements of
knowingly or recklessly can only apply to the physical elements of
circumstances of conduct or result of conduct (see Division 5,
Part 2.2, Chapter 2 of the Criminal Code). Once omitted, the fault
element of intention will apply to the physical element of conduct
in the offence. The fault element of recklessness will apply to the
physical element of circumstances in the offence (see section 5.6 of the
Criminal Code). Section 5.4 of the Criminal Code provides that
where recklessness is the fault element for a physical element of an
offence, proof of intention, knowledge or recklessness will
satisfy that fault element. Thus, the actions of the defendant who either had
the requisite knowledge or recklessness will be
criminalised.
The maximum penalty under this subsection is 250 penalty
units.
This item also inserts a provision at subsection 167(2) that
strict liability applies to the physical element of circumstance
at paragraph 167(1)(a). This amendment ensures that the provision is not
interpreted as requiring the prosecution to prove, as part of the offence, that
the defendant had knowledge of the requirement under the regulations
made for the purposes of section 166 and the regulations declare that this
section applies to that provision. Subsection 9.3(1) of the Criminal
Code provides that mistake or ignorance of statute law is no excuse.
Subsection 9.3(2) however provides that 9.3(1) does not apply if the particular
Act is expressly or impliedly to the contrary effect. This amendment does not
create a new offence of strict liability. The amendment is necessary to
maintain the current operation of subsection 167(1), and ensure that it is not
interpreted to indicate a contrary intention for the purposes of section 9.3 of
the Criminal Code
Item 53 – Subsection
183(2)
This item replaces subsection 183(2) with a provision that
more accurately identifies the physical elements of circumstance, conduct and
result in the offence to which the default fault elements of recklessness
and intention will be applied by the Criminal Code.
This
amendment has rephrased the offence to clarify that:
• paragraph
183(2)(a) is the physical element of the circumstances of the
defendant’s conduct to which the default fault element of
recklessness will apply;
• paragraph 183(2)(b) is the physical
element of conduct to which the default fault element of intention
will apply; and
• paragraph 183(2)(c) is the physical element of
result to which the default element of recklessness will
apply.
The maximum penalty under this subsection is 250 penalty
units.
This item also notes that the defendant bears an evidential burden
of proof with regard to the matters at paragraphs 183(1)(c) and (d).
Criminal Code policy is that the prosecution should prove every element
of the offence relevant to the guilt of the person charged (see subsection
13.1(1) of the Criminal Code). However, there are some instances where
it is appropriate for a defendant to bear a burden of proof, such as where a
matter is peculiarly within the knowledge of the defendant. In those instances,
the Criminal Code policy is that the burden should be an evidential
burden rather than a legal burden (see subsection 13.3(1) of the Criminal
Code). An evidential burden is lighter than a legal burden. Subsection
13.3(1) of the Criminal Code provides that, subject to section 13.4, a
burden of proof that a law imposes on a defendant is an evidential burden
only. An evidential burden is the burden of adducing or pointing
to evidence that suggests a reasonable possibility that the matter exists or
does not exist (see subsection 13.3(6) of the Criminal Code), whereas
a legal burden is the burden of proving the existence of the matter (see
subsection 13.1(3) of the Criminal Code).
Subsection 13.3(3) of
the Criminal Code provides that a defendant who wishes to rely on any
exception, exemption, excuse, qualification or justification provided by law
creating an offence bears an evidential burden in such
circumstances.
This item also inserts a provision at subsection 183(3)
that strict liability applies to the physical element of
circumstance at paragraph 183(2)(a). This amendment ensures that the
provision is not interpreted as requiring the prosecution to prove, as part of
the offence, that the defendant had knowledge of a requirement
under subsection (1). Subsection 9.3(1) of the Criminal
Code provides that mistake or ignorance of statute law is no excuse.
Subsection 9.3(2) however provides that 9.3(1) does not apply if the particular
Act is expressly or impliedly to the contrary effect. This amendment does not
create a new offence of strict liability. The amendment is necessary to
maintain the current operation of subsection 183(2), and ensure that it is not
interpreted to indicate a contrary intention for the purposes of section 9.3 of
the Criminal Code.
Item 54 – Section 185
This
item replaces Section 185 with a provision that more accurately identifies the
physical elements of circumstance, conduct and result in the offence to
which the default fault elements of recklessness and intention will be
applied by the Criminal Code.
This amendment has rephrased the
offence to clarify that:
• paragraph 185(1)(a) is the physical
element of the circumstances of the defendant’s conduct to which
the default fault element of recklessness will
apply;
• paragraph 185(1)(b) is the physical element of conduct
to which the default fault element of intention will apply;
and
• paragraph 185(1)(c) is the physical element of result to
which the default element of recklessness will apply.
The maximum
penalty under this subsection is 250 penalty units.
This item also
inserts a provision at subsection 185(2) that strict liability applies to
the physical element of circumstance at paragraph 185(1)(a). This
amendment ensures that the provision is not interpreted as requiring the
prosecution to prove, as part of the offence, that the defendant had knowledge
of the granting of an approval under the regulations made for the
purposes of this Division. Subsection 9.3(1) of the Criminal Code
provides that mistake or ignorance of statute law is no excuse. Subsection
9.3(2) however provides that 9.3(1) does not apply if the particular Act is
expressly or impliedly to the contrary effect. This amendment does not create a
new offence of strict liability. The amendment is necessary to maintain
the current operation of subsection 185(1), and ensure that it is not
interpreted to indicate a contrary intention for the purposes of section 9.3 of
the Criminal Code.
Item 55 – Subsection
186(2)
This item replaces subsection 186(2) with a provision that
more accurately identifies the physical elements of circumstance, conduct and
result in the offence to which the default fault elements of recklessness
and intention will be applied by the Criminal Code.
This
amendment has rephrased the offence to clarify that:
• paragraph
186(2)(a) is the physical element of the circumstances of the
defendant’s conduct to which the default fault element of
recklessness will apply;
• paragraph 186(2)(b) is the physical
element of conduct to which the default fault element of intention
will apply; and
• paragraph 186(2)(c) is the physical element of
result to which the default element of recklessness will
apply.
The maximum penalty under this subsection is 50 penalty
units.
This item also inserts a provision at subsection 186(2A) that
strict liability applies to the physical element of circumstance
at paragraph 186(2)(a). This amendment ensures that the provision is not
interpreted as requiring the prosecution to prove, as part of the offence, that
the defendant had knowledge of a requirement under the
regulations to give information to the operator of an airport. Subsection
9.3(1) of the Criminal Code provides that mistake or ignorance of statute
law is no excuse. Subsection 9.3(2) however provides that 9.3(1) does not apply
if the particular Act is expressly or impliedly to the contrary effect. This
amendment does not create a new offence of strict liability. The
amendment is necessary to maintain the current operation of subsection 186(2),
and ensure that it is not interpreted to indicate a contrary intention for the
purposes of section 9.3 of the Criminal Code.
Item 56 –
Section 208
This item amends section 208 to delete the alternative
fault elements of knowingly or recklessly that currently apply to the
physical element of conduct in the offence. Under the Criminal
Code the fault elements of knowingly or recklessly can only apply to
the physical elements of circumstances of conduct or result of
conduct (see Division 5, Part 2.2, Chapter 2 of the Criminal Code). Once
omitted, the fault element of intention will apply to the physical
element of conduct in the offence. The fault element of
recklessness will apply to the physical element of circumstances
in the offence (see section 5.6 of the Criminal Code). Section 5.4 of
the Criminal Code provides that where recklessness is the fault
element for a physical element of an offence, proof of intention,
knowledge or recklessness will satisfy that fault element. Thus,
the actions of the defendant who either had the requisite knowledge or
recklessness will be criminalised.
The maximum penalty under this
subsection is 250 penalty units.
Item 57 – Subsection
216(2)
This item replaces subsection 216(2) with a provision that
more accurately identifies the physical elements of circumstance, conduct and
result in the offence to which the default fault elements of recklessness
and intention will be applied by the Criminal Code.
This
amendment has rephrased the offence to clarify that:
• paragraph
216(2)(a) is the physical element of the circumstances of the
defendant’s conduct to which the default fault element of
recklessness will apply;
• paragraph 216(2)(b) is the physical
element of conduct to which the default fault element of intention
will apply; and
• paragraph 216(2)(c) is the physical element of
result to which the default element of recklessness will
apply.
The maximum penalty under this subsection is 250 penalty
units.
This item also notes that the defendant bears an evidential burden
of proof with regard to the matters at paragraphs 216(1)(c),(d) and (e).
Criminal Code policy is that the prosecution should prove every element
of the offence relevant to the guilt of the person charged (see subsection
13.1(1) of the Criminal Code). However, there are some instances where
it is appropriate for a defendant to bear a burden of proof, such as where a
matter is peculiarly within the knowledge of the defendant. In those instances,
the Criminal Code policy is that the burden should be an evidential
burden rather than a legal burden (see subsection 13.3(1) of the Criminal
Code). An evidential burden is lighter than a legal burden. Subsection
13.3(1) of the Criminal Code provides that, subject to section 13.4, a
burden of proof that a law imposes on a defendant is an evidential burden
only. An evidential burden is the burden of adducing or pointing
to evidence that suggests a reasonable possibility that the matter exists or
does not exist (see subsection 13.3(6) of the Criminal Code), whereas
a legal burden is the burden of proving the existence of the matter (see
subsection 13.1(3) of the Criminal Code).
Subsection 13.3(3) of
the Criminal Code provides that a defendant who wishes to rely on any
exception, exemption, excuse, qualification or justification provided by law
creating an offence bears an evidential burden in such
circumstances.
This item also inserts a provision at subsection 216(2A)
that strict liability applies to the physical element of
circumstance at paragraph 216(2)(a). This amendment ensures that the
provision is not interpreted as requiring the prosecution to prove, as part of
the offence, that the defendant had knowledge of a requirement
under subsection (1). Subsection 9.3(1) of the Criminal
Code provides that mistake or ignorance of statute law is no excuse.
Subsection 9.3(2) however provides that 9.3(1) does not apply if the particular
Act is expressly or impliedly to the contrary effect. This amendment does not
create a new offence of strict liability. The amendment is necessary to
maintain the current operation of subsection 216(2), and ensure that it is not
interpreted to indicate a contrary intention for the purposes of section 9.3 of
the Criminal Code.
Item 58 – Subsection
224(6)
This item repeals the definition of extended meaning of
offence against this Act, at subsection 224(6) of the Airports Act
1996, that refers to sections 7 and 7A, and subsection 86(1) of the
Crimes Act 1914. Sections 7 and 7A are concerned with the offences of
attempt and inciting or urging the commission of an offence. Subsection 86(1)
is concerned with the offence of conspiracy. These sections were repealed by
the Law and Justice Legislation Amendment (Application of Criminal Code) Act
2000.
This item also substitutes a new definition of extended
meaning of offence against this Act that refers to the equivalent provisions
in the Criminal Code - sections 11.1, 11.4 and 11.5
respectively.
Item 59 – Subsection 228(2)
This item
replaces subsection 228(2) with a provision that more accurately identifies the
physical elements of circumstance, conduct and result in the offence to
which the default fault elements of recklessness and intention will be
applied by the Criminal Code.
This amendment has rephrased the
offence to clarify that:
• paragraph 228(2)(a) is the physical
element of the circumstances of the defendant’s conduct to which
the default fault element of recklessness will
apply;
• paragraph 228(2)(b) is the physical element of conduct
to which the default fault element of intention will apply;
and
• paragraph 228(2)(c) is the physical element of result to
which the default element of recklessness will apply.
The maximum
penalty under this subsection is 6 months imprisonment.
This item also
inserts a provision at subsection 228(3) that strict liability applies to
the physical element of circumstance at paragraph 228(2)(a). This
amendment ensures that the provision is not interpreted as requiring the
prosecution to prove, as part of the offence, that the defendant had knowledge
of a requirement under subsection (1). Subsection 9.3(1)
of the Criminal Code provides that mistake or ignorance of statute law is
no excuse. Subsection 9.3(2) however provides that 9.3(1) does not apply if the
particular Act is expressly or impliedly to the contrary effect. This amendment
does not create a new offence of strict liability. The amendment is
necessary to maintain the current operation of subsection 228(2), and ensure
that it is not interpreted to indicate a contrary intention for the purposes of
section 9.3 of the Criminal Code.
Item 60 – Subsection
230(2)
This item replaces subsection 230(2) with a provision that
more accurately identifies the physical elements of circumstance, conduct and
result in the offence to which the default fault elements of recklessness
and intention will be applied by the Criminal Code.
This
amendment has rephrased the offence to clarify that:
• paragraph
230(2)(a) is the physical element of the circumstances of the
defendant’s conduct to which the default fault element of
recklessness will apply;
• paragraph 230(2)(b) is the physical
element of conduct to which the default fault element of intention
will apply; and
• paragraph 230(2)(c) is the physical element of
result to which the default element of recklessness will
apply.
The maximum penalty under this subsection is 150 penalty
units.
This item also inserts a provision at subsection 230(3) that
strict liability applies to the physical element of circumstance
at paragraph 230(2)(a). This amendment ensures that the provision is not
interpreted as requiring the prosecution to prove, as part of the offence, that
the defendant had knowledge of a requirement under subsection
(1). Subsection 9.3(1) of the Criminal Code provides that mistake
or ignorance of statute law is no excuse. Subsection 9.3(2) however provides
that 9.3(1) does not apply if the particular Act is expressly or impliedly to
the contrary effect. This amendment does not create a new offence of strict
liability. The amendment is necessary to maintain the current operation of
subsection 230(2), and ensure that it is not interpreted to indicate a contrary
intention for the purposes of section 9.3 of the Criminal
Code.
Item 61 – Section 231
This item amends
section 231 to delete the alternative fault elements of knowingly or
recklessly that currently apply to the physical element of conduct in
the offence. Under the Criminal Code the fault elements of knowingly
or recklessly can only apply to the physical elements of
circumstances of conduct or result of conduct (see Division 5,
Part 2.2, Chapter 2 of the Criminal Code). Once omitted, the fault
element of intention will apply to the physical element of conduct
in the offence. The fault element of recklessness will apply to the
physical element of circumstances in the offence (see section 5.6 of the
Criminal Code). Section 5.4 of the Criminal Code provides that
where recklessness is the fault element for a physical element of an
offence, proof of intention, knowledge or recklessness will
satisfy that fault element. Thus, the actions of the defendant who either had
the requisite knowledge or recklessness will be
criminalised.
The maximum penalty under this subsection is 6 months
imprisonment.
Item 62 – Subsection 234(4)
This item
replaces subsection 234(4) with a provision that more accurately identifies the
physical elements of circumstance, conduct and result in the offence to
which the default fault elements of recklessness and intention will be
applied by the Criminal Code.
This amendment has rephrased the
offence to clarify that:
• paragraph 234(4)(a) is the physical
element of the circumstances of the defendant’s conduct to which
the default fault element of recklessness will
apply;
• paragraph 234(4)(b) is the physical element of conduct
to which the default fault element of intention will apply;
and
• paragraph 234(4)(c) is the physical element of result to
which the default element of recklessness will apply.
The maximum
penalty under this subsection is 5 penalty units.
This item also amends
subsection (4) to omit the words without reasonable excuse. The defence
is now drafted as a separate subsection (5). This amendment is necessary to
ensure that the defence is not mistakenly interpreted to be an element of the
offence that must be proved by the prosecution.
This item also notes that
the defendant bears an evidential burden of proof with regard to the matters at
subsection (5). Criminal Code policy is that the prosecution should
prove every element of the offence relevant to the guilt of the person charged
(see subsection 13.1(1) of the Criminal Code). However, there are some
instances where it is appropriate for a defendant to bear a burden of proof,
such as where a matter is peculiarly within the knowledge of the defendant. In
those instances, the Criminal Code policy is that the burden should be an
evidential burden rather than a legal burden (see subsection 13.3(1) of the
Criminal Code). An evidential burden is lighter than a legal burden.
Subsection 13.3(1) of the Criminal Code provides that, subject to section
13.4, a burden of proof that a law imposes on a defendant is an evidential
burden only. An evidential burden is the burden of adducing or
pointing to evidence that suggests a reasonable possibility that the matter
exists or does not exist (see subsection 13.3(6) of the Criminal
Code), whereas a legal burden is the burden of proving the existence of
the matter (see subsection 13.1(3) of the Criminal
Code).
Subsection 13.3(3) of the Criminal Code provides that a
defendant who wishes to rely on any exception, exemption, excuse, qualification
or justification provided by law creating an offence bears an evidential burden
in such circumstances.
This item also inserts a provision at subsection
234(6) that strict liability applies to the physical element of
circumstance at paragraph 234(4)(a). This amendment ensures that the
provision is not interpreted as requiring the prosecution to prove, as part of
the offence, that the defendant had knowledge of a requirement to return his
or her identity card under subsection (3). Subsection 9.3(1) of the
Criminal Code provides that mistake or ignorance of statute law is no
excuse. Subsection 9.3(2) however provides that 9.3(1) does not apply if the
particular Act is expressly or impliedly to the contrary effect. This amendment
does not create a new offence of strict liability. The amendment is
necessary to ensure that paragraph 234(4)(a) is not interpreted to indicate a
contrary intention for the purposes of section 9.3 of the Criminal Code.
The amendment is also necessary to maintain the current operation of
subsection 234(4), where the inclusion of the term fails is interpreted
as strict liability and does not require proof of intention.
Item 63
– Subsection 237(3)
This item replaces subsection 237(3) with a
provision that more accurately identifies the physical elements of
circumstance, conduct and result in the offence to which the default
fault elements of recklessness and intention will be applied by the
Criminal Code.
This amendment has rephrased the offence to clarify
that:
• paragraph 237(3)(a) is the physical element of the
circumstances of the defendant’s conduct to which the default fault
element of recklessness will apply;
• paragraph 237(3)(b) is the
physical element of conduct to which the default fault element of
intention will apply; and
• paragraph 237(3)(c) is the physical
element of result to which the default element of recklessness
will apply.
The maximum penalty under this subsection is 6 months
imprisonment.
This item also amends section 237 to draft the defence
(that is, without reasonable excuse) in as a separate subsection (3A).
This amendment is necessary to ensure that the defence is not mistakenly
interpreted to be an element of the offence that must be proved by the
prosecution.
This item also notes that the defendant bears an evidential
burden of proof with regard to the matters at subsection (3A). Criminal
Code policy is that the prosecution should prove every element of the
offence relevant to the guilt of the person charged (see subsection 13.1(1) of
the Criminal Code). However, there are some instances where it is
appropriate for a defendant to bear a burden of proof, such as where a matter is
peculiarly within the knowledge of the defendant. In those instances, the
Criminal Code policy is that the burden should be an evidential burden
rather than a legal burden (see subsection 13.3(1) of the Criminal Code).
An evidential burden is lighter than a legal burden. Subsection 13.3(1) of the
Criminal Code provides that, subject to section 13.4, a burden of
proof that a law imposes on a defendant is an evidential burden only. An
evidential burden is the burden of adducing or pointing to evidence
that suggests a reasonable possibility that the matter exists or does not exist
(see subsection 13.3(6) of the Criminal Code), whereas a legal burden
is the burden of proving the existence of the matter (see subsection
13.1(3) of the Criminal Code).
Subsection 13.3(3) of the
Criminal Code provides that a defendant who wishes to rely on any
exception, exemption, excuse, qualification or justification provided by law
creating an offence bears an evidential burden in such
circumstances.
This item also inserts a provision at subsection 237(3B)
that strict liability applies to the physical element of
circumstance at paragraph 237(3)(a). This amendment ensures that the
provision is not interpreted as requiring the prosecution to prove, as part of
the offence, that the defendant had knowledge of a requirement under
subsection (2). Subsection 9.3(1) of the Criminal Code provides that
mistake or ignorance of statute law is no excuse. Subsection 9.3(2) however
provides that 9.3(1) does not apply if the particular Act is expressly or
impliedly to the contrary effect. This amendment does not create a new offence
of strict liability. The amendment is necessary to ensure that paragraph
237(3) (a) is not interpreted to indicate a contrary intention for the purposes
of section 9.3 of the Criminal Code. The amendment is necessary to
maintain the current operation of subsection 237(3), where the inclusion of the
term fails is interpreted as strict liability and does not require proof
of intention.
This item inserts a new section 5 that provides that Chapter 2 of the
Criminal Code (except Part 2.5) applies to all offences against the
Navigation Act 1912. It also inserts a note that says that Chapter 2 of
the Criminal Code sets out the general principles of criminal
responsibility.
Part 2.5 of the Criminal Code is the only Part of
Chapter 2 that does not automatically apply to offences. When the Criminal
Code was introduced into the Senate on 30 June 1994, it was stated that Part
2.5 would be the basis of corporate criminal liability if no other basis were
provided. Section 395A of the Navigation Act 1912 deals with corporate
criminal responsibility by vicariously establishing criminal responsibility for
corporations as a result of the state of mind and conduct of its directors,
servant or agents. The disapplication of Part 2.5 is necessary to prevent
competing corporate criminal liability regimes operating in relation to the same
criminal offences.
Item 2 – Subsection 6(1)
This
item defines engage in conduct to mean:
(a) do an act;
or
(b) omit to perform an act.
This definition is consistent with the
definition at subsection 4.1(2) of the Criminal Code.
Item 3
– At the end of section 8B
This item adds a new subsection
8B(5) that provides that strict liability applies to the offence under section
8B. This amendment does not create a new offence of strict liability. The
existing offence under section 8B makes the master and owner of the ship
vicariously liable for any contravention of requirements under subsection 8B(2).
Vicarious liability is interpreted as giving rise to strict liability and
therefore not requiring proof of fault. The amendment is necessary to maintain
the current operation of section 8B. Once the Criminal Code applies, in
the absence of an express reference to the fact that an offence is a strict
liability offence, a court will be required to interpret the offence as a fault
offence rather than a strict liability offence.
The note to subsection
8B(5) refers to section 6.1 of the Criminal Code. Section 6.1 provides
that if a law that creates an offence provides that the offence is an offence
of strict liability:
(a) there are no fault elements for any of
the physical elements of the offence; and
(b) the defence of mistake
of fact under section 9.2 is available.
This means that the
prosecution does not have to prove fault on the part of the defendant. Fault
includes intention if it is with regard to conduct, and
recklessness where it is with regard to a circumstance in which
conduct occurs or a result of conduct. The defendant will be able to
activate the defence of honest or reasonable mistake of fact if he or she can
point to or adduce evidence that he or she made a relevant mistake of fact. If
that occurs, the prosecution bears the onus to prove beyond reasonable doubt
that there was no mistake.
Item 4 – After subsection
14(8)
This item adds a new subsection 14(8A) that provides that
strict liability applies to the offence under subsection 14(8). This amendment
does not create a new offence of strict liability. The existing offence under
subsection 14(8) makes the master and owner of the ship vicariously
liable for any contravention of requirements under subsections 14(1) and (6).
Vicarious liability is interpreted as giving rise to strict liability and
therefore not requiring proof of fault. The amendment is necessary to maintain
the current operation of subsection 14(8). Once the Criminal Code
applies, in the absence of an express reference to the fact that an offence is a
strict liability offence, a court will be required to interpret the offence as a
fault offence rather than a strict liability offence.
The note to
subsection 14(8A) refers to section 6.1 of the Criminal Code. Section
6.1 provides that if a law that creates an offence provides that the offence
is an offence of strict liability:
(a) there are no fault elements
for any of the physical elements of the offence; and
(b) the defence
of mistake of fact under section 9.2 is available.
This means that
the prosecution does not have to prove fault on the part of the defendant.
Fault includes intention if it is with regard to conduct, and
recklessness where it is with regard to a circumstance in which
conduct occurs or a result of conduct. The defendant will be able to
activate the defence of honest or reasonable mistake of fact if he or she can
point to or adduce evidence that he or she made a relevant mistake of fact. If
that occurs, the prosecution bears the onus to prove beyond reasonable doubt
that there was no mistake.
Item 5 – After subsection
14(11)
This item adds a new subsection 14(11A) that provides that
strict liability applies to the offence under subsection 14(11). This amendment
does not create a new offence of strict liability. The existing offence under
subsection 14(11) makes the master and owner of the ship vicariously
liable for any contravention of requirements under paragraph 14(9)(b).
Vicarious liability is interpreted as giving rise to strict liability and
therefore not requiring proof of fault. The amendment is necessary to maintain
the current operation of subsection 14(11). Once the Criminal Code
applies, in the absence of an express reference to the fact that an offence is a
strict liability offence, a court will be required to interpret the offence as a
fault offence rather than a strict liability offence.
The note to
subsection 14(11A) refers to section 6.1 of the Criminal Code. Section
6.1 provides that if a law that creates an offence provides that the offence
is an offence of strict liability:
(a) there are no fault elements
for any of the physical elements of the offence; and
(b) the defence
of mistake of fact under section 9.2 is available.
This means that
the prosecution does not have to prove fault on the part of the defendant.
Fault includes intention if it is with regard to conduct, and
recklessness where it is with regard to a circumstance in which
conduct occurs or a result of conduct. The defendant will be able to
activate the defence of honest or reasonable mistake of fact if he or she can
point to or adduce evidence that he or she made a relevant mistake of fact. If
that occurs, the prosecution bears the onus to prove beyond reasonable doubt
that there was no mistake.
Item 6 – Section 17
This
item amends section 17 to omit the words without reasonable excuse. The
defence is drafted as a separate subsection at item 7.
Item 7 –
At the end of section 17
This item is consequential upon the omission
of the words without reasonable excuse from section 17 at item 6. The
defence is drafted as a new subsection 17(2). This amendment is necessary to
ensure that the defence is not mistakenly interpreted to be an element of the
offence that must be proved by the prosecution.
This item also notes that
the defendant bears an evidential burden of proof with regard to the matter in
subsection (2). Criminal Code policy is that the prosecution should
prove every element of the offence relevant to the guilt of the person charged
(see subsection 13.1(1) of the Criminal Code). However, there are some
instances where it is appropriate for a defendant to bear a burden of proof,
such as where a matter is peculiarly within the knowledge of the defendant. In
those instances, the Criminal Code policy is that the burden should be an
evidential burden rather than a legal burden (see subsection 13.3 of the
Criminal Code). An evidential burden is lighter than a legal burden.
Subsection 13.3(1) of the Criminal Code provides that, subject to section
13.4, a burden of proof that a law imposes on a defendant is an evidential
burden only. An evidential burden is the burden of adducing or pointing
to evidence that suggests a reasonable possibility that the matter exists or
does not exist (see subsection 13.3(6) of the Criminal Code), whereas
a legal burden is the burden of proving the existence of the matter (see
subsection 13.3(3) of the Criminal Code).
Subsection 13.3(3) of
the Criminal Code provides that a defendant who wishes to rely on any
exception, exemption, excuse, qualification or justification provided by the law
creating an offence bears an evidential burden in relation to that matter.
This item also adds a new subsection 17(3) that provides that strict
liability applies to the offence under subsection 17(1). This amendment does
not create a new offence of strict liability. The use of the term fails
in the existing offence under subsection 17(1) is interpreted as strict
liability and therefore not requiring proof of fault. The amendment is
necessary to maintain the current operation of subsection 17(1). Once the
Criminal Code applies, in the absence of an express reference to the fact
that an offence is a strict liability offence, a court will be required to
interpret the offence as a fault offence rather than a strict liability
offence.
The note to subsection 17(1) refers to section 6.1 of the
Criminal Code. Section 6.1 provides that if a law that creates an
offence provides that the offence is an offence of strict
liability:
(a) there are no fault elements for any of the physical
elements of the offence; and
(b) the defence of mistake of fact under
section 9.2 is available.
This means that the prosecution does not
have to prove fault on the part of the defendant. Fault includes
intention if it is with regard to conduct, and recklessness
where it is with regard to a circumstance in which conduct occurs or a
result of conduct. The defendant will be able to activate the defence of
honest or reasonable mistake of fact if he or she can point to or adduce
evidence that he or she made a relevant mistake of fact. If that occurs, the
prosecution bears the onus to prove beyond reasonable doubt that there was no
mistake.
Item 8 – At the end of section 52
This item
adds a new subsection 52(2) that provides that strict liability applies to the
offence under subsection 52(1). This amendment does not create a new offence of
strict liability. The existing offence under subsection 52(1) makes the
master and owner of the ship vicariously liable for any contravention of
requirements under subsection 52(1). Vicarious liability is interpreted as
giving rise to strict liability and therefore not requiring proof of fault. The
amendment is necessary to maintain the current operation of subsection 52(1).
Once the Criminal Code applies, in the absence of an express reference to
the fact that an offence is a strict liability offence, a court will be required
to interpret the offence as a fault offence rather than a strict liability
offence.
The note to subsection 52(2) refers to section 6.1 of the
Criminal Code. Section 6.1 provides that if a law that creates an
offence provides that the offence is an offence of strict
liability:
(a) there are no fault elements for any of the physical
elements of the offence; and
(b) the defence of mistake of fact under
section 9.2 is available.
This means that the prosecution does not
have to prove fault on the part of the defendant. Fault includes
intention if it is with regard to conduct, and recklessness
where it is with regard to a circumstance in which conduct occurs or a
result of conduct. The defendant will be able to activate the defence of
honest or reasonable mistake of fact if he or she can point to or adduce
evidence that he or she made a relevant mistake of fact. If that occurs, the
prosecution bears the onus to prove beyond reasonable doubt that there was no
mistake.
Item 9 – Subsection 53(2)
This item replaces
subsection 53(2) with a provision that more accurately identifies the physical
elements of circumstance, conduct and result in the offence, to which the
default fault elements of recklessness and intention, will be
applied by the Criminal Code.
This amendment has rephrased the
offence to clarify that:
• paragraph 53(2)(a) is the physical
element of the circumstances of the defendant’s conduct to which
the default fault element of recklessness will
apply;
• paragraph 53(2)(b) is the physical element of conduct
to which the default fault element of intention will apply;
and
• paragraph 53(2)(c) is the physical element of result to
which the default fault element of recklessness will apply.
The
maximum penalty under this subsection is $500.
This item also omits the
term wilfully from subsection (2). The use of the word wilfully
in relation to the physical element of conduct, is akin to the use of the
word intentionally. The fault element of intention is the
equivalent used in the Criminal Code. The omission of the tem
wilfully ensures that future courts do not attempt to distinguish
wilfulness from intention on the basis that it appears to differ
from the Criminal Code fault element.
This item also omits the
terms deface or destroy and substitutes defacing or destruction.
This amendment has reconstructed the offence to clarify that defacing and
destruction are physical results of the accused person’s
conduct to which the fault element of recklessness will apply.
The rationale behind the amendment is that an accused person does not
deface or destroy. Rather, the defacing or destruction
is the result of the accused person’s conduct, and is a
physical element of result rather than a physical element of
conduct. Using deface or destroy as the active verb in a
criminal offence may lead to difficulties in interpreting the offence following
application of the Criminal Code. Reconstructing the offence enables the
physical elements of conduct and result to be better
identified.
This item also inserts a provision at subsection 53(3) that
strict liability applies to the physical element of circumstance at paragraph
53(2)(a). This amendment ensures that the provision is not interpreted as
requiring the prosecution to prove, as part of the offence, that the defendant
had knowledge that a copy of an agreement has been posted under subsection
(1). Subsection 9.3(1) of the Criminal Code provides that mistake or
ignorance of statute law is no excuse. Subsection 9.3(2) however provides that
9.3(1) does not apply if the particular Act is expressly or impliedly to the
contrary effect. This amendment does not create a new offence of strict
liability. The amendment is necessary to maintain the current operation of
subsection 53(2), and ensures that it is not interpreted to indicate a contrary
intention for the purpose of section 9.3 of the Criminal
Code.
Item 10 – Paragraph 68(1)(a)
This item
omits the term knowingly from paragraph 68(1)(a). Following application
of the Criminal Code it will not be possible to apply a fault element of
knowledge (that is, knowingly) to a physical element of
conduct (see Part 2.2, Division 5 of the Criminal Code). The
fault element of knowledge can only be applied to the physical elements
of circumstance or result.
Item 11 – Section
99
This item replaces section 99 so that it more accurately
identifies the physical elements of the offence so that appropriate fault
elements may be applied. As ‘engage in conduct’ includes omitting
to do an act, a breach of duty as a result of a master’s or seaman’s
neglect of duty remains an offence.
The maximum penalty under this
section is $5000 or imprisonment for 2 years.
Item 12 –
After subsection 132(5)
This item adds a new subsection 132(5A) that
provides that strict liability applies to the offence under subsection 132(5).
This amendment does not create a new offence of strict liability. The existing
offence under subsection 132(5) makes the owner and agent of the ship
vicariously liable for any contravention of requirements under subsections
132(1) and (2). Vicarious liability is interpreted as giving rise to strict
liability and therefore not requiring proof of fault. The amendment is
necessary to maintain the current operation of subsection 132(5). Once the
Criminal Code applies, in the absence of an express reference to the fact
that an offence is a strict liability offence, a court will be required to
interpret the offence as a fault offence rather than a strict liability offence.
The note to subsection 132(5) refers to section 6.1 of the Criminal
Code. Section 6.1 provides that if a law that creates an offence
provides that the offence is an offence of strict
liability:
(a) there are no fault elements for any of the physical
elements of the offence; and
(b) the defence of mistake of fact under
section 9.2 is available.
This means that the prosecution does not
have to prove fault on the part of the defendant. Fault includes
intention if it is with regard to conduct, and recklessness
where it is with regard to a circumstance in which conduct occurs or a
result of conduct. The defendant will be able to activate the defence of
honest or reasonable mistake of fact if he or she can point to or adduce
evidence that he or she made a relevant mistake of fact. If that occurs, the
prosecution bears the onus to prove beyond reasonable doubt that there was no
mistake.
Item 13 – After subsection 132A(2)
This item
also inserts a provision at subsection 132A(2A) that strict liability applies to
the physical element of circumstance at subsection 132(2). This
amendment ensures that the provision is not interpreted as requiring the
prosecution to prove, as part of the offence, that the defendant had knowledge
of a requirement made by a proper authority under subsection (1).
Subsection 9.3(1) of the Criminal Code provides that mistake or ignorance
of statute law is no excuse. Subsection 9.3(2) however provides that 9.3(1)
does not apply if the particular Act is expressly or impliedly to the contrary
effect. This amendment does not create a new offence of strict
liability. The amendment is necessary to maintain the current operation of
subsection 132(2), and ensures that it is not interpreted to indicate a contrary
intention for the purpose of section 9.3 of the Criminal
Code.
Item 14 – At the end of section 148C
This
item adds a new subsection 148C(6) that provides that strict liability applies
to the offence under subsection 148C(5). This amendment does not create a new
offence of strict liability. The existing offence under subsection 148C(5)
makes the master and owner of the ship vicariously liable for any
contravention of section 148C. Vicarious liability is interpreted as giving
rise to strict liability and therefore not requiring proof of fault. The
existing offence also uses the term fails in relation to the master of
the ship. The use of the term fails in the existing offence is
interpreted as strict liability and therefore not requiring proof of fault. The
amendment is necessary to maintain the current operation of subsection 148C(5).
Once the Criminal Code applies, in the absence of an express reference to
the fact that an offence is a strict liability offence, a court will be required
to interpret the offence as a fault offence rather than a strict liability
offence.
The note to subsection 148C(6) refers to section 6.1 of the
Criminal Code. Section 6.1 provides that if a law that creates an
offence provides that the offence is an offence of strict
liability:
(a) there are no fault elements for any of the physical
elements of the offence; and
(b) the defence of mistake of fact under
section 9.2 is available.
This means that the prosecution does not
have to prove fault on the part of the defendant. Fault includes
intention if it is with regard to conduct, and recklessness
where it is with regard to a circumstance in which conduct occurs or a
result of conduct. The defendant will be able to activate the defence of
honest or reasonable mistake of fact if he or she can point to or adduce
evidence that he or she made a relevant mistake of fact. If that occurs, the
prosecution bears the onus to prove beyond reasonable doubt that there was no
mistake.
Item 15 – After subsection 152(1)
This item
also adds a new subsection 152(1A) that provides that strict liability applies
to the offence under subsection 152(1). This amendment does not create a new
offence of strict liability. The use of the term fails in the existing
offence under subsection 152(1) is interpreted as strict liability and therefore
not requiring proof of fault. The amendment is necessary to maintain the
current operation of subsection 152(1). Once the Criminal Code applies,
in the absence of an express reference to the fact that an offence is a strict
liability offence, a court will be required to interpret the offence as a fault
offence rather than a strict liability offence.
The note to subsection
152(1A) refers to section 6.1 of the Criminal Code. Section 6.1 provides
that if a law that creates an offence provides that the offence is an offence
of strict liability:
(a) there are no fault elements for any of
the physical elements of the offence; and
(b) the defence of mistake
of fact under section 9.2 is available.
This means that the
prosecution does not have to prove fault on the part of the defendant. Fault
includes intention if it is with regard to conduct, and
recklessness where it is with regard to a circumstance in which
conduct occurs or a result of conduct. The defendant will be able to
activate the defence of honest or reasonable mistake of fact if he or she can
point to or adduce evidence that he or she made a relevant mistake of fact. If
that occurs, the prosecution bears the onus to prove beyond reasonable doubt
that there was no mistake.
Item 16 – After subsection
152(2)
This item adds a new subsection 152(2A) that provides that
strict liability applies to the offence under subsection 152(2). This amendment
does not create a new offence of strict liability. The existing offence under
subsection 152(2) makes the owner of the ship vicariously liable for any
contravention of section 152(2). Vicarious liability is interpreted as giving
rise to strict liability and therefore not requiring proof of fault. The
amendment is necessary to maintain the current operation of subsection 152(2).
Once the Criminal Code applies, in the absence of an express reference to
the fact that an offence is a strict liability offence, a court will be required
to interpret the offence as a fault offence rather than a strict liability
offence.
The note to subsection 152(2A) refers to section 6.1 of the
Criminal Code. Section 6.1 provides that if a law that creates an
offence provides that the offence is an offence of strict
liability:
(a) there are no fault elements for any of the physical
elements of the offence; and
(b) the defence of mistake of fact under
section 9.2 is available.
This means that the prosecution does not
have to prove fault on the part of the defendant. Fault includes
intention if it is with regard to conduct, and recklessness
where it is with regard to a circumstance in which conduct occurs or a
result of conduct. The defendant will be able to activate the defence of
honest or reasonable mistake of fact if he or she can point to or adduce
evidence that he or she made a relevant mistake of fact. If that occurs, the
prosecution bears the onus to prove beyond reasonable doubt that there was no
mistake.
Item 17 – Paragraph 164(2)(c)
This item
omits the term conceal and substitutes the phrase engage in conduct
that results in the concealment of. This amendment has reconstructed the
offence to clarify that concealment is a physical result of the
accused person’s conduct to which the fault element of
recklessness will apply.
The rationale behind the amendment is
that an accused person does not conceal. Rather, the concealment
is the result of the accused person’s conduct, and is a
physical element of result rather than a physical element of
conduct. Using conceal as the active verb in a criminal offence
may lead to difficulties in interpreting the offence following application of
the Criminal Code. Reconstructing the offence enables the physical
elements of conduct and result to be better
identified.
Item 18 – Subsection 172(1)
This item
omits the term wilfully from subsection 172(1). The use of the word
wilfully in relation to the physical element of conduct is akin to
the use of intentionally. The fault element of intention is the
equivalent used in the Criminal Code. The omission of the term
wilfully ensures that future courts do not attempt to distinguish
wilfulness from intention on the basis that it appears to differ
from the Criminal Code fault element.
This item also replaces
paragraphs 172(1)(a),(b), (c) and (d), with paragraphs 172(1)(a) and (b) and
paragraphs 172(2)(a) and (b), that more accurately identifies the physical
elements of conduct and result in the offence, to which the
default fault elements of recklessness and intention, will be
applied by the Criminal Code.
The maximum penalty under these
subsections is $5000 or imprisonment for 2 years, or both.
The amendment
has also rephrased the offence to clarify that destroy, mutilate and
render illegible are physical elements of result of the
defendant’s conduct to which the default fault element of
recklessness will apply.
The rationale for the amendment is that
an accused person does not destroy, mutilate or render illegible.
Rather the destruction, mutilation or being rendered illegible is the
result of the accused person’ conduct, and are physical elements of
result rather than physical elements of conduct. Using
destroy, mutilate, or render illegible as the active verb in a
criminal offence may lead to difficulties in interpreting the offence following
application of the Criminal Code.
Item 19 – Section
186E
This item replaces section 186E with a number of provisions that
more accurately identify the physical elements of circumstance, conduct and
result in the offences at paragraphs (1) (a) and (b), and subsections (2),
to which the default fault elements of recklessness and intention,
will be applied by the Criminal Code. In so doing, the amendments omit
the term knowingly. Following application of the Criminal Code it
will not be possible to apply a fault element of knowledge (that is,
knowingly) to a physical element of conduct (see Part 2.2,
Division 5 of the Criminal Code). The fault element of knowledge
can only be applied to the physical element of circumstance or
result.
The amendment to paragraph (1)(a) is drafted in the new
subsection (1) and has rephrased the offence to clarify
that:
• paragraph 186E(1)(a) is the physical element of the
conduct to which the default fault element of intention will
apply; and
• paragraph 186E(1)(b) is the physical element of
circumstance to which the default fault element of recklessness
will apply.
The maximum penalty under this subsection is 20 penalty
units.
The amendment to paragraph (1) (b) is drafted in the new
subsection (2) and has rephrased the offence to clarify
that:
• paragraph 186E(2)(a) is the physical element of the
conduct to which the default fault element of intention will
apply;
• paragraph 186E(2)(b) is the physical element of result to
which the default fault element of recklessness will apply;
and
• paragraph 186E(2)(c) is the physical element of
circumstance to which the default element of recklessness will
apply.
The maximum penalty under this subsection is 20 penalty
units.
This item also omits of the words without reasonable excuse
from paragraph (1) (b). The defence is drafted as a new subsection (3). This
amendment is necessary to ensure that the defence is not mistakenly interpreted
to be an element of the offence that must be proved by the
prosecution.
This item also notes that the defendant bears an evidential
burden of proof with regard to the matter in subsection (3). Criminal
Code policy is that the prosecution should prove every element of the
offence relevant to the guilt of the person charged (see subsection 13.1(1) of
the Criminal Code). However, there are some instances where it is
appropriate for a defendant to bear a burden of proof, such as where a matter is
peculiarly within the knowledge of the defendant. In those instances, the
Criminal Code policy is that the burden should be an evidential burden
rather than a legal burden (see subsection 13.3 of the Criminal Code).
An evidential burden is lighter than a legal burden. Subsection 13.3(1) of the
Criminal Code provides that, subject to section 13.4, a burden of
proof that a law imposes on a defendant is an evidential burden only. An
evidential burden is the burden of adducing or pointing to evidence that
suggests a reasonable possibility that the matter exists or does not exist
(see subsection 13.3(6) of the Criminal Code), whereas a legal burden is
the burden of proving the existence of the matter (see subsection 13.3(3)
of the Criminal Code).
Subsection 13.3(3) of the Criminal
Code provides that a defendant who wishes to rely on any exception,
exemption, excuse, qualification or justification provided by the law creating
an offence bears an evidential burden in relation to that matter.
This item also inserts a provision at subsection 186E(4) that strict
liability applies to the physical element of result at paragraph
186E(2)(b). This amendment ensures that the provision is not interpreted as
requiring the prosecution to prove, as part of the offence, that the defendant
had knowledge that the duties are those of a licensed pilot under the
regulations. Subsection 9.3(1) of the Criminal Code provides that
mistake or ignorance of statute law is no excuse. Subsection 9.3(2) however
provides that 9.3(1) does not apply if the particular Act is expressly or
impliedly to the contrary effect. This amendment does not create a new offence
of strict liability. The amendment is necessary to maintain the current
operation of subsection 186E(2), and ensures that it is not interpreted to
indicate a contrary intention for the purpose of section 9.3 of the Criminal
Code.
The amendment to subsection (2) is drafted in the new
subsection (5) and has rephrased the offence to clarify
that:
• paragraph 186E(5)(a) is the physical element of the
conduct to which the default fault element of intention will
apply;
• paragraph 186E(5)(b) is the physical element of result
to which the default fault element of recklessness will apply;
and
• paragraph 186E(5)(c) is the physical element of
circumstance to which the default element of recklessness will
apply.
The maximum penalty under this subsection is 20 penalty
units.
This item also inserts a provision at subsection 186E(6) that
strict liability applies to the physical element of result at paragraph
186E(5)(b). This amendment ensures that the provision is not interpreted as
requiring the prosecution to prove, as part of the offence, that the defendant
had knowledge that the duties are those of a licensed pilot under the
regulations. Subsection 9.3(1) of the Criminal Code provides that
mistake or ignorance of statute law is no excuse. Subsection 9.3(2) however
provides that 9.3(1) does not apply if the particular Act is expressly or
impliedly to the contrary effect. This amendment does not create a new offence
of strict liability. The amendment is necessary to maintain the current
operation of subsection 186E(5), and ensures that it is not interpreted to
indicate a contrary intention for the purpose of section 9.3 of the Criminal
Code.
Item 20 – At the end of section 188
This
item adds a new subsection 188(5) that provides that strict liability applies to
the offence under subsection 188(4). This amendment does not create a new
offence of strict liability. The existing offence under subsection 188(4) makes
the master and owner of the ship vicariously liable for any contravention
of section 188(3). Vicarious liability is interpreted as giving rise to strict
liability and therefore not requiring proof of fault. The amendment is
necessary to maintain the current operation of subsection 188(4). Once the
Criminal Code applies, in the absence of an express reference to the fact
that an offence is a strict liability offence, a court will be required to
interpret the offence as a fault offence rather than a strict liability offence.
The note to subsection 188(5) refers to section 6.1 of the Criminal
Code. Section 6.1 provides that if a law that creates an offence
provides that the offence is an offence of strict
liability:
(a) there are no fault elements for any of the physical
elements of the offence; and
(b) the defence of mistake of fact under
section 9.2 is available.
This means that the prosecution does not
have to prove fault on the part of the defendant. Fault includes
intention if it is with regard to conduct, and recklessness
where it is with regard to a circumstance in which conduct occurs or a
result of conduct. The defendant will be able to activate the defence of
honest or reasonable mistake of fact if he or she can point to or adduce
evidence that he or she made a relevant mistake of fact. If that occurs, the
prosecution bears the onus to prove beyond reasonable doubt that there was no
mistake.
Significant penalties are required to serve as a deterrent and
to ensure that there is an incentive to obey the requirements and standards
prescribed and that the incentive outweighs any economic advantage that may
present in breaching the offence provisions.
The maximum penalty for this
subsection is $10,000 or 4 years imprisonment, or both.
Item 21
– Subsection 190AA(4)
This item amends subsection 190AA(4) to
omit the phrase without reasonable excuse. The defence is drafted as a
separate subsection at item 23.
Item 22 – After subsection
190A(1A)
This item adds a new subsection 190A(1B) that provides that
strict liability applies to the offence under subsection 190A(1A). This
amendment does not create a new offence of strict liability. The existing
offence under subsection 190A(1A) makes the master and owner of the ship
vicariously liable for any contravention of section 190A(1). Vicarious
liability is interpreted as giving rise to strict liability and therefore not
requiring proof of fault. The amendment is necessary to maintain the current
operation of subsection 190A(1A). Once the Criminal Code applies, in the
absence of an express reference to the fact that an offence is a strict
liability offence, a court will be required to interpret the offence as a fault
offence rather than a strict liability offence.
The note to subsection
190A(1B) refers to section 6.1 of the Criminal Code. Section 6.1
provides that if a law that creates an offence provides that the offence is
an offence of strict liability:
(a) there are no fault elements
for any of the physical elements of the offence; and
(b) the defence
of mistake of fact under section 9.2 is available.
This means that
the prosecution does not have to prove fault on the part of the defendant.
Fault includes intention if it is with regard to conduct, and
recklessness where it is with regard to a circumstance in which
conduct occurs or a result of conduct. The defendant will be able to
activate the defence of honest or reasonable mistake of fact if he or she can
point to or adduce evidence that he or she made a relevant mistake of fact. If
that occurs, the prosecution bears the onus to prove beyond reasonable doubt
that there was no mistake.
Item 23 – At the end of section
190AA
This item is consequential upon the omission of the words
without reasonable excuse from subsection 190AA(4) at item 21. The
defence is drafted as a new subsection (5). This amendment is necessary to
ensure that the defence is not mistakenly interpreted to be an element of the
offence that must be proved by the prosecution.
This item also notes
that the defendant bears an evidential burden of proof with regard to the matter
in subsection (5). Criminal Code policy is that the prosecution should
prove every element of the offence relevant to the guilt of the person charged
(see subsection 13.1(1) of the Criminal Code). However, there are some
instances where it is appropriate for a defendant to bear a burden of proof,
such as where a matter is peculiarly within the knowledge of the defendant. In
those instances, the Criminal Code policy is that the burden should be an
evidential burden rather than a legal burden (see subsection 13.3 of the
Criminal Code). An evidential burden is lighter than a legal burden.
Subsection 13.3(1) of the Criminal Code provides that, subject to section
13.4, a burden of proof that a law imposes on a defendant is an evidential
burden only. An evidential burden is the burden of adducing or pointing
to evidence that suggests a reasonable possibility that the matter exists or
does not exist (see subsection 13.3(6) of the Criminal Code), whereas
a legal burden is the burden of proving the existence of the matter (see
subsection 13.3(3) of the Criminal Code).
Subsection 13.3(3) of
the Criminal Code provides that a defendant who wishes to rely on any
exception, exemption, excuse, qualification or justification provided by the law
creating an offence bears an evidential burden in relation to that matter.
This item also adds a new subsection 190AA(6) that provides that strict
liability applies to the offence under subsection 190AA(4). This amendment does
not create a new offence of strict liability. The use of the term fails
in the existing offence under subsection 190AA(4) is interpreted as strict
liability and therefore not requiring proof of fault. The amendment is
necessary to maintain the current operation of subsection 190AA(4). Once the
Criminal Code applies, in the absence of an express reference to the fact
that an offence is a strict liability offence, a court will be required to
interpret the offence as a fault offence rather than a strict liability
offence.
The note to subsection 190AA(6) refers to section 6.1 of the
Criminal Code. Section 6.1 provides that if a law that creates an
offence provides that the offence is an offence of strict
liability:
(a) there are no fault elements for any of the physical
elements of the offence; and
(b) the defence of mistake of fact under
section 9.2 is available.
This means that the prosecution does not
have to prove fault on the part of the defendant. Fault includes
intention if it is with regard to conduct, and recklessness
where it is with regard to a circumstance in which conduct occurs or a
result of conduct. The defendant will be able to activate the defence of
honest or reasonable mistake of fact if he or she can point to or adduce
evidence that he or she made a relevant mistake of fact. If that occurs, the
prosecution bears the onus to prove beyond reasonable doubt that there was no
mistake.
Item 24 – Paragraph 191B(1)(b)
This item
amends paragraph 191B(1)(b) to omit the words without reasonable cause.
The defence is drafted as a separate subsection at item 25.
Item 25
– After subsection 191B(1)
This item is consequential upon the
omission of the words without reasonable cause from paragraph 191B(1)(b)
at item 24. The defence is drafted as a new subsection (1A). This amendment is
necessary to ensure that the defence is not mistakenly interpreted to be an
element of the offence that must be proved by the prosecution.
This item
also notes that the defendant bears an evidential burden of proof with regard to
the matter in subsection (1A). Criminal Code policy is that the
prosecution should prove every element of the offence relevant to the guilt of
the person charged (see subsection 13.1(1) of the Criminal Code).
However, there are some instances where it is appropriate for a defendant to
bear a burden of proof, such as where a matter is peculiarly within the
knowledge of the defendant. In those instances, the Criminal Code policy
is that the burden should be an evidential burden rather than a legal burden
(see subsection 13.3 of the Criminal Code). An evidential burden is
lighter than a legal burden. Subsection 13.3(1) of the Criminal Code
provides that, subject to section 13.4, a burden of proof that a law imposes
on a defendant is an evidential burden only. An evidential burden is the
burden of adducing or pointing to evidence that suggests a reasonable
possibility that the matter exists or does not exist (see subsection 13.3(6)
of the Criminal Code), whereas a legal burden is the burden of proving
the existence of the matter (see subsection 13.3(3) of the Criminal
Code).
Subsection 13.3(3) of the Criminal Code provides that
a defendant who wishes to rely on any exception, exemption, excuse,
qualification or justification provided by the law creating an offence bears an
evidential burden in relation to that matter.
This item also adds a
new subsection 191B(1B) that provides that strict liability applies to the
offence under subsection 191B(1). This amendment does not create a new offence
of strict liability. The existing offence under subsection 191B(1) makes the
master and owner of the ship vicariously liable for any contravention of
section 191B(1). Vicarious liability is interpreted as giving rise to strict
liability and therefore not requiring proof of fault. The amendment is
necessary to maintain the current operation of subsection 191B(1). Once the
Criminal Code applies, in the absence of an express reference to the fact
that an offence is a strict liability offence, a court will be required to
interpret the offence as a fault offence rather than a strict liability offence.
The note to subsection 191B(1B) refers to section 6.1 of the Criminal
Code. Section 6.1 provides that if a law that creates an offence
provides that the offence is an offence of strict
liability:
(a) there are no fault elements for any of the physical
elements of the offence; and
(b) the defence of mistake of fact under
section 9.2 is available.
This means that the prosecution does not
have to prove fault on the part of the defendant. Fault includes
intention if it is with regard to conduct, and recklessness
where it is with regard to a circumstance in which conduct occurs or a
result of conduct. The defendant will be able to activate the defence of
honest or reasonable mistake of fact if he or she can point to or adduce
evidence that he or she made a relevant mistake of fact. If that occurs, the
prosecution bears the onus to prove beyond reasonable doubt that there was no
mistake.
Item 26 – Subsection 191B(2)
This item omits
the phrase except with reasonable cause from subsection 191B(2). The
defence is drafted as a new subsection (3). This amendment is necessary to
ensure that the defence is not mistakenly interpreted to be an element of the
offence that must be proved by the prosecution.
This item also notes that
the defendant bears an evidential burden of proof with regard to the matter in
subsection (3). Criminal Code policy is that the prosecution should
prove every element of the offence relevant to the guilt of the person charged
(see subsection 13.1(1) of the Criminal Code). However, there are some
instances where it is appropriate for a defendant to bear a burden of proof,
such as where a matter is peculiarly within the knowledge of the defendant. In
those instances, the Criminal Code policy is that the burden should be an
evidential burden rather than a legal burden (see subsection 13.3 of the
Criminal Code). An evidential burden is lighter than a legal burden.
Subsection 13.3(1) of the Criminal Code provides that, subject to section
13.4, a burden of proof that a law imposes on a defendant is an evidential
burden only. An evidential burden is the burden of adducing or pointing
to evidence that suggests a reasonable possibility that the matter exists or
does not exist (see subsection 13.3(6) of the Criminal Code), whereas
a legal burden is the burden of proving the existence of the matter (see
subsection 13.3(3) of the Criminal Code).
Subsection 13.3(3) of
the Criminal Code provides that a defendant who wishes to rely on any
exception, exemption, excuse, qualification or justification provided by the law
creating an offence bears an evidential burden in relation to that matter.
This item also redrafts subsection (2) so that it more accurately
identifies the physical elements of circumstance, conduct and
result in the offence, to which the default fault elements of
recklessness and intention will be applied by the Criminal
Code. This amendment has rephrased the offence to clarify
that:
• paragraph 191B(2)(a) is the physical element of
circumstance to which the default fault element of recklessness
will apply;
• paragraph 191B(2)(b) is the physical element of
conduct to which the default fault element of intention will
apply;
• paragraph 191B(2)(c) is the physical element of result
to which the default fault element of recklessness will
apply.
The amendment has also rephrased the offence to clarify that
conceals, removes, alters, defaces, and obliterates are physical
elements of result of the defendant’s conduct to which the default
fault element of recklessness will apply.
The rationale for the
amendment is that an accused person does not conceal, remove, alter, deface,
or obliterate. Rather the concealment, removal, alteration,
defacing or mutilation is the result of the accused person’
conduct, and are physical elements of result rather than physical
elements of conduct. Using conceal, remove, alter, deface, or
obliterate as the active verb in a criminal offence may lead to difficulties
in interpreting the offence following application of the Criminal
Code.
The maximum penalty under this subsection is $5000 or
imprisonment for 2 years, or both.
Item 27 – At the end of
section 206H
This item adds a new subsection 206H(3) that provides
that strict liability applies to the offence under subsection 206(H)(2). This
amendment does not create a new offence of strict liability. The existing
offence under subsection 206H(2) makes the master and owner of the ship
vicariously liable for any contravention of subsection 206H(2). Vicarious
liability is interpreted as giving rise to strict liability and therefore not
requiring proof of fault. The amendment is necessary to maintain the current
operation of subsection 206H(2). Once the Criminal Code applies, in the
absence of an express reference to the fact that an offence is a strict
liability offence, a court will be required to interpret the offence as a fault
offence rather than a strict liability offence.
The note to subsection
206H(3) refers to section 6.1 of the Criminal Code. Section 6.1 provides
that if a law that creates an offence provides that the offence is an offence
of strict liability:
(a) there are no fault elements for any of
the physical elements of the offence; and
(b) the defence of mistake
of fact under section 9.2 is available.
This means that the
prosecution does not have to prove fault on the part of the defendant. Fault
includes intention if it is with regard to conduct, and
recklessness where it is with regard to a circumstance in which
conduct occurs or a result of conduct. The defendant will be able to
activate the defence of honest or reasonable mistake of fact if he or she can
point to or adduce evidence that he or she made a relevant mistake of fact. If
that occurs, the prosecution bears the onus to prove beyond reasonable doubt
that there was no mistake.
Significant penalties are required to serve as
a deterrent and to ensure that there is an incentive to obey the requirements
and standards prescribed and that the incentive outweighs any economic advantage
that may present in breaching the offence provisions.
The maximum
penalty for this subsection is $10,000 or 4 years imprisonment, or
both.
Item 28 – Subsection 208(1)
This item amends
subsection 208(1) to omit the phrase unless that person proves that he or she
used all reasonable means to ensure the sea worthiness of the ship. The
defence is drafted as a separate subsection at item 29.
Item 29
– After subsection 208(1)
This item is consequential upon item
28. New subsection (1A) provides a defence if the defendant proves that he
or she used all reasonable means to ensure the seaworthiness of the ship.
The amendment is necessary to ensure that the defence is not mistakenly
interpreted to be an element of the offence that must be proved by the
prosecution.
Subsection (1A) also notes that the defendant bears a legal
burden of proof with regard to the matter in subsection (1A). Criminal
Code policy is that the prosecution should prove every element of the
offence relevant to the guilt of the person charged (see subsection 13.1(1) of
the Criminal Code). However, there are some instances where it is
appropriate for a defendant to bear a burden of proof, such as where a matter is
peculiarly within the knowledge of the defendant. In those instances, the
Criminal Code policy is that the burden should be an evidential burden
rather than a legal burden (see subsection 13.3 of the Criminal Code).
An evidential burden is lighter than a legal burden. Subsection 13.3(1) of the
Criminal Code provides that, subject to section 13.4, a burden of
proof that a law imposes on a defendant is an evidential burden only. An
evidential burden is the burden of adducing or pointing to evidence that
suggests a reasonable possibility that the matter exists or does not exist
(see subsection 13.3(6) of the Criminal Code), whereas a legal burden is
the burden of proving the existence of the matter (see subsection 13.3(3)
of the Criminal Code).
Section 13.4 of the Criminal Code
outlines the instances that would result in the imposition of a legal burden on
the defendant. A legal burden may be imposed on a defendant if and only if the
relevant legislation expressly:
• specifies that the burden of
proof is a legal burden;
• requires the defendant to prove the matter;
or
• creates a presumption that the matter exists unless the contrary
is proved.
Subsection 208(1) currently requires the defendant to prove
that he or she used all reasonable means to ensure the seaworthiness of the
ship. The provision therefore currently places a legal burden of proof in
relation to the defence in the subsection. The amendment at new subsection
208(1A) is necessary to maintain the current operation of subsection
(1).
Item 30 – Subsection 208(2)
This item omits the
phrase knowingly takes a ship to sea, and substitutes takes a ship to
sea, reckless as to whether the ship is. Following application of the
Criminal Code it will not be possible to apply a fault element of
knowledge (that is, knowingly) to a physical element of
conduct (see Part 2.2, Division 5 of the Criminal
Code).
Item 31 – After subsection 217(1)
This
item adds a new subsection 217(1A) that provides that strict liability applies
to the offence under subsection 217(1). This amendment does not create a new
offence of strict liability. The existing offence under subsection 217(1) makes
the master and owner of the ship vicariously liable for any contravention
of subsection 217(1). Vicarious liability is interpreted as giving rise to
strict liability and therefore not requiring proof of fault. The amendment is
necessary to maintain the current operation of subsection 217(1). Once the
Criminal Code applies, in the absence of an express reference to the fact
that an offence is a strict liability offence, a court will be required to
interpret the offence as a fault offence rather than a strict liability offence.
The note to subsection 217(1A) refers to section 6.1 of the Criminal
Code. Section 6.1 provides that if a law that creates an offence
provides that the offence is an offence of strict
liability:
(a) there are no fault elements for any of the physical
elements of the offence; and
(b) the defence of mistake of fact under
section 9.2 is available.
This means that the prosecution does not
have to prove fault on the part of the defendant. Fault includes
intention if it is with regard to conduct, and recklessness
where it is with regard to a circumstance in which conduct occurs or a
result of conduct. The defendant will be able to activate the defence of
honest or reasonable mistake of fact if he or she can point to or adduce
evidence that he or she made a relevant mistake of fact. If that occurs, the
prosecution bears the onus to prove beyond reasonable doubt that there was no
mistake.
Significant penalties are required to serve as a deterrent and
to ensure that there is an incentive to obey the requirements and standards
prescribed and that the incentive outweighs any economic advantage that may
present in breaching the offence provisions.
The maximum penalty for
this subsection is $10,000 or 4 years imprisonment, or both.
Item 32
– At the end of section 217
This item adds a new subsection
217(4) that provides that strict liability applies to the offence under
subsection 217(3). This amendment does not create a new offence of strict
liability. The existing offence under subsection 217(3) makes the master and
owner of the ship vicariously liable for any contravention of subsection
217(3). Vicarious liability is interpreted as giving rise to strict liability
and therefore not requiring proof of fault. The amendment is necessary to
maintain the current operation of subsection 217(3). Once the Criminal
Code applies, in the absence of an express reference to the fact that an
offence is a strict liability offence, a court will be required to interpret the
offence as a fault offence rather than a strict liability offence.
The
note to subsection 217(4) refers to section 6.1 of the Criminal Code.
Section 6.1 provides that if a law that creates an offence provides that the
offence is an offence of strict liability:
(a) there are no fault
elements for any of the physical elements of the offence; and
(b) the
defence of mistake of fact under section 9.2 is available.
This means
that the prosecution does not have to prove fault on the part of the defendant.
Fault includes intention if it is with regard to conduct, and
recklessness where it is with regard to a circumstance in which
conduct occurs or a result of conduct. The defendant will be able to
activate the defence of honest or reasonable mistake of fact if he or she can
point to or adduce evidence that he or she made a relevant mistake of fact. If
that occurs, the prosecution bears the onus to prove beyond reasonable doubt
that there was no mistake.
Significant penalties are required to serve as
a deterrent and to ensure that there is an incentive to obey the requirements
and standards prescribed and that the incentive outweighs any economic advantage
that may present in breaching the offence provisions.
The maximum
penalty for this subsection is $10,000 or 4 years imprisonment, or both.
Item 33 – After subsection 221(1C)
This item adds a new
subsection 221(1D) that provides that strict liability applies to the offence
under subsection 221(1C). This amendment does not create a new offence of
strict liability. The existing offence under subsection 221(1C) makes the
master and owner of the ship vicariously liable for any contravention of
subsection 221(1A). Vicarious liability is interpreted as giving rise to strict
liability and therefore not requiring proof of fault. The amendment is
necessary to maintain the current operation of subsection 221(1C). Once the
Criminal Code applies, in the absence of an express reference to the fact
that an offence is a strict liability offence, a court will be required to
interpret the offence as a fault offence rather than a strict liability offence.
The note to subsection 221(1D) refers to section 6.1 of the Criminal
Code. Section 6.1 provides that if a law that creates an offence
provides that the offence is an offence of strict
liability:
(a) there are no fault elements for any of the physical
elements of the offence; and
(b) the defence of mistake of fact under
section 9.2 is available.
This means that the prosecution does not
have to prove fault on the part of the defendant. Fault includes
intention if it is with regard to conduct, and recklessness
where it is with regard to a circumstance in which conduct occurs or a
result of conduct. The defendant will be able to activate the defence of
honest or reasonable mistake of fact if he or she can point to or adduce
evidence that he or she made a relevant mistake of fact. If that occurs, the
prosecution bears the onus to prove beyond reasonable doubt that there was no
mistake.
Item 34 – After subsection 221(4)
This item
adds a new subsection 221(4A) that provides that strict liability applies to the
offence under subsection 221(4). This amendment does not create a new offence
of strict liability. The existing offence under subsection 221(4) makes the
master and owner of the ship vicariously liable for any contravention of
subsection 221(3). Vicarious liability is interpreted as giving rise to strict
liability and therefore not requiring proof of fault. The amendment is
necessary to maintain the current operation of subsection 221(4). Once the
Criminal Code applies, in the absence of an express reference to the fact
that an offence is a strict liability offence, a court will be required to
interpret the offence as a fault offence rather than a strict liability offence.
The note to subsection 221(4A) refers to section 6.1 of the Criminal
Code. Section 6.1 provides that if a law that creates an offence
provides that the offence is an offence of strict
liability:
(a) there are no fault elements for any of the physical
elements of the offence; and
(b) the defence of mistake of fact under
section 9.2 is available.
This means that the prosecution does not
have to prove fault on the part of the defendant. Fault includes
intention if it is with regard to conduct, and recklessness
where it is with regard to a circumstance in which conduct occurs or a
result of conduct. The defendant will be able to activate the defence of
honest or reasonable mistake of fact if he or she can point to or adduce
evidence that he or she made a relevant mistake of fact. If that occurs, the
prosecution bears the onus to prove beyond reasonable doubt that there was no
mistake.
Significant penalties are required to serve as a deterrent and
to ensure that there is an incentive to obey the requirements and standards
prescribed and that the incentive outweighs any economic advantage that may
present in breaching the offence provisions.
The maximum penalty for
this subsection is $10,000 or 4 years imprisonment, or both.
Item 35
– At the end of section 221
This item adds a new subsection
221(9) that provides that strict liability applies to the offence under
subsection 221(8). This amendment does not create a new offence of strict
liability. The existing offence under subsection 221(8) makes the master and
owner of the ship vicariously liable for any contravention of subsection
221(6). Vicarious liability is interpreted as giving rise to strict liability
and therefore not requiring proof of fault. The amendment is necessary to
maintain the current operation of subsection 221(8). Once the Criminal
Code applies, in the absence of an express reference to the fact that an
offence is a strict liability offence, a court will be required to interpret the
offence as a fault offence rather than a strict liability offence.
The
note to subsection 221(9) refers to section 6.1 of the Criminal Code.
Section 6.1 provides that if a law that creates an offence provides that the
offence is an offence of strict liability:
(a) there are no fault
elements for any of the physical elements of the offence; and
(b) the
defence of mistake of fact under section 9.2 is available.
This means
that the prosecution does not have to prove fault on the part of the defendant.
Fault includes intention if it is with regard to conduct, and
recklessness where it is with regard to a circumstance in which
conduct occurs or a result of conduct. The defendant will be able to
activate the defence of honest or reasonable mistake of fact if he or she can
point to or adduce evidence that he or she made a relevant mistake of fact. If
that occurs, the prosecution bears the onus to prove beyond reasonable doubt
that there was no mistake.
Significant penalties are required to serve as
a deterrent and to ensure that there is an incentive to obey the requirements
and standards prescribed and that the incentive outweighs any economic advantage
that may present in breaching the offence provisions.
The maximum
penalty for this subsection is $10,000 or 4 years imprisonment, or both.
Item 36 – Subsection 227B(1)
This item omits the defence
of lawful authority from subsection 227B(1). The defence of
lawful authority is now included in Chapter 2 of the Criminal Code at
section 10.5. The defence applies to all offence provisions under Commonwealth
law, and the specific mention in those provisions is redundant.
Item
37 – After subsection 227B(1)
This item adds a new subsection
227B(1A) that provides that strict liability applies to the offence under
subsection 227B(1). This amendment does not create a new offence of strict
liability. The existing offence under subsection 227B(1) makes the master
and owner of the ship vicariously liable for any contravention of subsection
227B(1). Vicarious liability is interpreted as giving rise to strict liability
and therefore not requiring proof of fault. The amendment is necessary to
maintain the current operation of subsection 227B(1). Once the Criminal
Code applies, in the absence of an express reference to the fact that an
offence is a strict liability offence, a court will be required to interpret the
offence as a fault offence rather than a strict liability offence.
The
note to subsection 227B(1A) refers to section 6.1 of the Criminal Code.
Section 6.1 provides that if a law that creates an offence provides that the
offence is an offence of strict liability:
(a) there are no fault
elements for any of the physical elements of the offence; and
(b) the
defence of mistake of fact under section 9.2 is available.
This means
that the prosecution does not have to prove fault on the part of the defendant.
Fault includes intention if it is with regard to conduct, and
recklessness where it is with regard to a circumstance in which
conduct occurs or a result of conduct. The defendant will be able to
activate the defence of honest or reasonable mistake of fact if he or she can
point to or adduce evidence that he or she made a relevant mistake of fact. If
that occurs, the prosecution bears the onus to prove beyond reasonable doubt
that there was no mistake.
Significant penalties are required to serve as
a deterrent and to ensure that there is an incentive to obey the requirements
and standards prescribed and that the incentive outweighs any economic advantage
that may present in breaching the offence provisions.
The maximum
penalty for this subsection is $8,000.
Item 38 – At the end of
section 227B
This item inserts a note to section 227B that the
defendant bears a legal burden of proof with regard to the matter in subsection
(3). Criminal Code policy is that the prosecution should prove every
element of the offence relevant to the guilt of the person charged (see
subsection 13.1(1) of the Criminal Code). However, there are some
instances where it is appropriate for a defendant to bear a burden of proof,
such as where a matter is peculiarly within the knowledge of the defendant. In
those instances, the Criminal Code policy is that the burden should be an
evidential burden rather than a legal burden (see subsection 13.3 of the
Criminal Code). An evidential burden is lighter than a legal burden.
Subsection 13.3(1) of the Criminal Code provides that, subject to section
13.4, a burden of proof that a law imposes on a defendant is an evidential
burden only. An evidential burden is the burden of adducing or pointing
to evidence that suggests a reasonable possibility that the matter exists or
does not exist (see subsection 13.3(6) of the Criminal Code), whereas
a legal burden is the burden of proving the existence of the matter (see
subsection 13.3(3) of the Criminal Code).
Section 13.4 of the
Criminal Code outlines the instances that would result in the imposition
of a legal burden on the defendant. A legal burden may be imposed on a
defendant if and only if the relevant legislation
expressly:
• specifies that the burden of proof is a legal
burden;
• requires the defendant to prove the matter;
or
• creates a presumption that the matter exists unless the contrary
is proved.
Subsection 227B(3) currently requires the defendant to
prove that the circumstances giving rise to the offence.... The
provision therefore currently places a legal burden of proof on the defendant.
The amendment is necessary to maintain the current operation of subsection
(3).
Item 39 – Subsection 227D(1)
This item amends
subsection 227D(1) to omit the phrase except with reasonable
cause. The defence is drafted as a separate subsection at item
40.
Item 40 – Subsection 227D(2)
This item repeals
subsection 227D(2) and substitutes a number of new subsections.
New
subsection (2) provides a defence of reasonable cause and is
consequential upon the omission of the words except with reasonable cause
from subsection 227D(1) at item 39. The amendment is necessary to ensure that
the defence is not mistakenly interpreted to be an element of the offence that
must be proved by the prosecution.
Subsection (2) also notes that the
defendant bears an evidential burden of proof with regard to the matter in
subsection (2). Criminal Code policy is that the prosecution should
prove every element of the offence relevant to the guilt of the person charged
(see subsection 13.1(1) of the Criminal Code). However, there are some
instances where it is appropriate for a defendant to bear a burden of proof,
such as where a matter is peculiarly within the knowledge of the defendant. In
those instances, the Criminal Code policy is that the burden should be an
evidential burden rather than a legal burden (see subsection 13.3 of the
Criminal Code). An evidential burden is lighter than a legal burden.
Subsection 13.3(1) of the Criminal Code provides that, subject to section
13.4, a burden of proof that a law imposes on a defendant is an evidential
burden only. An evidential burden is the burden of adducing or pointing
to evidence that suggests a reasonable possibility that the matter exists or
does not exist (see subsection 13.3(6) of the Criminal Code), whereas
a legal burden is the burden of proving the existence of the matter (see
subsection 13.3(3) of the Criminal Code).
Subsection 13.3(3) of
the Criminal Code provides that a defendant who wishes to rely on any
exception, exemption, excuse, qualification or justification provided by the law
creating an offence bears an evidential burden in relation to that matter.
This item also adds a new subsection 227D(3) that provides that strict
liability applies to the offence under subsection 227D(1). This amendment does
not create a new offence of strict liability. The existing offence under
subsection 227D(1) makes the master and owner of the ship vicariously
liable for any contravention of subsection 227D(1). Vicarious liability is
interpreted as giving rise to strict liability and therefore not requiring proof
of fault. The amendment is necessary to maintain the current operation of
subsection 227D(1). Once the Criminal Code applies, in the absence of an
express reference to the fact that an offence is a strict liability offence, a
court will be required to interpret the offence as a fault offence rather than a
strict liability offence.
The note to subsection 227D(3) refers to
section 6.1 of the Criminal Code. Section 6.1 provides that if a law
that creates an offence provides that the offence is an offence of strict
liability:
(a) there are no fault elements for any of the physical
elements of the offence; and
(b) the defence of mistake of fact under
section 9.2 is available.
This means that the prosecution does not
have to prove fault on the part of the defendant. Fault includes
intention if it is with regard to conduct, and recklessness
where it is with regard to a circumstance in which conduct occurs or a
result of conduct. The defendant will be able to activate the defence of
honest or reasonable mistake of fact if he or she can point to or adduce
evidence that he or she made a relevant mistake of fact. If that occurs, the
prosecution bears the onus to prove beyond reasonable doubt that there was no
mistake.
New subsection (4) redrafts subsection (2) so that it
more accurately identifies the physical elements of circumstance, conduct
and result in the offence, to which the default fault elements of
recklessness and intention will be applied by the Criminal
Code. This amendment has rephrased the offence to clarify
that:
• paragraph 227D(4)(a) is the physical element of
circumstance to which the default fault element of recklessness
will apply;
• paragraph 227D(4)(b) is the physical element of
conduct to which the default fault element of intention will
apply;
• paragraph 227D(4)(c) is the physical element of result
to which the default fault element of recklessness will
apply.
The amendment has also rephrased the offence to clarify that
conceals, removes, alters, defaces, and obliterates are physical
elements of result of the defendant’s conduct to which the default
fault element of recklessness will apply.
The rationale for the
amendment is that an accused person does not conceal, remove, alter, deface,
or obliterate. Rather the concealment, removal, alteration,
defacing or mutilation is the result of the accused person’
conduct, and are physical elements of result rather than physical
elements of conduct. Using conceal, remove, alter, deface, or
obliterate as the active verb in a criminal offence may lead to difficulties
in interpreting the offence following application of the Criminal
Code.
The maximum penalty under this subsection is $5000 or
imprisonment for 2 years or both.
Item 41 – Subsections 253(1)
and (2)
This item omits the term knowingly. Following
application of the Criminal Code it will not be possible to apply a fault
element of knowledge (that is, knowingly) to a physical element of
conduct (see Part 2.2, Division 5 of the Criminal Code). The
fault element of knowledge can only be applied to the physical element of
circumstance or result. The fault element of intention
will now apply to the proscribed conduct.
Item 42 –
Subsection 264(2)
This item amends subsection 264(2) to omit the
phrase without reasonable cause. The defence is drafted as a separate
subsection at item 43.
Item 43 – After subsection
264(2)
This item is consequential upon the omission of the words
without reasonable cause from subsection 264(2) at item 42. The defence
is drafted as a new subsection (2A). This amendment is necessary to ensure that
the defence is not mistakenly interpreted to be an element of the offence that
must be proved by the prosecution.
This item also notes that the
defendant bears an evidential burden of proof with regard to the matter in
subsection (2A). Criminal Code policy is that the prosecution should
prove every element of the offence relevant to the guilt of the person charged
(see subsection 13.1(1) of the Criminal Code). However, there are some
instances where it is appropriate for a defendant to bear a burden of proof,
such as where a matter is peculiarly within the knowledge of the defendant. In
those instances, the Criminal Code policy is that the burden should be an
evidential burden rather than a legal burden (see subsection 13.3 of the
Criminal Code). An evidential burden is lighter than a legal burden.
Subsection 13.3(1) of the Criminal Code provides that, subject to section
13.4, a burden of proof that a law imposes on a defendant is an evidential
burden only. An evidential burden is the burden of adducing or pointing
to evidence that suggests a reasonable possibility that the matter exists or
does not exist (see subsection 13.3(6) of the Criminal Code), whereas
a legal burden is the burden of proving the existence of the matter (see
subsection 13.3(3) of the Criminal Code).
Subsection 13.3(3) of
the Criminal Code provides that a defendant who wishes to rely on any
exception, exemption, excuse, qualification or justification provided by the law
creating an offence bears an evidential burden in relation to that matter.
Item 44 – Subsection 265(1)
This item amends
subsection 265(1) to omit the phrase unless he or she is unable to do so or,
in the special circumstances of the case, considers it unreasonable or
unnecessary to do so. The defence is drafted as a separate subsection at
item 45.
Item 45 – After subsection 265(1)
This item
is consequential upon the omission of the words unless he or she is unable to
do so or, in the special circumstances of the case, considers it unreasonable or
unnecessary to do so from subsection 265(1) at item 44. The defence is
drafted as a new subsection (1A). This amendment is necessary to ensure that
the defence is not mistakenly interpreted to be an element of the offence that
must be proved by the prosecution.
This item also notes that the
defendant bears an evidential burden of proof with regard to the matter in
subsection (1A). Criminal Code policy is that the prosecution should
prove every element of the offence relevant to the guilt of the person charged
(see subsection 13.1(1) of the Criminal Code). However, there are some
instances where it is appropriate for a defendant to bear a burden of proof,
such as where a matter is peculiarly within the knowledge of the defendant. In
those instances, the Criminal Code policy is that the burden should be an
evidential burden rather than a legal burden (see subsection 13.3 of the
Criminal Code). An evidential burden is lighter than a legal burden.
Subsection 13.3(1) of the Criminal Code provides that, subject to section
13.4, a burden of proof that a law imposes on a defendant is an evidential
burden only. An evidential burden is the burden of adducing or pointing
to evidence that suggests a reasonable possibility that the matter exists or
does not exist (see subsection 13.3(6) of the Criminal Code), whereas
a legal burden is the burden of proving the existence of the matter (see
subsection 13.3(3) of the Criminal Code).
Subsection 13.3(3) of
the Criminal Code provides that a defendant who wishes to rely on any
exception, exemption, excuse, qualification or justification provided by the law
creating an offence bears an evidential burden in relation to that matter.
Item 46 – After subsection 267D(2)
This item adds a
new subsection 267D(3) that provides that strict liability applies to an offence
under subsections 267D(1) and (2). This amendment does not create a new offence
of strict liability. The existing offences under subsections 267D(1) and (2)
make the master and owner of the ship vicariously liable for any
contravention of subsections 267D(1) and (2). Vicarious liability is
interpreted as giving rise to strict liability and therefore not requiring proof
of fault. The amendment is necessary to maintain the current operation of
subsections 267D(1) and (2). Once the Criminal Code applies, in the
absence of an express reference to the fact that an offence is a strict
liability offence, a court will be required to interpret the offence as a fault
offence rather than a strict liability offence.
The note to subsection
267D(3) refers to section 6.1 of the Criminal Code. Section 6.1 provides
that if a law that creates an offence provides that the offence is an offence
of strict liability:
(a) there are no fault elements for any of
the physical elements of the offence; and
(b) the defence of mistake
of fact under section 9.2 is available.
This means that the
prosecution does not have to prove fault on the part of the defendant. Fault
includes intention if it is with regard to conduct, and
recklessness where it is with regard to a circumstance in which
conduct occurs or a result of conduct. The defendant will be able to
activate the defence of honest or reasonable mistake of fact if he or she can
point to or adduce evidence that he or she made a relevant mistake of fact. If
that occurs, the prosecution bears the onus to prove beyond reasonable doubt
that there was no mistake.
Item 47 – At the end of section
267E
This item adds a new subsection 267E(3) that provides that
strict liability applies to the offence under subsection 267E(2). This
amendment does not create a new offence of strict liability. The use of the
term fails in the existing offence under subsection 267E(2) is
interpreted as strict liability and therefore not requiring proof of fault. The
amendment is necessary to maintain the current operation of subsection 267E(2).
Once the Criminal Code applies, in the absence of an express reference to
the fact that an offence is a strict liability offence, a court will be required
to interpret the offence as a fault offence rather than a strict liability
offence.
The note to subsection 267E(3) refers to section 6.1 of the
Criminal Code. Section 6.1 provides that if a law that creates an
offence provides that the offence is an offence of strict
liability:
(a) there are no fault elements for any of the physical
elements of the offence; and
(b) the defence of mistake of fact under
section 9.2 is available.
This means that the prosecution does not
have to prove fault on the part of the defendant. Fault includes
intention if it is with regard to conduct, and recklessness
where it is with regard to a circumstance in which conduct occurs or a
result of conduct. The defendant will be able to activate the defence of
honest or reasonable mistake of fact if he or she can point to or adduce
evidence that he or she made a relevant mistake of fact. If that occurs, the
prosecution bears the onus to prove beyond reasonable doubt that there was no
mistake.
Item 48 – After subsection 267K(4)
This item
adds a new subsection 267K(4A) that provides that strict liability applies to an
offence under subsection 267K(4). This amendment does not create a new offence
of strict liability. The existing offence under subsection 267K(4) makes the
master and owner of the ship vicariously liable for any contravention of
subsection 267K(4). Vicarious liability is interpreted as giving rise to strict
liability and therefore not requiring proof of fault. The amendment is
necessary to maintain the current operation of subsection 267K(4). Once the
Criminal Code applies, in the absence of an express reference to the fact
that an offence is a strict liability offence, a court will be required to
interpret the offence as a fault offence rather than a strict liability offence.
The note to subsection 267K(4) refers to section 6.1 of the Criminal
Code. Section 6.1 provides that if a law that creates an offence
provides that the offence is an offence of strict
liability:
(a) there are no fault elements for any of the physical
elements of the offence; and
(b) the defence of mistake of fact under
section 9.2 is available.
This means that the prosecution does not
have to prove fault on the part of the defendant. Fault includes
intention if it is with regard to conduct, and recklessness
where it is with regard to a circumstance in which conduct occurs or a
result of conduct. The defendant will be able to activate the defence of
honest or reasonable mistake of fact if he or she can point to or adduce
evidence that he or she made a relevant mistake of fact. If that occurs, the
prosecution bears the onus to prove beyond reasonable doubt that there was no
mistake.
Significant penalties are required to serve as a deterrent and
to ensure that there is an incentive to obey the requirements and standards
prescribed and that the incentive outweighs any economic advantage that may
present in breaching the offence provisions.
The maximum penalty for
this subsection is $10,000.
Item 49 – After subsection
267S(2)
This item adds a new subsection 267S(3) that provides that
strict liability applies to an offence under subsection 267S(1) or (2). This
amendment does not create a new offence of strict liability. The existing
offences under subsections 267S(1) and (2) make the master and owner of
the ship vicariously liable for any contravention of subsections 267S(1) and
(2). Vicarious liability is interpreted as giving rise to strict liability and
therefore not requiring proof of fault. The amendment is necessary to maintain
the current operation of subsections 267S(1) and (2). Once the Criminal
Code applies, in the absence of an express reference to the fact that an
offence is a strict liability offence, a court will be required to interpret the
offence as a fault offence rather than a strict liability offence.
The
note to subsection 267S(3) refers to section 6.1 of the Criminal Code.
Section 6.1 provides that if a law that creates an offence provides that the
offence is an offence of strict liability:
(a) there are no fault
elements for any of the physical elements of the offence; and
(b) the
defence of mistake of fact under section 9.2 is available.
This means
that the prosecution does not have to prove fault on the part of the defendant.
Fault includes intention if it is with regard to conduct, and
recklessness where it is with regard to a circumstance in which
conduct occurs or a result of conduct. The defendant will be able to
activate the defence of honest or reasonable mistake of fact if he or she can
point to or adduce evidence that he or she made a relevant mistake of fact. If
that occurs, the prosecution bears the onus to prove beyond reasonable doubt
that there was no mistake.
Item 50 – At the end of section
267T
This item adds a new subsection 267T(3) that provides that
strict liability applies to the offence under subsection 267T(2). This
amendment does not create a new offence of strict liability. The use of the
term fails in the existing offence under subsection 267T(2) is
interpreted as strict liability and therefore not requiring proof of fault. The
amendment is necessary to maintain the current operation of subsection 267T(2).
Once the Criminal Code applies, in the absence of an express reference to
the fact that an offence is a strict liability offence, a court will be required
to interpret the offence as a fault offence rather than a strict liability
offence.
The note to subsection 267T(3) refers to section 6.1 of the
Criminal Code. Section 6.1 provides that if a law that creates an
offence provides that the offence is an offence of strict
liability:
(a) there are no fault elements for any of the physical
elements of the offence; and
(b) the defence of mistake of fact under
section 9.2 is available.
This means that the prosecution does not
have to prove fault on the part of the defendant. Fault includes
intention if it is with regard to conduct, and recklessness
where it is with regard to a circumstance in which conduct occurs or a
result of conduct. The defendant will be able to activate the defence of
honest or reasonable mistake of fact if he or she can point to or adduce
evidence that he or she made a relevant mistake of fact. If that occurs, the
prosecution bears the onus to prove beyond reasonable doubt that there was no
mistake.
Item 51 – After subsection 267Y(4)
This item
adds a new subsection 267Y(4A) that provides that strict liability applies to an
offence under subsection 267Y(4). This amendment does not create a new offence
of strict liability. The existing offence under subsection 267Y(4) makes the
master and owner of the ship vicariously liable for any contravention of
subsections 267Y(4). Vicarious liability is interpreted as giving rise to
strict liability and therefore not requiring proof of fault. The amendment is
necessary to maintain the current operation of subsections 267Y(4). Once the
Criminal Code applies, in the absence of an express reference to the fact
that an offence is a strict liability offence, a court will be required to
interpret the offence as a fault offence rather than a strict liability offence.
The note to subsection 267Y(4A) refers to section 6.1 of the Criminal
Code. Section 6.1 provides that if a law that creates an offence
provides that the offence is an offence of strict
liability:
(a) there are no fault elements for any of the physical
elements of the offence; and
(b) the defence of mistake of fact under
section 9.2 is available.
This means that the prosecution does not
have to prove fault on the part of the defendant. Fault includes
intention if it is with regard to conduct, and recklessness
where it is with regard to a circumstance in which conduct occurs or a
result of conduct. The defendant will be able to activate the defence of
honest or reasonable mistake of fact if he or she can point to or adduce
evidence that he or she made a relevant mistake of fact. If that occurs, the
prosecution bears the onus to prove beyond reasonable doubt that there was no
mistake.
Significant penalties are required to serve as a deterrent and
to ensure that there is an incentive to obey the requirements and standards
prescribed and that the incentive outweighs any economic advantage that may
present in breaching the offence provisions.
The maximum penalty for
this subsection is $10,000.
Item 52 – After subsection
267ZJ(2)
This item adds a new subsection 267ZJ(2A) that provides that
strict liability applies to an offence under subsections 267ZJ(1) or (2). This
amendment does not create new offences of strict liability. The existing
offences under subsections 267ZJ(1) and (2) make the master and owner of
the ship vicariously liable for any contravention of subsections 267ZJ(1) and
(2). Vicarious liability is interpreted as giving rise to strict liability and
therefore not requiring proof of fault. The amendment is necessary to maintain
the current operation of subsections 267ZJ(1) and (2). Once the Criminal
Code applies, in the absence of an express reference to the fact that an
offence is a strict liability offence, a court will be required to interpret the
offence as a fault offence rather than a strict liability offence.
The
note to subsection 267ZJ(2A) refers to section 6.1 of the Criminal Code.
Section 6.1 provides that if a law that creates an offence provides that the
offence is an offence of strict liability:
(a) there are no fault
elements for any of the physical elements of the offence; and
(b) the
defence of mistake of fact under section 9.2 is available.
This means
that the prosecution does not have to prove fault on the part of the defendant.
Fault includes intention if it is with regard to conduct, and
recklessness where it is with regard to a circumstance in which
conduct occurs or a result of conduct. The defendant will be able to
activate the defence of honest or reasonable mistake of fact if he or she can
point to or adduce evidence that he or she made a relevant mistake of fact. If
that occurs, the prosecution bears the onus to prove beyond reasonable doubt
that there was no mistake.
Item 53 – At the end of section
267ZK
This item adds a new subsection 267ZK(3) that provides that
strict liability applies to the offence under subsection 267ZK(2). This
amendment does not create a new offence of strict liability. The use of the
term fails in the existing offence under subsection 267ZK(2) is
interpreted as strict liability and therefore not requiring proof of fault. The
amendment is necessary to maintain the current operation of subsection 267ZK(2).
Once the Criminal Code applies, in the absence of an express reference to
the fact that an offence is a strict liability offence, a court will be required
to interpret the offence as a fault offence rather than a strict liability
offence.
The note to subsection 267ZK(3) refers to section 6.1 of the
Criminal Code. Section 6.1 provides that if a law that creates an
offence provides that the offence is an offence of strict
liability:
(a) there are no fault elements for any of the physical
elements of the offence; and
(b) the defence of mistake of fact under
section 9.2 is available.
This means that the prosecution does not
have to prove fault on the part of the defendant. Fault includes
intention if it is with regard to conduct, and recklessness
where it is with regard to a circumstance in which conduct occurs or a
result of conduct. The defendant will be able to activate the defence of
honest or reasonable mistake of fact if he or she can point to or adduce
evidence that he or she made a relevant mistake of fact. If that occurs, the
prosecution bears the onus to prove beyond reasonable doubt that there was no
mistake.
Item 54 – After subsection 267ZQ(4)
This
item adds a new subsection 267ZQ(4A) that provides that strict liability applies
to an offence under subsection 267ZQ(4). This amendment does not create a new
offence of strict liability. The existing offence under subsection 267ZQ(4)
makes the master and owner of the ship vicariously liable for any
contravention of subsection 267ZQ(4). Vicarious liability is interpreted as
giving rise to strict liability and therefore not requiring proof of fault. The
amendment is necessary to maintain the current operation of subsections
267ZQ(4). Once the Criminal Code applies, in the absence of an express
reference to the fact that an offence is a strict liability offence, a court
will be required to interpret the offence as a fault offence rather than a
strict liability offence.
The note to subsection 267ZQ(4A) refers to
section 6.1 of the Criminal Code. Section 6.1 provides that if a law
that creates an offence provides that the offence is an offence of strict
liability:
(a) there are no fault elements for any of the physical
elements of the offence; and
(b) the defence of mistake of fact under
section 9.2 is available.
This means that the prosecution does not
have to prove fault on the part of the defendant. Fault includes
intention if it is with regard to conduct, and recklessness
where it is with regard to a circumstance in which conduct occurs or a
result of conduct. The defendant will be able to activate the defence of
honest or reasonable mistake of fact if he or she can point to or adduce
evidence that he or she made a relevant mistake of fact. If that occurs, the
prosecution bears the onus to prove beyond reasonable doubt that there was no
mistake.
Item 55 – After subsection 269N(1)
This item
adds a new subsection 269N(1A) that provides that strict liability applies to an
offence under subsection 269N(1). This amendment does not create a new offence
of strict liability. The existing offence under subsection 269N(1) makes the
master and owner of the ship vicariously liable for any contravention of
subsection 269N(1). Vicarious liability is interpreted as giving rise to strict
liability and therefore not requiring proof of fault. The amendment is
necessary to maintain the current operation of subsections 269N(1). Once the
Criminal Code applies, in the absence of an express reference to the fact
that an offence is a strict liability offence, a court will be required to
interpret the offence as a fault offence rather than a strict liability offence.
The note to subsection 269N(1A) refers to section 6.1 of the Criminal
Code. Section 6.1 provides that if a law that creates an offence
provides that the offence is an offence of strict
liability:
(a) there are no fault elements for any of the physical
elements of the offence; and
(b) the defence of mistake of fact under
section 9.2 is available.
This means that the prosecution does not
have to prove fault on the part of the defendant. Fault includes
intention if it is with regard to conduct, and recklessness
where it is with regard to a circumstance in which conduct occurs or a
result of conduct. The defendant will be able to activate the defence of
honest or reasonable mistake of fact if he or she can point to or adduce
evidence that he or she made a relevant mistake of fact. If that occurs, the
prosecution bears the onus to prove beyond reasonable doubt that there was no
mistake.
Item 56 – At the end of section 269N
This
item inserts a note to subsection 269N(2) that the defendant bears a legal
burden of proof with regard to the matter in subsection (2). Criminal
Code policy is that the prosecution should prove every element of the
offence relevant to the guilt of the person charged (see subsection 13.1(1) of
the Criminal Code). However, there are some instances where it is
appropriate for a defendant to bear a burden of proof, such as where a matter is
peculiarly within the knowledge of the defendant. In those instances, the
Criminal Code policy is that the burden should be an evidential burden
rather than a legal burden (see subsection 13.3 of the Criminal Code).
An evidential burden is lighter than a legal burden. Subsection 13.3(1) of the
Criminal Code provides that, subject to section 13.4, a burden of
proof that a law imposes on a defendant is an evidential burden only. An
evidential burden is the burden of adducing or pointing to evidence that
suggests a reasonable possibility that the matter exists or does not exist
(see subsection 13.3(6) of the Criminal Code), whereas a legal burden is
the burden of proving the existence of the matter (see subsection 13.3(3)
of the Criminal Code).
Section 13.4 of the Criminal Code
outlines the instances that would result in the imposition of a legal burden on
the defendant. A legal burden may be imposed on a defendant if and only if the
relevant legislation expressly:
• specifies that the burden of
proof is a legal burden;
• requires the defendant to prove the matter;
or
• creates a presumption that the matter exists unless the contrary
is proved.
Subsection 269N(2) currently requires the defendant to
prove that it was not possible for the aster of the ship concerned to comply
with, or not to contravene, the provision or conditions to which the charge
relates. The provision therefore currently places a legal burden of proof
on the defendant. The amendment is necessary to maintain the current operation
of subsection (2).
Item 57 – Section 275
This item
repeals the existing section 275 and substitutes a new subsection 275(1) that
more accurately identify the physical elements of conduct and
result in the offence, to which the default fault elements of
intention and recklessness will be applied by the Criminal
Code.
This item also places the defence in a new subsection 275(2).
This amendment is necessary to ensure that the defence is not mistakenly
interpreted to be an element of the offence that must be proved by the
prosecution.
This item also notes that the defendant bears an evidential
burden of proof with regard to the matter in subsection (2). Criminal
Code policy is that the prosecution should prove every element of the
offence relevant to the guilt of the person charged (see subsection 13.1(1) of
the Criminal Code). However, there are some instances where it is
appropriate for a defendant to bear a burden of proof, such as where a matter is
peculiarly within the knowledge of the defendant. In those instances, the
Criminal Code policy is that the burden should be an evidential burden
rather than a legal burden (see subsection 13.3 of the Criminal Code).
An evidential burden is lighter than a legal burden. Subsection 13.3(1) of the
Criminal Code provides that, subject to section 13.4, a burden of
proof that a law imposes on a defendant is an evidential burden only. An
evidential burden is the burden of adducing or pointing to evidence that
suggests a reasonable possibility that the matter exists or does not exist
(see subsection 13.3(6) of the Criminal Code), whereas a legal burden is
the burden of proving the existence of the matter (see subsection 13.3(3)
of the Criminal Code).
Subsection 13.3(3) of the Criminal
Code provides that a defendant who wishes to rely on any exception,
exemption, excuse, qualification or justification provided by the law creating
an offence bears an evidential burden in relation to that
matter.
Item 58 – Subsection 278(1)
This item
replaces subsection 278(1) with a provision that more accurately identifies the
physical elements of conduct and result to which the default fault
elements of intention and recklessness, will be applied by the
Criminal Code. In so doing, this item also omits the term wilfully
from subsection (1). The use of the word wilfully in relation to the
physical element of conduct, is akin to the use of the word
intentionally. The fault element of intention is the equivalent
used in the Criminal Code. The omission of the tem wilfully
ensures that future courts do not attempt to distinguish wilfulness from
intention on the basis that it appears to differ from the Criminal
Code fault element.
The maximum penalty for this subsection is
$1,000.
Item 59 – Subsection 278(3) (penalty)
This
item repeals the penalty created by a contravention of subsection (3). The
penalty is attached to a new subsection (4) at item 60.
Item 60
– At the end of section 278
This item adds a new subsection (4)
that more accurately identifies the physical elements of circumstance,
conduct and result in the offence arising from subsection (3), to
which the default fault elements of recklessness and intention
will be applied by the Criminal Code.
This amendment has rephrased
the offence to clarify that:
• paragraph 278(4)(a) is the physical
element of circumstance to which the default fault element of
recklessness will apply;
• paragraph 278(4)(b) is the physical
element of conduct to which the default fault element of intention
will apply;
• paragraph 278(4)(c) is the physical element of result
to which the default fault element of recklessness will
apply.
The maximum penalty under this subsection is $500.
Item
61 – Paragraph 282(1)(d)
This item omits the term
knowingly. Following application of the Criminal Code it will not
be possible to apply a fault element of knowledge (that is,
knowingly) to a physical element of conduct (see Part 2.2,
Division 5 of the Criminal Code). The fault element of knowledge
can only be applied to the physical element of circumstance or result.
The fault element of intention will now apply to the proscribed
conduct.
Item 62 – Paragraph 282(1)(e)
This item
omits the term knowingly and wilfully. Following application of the
Criminal Code it will not be possible to apply a fault element of
knowledge (that is, knowingly) to a physical element of
conduct (see Part 2.2, Division 5 of the Criminal Code). The
fault element of knowledge can only be applied to the physical element of
circumstance or result.
The use of the word wilfully
in relation to the physical element of conduct, is akin to the use of
intentionally. The fault element of intention is the equivalent
used in the Criminal Code. The omission of the term wilfully
ensures that future courts do not attempt to distinguish wilfulness from
intention on the basis that it appears to differ from the Criminal
Code fault element. The fault element of intention will now apply to
the proscribed conduct.
Item 63 – At the end of section
283F
This item adds a new subsection 283F(4) that provides that
strict liability applies to an offence under subsection 283F(3). This amendment
does not create a new offence of strict liability. The existing offence under
subsection 283F(3) makes the master and owner of the ship vicariously
liable for any contravention of subsection 283F(3). Vicarious liability is
interpreted as giving rise to strict liability and therefore not requiring proof
of fault. The amendment is necessary to maintain the current operation of
subsections 283F(3). Once the Criminal Code applies, in the absence of
an express reference to the fact that an offence is a strict liability offence,
a court will be required to interpret the offence as a fault offence rather than
a strict liability offence.
The note to subsection 283F(4) refers to
section 6.1 of the Criminal Code. Section 6.1 provides that if a law
that creates an offence provides that the offence is an offence of strict
liability:
(a) there are no fault elements for any of the physical
elements of the offence; and
(b) the defence of mistake of fact under
section 9.2 is available.
This means that the prosecution does not
have to prove fault on the part of the defendant. Fault includes
intention if it is with regard to conduct, and recklessness
where it is with regard to a circumstance in which conduct occurs or a
result of conduct. The defendant will be able to activate the defence of
honest or reasonable mistake of fact if he or she can point to or adduce
evidence that he or she made a relevant mistake of fact. If that occurs, the
prosecution bears the onus to prove beyond reasonable doubt that there was no
mistake.
Item 64 – At the end of section 283G
This
item adds a new subsection 283G(5) that provides that strict liability applies
to an offence under subsection 283G(4). This amendment does not create a new
offence of strict liability. The existing offence under subsection 283G(4)
makes the master and owner of the ship vicariously liable for any
contravention of subsection 283G(4). Vicarious liability is interpreted as
giving rise to strict liability and therefore not requiring proof of fault. The
amendment is necessary to maintain the current operation of subsections 283G(4).
Once the Criminal Code applies, in the absence of an express reference to
the fact that an offence is a strict liability offence, a court will be required
to interpret the offence as a fault offence rather than a strict liability
offence.
The note to subsection 283G(5) refers to section 6.1 of the
Criminal Code. Section 6.1 provides that if a law that creates an
offence provides that the offence is an offence of strict
liability:
(a) there are no fault elements for any of the physical
elements of the offence; and
(b) the defence of mistake of fact under
section 9.2 is available.
This means that the prosecution does not
have to prove fault on the part of the defendant. Fault includes
intention if it is with regard to conduct, and recklessness
where it is with regard to a circumstance in which conduct occurs or a
result of conduct. The defendant will be able to activate the defence of
honest or reasonable mistake of fact if he or she can point to or adduce
evidence that he or she made a relevant mistake of fact. If that occurs, the
prosecution bears the onus to prove beyond reasonable doubt that there was no
mistake.
Item 65 – Subsection 287(1)
This item
replaces subsection (1) with a provision that more accurately identifies the
physical elements of circumstance, conduct and result in the
offence, to which the default fault elements of recklessness and
intention will be applied by the Criminal Code.
This
amendment has rephrased the offence to clarify that:
• paragraph
287(1)(a) is the physical element of conduct to which the default fault
element of intention will apply;
• paragraph 287(1)(b) is the
physical element of circumstance to which the default fault element of
recklessness will apply;
• paragraph 287(1)(c) is the physical
element of result to which the default fault element of
recklessness will apply.
The maximum penalty under this subsection
is $5000.
This item also adds a new subsection 287(1A) that provides that
strict liability applies to an offence under subsection 287(1). This amendment
does not create a new offence of strict liability. The existing offence under
subsection 287(1) makes the master, owner and agent of the ship
vicariously liable for any contravention of subsection 287(1). Vicarious
liability is interpreted as giving rise to strict liability and therefore not
requiring proof of fault. The amendment is necessary to maintain the current
operation of subsections 287(1). Once the Criminal Code applies, in the
absence of an express reference to the fact that an offence is a strict
liability offence, a court will be required to interpret the offence as a fault
offence rather than a strict liability offence.
The note to subsection
287(1A) refers to section 6.1 of the Criminal Code. Section 6.1 provides
that if a law that creates an offence provides that the offence is an offence
of strict liability:
(a) there are no fault elements for any of
the physical elements of the offence; and
(b) the defence of mistake
of fact under section 9.2 is available.
This means that the
prosecution does not have to prove fault on the part of the defendant. Fault
includes intention if it is with regard to conduct, and
recklessness where it is with regard to a circumstance in which
conduct occurs or a result of conduct. The defendant will be able to
activate the defence of honest or reasonable mistake of fact if he or she can
point to or adduce evidence that he or she made a relevant mistake of fact. If
that occurs, the prosecution bears the onus to prove beyond reasonable doubt
that there was no mistake.
Item 66 – At the end of section
288
This item adds a new subsection 288(8) that provides that strict
liability applies to an offence under subsections 288(1) or (4). This amendment
does not create a new offence of strict liability. The existing offence under
subsection 288(1) makes the master, owner and agent of the ship
vicariously liable for any contravention of subsection 288(1). The existing
offence under subsection 288(4) makes the owner of the ship vicariously
liable for any contravention of subsection 288(4). Vicarious liability is
interpreted as giving rise to strict liability and therefore not requiring proof
of fault. The amendment is necessary to maintain the current operation of
subsections 288(1) and (4). Once the Criminal Code applies, in the
absence of an express reference to the fact that an offence is a strict
liability offence, a court will be required to interpret the offence as a fault
offence rather than a strict liability offence.
The note to subsection
288(8) refers to section 6.1 of the Criminal Code. Section 6.1 provides
that if a law that creates an offence provides that the offence is an offence
of strict liability:
(a) there are no fault elements for any of
the physical elements of the offence; and
(b) the defence of mistake
of fact under section 9.2 is available.
This means that the
prosecution does not have to prove fault on the part of the defendant. Fault
includes intention if it is with regard to conduct, and
recklessness where it is with regard to a circumstance in which
conduct occurs or a result of conduct. The defendant will be able to
activate the defence of honest or reasonable mistake of fact if he or she can
point to or adduce evidence that he or she made a relevant mistake of fact. If
that occurs, the prosecution bears the onus to prove beyond reasonable doubt
that there was no mistake.
Item 67 – Section 293
This
item omits the phrase by or in respect of the ship, and shall be liable to
any pecuniary penalty provided by this Act for any breach or contravention of
this Part because they are superfluous to the operation of the offence
provisions in the Part VI of the Act.
Item 68 – Subsection
296(2)
This item also omits the term wilfully from subsection
(2). The use of the word wilfully in relation to the physical element of
conduct, is akin to the use of the word intentionally. The fault
element of intention is the equivalent used in the Criminal Code.
The omission of the tem wilfully ensures that future courts do not
attempt to distinguish wilfulness from intention on the basis that
it appears to differ from the Criminal Code fault element.
Item
69 – Subsection 297(2)
This item amends subsection 297(2) to
omit the phrase without reasonable cause. The defence is drafted as a
separate subsection at item 70.
Item 70 – At the end of section
297
This item is consequential upon the omission of the phrase
without reasonable cause from subsection 297(2) at item 69. The defence
is drafted as a new subsection (3). This amendment is necessary to ensure that
the defence is not mistakenly interpreted to be an element of the offence that
must be proved by the prosecution.
This item also notes that the
defendant bears an evidential burden of proof with regard to the matter in
subsection (3). Criminal Code policy is that the prosecution should
prove every element of the offence relevant to the guilt of the person charged
(see subsection 13.1(1) of the Criminal Code). However, there are some
instances where it is appropriate for a defendant to bear a burden of proof,
such as where a matter is peculiarly within the knowledge of the defendant. In
those instances, the Criminal Code policy is that the burden should be an
evidential burden rather than a legal burden (see subsection 13.3 of the
Criminal Code). An evidential burden is lighter than a legal burden.
Subsection 13.3(1) of the Criminal Code provides that, subject to section
13.4, a burden of proof that a law imposes on a defendant is an evidential
burden only. An evidential burden is the burden of adducing or pointing
to evidence that suggests a reasonable possibility that the matter exists or
does not exist (see subsection 13.3(6) of the Criminal Code), whereas
a legal burden is the burden of proving the existence of the matter (see
subsection 13.3(3) of the Criminal Code).
Subsection 13.3(3) of
the Criminal Code provides that a defendant who wishes to rely on any
exception, exemption, excuse, qualification or justification provided by the law
creating an offence bears an evidential burden in relation to that matter.
Item 71 – Subsection 298(3)
This item replaces
subsection (3) with a provision that more accurately identifies the physical
elements of conduct and result in the offence, to which the
default fault elements of intention and recklessness will be
applied by the Criminal Code. The amendment has rephrased the offence to
clarify that impeding and prevention is a physical element of
result of the defendant’s conduct to which the default fault
element of recklessness will apply.
The rationale for the
amendment is that an accused person does not impede or prevent.
Rather the impeding or prevention is the result of the accused
person’s conduct, and is a physical element of result rather than a
physical element of conduct. Using impede or prevent as
the active verb in a criminal offence may lead to difficulties in interpreting
the offence following application of the Criminal Code.
The
maximum penalty under this subsection is $500.
Item 72 –
Subsection 313(1)
This item amends subsection 313(1) to omit the
words without the leave of the master or the authority of this or any
Act. The defence is drafted as a separate subsection at item
73.
Item 73 – After subsection 313(1)
This item is
consequential upon the omission of the words without the leave of the master
or the authority of this or any Act from subsection 313(1) at item 72. The
defence is drafted as a new subsection (1A). This amendment is necessary to
ensure that the defence is not mistakenly interpreted to be an element of the
offence that must be proved by the prosecution. The defence does not include
the reference to the authority of this or any other Act because the
defence of lawful authority is now included in Chapter 2 of the Criminal
Code at section 10.5. The defence applies to all offence provisions under
Commonwealth law, and the specific mention in those provisions is
redundant.
This item also notes that the defendant bears an evidential
burden of proof with regard to the matter in subsection (1A). Criminal
Code policy is that the prosecution should prove every element of the
offence relevant to the guilt of the person charged (see subsection 13.1(1) of
the Criminal Code). However, there are some instances where it is
appropriate for a defendant to bear a burden of proof, such as where a matter is
peculiarly within the knowledge of the defendant. In those instances, the
Criminal Code policy is that the burden should be an evidential burden
rather than a legal burden (see subsection 13.3 of the Criminal Code).
An evidential burden is lighter than a legal burden. Subsection 13.3(1) of the
Criminal Code provides that, subject to section 13.4, a burden of
proof that a law imposes on a defendant is an evidential burden only. An
evidential burden is the burden of adducing or pointing to evidence that
suggests a reasonable possibility that the matter exists or does not exist
(see subsection 13.3(6) of the Criminal Code), whereas a legal burden is
the burden of proving the existence of the matter (see subsection 13.3(3)
of the Criminal Code).
Subsection 13.3(3) of the Criminal
Code provides that a defendant who wishes to rely on any exception,
exemption, excuse, qualification or justification provided by the law creating
an offence bears an evidential burden in relation to that matter.
Item 74 – Section 314
This item replaces section 314
with a provision that more accurately identifies the physical elements of
conduct and result in the offence, to which the default fault
elements of intention and recklessness will be applied by the
Criminal Code.
The amendment has rephrased the offence to clarify
that impeding, secreting and removal are physical elements of
result of the defendant’s conduct to which the default fault
element of recklessness will apply.
The rationale for the
amendment is that an accused person does not impede, secrete or
remove. Rather the impeding, secreting or removal
is the result of the accused person’ conduct, and are physical elements of
result rather than physical elements of conduct. Using impede,
secrete or remove as the active verb in a criminal offence may lead
to difficulties in interpreting the offence following application of the
Criminal Code.
The maximum penalty under this subsection is
$2000.
Item 75 – After subsection 386B(1)
This item
adds a new subsection 386B(1A) that provides that strict liability applies to
the offence under subsection 386B(1). This amendment does not create a new
offence of strict liability. The use of the phrase is guilty of an
offence in the existing offence under subsection 386B(1) is consistent with
an offence of strict liability and therefore not requiring proof of fault. The
amendment is necessary to maintain the current operation of subsection 386B(1).
Once the Criminal Code applies, in the absence of an express reference to
the fact that an offence is a strict liability offence, a court will be required
to interpret the offence as a fault offence rather than a strict liability
offence.
The note to subsection 386B(1A) refers to section 6.1 of the
Criminal Code. Section 6.1 provides that if a law that creates an
offence provides that the offence is an offence of strict
liability:
(a) there are no fault elements for any of the physical
elements of the offence; and
(b) the defence of mistake of fact under
section 9.2 is available.
This means that the prosecution does not
have to prove fault on the part of the defendant. Fault includes
intention if it is with regard to conduct, and recklessness
where it is with regard to a circumstance in which conduct occurs or a
result of conduct. The defendant will be able to activate the defence of
honest or reasonable mistake of fact if he or she can point to or adduce
evidence that he or she made a relevant mistake of fact. If that occurs, the
prosecution bears the onus to prove beyond reasonable doubt that there was no
mistake.
Item 76 – After subsection 386E(2)
This item
adds a new subsection 386E(2A) that provides that strict liability applies to
the offences under subsections 386E(1) and (2). This amendment does not create
new offences of strict liability. The use of the phrase is guilty of
an offence in the existing offences under subsections 386E(1) and (2) is
consistent with an offence of strict liability and therefore not requiring proof
of fault. The amendment is necessary to maintain the current operation of
subsections 386E(1) and (2). Once the Criminal Code applies, in the
absence of an express reference to the fact that an offence is a strict
liability offence, a court will be required to interpret the offence as a fault
offence rather than a strict liability offence.
The note to subsection
386E(2A) refers to section 6.1 of the Criminal Code. Section 6.1
provides that if a law that creates an offence provides that the offence is
an offence of strict liability:
(a) there are no fault elements
for any of the physical elements of the offence; and
(b) the defence
of mistake of fact under section 9.2 is available.
This means that
the prosecution does not have to prove fault on the part of the defendant.
Fault includes intention if it is with regard to conduct, and
recklessness where it is with regard to a circumstance in which
conduct occurs or a result of conduct. The defendant will be able to
activate the defence of honest or reasonable mistake of fact if he or she can
point to or adduce evidence that he or she made a relevant mistake of fact. If
that occurs, the prosecution bears the onus to prove beyond reasonable doubt
that there was no mistake.
Item 77 – Subsection
386G(4)
This item amends subsection 386G(4) to omit the words
without reasonable excuse. The defence is drafted as a separate
subsection at item 78.
Item 78 – At the end of section
286G
This item is consequential upon the omission of the words
without reasonable excuse from subsection 386G(4) at item 77. The
defence is drafted as a new subsection (5). This amendment is necessary to
ensure that the defence is not mistakenly interpreted to be an element of the
offence that must be proved by the prosecution.
This item also notes that
the defendant bears an evidential burden of proof with regard to the matter in
subsection (5). Criminal Code policy is that the prosecution should
prove every element of the offence relevant to the guilt of the person charged
(see subsection 13.1(1) of the Criminal Code). However, there are some
instances where it is appropriate for a defendant to bear a burden of proof,
such as where a matter is peculiarly within the knowledge of the defendant. In
those instances, the Criminal Code policy is that the burden should be an
evidential burden rather than a legal burden (see subsection 13.3 of the
Criminal Code). An evidential burden is lighter than a legal burden.
Subsection 13.3(1) of the Criminal Code provides that, subject to section
13.4, a burden of proof that a law imposes on a defendant is an evidential
burden only. An evidential burden is the burden of adducing or pointing
to evidence that suggests a reasonable possibility that the matter exists or
does not exist (see subsection 13.3(6) of the Criminal Code), whereas
a legal burden is the burden of proving the existence of the matter (see
subsection 13.3(3) of the Criminal Code).
Subsection 13.3(3) of
the Criminal Code provides that a defendant who wishes to rely on any
exception, exemption, excuse, qualification or justification provided by the law
creating an offence bears an evidential burden in relation to that matter.
Item 79 – Subsection 388(1)
This item amends
subsection 388(1) to omit the words without reasonable excuse or the
permission of the master. The defence is drafted as a separate subsection
at item 80.
Item 80 – After subsection 388(1)
This
item is consequential upon the omission of the words without reasonable
excuse or the permission of the master from subsection 388(1) at item 79.
The defence is drafted as a new subsection (1A). This amendment is necessary to
ensure that the defence is not mistakenly interpreted to be an element of the
offence that must be proved by the prosecution.
This item also notes that
the defendant bears an evidential burden of proof with regard to the matter in
subsection (1A). Criminal Code policy is that the prosecution should
prove every element of the offence relevant to the guilt of the person charged
(see subsection 13.1(1) of the Criminal Code). However, there are some
instances where it is appropriate for a defendant to bear a burden of proof,
such as where a matter is peculiarly within the knowledge of the defendant. In
those instances, the Criminal Code policy is that the burden should be an
evidential burden rather than a legal burden (see subsection 13.3 of the
Criminal Code). An evidential burden is lighter than a legal burden.
Subsection 13.3(1) of the Criminal Code provides that, subject to section
13.4, a burden of proof that a law imposes on a defendant is an evidential
burden only. An evidential burden is the burden of adducing or pointing
to evidence that suggests a reasonable possibility that the matter exists or
does not exist (see subsection 13.3(6) of the Criminal Code), whereas
a legal burden is the burden of proving the existence of the matter (see
subsection 13.3(3) of the Criminal Code).
Subsection 13.3(3) of
the Criminal Code provides that a defendant who wishes to rely on any
exception, exemption, excuse, qualification or justification provided by the law
creating an offence bears an evidential burden in relation to that matter.
Item 81 – Section 389
This item omits the term
knowingly. Following application of the Criminal Code it will not
be possible to apply a fault element of knowledge (that is,
knowingly) to a physical element of conduct (see Part 2.2,
Division 5 of the Criminal Code). The fault element of knowledge
can only be applied to the physical element of circumstance or result.
The fault element of intention will now apply to the proscribed
conduct.
Item 82 – Paragraph 389A(1)(a)
This item
omits the term knowingly. Following application of the Criminal
Code it will not be possible to apply a fault element of knowledge
(that is, knowingly) to a physical element of conduct (see Part
2.2, Division 5 of the Criminal Code). The fault element of
knowledge can only be applied to the physical element of
circumstance or result. The fault element of intention will
now apply to the proscribed conduct.
Item 83 – Subsection
389A(4)
This item adds a new subsection 389A(4A) that provides that
strict liability applies to the offence under subsection 389A(4). This
amendment does not create new offences of strict liability. The use of the
phrase shall comply in the existing offence under subsection 389A(4) is
consistent with an offence of strict liability and therefore not requiring proof
of fault. The amendment is necessary to maintain the current operation of
subsection 389A(4). Once the Criminal Code applies, in the absence of an
express reference to the fact that an offence is a strict liability offence, a
court will be required to interpret the offence as a fault offence rather than a
strict liability offence.
The note to subsection 389A(4A) refers to
section 6.1 of the Criminal Code. Section 6.1 provides that if a law
that creates an offence provides that the offence is an offence of strict
liability:
(a) there are no fault elements for any of the physical
elements of the offence; and
(b) the defence of mistake of fact under
section 9.2 is available.
This means that the prosecution does not
have to prove fault on the part of the defendant. Fault includes
intention if it is with regard to conduct, and recklessness
where it is with regard to a circumstance in which conduct occurs or a
result of conduct. The defendant will be able to activate the defence of
honest or reasonable mistake of fact if he or she can point to or adduce
evidence that he or she made a relevant mistake of fact. If that occurs, the
prosecution bears the onus to prove beyond reasonable doubt that there was no
mistake.
Item 84 – Subsection 405K(2)
This item
amends subsection 405K(2) to omit the words without reasonable excuse.
The defence is drafted as a separate subsection at item 85.
Item 85
– At the end of section 405K
This item is consequential upon
the omission of the words without reasonable excuse from subsection
405K(2) at item 84. The defence is drafted as a new subsection (3). This
amendment is necessary to ensure that the defence is not mistakenly interpreted
to be an element of the offence that must be proved by the
prosecution.
This item also notes that the defendant bears an evidential
burden of proof with regard to the matter in subsection (3). Criminal
Code policy is that the prosecution should prove every element of the
offence relevant to the guilt of the person charged (see subsection 13.1(1) of
the Criminal Code). However, there are some instances where it is
appropriate for a defendant to bear a burden of proof, such as where a matter is
peculiarly within the knowledge of the defendant. In those instances, the
Criminal Code policy is that the burden should be an evidential burden
rather than a legal burden (see subsection 13.3 of the Criminal Code).
An evidential burden is lighter than a legal burden. Subsection 13.3(1) of the
Criminal Code provides that, subject to section 13.4, a burden of
proof that a law imposes on a defendant is an evidential burden only. An
evidential burden is the burden of adducing or pointing to evidence that
suggests a reasonable possibility that the matter exists or does not exist
(see subsection 13.3(6) of the Criminal Code), whereas a legal burden is
the burden of proving the existence of the matter (see subsection 13.3(3)
of the Criminal Code).
Subsection 13.3(3) of the Criminal
Code provides that a defendant who wishes to rely on any exception,
exemption, excuse, qualification or justification provided by the law creating
an offence bears an evidential burden in relation to that matter.
This item also adds a new subsection 405K(4) that provides that strict
liability applies to the offence under subsection 405K(2). This amendment does
not create new offences of strict liability. The use of the term fail in
the existing offence under subsection 405K(2) is consistent with an offence of
strict liability and therefore not requiring proof of fault. The amendment is
necessary to maintain the current operation of subsection 405K(2). Once the
Criminal Code applies, in the absence of an express reference to the fact
that an offence is a strict liability offence, a court will be required to
interpret the offence as a fault offence rather than a strict liability
offence.
The note to subsection 405K(4) refers to section 6.1 of the
Criminal Code. Section 6.1 provides that if a law that creates an
offence provides that the offence is an offence of strict
liability:
(a) there are no fault elements for any of the physical
elements of the offence; and
(b) the defence of mistake of fact under
section 9.2 is available.
This means that the prosecution does not
have to prove fault on the part of the defendant. Fault includes
intention if it is with regard to conduct, and recklessness
where it is with regard to a circumstance in which conduct occurs or a
result of conduct. The defendant will be able to activate the defence of
honest or reasonable mistake of fact if he or she can point to or adduce
evidence that he or she made a relevant mistake of fact. If that occurs, the
prosecution bears the onus to prove beyond reasonable doubt that there was no
mistake.
Item 86 – Subsection 413(2)
This item amends
subsection 413(2) to omit the words without just cause. The defence is
drafted as a separate subsection at item 87.
Item 87 – At the
end of section 413
This item is consequential upon the omission of
the words without just cause from subsection 413(2) at item 86. The
defence is drafted as a new subsection (3). This amendment is necessary to
ensure that the defence is not mistakenly interpreted to be an element of the
offence that must be proved by the prosecution.
This item also notes that
the defendant bears an evidential burden of proof with regard to the matter in
subsection (3). Criminal Code policy is that the prosecution should
prove every element of the offence relevant to the guilt of the person charged
(see subsection 13.1(1) of the Criminal Code). However, there are some
instances where it is appropriate for a defendant to bear a burden of proof,
such as where a matter is peculiarly within the knowledge of the defendant. In
those instances, the Criminal Code policy is that the burden should be an
evidential burden rather than a legal burden (see subsection 13.3 of the
Criminal Code). An evidential burden is lighter than a legal burden.
Subsection 13.3(1) of the Criminal Code provides that, subject to section
13.4, a burden of proof that a law imposes on a defendant is an evidential
burden only. An evidential burden is the burden of adducing or pointing
to evidence that suggests a reasonable possibility that the matter exists or
does not exist (see subsection 13.3(6) of the Criminal Code), whereas
a legal burden is the burden of proving the existence of the matter (see
subsection 13.3(3) of the Criminal Code).
Subsection 13.3(3) of
the Criminal Code provides that a defendant who wishes to rely on any
exception, exemption, excuse, qualification or justification provided by the law
creating an offence bears an evidential burden in relation to that matter.
Item 88 – At the end of section 415
This item adds a
new subsection 415(2) that provides that strict liability applies to an offence
under subsection 415(1). This amendment does not create a new offence of strict
liability. The existing offence under subsection 415(1) makes the master and
owner of the ship vicariously liable for any contravention of
subsection 415(1). Vicarious liability is interpreted as giving rise to strict
liability and therefore not requiring proof of fault. The amendment is
necessary to maintain the current operation of subsection 415(1). Once the
Criminal Code applies, in the absence of an express reference to the fact
that an offence is a strict liability offence, a court will be required to
interpret the offence as a fault offence rather than a strict liability offence.
The note to subsection 415(2) refers to section 6.1 of the Criminal
Code. Section 6.1 provides that if a law that creates an offence
provides that the offence is an offence of strict
liability:
(a) there are no fault elements for any of the physical
elements of the offence; and
(b) the defence of mistake of fact under
section 9.2 is available.
This means that the prosecution does not
have to prove fault on the part of the defendant. Fault includes
intention if it is with regard to conduct, and recklessness
where it is with regard to a circumstance in which conduct occurs or a
result of conduct. The defendant will be able to activate the defence of
honest or reasonable mistake of fact if he or she can point to or adduce
evidence that he or she made a relevant mistake of fact. If that occurs, the
prosecution bears the onus to prove beyond reasonable doubt that there was no
mistake.
Item 89 – After subsection 421(4)
This item
adds a new subsection 421(4A) that provides that strict liability applies to an
offence under subsection 421(4). This amendment does not create a new offence
of strict liability. The existing offence under subsection 421(4) makes the
master and owner of the ship vicariously liable for any
contravention of subsection 421(4). Vicarious liability is interpreted as
giving rise to strict liability and therefore not requiring proof of fault. The
amendment is necessary to maintain the current operation of subsection 421(4).
Once the Criminal Code applies, in the absence of an express reference to
the fact that an offence is a strict liability offence, a court will be required
to interpret the offence as a fault offence rather than a strict liability
offence.
The note to subsection 421(4A) refers to section 6.1 of the
Criminal Code. Section 6.1 provides that if a law that creates an
offence provides that the offence is an offence of strict
liability:
(a) there are no fault elements for any of the physical
elements of the offence; and
(b) the defence of mistake of fact under
section 9.2 is available.
This means that the prosecution does not
have to prove fault on the part of the defendant. Fault includes
intention if it is with regard to conduct, and recklessness
where it is with regard to a circumstance in which conduct occurs or a
result of conduct. The defendant will be able to activate the defence of
honest or reasonable mistake of fact if he or she can point to or adduce
evidence that he or she made a relevant mistake of fact. If that occurs, the
prosecution bears the onus to prove beyond reasonable doubt that there was no
mistake.
Significant penalties are required to serve as a deterrent and
to ensure that there is an incentive to obey the requirements and standards
prescribed and that the incentive outweighs any economic advantage that may
present in breaching the offence provisions.
The maximum penalty for
this subsection is 4 years imprisonment.
Item 90 – Subsection
421(5)
This item replaces subsection (5) with a provision that more
accurately identifies the physical elements of circumstance, conduct and
result in the offence, to which the default fault elements of
recklessness and intention will be applied by the Criminal
Code.
This amendment has rephrased the offence to clarify
that:
• paragraph 421(5)(a) is the physical element of
circumstance to which the default fault element of recklessness
will apply;
• paragraph 421(5)(b) is the physical element of conduct
to which the default fault element of intention will
apply;
• paragraph 421(5)(c) is the physical element of result
to which the default fault element of recklessness will
apply.
The maximum penalty under this subsection is 4 years
imprisonment.
This item also inserts a provision at subsection (5A) that
strict liability applies to the physical element of circumstance at paragraph
421(5)(a). This amendment ensures that the provision is not interpreted as
requiring the prosecution to prove, as part of the offence, that the defendant
had knowledge of a requirement under subsection (3) to comply with a
condition. Subsection 9.3(1) of the Criminal Code provides that
mistake or ignorance of the statute law is no excuse. Subsection 9.3(2) however
provides that 9.3(1) does not apply if the particular Act is expressly or
impliedly to the contrary effect. This amendment does not create a new offence
of strict liability. The amendment is necessary to maintain the current
operation of subsection (5), and ensure that it is not interpreted to indicate a
contrary intention for the purposes of section 9.3 of the Criminal
Code.
This item inserts a new section 5A that provides that Chapter 2 of the
Criminal Code (except Part 2.5) applies to all offences against the
Adelaide Airport Curfew Act 2000. It also inserts a note that says that
Chapter 2 of the Criminal Code sets out the general principles of
criminal responsibility.
Part 2.5 of the Criminal Code is the only
Part of Chapter 2 that does not automatically apply to offences. When the
Criminal Code was introduced into the Senate on 30 June 1994, it was
stated that Part 2.5 would be the basis of corporate criminal liability if no
other basis were provided. Section 23 of the Adelaide Airport Curfew Act
2000 deals with corporate criminal responsibility by vicariously
establishing criminal responsibility for corporations as a result of the conduct
of its directors, employees or agents. The disapplication of Part 2.5 is
necessary to prevent competing corporate criminal liability regimes operating in
relation to the same criminal offences.
Item 2 – Section
6
This item replaces subsection 6(2) with a provision that more
accurately identifies the physical elements of conduct and result in the
offence, to which the default fault elements of intention and recklessness,
will be applied by the Criminal Code.
This amendment has
rephrased the offence to clarify that:
• paragraph 6(1)(a) is the
physical element of conduct to which the default fault element of
intention will apply; and
• paragraph 6(1)(b) is the physical
element of result to which the default element of recklessness
will apply.
The maximum penalty under this subsection is 200 penalty
units.
This item also drafts the defence of unless permitted under
Part 3 as a separate subsection (2). This amendment is necessary to ensure
that the defence is not mistakenly interpreted to be an element of the offence
that must be proved by the prosecution.
This item also notes that the
defendant bears an evidential burden of proof with regard to the matter in
subsection (2). Criminal Code policy is that the prosecution should
prove every element of the offence relevant to the guilt of the person charged
(see subsection 13.1(1) of the Criminal Code). However, there are some
instances where it is appropriate for a defendant to bear a burden of proof,
such as where a matter is peculiarly within the knowledge of the defendant. In
those instances, the Criminal Code policy is that the burden should be an
evidential burden rather than a legal burden (see subsection 13.3(1) of the
Criminal Code). An evidential burden is lighter than a legal burden.
Subsection 13.3(1) of the Criminal Code provides that, subject to section
13.4, a burden of proof that a law imposes on a defendant is an evidential
burden only. An evidential burden is the burden of adducing or
pointing to evidence that suggests a reasonable possibility that the matter
exists or does not exist (see subsection 13.3(6) of the Criminal
Code), whereas a legal burden is the burden of proving the existence of
the matter (see subsection 13.1(3) of the Criminal
Code).
Subsection 13.3(3) of the Criminal Code provides that a
defendant who wishes to rely on any exception, exemption, excuse, qualification
or justification provided by law creating an offence bears an evidential burden
in such circumstances.
This item also defines “engage in
conduct” to mean:
(c) do an act; or
(d) omit to perform an
act.
This definition is consistent with the definition at subsection
4.1(2) of the Criminal Code
Item 3 – Subsection
19(2)
This item replaces subsection 19(2) with a provision that more
accurately identifies the physical elements of circumstance, conduct and
result in the offence, to which the default fault elements of
recklessness and intention, will be applied by the Criminal
Code.
This amendment has rephrased the offence to clarify
that:
• paragraph 19(2)(a) is the physical element of the
circumstances of the defendant’s conduct to which the default fault
element of recklessness will apply;
• paragraph 19(2)(b) is the
physical element of conduct to which the default fault element of
intention will apply; and
• paragraph 19(2)(c) is the physical
element of result to which the default element of recklessness
will apply.
The maximum penalty under this subsection is 50 penalty
units.
Item 4 – At the end of section 19
This item
defines “engage in conduct” to mean:
(a) do an act;
or
(b) omit to perform an act.
This definition is consistent with the
definition at subsection 4.1(2) of the Criminal Code.
Item 5
– Section 20
This item replaces section 20 with a provision
that more accurately identifies the physical elements of conduct and
result in the offence, to which the default fault elements of
recklessness and intention, will be applied by the Criminal
Code.
This amendment has rephrased the offence to clarify
that:
• paragraph 20(a) is the physical element of conduct
to which the default fault element of intention will apply;
and
• paragraph 20(b) is the physical element of result to which
the default element of recklessness will apply.
The maximum
penalty under this subsection is 50 penalty units.
Item 6 –
Subsection 23(5) (definition of offence against this Act)
This
item repeals the definition of offence against this Act in subsection
23(5), that refers to sections 7 and 7A, and subsection 86(1) of the
Crimes Act 1914. Sections 7 and 7A of the Crimes Act 1914 are
concerned with the offences of attempt and inciting or urging the commission of
an offence. Subsection 86(1) is concerned with the offence of conspiracy.
These sections were repealed by the Law and Justice Legislation Amendment
(Application of Criminal Code) Act 2000.
This item also substitutes
a new definition of offence against this Act that refers to the
equivalent provisions in the Criminal Code - sections 11.1, 11.4 and 11.5
respectively.
Item 7 – At the end of Part 1
This item inserts a new
section 5A that provides that Chapter 2 of the Criminal Code (except Part
2.5) applies to all offences against the Aircraft Noise Levy Collection Act
1995. It also inserts a note that says that Chapter 2 of the Criminal
Code sets out the general principles of criminal responsibility.
Part
2.5 of the Criminal Code is the only Part of Chapter 2 that does not
automatically apply to offences. When the Criminal Code was introduced
into the Senate on 30 June 1994, it was stated that Part 2.5 would be the basis
of corporate criminal liability if no other basis were provided. Section 16 of
the Aircraft Noise Levy Collection Act 1995 deals with corporate criminal
responsibility by vicariously establishing criminal responsibility for
corporations as a result of the conduct of its directors, employees or agents.
The disapplication of Part 2.5 is necessary to prevent competing corporate
criminal liability regimes operating in relation to the same criminal offences.
Item 8 – Subsection 15(1)
This item amends
subsection 15(1) to omit the words without reasonable excuse, refuse or fail
and substitutes the word fail.
The defence of without
reasonable excuse is now drafted as a separate subsection at item 9.
Item 9 – After subsection 15(1)
This item is
consequential of item 8 and drafts the defence of without reasonable
excuse as a separate subsection 15(1A). This amendment is necessary to
ensure that the defence is not mistakenly interpreted to be an element of the
offence that must be proved by the prosecution.
This item also inserts a
note advising that the defendant bears an evidential burden of proof with regard
to the matter in subsection (1A). Criminal Code policy is that the
prosecution should prove every element of the offence relevant to the guilt of
the person charged (see subsection 13.1(1) of the Criminal Code).
However, there are some instances where it is appropriate for a defendant to
bear a burden of proof, such as where a matter is peculiarly within the
knowledge of the defendant. In those instances, the Criminal Code policy
is that the burden should be an evidential burden rather than a legal burden
(see subsection 13.3(1) of the Criminal Code). An evidential burden is
lighter than a legal burden. Subsection 13.3(1) of the Criminal Code
provides that, subject to section 13.4, a burden of proof that a law imposes
on a defendant is an evidential burden only. An evidential burden is the
burden of adducing or pointing to evidence that suggests a reasonable
possibility that the matter exists or does not exist (see subsection 13.3(6)
of the Criminal Code), whereas a legal burden is the burden of proving
the existence of the matter (see subsection 13.1(3) of the Criminal
Code).
Subsection 13.3(3) of the Criminal Code provides that a
defendant who wishes to rely on any exception, exemption, excuse, qualification
or justification provided by law creating an offence bears an evidential burden
in such circumstances.
Item 10 – Paragraph 16(1)(b)
This item omits the term knowingly from paragraph 16(1)(b).
Following application of the Criminal Code it will not be possible to
apply a fault element of knowledge (ie knowingly) to a physical
element of conduct (see Part 2.2, Division 5 of the Criminal
Code). The fault element of knowledge can only be applied to the
physical elements of circumstance or result.
Item 11 – At the end of Part 1
This item inserts a
new section 3AG that provides that Chapter 2 of the Criminal Code (other
than Part 2.5) applies to all offences against the Air Navigation Act
1920. It also inserts a note that says that Chapter 2 of the Criminal
Code sets out the general principles of criminal responsibility.
Part
2.5 of the Criminal Code is the only Part of Chapter 2 that does not
automatically apply to offences. When the Criminal Code was introduced
into the Senate on 30 June 1994, it was stated that Part 2.5 would be the basis
of corporate criminal liability if no other basis were provided. Section 24A of
the Air Navigation Act 1920 deals with corporate criminal responsibility
by vicariously establishing criminal responsibility for corporations as a result
of the conduct of its directors, employees or agents. The disapplication of
Part 2.5 is necessary to prevent competing corporate criminal liability regimes
operating in relation to the same criminal offences.
Item 12 –
Subsection 10(2)
This item omits the reference to intentionally
and recklessly in relation to subsection (2). Following application of the
Criminal Code, it will not be possible to apply a fault element of
recklessness (that is, recklessly) to a physical element of
conduct (see Part 2.2, Division 5 of the Criminal Code). The
fault element of recklessness can only be applied to the physical
elements of circumstance or result. The reference to
intentionally is omitted as it is superfluous – the Criminal
Code will apply the default fault element of intention to the
physical element of conduct.
Item 13 – Subsection
10(2)
This item amends subsection 10(2) to omit the words unless
the operator or pilot in command, as the case may be, has a reasonable
excuse. The defence is now drafted as a separate subsection 10(3) at item
14. This amendment is necessary to ensure that the defence is not mistakenly
interpreted to be an element of the offence that must be proved by the
prosecution.
Item 14 – At the end of section 10
This
item is consequential upon the omission of the phrase unless the operator or
pilot in command, as the case may be, has a reasonable excuse from
subsection 10(2) at item 13. This amendment is necessary to ensure that
the defence is not mistakenly interpreted to be an element of the offence that
must be proved by the prosecution.
This item notes that the defendant
bears an evidential burden of proof with regard to the matter in subsection (3).
Criminal Code policy is that the prosecution should prove every element
of the offence relevant to the guilt of the person charged (see subsection
13.1(1) of the Criminal Code). However, there are some instances where
it is appropriate for a defendant to bear a burden of proof, such as where a
matter is peculiarly within the knowledge of the defendant. In those instances,
the Criminal Code policy is that the burden should be an evidential
burden rather than a legal burden (see subsection 13.3(1) of the Criminal
Code). An evidential burden is lighter than a legal burden. Subsection
13.3(1) of the Criminal Code provides that, subject to section 13.4, a
burden of proof that a law imposes on a defendant is an evidential burden
only. An evidential burden is the burden of adducing or pointing
to evidence that suggests a reasonable possibility that the matter exists or
does not exist (see subsection 13.3(6) of the Criminal Code), whereas
a legal burden is the burden of proving the existence of the matter (see
subsection 13.1(3) of the Criminal Code).
Subsection 13.3(3) of
the Criminal Code provides that a defendant who wishes to rely on any
exception, exemption, excuse, qualification or justification provided by law
creating an offence bears an evidential burden in such
circumstances.
Item 15 – Subsection 12(1A)
This item
omits the reference to intentionally and recklessly in relation to
subsection (1A). Following application of the Criminal Code, it will not
be possible to apply a fault element of recklessness (that is,
recklessly) to a physical element of conduct (see Part 2.2,
Division 5 of the Criminal Code). The fault element of
recklessness can only be applied to the physical elements of
circumstance or result. The reference to intentionally is
omitted as it is superfluous – the Criminal Code will apply the
default fault element of intention to the physical element of
conduct.
Item 16 – Subsection 12(1A)
This item
amends subsection 12(1A) to omit the words unless the operator has a
reasonable excuse. The defence is now drafted as a separate subsection
12(1AA) at item 17.
Item 17 – After subsection
12(1A)
This item inserts a new subsection (1AA) and is consequential
upon the omission of the phrase unless the operator has a reasonable
excuse from subsection 12(1A) at item 16. This amendment is necessary
to ensure that the defence is not mistakenly interpreted to be an element of the
offence that must be proved by the prosecution.
This item also inserts a
note advising that the defendant bears an evidential burden of proof with regard
to the matter in subsection (1AA). Criminal Code policy is that the
prosecution should prove every element of the offence relevant to the guilt of
the person charged (see subsection 13.1(1) of the Criminal Code).
However, there are some instances where it is appropriate for a defendant to
bear a burden of proof, such as where a matter is peculiarly within the
knowledge of the defendant. In those instances, the Criminal Code policy
is that the burden should be an evidential burden rather than a legal burden
(see subsection 13.3(1) of the Criminal Code). An evidential burden is
lighter than a legal burden. Subsection 13.3(1) of the Criminal Code
provides that, subject to section 13.4, a burden of proof that a law imposes
on a defendant is an evidential burden only. An evidential burden is the
burden of adducing or pointing to evidence that suggests a reasonable
possibility that the matter exists or does not exist (see subsection 13.3(6)
of the Criminal Code), whereas a legal burden is the burden of proving
the existence of the matter (see subsection 13.1(3) of the Criminal
Code).
Subsection 13.3(3) of the Criminal Code provides that a
defendant who wishes to rely on any exception, exemption, excuse, qualification
or justification provided by law creating an offence bears an evidential burden
in such circumstances.
Item 18 – Subsections 15A(1) and
(2)
This section replaces the existing section 15A(1) and (2). It
was necessary to redraft the provision to ensure that appropriate fault elements
were applied to the physical elements so that the provision retained its present
operation. Although, subsection 15A(6) refers to the intentional or
reckless contravention of subsection (1) or (2) in respect of an
aircraft, it makes the operator of the aircraft and the pilot in command of the
aircraft guilty of an offence unless the operator or pilot, as the case may be,
has a reasonable excuse for the contravention. By making the pilot and operator
guilty of an offence in this way it is imposing vicarious liability on them. It
does not require that the pilot or operator have any knowledge of the conduct
that gives rise to the offence.
The new provisions make it clear that it
is the intentional conduct of any person that results in an aircraft
taking on passengers, cargo or mail for carriage for reward in Australian
territory before beginning a non-scheduled flight or an intermediate stopping
place in the course of such a flight. The result has strict liability as its
fault element because vicarious liability is being placed on the pilot and the
operator. The existing defences are maintained.
Subsection 15A(6)
currently attracts a penalty of 2 years imprisonment. This item reduces the
penalty to 6 months imprisonment in keeping with Criminal Code
policy.
Item 19 – Subsection 15A(6)
This item
repeals subsection 15A(6). This amendment is consequential upon item
18.
This item defines “engage in conduct” to mean:
(a) do
an act; or
(b) omit to perform an act.
This definition is consistent
with the definition at subsection 4.1(2) of the Criminal
Code.
Item 21 – Subsection 17(1) and (1A)
This
section replaces existing subsections 17(1) and (1A). It was necessary to
redraft the provision to ensure that appropriate fault elements were applied to
the physical elements so that the provision retained its present operation.
Although subsection 17(1A) refers to the intention or reckless
contravention of subsection (1) in respect of an aircraft it makes the operator
of the aircraft and the pilot in command of the aircraft guilty of an offence
unless the operator or pilot, as the case may be, has a reasonable excuse for
the contravention. By making the pilot and operator guilty of an offence in
this way it is imposing vicarious liability on them. The current offence
provision does not require that the pilot or operator have any knowledge of the
conduct that gives rise to the offence.
The new provisions make it clear
that it is the intentional conduct of any person that results in an
aircraft arriving in Australian territory from a place outside Australian
territory or departing from Australian territory for a place outside Australian
territory. The result has strict liability as its fault element because
vicarious liability is being placed on the pilot and the operator. The existing
defences are maintained.
Subsection 17(1A) currently attracts a penalty
of 2 years imprisonment. This item reduces the penalty to 6 months imprisonment
in keeping with Criminal Code policy.
Item 22 – At the
end of section 17
This item defines “engage in conduct”
to mean:
(a) do an act; or
(b) omit to perform an act.
This
definition is consistent with the definition at subsection 4.1(2) of the
Criminal Code.
Item 23 – Subsections 19BA(3), (5) and
(7)
This item omits the reference to intentionally and
recklessly in relation to subsections (3), (5) and (7). Following
application of the Criminal Code, it will not be possible to apply a
fault element of recklessness (that is, recklessly) to a physical
element of conduct (see Part 2.2, Division 5 of the Criminal
Code). The fault element of recklessness can only be applied to the
physical elements of circumstance or result. The reference to
intentionally is omitted as it is superfluously – the Criminal
Code will apply the default fault element of intention to the
physical element of conduct.
Item 24 – Subsection
19BC(3)
This item omits the reference to intentionally and
recklessly in relation to subsection (3). Following application of the
Criminal Code, it will not be possible to apply a fault element of
recklessness (that is, recklessly) to a physical element of
conduct (see Part 2.2, Division 5 of the Criminal Code). The
fault element of recklessness can only be applied to the physical
elements of circumstance or result. The reference to
intentionally is omitted as it is superfluously – the Criminal
Code will apply the default fault element of intention to the
physical element of conduct.
Item 25 – Subsection
19CC(4)
This item amends subsection 19CC(4) to omit the words
without reasonable excuse. The defence is now drafted as a separate
subsection at item 27. This amendment is necessary to ensure that the defence
is not mistakenly interpreted to be an element of the offence that must be
proved by the prosecution.
Item 26 – Paragraph
19CC(4)(c)
This item amends subsection 19CC(4)(c) to omit the word
refuse or.
Item 27 – After subsection
19CC(4)
This item is consequential upon item 25, and inserts a
reference to the new subsection 19CC(4A).
This item notes that the
defendant bears an evidential burden of proof with regard to the matter in
subsection (4A). Criminal Code policy is that the prosecution should
prove every element of the offence relevant to the guilt of the person charged
(see subsection 13.1(1) of the Criminal Code). However, there are some
instances where it is appropriate for a defendant to bear a burden of proof,
such as where a matter is peculiarly within the knowledge of the defendant. In
those instances, the Criminal Code policy is that the burden should be an
evidential burden rather than a legal burden (see subsection 13.3(1) of the
Criminal Code). An evidential burden is lighter than a legal burden.
Subsection 13.3(1) of the Criminal Code provides that, subject to section
13.4, a burden of proof that a law imposes on a defendant is an evidential
burden only. An evidential burden is the burden of adducing or
pointing to evidence that suggests a reasonable possibility that the matter
exists or does not exist (see subsection 13.3(6) of the Criminal
Code), whereas a legal burden is the burden of proving the existence of
the matter (see subsection 13.1(3) of the Criminal
Code).
Subsection 13.3(3) of the Criminal Code provides that a
defendant who wishes to rely on any exception, exemption, excuse, qualification
or justification provided by law creating an offence bears an evidential burden
in such circumstances.
This item also adds a new subsection (4B) that
provides that strict liability applies to the offences under paragraphs (4)(a),
(c) or (d). This amendment does not create new offences of strict liability.
The use of the term failure in the existing offences is consistent with
an offence of strict liability and therefore not requiring proof of fault. The
amendment is necessary to maintain the current operation of subsection 19CC(4).
Once the Criminal Code applies, in the absence of an express reference to
the fact that an offence is a strict liability offence, a court will be required
to interpret the offence as a fault offence rather than a strict liability
offence.
The note to subsection (4B) refers to section 6.1 of the
Criminal Code. Section 6.1 provides that if a law that creates an
offence provides that the offence is an offence of strict
liability:
(a) there are no fault elements for any of the physical
elements of the offence; and
(b) the defence of mistake of fact under
section 9.2 is available.
This means that the prosecution does not
have to prove fault on the part of the defendant. Fault includes
intention if it is in regards to conduct, and recklessness
where it is with regard to a circumstance in which conduct occurs or a
result of conduct. The defendant will be able to activate the defence of
honest and reasonable mistake of fact if he or she can point to or adduce
evidence that he or she made a relevant mistake of fact. If that occurs, the
prosecution bears the onus to prove beyond reasonable doubt that there was no
mistake.
This item replaces section 19CS with a provision that more accurately
identifies the physical elements of conduct or circumstance of the
offence, to which the default fault elements of recklessness and
intention will be applied by the Criminal Code.
The maximum
penalty under this section is imprisonment for 6 months.
Item 29
– Subsection 19FJ(2)
This item omits the reference to
intentionally and recklessly in relation to subsection (2). Following
application of the Criminal Code, it will not be possible to apply a
fault element of recklessness (that is, recklessly) to a physical
element of conduct (see Part 2.2, Division 5 of the Criminal
Code). The fault element of recklessness can only be applied to the
physical elements of circumstance or result. The reference to
intentionally is omitted as it is superfluously – the Criminal
Code will apply the default fault element of intention to the
physical element of conduct.
Item 30 – At the end of
section 19GD
This item adds a new subsection (4) that provides that
strict liability applies to the offence under subsection (3). This amendment
does not create a new offence of strict liability. The nature of the offence
and the low level penalty indicates that the offence is strict liability and
therefore not requiring proof of fault. The amendment is necessary to maintain
the current operation of subsection 19GD(3). Once the Criminal Code
applies, in the absence of an express reference to the fact that an offence is a
strict liability offence, a court will be required to interpret the offence as a
fault offence rather than a strict liability offence.
The note to
subsection (4) refers to section 6.1 of the Criminal Code. Section 6.1
provides that if a law that creates an offence provides that the offence is
an offence of strict liability:
(a) there are no fault elements for
any of the physical elements of the offence; and
(b) the defence of
mistake of fact under section 9.2 is available.
This means that the
prosecution does not have to prove fault on the part of the defendant. Fault
includes intention if it is in regards to conduct, and
recklessness where it is with regard to a circumstance in which
conduct occurs or a result of conduct. The defendant will be able to
activate the defence of honest and reasonable mistake of fact if he or she can
point to or adduce evidence that he or she made a relevant mistake of fact. If
that occurs, the prosecution bears the onus to prove beyond reasonable doubt
that there was no mistake.
Item 31 – Section
19HK
This item omits the reference to intentionally and
recklessly in relation to section 19HK. Following application of the
Criminal Code, it will not be possible to apply a fault element of
recklessness (that is, recklessly) to a physical element of
conduct (see Part 2.2, Division 5 of the Criminal Code). The
fault element of recklessness can only be applied to the physical
elements of circumstance or result. The reference to
intentionally is omitted as it is superfluously – the Criminal
Code will apply the default fault element of intention to the
physical element of conduct.
Item 32 – Subsection
24A(9)
This item repeals subsection 24A(9) of the Air Navigation
Act 1920, that refers to sections 7 and 7A, and subsection 86(1) of
the Crimes Act 1914. Sections 7 and 7A are concerned with the offences
of attempt and inciting or urging the commission of an offence. Subsection
86(1) is concerned with the offence of conspiracy. These sections were repealed
by the Law and Justice Legislation Amendment (Application of Criminal Code)
Act 2000.
This item also substitutes a new subsection 24A(9) that
refers to the equivalent provisions in the Criminal Code - sections 11.1,
11.4 and 11.5 respectively.
Item 33 – At the end of Part 1
This item inserts a
new section 5A that provides that Chapter 2 of the Criminal Code (except
Part 2.5) applies to all offences against the Air Services Act 1995. It
also inserts a note that says that Chapter 2 of the Criminal Code sets
out the general principles of criminal responsibility.
Part 2.5 of the
Criminal Code is the only Part of Chapter 2 that does not automatically
apply to offences. When the Criminal Code was introduced into the Senate
on 30 June 1994, it was stated that Part 2.5 would be the basis of corporate
criminal liability if no other basis were provided. Section 76 of the Air
Services Act 1995 deals with corporate criminal responsibility by
vicariously establishing criminal responsibility for corporations as a result of
the conduct of its directors, employees or agents. The disapplication of Part
2.5 is necessary to prevent competing corporate criminal liability regimes
operating in relation to the same criminal offences.
Item 34 –
Subsection 70(1)
This item amends subsection 70(1) to omit the words
without the prior approval of an authorised employee. The defence is now
drafted as a separate subsection at item 35. This amendment is necessary to
ensure that the defence is not mistakenly interpreted to be an element of the
offence that must be proved by the prosecution.
Item 35 – After
subsection 70(1)
This item is consequential upon the omission of the
phrase without the prior approval of an authorised employee from
subsection 70(1) at item 34. This amendment is necessary to ensure that the
defence is not mistakenly interpreted to be an element of the offence that must
be proved by the prosecution.
This item notes that the defendant bears
an evidential burden of proof with regard to the matter in subsection (1A).
Criminal Code policy is that the prosecution should prove every element
of the offence relevant to the guilt of the person charged (see subsection
13.1(1) of the Criminal Code). However, there are some instances where
it is appropriate for a defendant to bear a burden of proof, such as where a
matter is peculiarly within the knowledge of the defendant. In those instances,
the Criminal Code policy is that the burden should be an evidential
burden rather than a legal burden (see subsection 13.3(1) of the Criminal
Code). An evidential burden is lighter than a legal burden. Subsection
13.3(1) of the Criminal Code provides that, subject to section 13.4, a
burden of proof that a law imposes on a defendant is an evidential burden
only. An evidential burden is the burden of adducing or pointing
to evidence that suggests a reasonable possibility that the matter exists or
does not exist (see subsection 13.3(6) of the Criminal Code), whereas
a legal burden is the burden of proving the existence of the matter (see
subsection 13.1(3) of the Criminal Code).
Subsection 13.3(3) of
the Criminal Code provides that a defendant who wishes to rely on any
exception, exemption, excuse, qualification or justification provided by law
creating an offence bears an evidential burden in such
circumstances.
Item 36 – Subsection 71(1)
This item
redrafts subsection 71(1) to separate the defence of prior approval of an
authorised employee from subsection (1). The defence is now drafted as a
separate subsection at subsection (1A). This amendment is necessary to ensure
that the defence is not mistakenly interpreted to be an element of the offence
that must be proved by the prosecution.
This item also notes that the
defendant bears an evidential burden of proof with regard to the defence
provided at subsection 71(1A). Criminal Code policy is that the
prosecution should prove every element of the offence relevant to the guilt of
the person charged (see subsection 13.1(1) of the Criminal Code).
However, there are some instances where it is appropriate for a defendant to
bear a burden of proof, such as where a matter is peculiarly within the
knowledge of the defendant. In those instances, the Criminal Code policy
is that the burden should be an evidential burden rather than a legal burden
(see subsection 13.3(1) of the Criminal Code). An evidential burden is
lighter than a legal burden. Subsection 13.3(1) of the Criminal Code
provides that, subject to section 13.4, a burden of proof that a law imposes
on a defendant is an evidential burden only. An evidential burden is the
burden of adducing or pointing to evidence that suggests a reasonable
possibility that the matter exists or does not exist (see subsection 13.3(6)
of the Criminal Code), whereas a legal burden is the burden of proving
the existence of the matter (see subsection 13.1(3) of the Criminal
Code).
Subsection 13.3(3) of the Criminal Code provides that a
defendant who wishes to rely on any exception, exemption, excuse, qualification
or justification provided by law creating an offence bears an evidential burden
in such circumstances.
Item 37 – Subsection 76(6) (paragraph (b)
of the definition of offence against this Act)
This item omits
the reference to sections 6, 7 and 7A of the Crimes Act 1914 in paragraph
76(6)(b) of the Air Services Act 1995, and substitutes a reference to
section 6 of the Crimes Act 1914.
Sections 7 and 7A are
concerned with the offences of attempt and inciting or urging the commission of
an offence. These sections were repealed by the Law and Justice Legislation
Amendment (Application of Criminal Code) Act 2000. The equivalent
provisions in the Criminal Code are sections 11.1 and 11.4 respectively,
are substituted in the replacement paragraph 76(6)(c) at item 38.
Item
38 – Subsection 76(6) (paragraph (c) of the definition of offence
against this Act)
This item repeals paragraph 76(6)(c) of the
Air Services Act 1995, that refers to subsection 86(1) of the
Crimes Act 1914. Subsection 86(1) is concerned with the offence of
conspiracy. This section was repealed by the Law and Justice Legislation
Amendment (Application of Criminal Code) Act 2000.
This item also
substitutes a new paragraph 76(6)(c) that refers to sections 11.1 and 11.4 of
the Criminal Code which replace section 7 ad 7A of the Crimes Act 1914
(repealed at item 5U).
The new paragraph 76(6)(c) also refers to
section 11.5 of the Criminal Code which replaces subsection 86(1) of the
Crimes Act 1914.
Item 39 – At the end of Part 1
This item inserts a
new section 7A that provides that Chapter 2 of the Criminal Code (except
Part 2.5) applies to all offences against the Civil Aviation Act 1988.
It also inserts a note that says that Chapter 2 of the Criminal Code sets
out the general principles of criminal responsibility.
Part 2.5 of the
Criminal Code is the only Part of Chapter 2 that does not automatically
apply to offences. When the Criminal Code was introduced into the Senate
on 30 June 1994, it was stated that Part 2.5 would be the basis of corporate
criminal liability if no other basis were provided. Subsections 97A (1), (2)
and (6) of the Civil Aviation Act 1988 deal with corporate criminal
responsibility by vicariously establishing criminal responsibility for
corporations as a result of the conduct of its directors, employees or agents.
The disapplication of Part 2.5 is necessary to prevent competing corporate
criminal liability regimes operating in relation to the same criminal
offences.
Item 40 – At the end of section 19
This
item adds a new subsection (4) that provides that strict liability applies to
the offence under subsection (3). This amendment does not create a new offence
of strict liability. The nature of the offence and the low level penalty
indicates that the offence is strict liability and therefore not requiring proof
of fault. The amendment is necessary to maintain the current operation of
subsection 19(3). Once the Criminal Code applies, in the absence of an
express reference to the fact that an offence is a strict liability offence, a
court will be required to interpret the offence as a fault offence rather than a
strict liability offence.
The note to subsection (4) refers to section
6.1 of the Criminal Code. Section 6.1 provides that if a law that
creates an offence provides that the offence is an offence of strict
liability:
(a) there are no fault elements for any of the physical
elements of the offence; and
(b) the defence of mistake of fact under
section 9.2 is available.
This means that the prosecution does not
have to prove fault on the part of the defendant. Fault includes
intention if it is in regards to conduct, and recklessness
where it is with regard to a circumstance in which conduct occurs or a
result of conduct. The defendant will be able to activate the defence of
honest and reasonable mistake of fact if he or she can point to or adduce
evidence that he or she made a relevant mistake of fact. If that occurs, the
prosecution bears the onus to prove beyond reasonable doubt that there was no
mistake.
Item 41 – Section 20A
This item repeals
section 20A and substitutes a new section 20A to clarify the physical element of
circumstance to which the fault element of recklessness
applies.
Item 41A – Subsection 21(8)
This item
repeals subsection 21(8) and substitutes a new subsection 21(8) setting out the
offence. Under subsection 5.6(1) of the Criminal Code the default fault
element of intention applies to the conduct in subsection 21(8).
The defence of reasonable excuse is drafted at a separate subsection
21(8A). This amendment is necessary to ensure that the defence is not
mistakenly interpreted to be an element of the offence that must be proved by
the prosecution.
This item notes that the defendant bears an
evidential burden of proof with regard to the matter in subsection 21(8A).
Criminal Code policy is that the prosecution should prove every element
of the offence relevant to the guilt of the person charged (see subsection
13.1(1) of the Criminal Code). However, there are some instances where
it is appropriate for a defendant to bear a burden of proof, such as where a
matter is peculiarly within the knowledge of the defendant. In those instances,
the Criminal Code policy is that the burden should be an evidential
burden rather than a legal burden (see subsection 13.3(1) of the Criminal
Code). An evidential burden is lighter than a legal burden. Subsection
13.3(1) of the Criminal Code provides that, subject to section 13.4, a
burden of proof that a law imposes on a defendant is an evidential burden
only. An evidential burden is the burden of adducing or pointing
to evidence that suggests a reasonable possibility that the matter exists or
does not exist (see subsection 13.3(6) of the Criminal Code), whereas
a legal burden is the burden of proving the existence of the matter (see
subsection 13.1(3) of the Criminal Code).
Subsection 13.3(3) of
the Criminal Code provides that a defendant who wishes to rely on any
exception, exemption, excuse, qualification or justification provided by law
creating an offence bears an evidential burden in such
circumstances.
Item 42 – Subsection 23(2)
This item
amends subsection 23(2) to delete the alternative fault elements of knowingly
or recklessly that currently apply to the physical element of conduct
in the offence. Under the Criminal Code the fault elements of
knowingly or recklessly can only apply to the physical elements of
circumstances of conduct or result of conduct (see Division 5,
Part 2.2, Chapter2 of the Criminal Code). Once omitted, the fault
element of intention will apply to the physical element of conduct
in the offence. The fault element of recklessness will apply to the
physical element of circumstances in the offence (see section 5.6 of the
Criminal Code). Section 5.4 of the Criminal Code provides that
where recklessness is the fault element for a physical element of an
offence, proof of intention, knowledge or recklessness will
satisfy that fault element. Thus, the actions of the defendant who either had
the requisite knowledge or recklessness will be
criminalised.
This item repeals section 29 and inserts a new subsection 29(1) with a
provision that more accurately identifies the physical elements of conduct
and result in the offence, to which the default fault elements of
intention and recklessness, will be applied by the Criminal
Code.
This amendment has rephrased the offence to clarify
that:
• paragraph 29(1)(a) is the physical element of
conduct to which the default fault element of intention will
apply; and
• paragraph 29(1)(b) is the physical element of
result to which the default element of recklessness will
apply.
The maximum penalty under this subsection is imprisonment for 2
years.
This item also inserts a provision at subsection 29(2) that strict
liability applies to the physical element of result at paragraphs
29(1)(b)(i) and (ii). This amendment ensures that the provision is not
interpreted as requiring the prosecution to prove, as part of the offence, that
the defendant had knowledge of conditions specified under section 20, or
of a provision of this part (other than subsection 20A(1) or 23(1)) or of a
direction given or condition imposed under such a provision.
Subsection 9.3(1) of the Criminal Code provides that mistake or
ignorance of statute law is no excuse. Subsection 9.3(2) provides that
subsection 9.3(1) does not apply if the particular Act is expressly or impliedly
to the contrary effect. This amendment does not create a new offence of strict
liability. The amendment is necessary to maintain the current operation of
section 29, and ensure that it is not interpreted to indicate a contrary
intention for the purposes of section 9.3 of the Criminal Code.
This item also replaces subsection 29(1A) with a new provision at
subsection 29(3) that more accurately identifies the physical elements of
conduct and result in the offence, to which the default fault
elements of intention and recklessness, will be applied by the
Criminal Code.
This amendment has rephrased the offence to clarify
that:
• paragraph 29(3)(a) is the physical element of the
conduct of the defendant’s conduct to which the default fault
element of intention will apply;
• paragraph 29(3)(b) is the
physical elements of result to which the default fault element of
recklessness will apply.
The maximum penalty under this subsection
is imprisonment for 5 years.
This item also inserts a provision at
subsection 29(4) that strict liability applies to the physical element of
result at subparagraph 29(3)(b). This amendment ensures that the
provision is not interpreted as requiring the prosecution to prove, as part of
the offence, that the defendant had knowledge of the requirements of subsection
20A(1).
Subsection 9.3(1) of the Criminal Code provides that
mistake or ignorance of statute law is no excuse. Subsection 9.3(2) provides
that subsection 9.3(1) does not apply if the particular Act is expressly or
impliedly to the contrary effect. This amendment does not create a new offence
of strict liability. The amendment is necessary to maintain the current
operation of section 29, and ensure that it is not interpreted to indicate a
contrary intention for the purposes of section 9.3 of the Criminal
Code.
This item also replaces subsection 29(1B) with a new provision
at subsection 29(5) that more accurately identifies the physical elements of
conduct and result in the offence, to which the default fault elements of
intention and recklessness, will be applied by the Criminal
Code.
This amendment has rephrased the offence to clarify
that:
• paragraph 29(5)(a) is the physical element of the
conduct of the defendant’s conduct to which the default fault
element of intention will apply;
• paragraph 29(5)(b) is the
physical element of result to which the default fault element of
recklessness will apply.
The maximum penalty under this subsection
is imprisonment for 7 years.
This item also inserts a provision at
subsection 29(6) that strict liability applies to the physical element of
result at subparagraph 29(5)(b). This amendment ensures that the
provision is not interpreted as requiring the prosecution to prove, as part of
the offence, that the defendant had knowledge of the requirements of subsection
23(1).
Subsection 9.3(1) of the Criminal Code provides that
mistake or ignorance of statute law is no excuse. Subsection 9.3(2) provides
that subsection 9.3(1) does not apply if the particular Act is expressly or
impliedly to the contrary effect. This amendment does not create a new offence
of strict liability. The amendment is necessary to maintain the current
operation of section 29, and ensure that it is not interpreted to indicate a
contrary intention for the purposes of section 9.3 of the Criminal
Code.
Item 44 – Subsection 32AB(3)
This item amends
subsection 32AB(3) to omit the words without reasonable excuse. The
defence is now drafted as a separate subsection 32AB(4) at item 45.
Item 45 – At the end of section 32AB
This item is
consequential upon the omission of the phrase without reasonable excuse
from subsection 32AB(3) at item 5VBA. This amendment is necessary to ensure
that the defence is not mistakenly interpreted to be an element of the offence
that must be proved by the prosecution.
This item notes that the
defendant bears an evidential burden of proof with regard to the matter in
subsection 32AB(4). Criminal Code policy is that the prosecution should
prove every element of the offence relevant to the guilt of the person charged
(see subsection 13.1(1) of the Criminal Code). However, there are some
instances where it is appropriate for a defendant to bear a burden of proof,
such as where a matter is peculiarly within the knowledge of the defendant. In
those instances, the Criminal Code policy is that the burden should be an
evidential burden rather than a legal burden (see subsection 13.3(1) of the
Criminal Code). An evidential burden is lighter than a legal burden.
Subsection 13.3(1) of the Criminal Code provides that, subject to section
13.4, a burden of proof that a law imposes on a defendant is an evidential
burden only. An evidential burden is the burden of adducing or
pointing to evidence that suggests a reasonable possibility that the matter
exists or does not exist (see subsection 13.3(6) of the Criminal
Code), whereas a legal burden is the burden of proving the existence of
the matter (see subsection 13.1(3) of the Criminal
Code).
Subsection 13.3(3) of the Criminal Code provides that a
defendant who wishes to rely on any exception, exemption, excuse, qualification
or justification provided by law creating an offence bears an evidential burden
in such circumstances.
This item also adds a new subsection 32AB(5) that
provides that strict liability applies to the offence under subsection (3).
This amendment does not create a new offence of strict liability. The use of
the term fails in the existing offence under subsection 32AB(3) is
interpreted as strict liability and therefore not requiring proof of fault. The
amendment is necessary to maintain the current operation of subsection 32AB(3).
Once the Criminal Code applies, in the absence of an express reference to
the fact that an offence is a strict liability offence, a court will be required
to interpret the offence as a fault offence rather than a strict liability
offence.
The note to subsection 32AB(5) refers to section 6.1 of the
Criminal Code. Section 6.1 provides that if a law that creates an
offence provides that the offence is an offence of strict
liability:
(c) there are no fault elements for any of the physical
elements of the offence; and
(d) the defence of mistake of fact under
section 9.2 is available.
This means that the prosecution does not
have to prove fault on the part of the defendant. Fault includes
intention if it is with regard to conduct, and recklessness
where it is with regard to a circumstance in which conduct occurs or a
result of conduct. The defendant will be able to activate the defence of
honest or reasonable mistake of fact if he or she can point to or adduce
evidence that he or she made a relevant mistake of fact. If that occurs, the
prosecution bears the onus to prove beyond reasonable doubt that there was no
mistake.
Item 46 – Subsection 32AK(2)
This item
amends subsection 32AK(2) to omit the words without reasonable excuse.
The defence is now drafted as a separate subsection 32AK(3) at item
47.
Item 47 – At the end of section 32AK
This item is
consequential upon the omission of the phrase without reasonable excuse
from subsection 32AK(2) at item 46. This amendment is necessary to ensure that
the defence is not mistakenly interpreted to be an element of the offence that
must be proved by the prosecution.
This item notes that the defendant
bears an evidential burden of proof with regard to the matter in subsection
32AK(3). Criminal Code policy is that the prosecution should prove every
element of the offence relevant to the guilt of the person charged (see
subsection 13.1(1) of the Criminal Code). However, there are some
instances where it is appropriate for a defendant to bear a burden of proof,
such as where a matter is peculiarly within the knowledge of the defendant. In
those instances, the Criminal Code policy is that the burden should be an
evidential burden rather than a legal burden (see subsection 13.3(1) of the
Criminal Code). An evidential burden is lighter than a legal burden.
Subsection 13.3(1) of the Criminal Code provides that, subject to section
13.4, a burden of proof that a law imposes on a defendant is an evidential
burden only. An evidential burden is the burden of adducing or
pointing to evidence that suggests a reasonable possibility that the matter
exists or does not exist (see subsection 13.3(6) of the Criminal
Code), whereas a legal burden is the burden of proving the existence of
the matter (see subsection 13.1(3) of the Criminal
Code).
Subsection 13.3(3) of the Criminal Code provides that a
defendant who wishes to rely on any exception, exemption, excuse, qualification
or justification provided by law creating an offence bears an evidential burden
in such circumstances.
This item also adds a new subsection 32AK(4) that
provides that strict liability applies to the offence under subsection (2).
This amendment does not create a new offence of strict liability. The use of
the term fails in the existing offence under subsection (2) is
interpreted as strict liability and therefore not requiring proof of fault. The
amendment is necessary to maintain the current operation of subsection 32AK(2).
Once the Criminal Code applies, in the absence of an express reference to
the fact that an offence is a strict liability offence, a court will be required
to interpret the offence as a fault offence rather than a strict liability
offence.
The note to subsection 32AK(4) refers to section 6.1 of the
Criminal Code. Section 6.1 provides that if a law that creates an
offence provides that the offence is an offence of strict
liability:
(a) there are no fault elements for any of the physical
elements of the offence; and
(b) the defence of mistake of fact under
section 9.2 is available.
This means that the prosecution does not
have to prove fault on the part of the defendant. Fault includes
intention if it is with regard to conduct, and recklessness
where it is with regard to a circumstance in which conduct occurs or a
result of conduct. The defendant will be able to activate the defence of
honest or reasonable mistake of fact if he or she can point to or adduce
evidence that he or she made a relevant mistake of fact. If that occurs, the
prosecution bears the onus to prove beyond reasonable doubt that there was no
mistake.
Item 48 – Paragraph 97A(9)(b)
This item
omits the reference to sections 5, 6, 7, 7A and 86(1) of the Crimes Act 1914
in paragraph 97A(9)(b) of the Civil Aviation Act 1988, and
substitutes a reference to section 6 of the Crimes Act 1914.
Section 5 is concerned with the offence of aiding and abetting.
Sections 7 and 7A are concerned with the offences of attempt and inciting or
urging the commission of an offence. Subsection 86(1) is concerned with the
offence of conspiracy. These sections were repealed by the Law and Justice
Legislation Amendment (Application of Criminal Code) Act 2000. The
equivalent provisions in the Criminal Code are sections 11.2, 11.1, 11.4
and 11.5 respectively. These provisions are found in Part 2.4 of the
Criminal Code and are substituted in the replacement paragraph 97A(9)(c)
at item 5VG.
Item 49 – At the end of section 97A
This
item adds a new paragraph 97A(9)(c) in the Civil Aviation Act 1988, that
substitutes Part 2.4 of the Criminal Code for the provisions of the
Crimes Act 1914 omitted by the amendments at item 48.
This item inserts a new section 5A that provides that Chapter 2 of the
Criminal Code (except Part 2.5) applies to all offences against the
Civil Aviation (Carriers’ Liability) Act 1959. It also inserts a
note that says that Chapter 2 of the Criminal Code sets out the general
principles of criminal responsibility.
Part 2.5 of the Criminal
Code is the only Part of Chapter 2 that does not automatically apply to
offences. When the Criminal Code was introduced into the Senate on 30
June 1994, it was stated that Part 2.5 would be the basis of corporate criminal
liability if no other basis were provided. Section 41F of the Civil Aviation
(Carriers’ Liability) Act 1988 deals with corporate criminal
responsibility by vicariously establishing criminal responsibility for
corporations as a result of the conduct of its directors, employees or agents.
The disapplication of Part 2.5 is necessary to prevent competing corporate
criminal liability regimes operating in relation to the same criminal
offences.
Item 51 – Subsection 41F(9)
This item omits
the reference to section 6, 7 or 7A or subsection 86(1) of the Crimes Act
1914 in subsection 41F(9), and substitutes the reference to section 6 of the
Crimes Act 1914 or section 11.1, 11.4 or 11.5 of the Criminal
Code. Sections 7 and 7A of the Crimes Act 1914 are concerned with
the offences of attempt and inciting or urging the commission of an offence,
while subsection 86(1) is concerned with the offence of conspiracy. These
sections were repealed by the Law and Justice Legislation Amendment
(Application of Criminal Code) Act 2000. The equivalent provisions in the
Criminal Code are sections 11.1, 11.4 and 11.5 respectively.
Item 52 – At the end of Part 1
This item inserts a
new section 7A that provides that Chapter 2 of the Criminal Code applies
to all offences against the Explosives Act 1961. It also inserts a note
that says that Chapter 2 of the Criminal Code sets out the general
principles of criminal responsibility.
Item 53 – At the end of Part 1
This item inserts a
new section 5A that provides that Chapter 2 of the Criminal Code applies
to all offences against the International Air Services Commission Act
1992. It also inserts a note that says that Chapter 2 of the Criminal
Code sets out the general principles of criminal
responsibility.
Item 54 – Subsection 33(3)
This item
amends subsection 33(3) to delete the alternative fault elements of knowingly
or recklessly that currently apply to the physical element of conduct
in the offence. Under the Criminal Code the fault elements of
knowingly or recklessly can only apply to the physical elements of
circumstances of conduct or result of conduct (see Division 5,
Part 2.2, Chapter 2 of the Criminal Code). Once omitted, the fault
element of intention will apply to the physical element of conduct
in the offence. The fault element of recklessness will apply to the
physical element of circumstances in the offence (see section 5.6 of the
Criminal Code). Section 5.4 of the Criminal Code provides that
where recklessness is the fault element for a physical element of an
offence, proof of intention, knowledge or recklessness will
satisfy that fault element. Thus, the actions of the defendant who either had
the requisite knowledge or recklessness will be
criminalised.
Item 55 – Section 35
This item amends section 35 to separate the defence of reasonable
excuse. The defence is now drafted as a separate subsection 35(2). This
amendment is necessary to ensure that the defence is not mistakenly interpreted
to be an element of the offence that must be proved by the
prosecution.
This item also notes that the defendant bears an evidential
burden of proof with regard to the defence provided at subsection 35(2).
Criminal Code policy is that the prosecution should prove every element
of the offence relevant to the guilt of the person charged (see subsection
13.1(1) of the Criminal Code). However, there are some instances where
it is appropriate for a defendant to bear a burden of proof, such as where a
matter is peculiarly within the knowledge of the defendant. In those instances,
the Criminal Code policy is that the burden should be an evidential
burden rather than a legal burden (see subsection 13.3(1) of the Criminal
Code). An evidential burden is lighter than a legal burden. Subsection
13.3(1) of the Criminal Code provides that, subject to section 13.4, a
burden of proof that a law imposes on a defendant is an evidential burden
only. An evidential burden is the burden of adducing or pointing
to evidence that suggests a reasonable possibility that the matter exists or
does not exist (see subsection 13.3(6) of the Criminal Code), whereas
a legal burden is the burden of proving the existence of the matter (see
subsection 13.1(3) of the Criminal Code).
Subsection 13.3(3) of
the Criminal Code provides that a defendant who wishes to rely on any
exception, exemption, excuse, qualification or justification provided by law
creating an offence bears an evidential burden in such
circumstances.
This item also adds a new subsection 35(3) that provides
that strict liability applies to the offence under subsection (1)(a). This
amendment does not create a new offence of strict liability. The use of the
term fails in the existing offence under subsection (1)(a) is interpreted
as strict liability and therefore not requiring proof of fault. The amendment
is necessary to maintain the current operation of subsection 35(1)(a). Once the
Criminal Code applies, in the absence of an express reference to the fact
that an offence is a strict liability offence, a court will be required to
interpret the offence as a fault offence rather than a strict liability
offence.
The note to subsection 35(3) refers to section 6.1 of the
Criminal Code. Section 6.1 provides that if a law that creates an
offence provides that the offence is an offence of strict
liability:
(a) there are no fault elements for any of the physical
elements of the offence; and
(b) the defence of mistake of fact under
section 9.2 is available.
This means that the prosecution does not
have to prove fault on the part of the defendant. Fault includes
intention if it is with regard to conduct, and recklessness
where it is with regard to a circumstance in which conduct occurs or a
result of conduct. The defendant will be able to activate the defence of
honest or reasonable mistake of fact if he or she can point to or adduce
evidence that he or she made a relevant mistake of fact. If that occurs, the
prosecution bears the onus to prove beyond reasonable doubt that there was no
mistake.
This item also amends paragraph 35(1)(b) to separate the defence
to a new subsection (4). This amendment is necessary to ensure that the defence
is not mistakenly interpreted to be an element of the offence that must be
proved by the prosecution. The defendant also bears an evidential burden in
relation to a matter in subsection (4).
Item 56 – Section
36
This item omits the term knowingly from section 36.
Following application of the Criminal Code it will not be possible to
apply a fault element of knowledge (ie knowingly) to a physical
element of conduct (see Part 2.2, Division 5 of the Criminal
Code). The fault element of knowledge can only be applied to the
physical elements of circumstance or result.
Item 57
– Section 37
This item amends subsection 37 to omit the words
without reasonable excuse, refuse or fail, and substitute fail.
The defence of reasonable excuse is now drafted as a separate subsection
37(2) at item 58.
Item 58 – At the end of section 37
This
item is consequential upon the omission of the phrase without reasonable
excuse from section 37 at item 57. This amendment is necessary to ensure
that the defence is not mistakenly interpreted to be an element of the offence
that must be proved by the prosecution.
This item notes that the
defendant bears an evidential burden of proof with regard to the matter in
subsection 37(2). Criminal Code policy is that the prosecution should
prove every element of the offence relevant to the guilt of the person charged
(see subsection 13.1(1) of the Criminal Code). However, there are some
instances where it is appropriate for a defendant to bear a burden of proof,
such as where a matter is peculiarly within the knowledge of the defendant. In
those instances, the Criminal Code policy is that the burden should be an
evidential burden rather than a legal burden (see subsection 13.3(1) of the
Criminal Code). An evidential burden is lighter than a legal burden.
Subsection 13.3(1) of the Criminal Code provides that, subject to section
13.4, a burden of proof that a law imposes on a defendant is an evidential
burden only. An evidential burden is the burden of adducing or
pointing to evidence that suggests a reasonable possibility that the matter
exists or does not exist (see subsection 13.3(6) of the Criminal
Code), whereas a legal burden is the burden of proving the existence of
the matter (see subsection 13.1(3) of the Criminal
Code).
Subsection 13.3(3) of the Criminal Code provides that a
defendant who wishes to rely on any exception, exemption, excuse, qualification
or justification provided by law creating an offence bears an evidential burden
in such circumstances.
This item also adds a new subsection (3) that
provides that strict liability applies to the offence under subsection (1).
This amendment does not create a new offence of strict liability. The use of
the term fails in the existing offence under subsection (1) is
interpreted as strict liability and therefore not requiring proof of fault. The
amendment is necessary to maintain the current operation of subsection 37(1).
Once the Criminal Code applies, in the absence of an express reference to
the fact that an offence is a strict liability offence, a court will be required
to interpret the offence as a fault offence rather than a strict liability
offence.
The note to subsection 37(3) refers to section 6.1 of the
Criminal Code. Section 6.1 provides that if a law that creates an
offence provides that the offence is an offence of strict
liability:
(a) there are no fault elements for any of the physical
elements of the offence; and
(b) the defence of mistake of fact under
section 9.2 is available.
This means that the prosecution does not
have to prove fault on the part of the defendant. Fault includes
intention if it is with regard to conduct, and recklessness
where it is with regard to a circumstance in which conduct occurs or a
result of conduct. The defendant will be able to activate the defence of
honest or reasonable mistake of fact if he or she can point to or adduce
evidence that he or she made a relevant mistake of fact. If that occurs, the
prosecution bears the onus to prove beyond reasonable doubt that there was no
mistake.
Interstate Road Transport Act 1985
Item 59
– At the end of Part 1
This item inserts a new section 7A that
provides that Chapter 2 of the Criminal Code (except Part 2.5) applies to
all offences against the Interstate Road Transport Act 1985. It also
inserts a note that says that Chapter 2 of the Criminal Code sets out the
general principles of criminal responsibility.
Part 2.5 of the
Criminal Code is the only Part of Chapter 2 that does not automatically
apply to offences. When the Criminal Code was introduced into the Senate
on 30 June 1994, it was stated that Part 2.5 would be the basis of corporate
criminal liability if no other basis were provided. Section 47A of the
Interstate Road Transport Act 1985 deals with corporate criminal
responsibility by vicariously establishing criminal responsibility for
corporations as a result of the conduct of its directors, employees or agents.
The disapplication of Part 2.5 is necessary to prevent competing corporate
criminal liability regimes operating in relation to the same criminal
offences.
Item 60 – Subsection 8(1) (note)
This item
is consequential upon the addition of a new Note 2 at item 61 and omits the word
note and replaces it with the word Note 1.
Item 61
– At the end of subsection 8(1) (after Note 1)
This item notes
that the defendant bears an evidential burden of proof with regard to the
matters in paragraphs (1)(d) and (e). Criminal Code policy is that the
prosecution should prove every element of the offence relevant to the guilt of
the person charged (see subsection 13.1(1) of the Criminal Code).
However, there are some instances where it is appropriate for a defendant to
bear a burden of proof, such as where a matter is peculiarly within the
knowledge of the defendant. In those instances, the Criminal Code policy
is that the burden should be an evidential burden rather than a legal burden
(see subsection 13.3(1) of the Criminal Code). An evidential burden is
lighter than a legal burden. Subsection 13.3(1) of the Criminal Code
provides that, subject to section 13.4, a burden of proof that a law imposes
on a defendant is an evidential burden only. An evidential burden is the
burden of adducing or pointing to evidence that suggests a reasonable
possibility that the matter exists or does not exist (see subsection 13.3(6)
of the Criminal Code), whereas a legal burden is the burden of proving
the existence of the matter (see subsection 13.1(3) of the Criminal
Code).
Subsection 13.3(3) of the Criminal Code provides that a
defendant who wishes to rely on any exception, exemption, excuse, qualification
or justification provided by law creating an offence bears an evidential burden
in such circumstances.
Item 62 – Before subsection
8(2)
This item adds a new subsection 8(1A) that provides that strict
liability applies to the offence under subsection 8(1). This amendment does not
create a new offence of strict liability. The nature of the offence and the low
level penalty in the existing offence under subsection (1) indicates that the
offence is strict liability and therefore not requiring proof of fault. The
amendment is necessary to maintain the current operation of subsection 8(1).
Once the Criminal Code applies, in the absence of an express reference to
the fact that an offence is a strict liability offence, a court will be required
to interpret the offence as a fault offence rather than a strict liability
offence.
The note to subsection 8(1A) refers to section 6.1 of the
Criminal Code. Section 6.1 provides that if a law that creates an
offence provides that the offence is an offence of strict
liability:
(a) there are no fault elements for any of the physical
elements of the offence; and
(b) the defence of mistake of fact under
section 9.2 is available.
This means that the prosecution does not
have to prove fault on the part of the defendant. Fault includes
intention if it is with regard to conduct, and recklessness
where it is with regard to a circumstance in which conduct occurs or a
result of conduct. The defendant will be able to activate the defence of
honest or reasonable mistake of fact if he or she can point to or adduce
evidence that he or she made a relevant mistake of fact. If that occurs, the
prosecution bears the onus to prove beyond reasonable doubt that there was no
mistake.
Item 63 – Subsection 10(1)
This item amends
subsection 10(1) to omit the words without reasonable excuse. The
defence is now drafted as a separate subsection 10(1A) at item 64.
Item 64 – After subsection 10(1)
This item is a
consequential of item 63 and inserts a new subsection 10(1A) which provides the
defence of reasonable excuse. This amendment is necessary to ensure that
the defence is not mistakenly interpreted to be an element of the offence that
must be proved by the prosecution.
This item also notes that the
defendant bears an evidential burden of proof with regard to the defence
provided at subsection 10(1A). Criminal Code policy is that the
prosecution should prove every element of the offence relevant to the guilt of
the person charged (see subsection 13.1(1) of the Criminal Code).
However, there are some instances where it is appropriate for a defendant to
bear a burden of proof, such as where a matter is peculiarly within the
knowledge of the defendant. In those instances, the Criminal Code policy
is that the burden should be an evidential burden rather than a legal burden
(see subsection 13.3(1) of the Criminal Code). An evidential burden is
lighter than a legal burden. Subsection 13.3(1) of the Criminal Code
provides that, subject to section 13.4, a burden of proof that a law imposes
on a defendant is an evidential burden only. An evidential burden is the
burden of adducing or pointing to evidence that suggests a reasonable
possibility that the matter exists or does not exist (see subsection 13.3(6)
of the Criminal Code), whereas a legal burden is the burden of proving
the existence of the matter (see subsection 13.1(3) of the Criminal
Code).
Subsection 13.3(3) of the Criminal Code provides that a
defendant who wishes to rely on any exception, exemption, excuse, qualification
or justification provided by law creating an offence bears an evidential burden
in such circumstances.
Item 65 – Subsection 10(3)
This
item amends subsection 10(3) to omit the words without reasonable excuse.
The defence is now drafted as a separate subsection 10(3A) at item
66.
Item 66 - After subsection 10(3)
This item is
consequential to item 65 and inserts a new subsection 10(3A) which provides the
defence of reasonable excuse. This amendment is necessary to ensure that
the defence is not mistakenly interpreted to be an element of the offence that
must be proved by the prosecution.
This item also notes that the
defendant bears an evidential burden of proof with regard to the defence
provided at subsection 10(3A). Criminal Code policy is that the
prosecution should prove every element of the offence relevant to the guilt of
the person charged (see subsection 13.1(1) of the Criminal Code).
However, there are some instances where it is appropriate for a defendant to
bear a burden of proof, such as where a matter is peculiarly within the
knowledge of the defendant. In those instances, the Criminal Code policy
is that the burden should be an evidential burden rather than a legal burden
(see subsection 13.3(1) of the Criminal Code). An evidential burden is
lighter than a legal burden. Subsection 13.3(1) of the Criminal Code
provides that, subject to section 13.4, a burden of proof that a law imposes
on a defendant is an evidential burden only. An evidential burden is the
burden of adducing or pointing to evidence that suggests a reasonable
possibility that the matter exists or does not exist (see subsection 13.3(6)
of the Criminal Code), whereas a legal burden is the burden of proving
the existence of the matter (see subsection 13.1(3) of the Criminal
Code).
Subsection 13.3(3) of the Criminal Code provides that a
defendant who wishes to rely on any exception, exemption, excuse, qualification
or justification provided by law creating an offence bears an evidential burden
in such circumstances.
Item 67 – After subsection
12D(1)
This item adds a new subsection 12D(1A) that provides that
strict liability applies to the offence under subsection 12D(1). This amendment
does not create a new offence of strict liability. The nature of the offence
and the low level penalty in the existing offence under subsection (1) indicates
that the offence is strict liability and therefore not requiring proof of fault.
The amendment is necessary to maintain the current operation of subsection
12D(1). Once the Criminal Code applies, in the absence of an express
reference to the fact that an offence is a strict liability offence, a court
will be required to interpret the offence as a fault offence rather than a
strict liability offence.
The note to subsection 12D(1A) refers to
section 6.1 of the Criminal Code. Section 6.1 provides that if a law
that creates an offence provides that the offence is an offence of strict
liability:
(a) there are no fault elements for any of the physical
elements of the offence; and
(b) the defence of mistake of fact under
section 9.2 is available.
This means that the prosecution does not
have to prove fault on the part of the defendant. Fault includes
intention if it is with regard to conduct, and recklessness
where it is with regard to a circumstance in which conduct occurs or a
result of conduct. The defendant will be able to activate the defence of
honest or reasonable mistake of fact if he or she can point to or adduce
evidence that he or she made a relevant mistake of fact. If that occurs, the
prosecution bears the onus to prove beyond reasonable doubt that there was no
mistake.
Item 68 – At the end of section 12D
This
item inserts a provision at subsection 12D(3) that strict liability applies to
an offence under subsection 12D(2). This amendment ensures that the provision
is not interpreted as requiring the prosecution to prove, as part of the offence
that the defendant had knowledge of regulations made for the purposes of
paragraph 12B(2)(h). Subsection 9.3(1) of the Criminal Code provides
that mistake or ignorance of statute law is no excuse. Subsection 9.3(2)
however provides that 9.3(1) does not apply if a particular Act is expressly or
impliedly to the contrary effect. This amendment does not create a new offence
of strict liability. The amendment is necessary to maintain the current
operation of subsection 12D(2), and ensure that it is not interpreted to
indicate a contrary intention for the purposes of section 9.3 of the Criminal
Code.
Item 69 – Section 40
The item replaces
section 40 with a provision that more accurately identifies the physical
elements of result in the offence to which the default fault element of
recklessness will be applied by the Criminal Code.
The
amendment has also rephrased the offence to clarify that destroy, damage,
injure, manipulate, tamper and interfere are physical elements of
result of the defendant’s conduct to which the default fault
element of recklessness will apply.
The rationale for the
amendment is that an accused person does not destroy, damage, injure,
manipulate, tamper or interfere. Rather the destruction, damage
or injury to, manipulation of, or tampering or interference are the result
of the accused person’s conduct, and are physical elements of
result rather than physical elements of conduct. Using destroy,
damage, injure, manipulate, tamper or interfere as the active verb in
the criminal offence may lead to difficulties in interpreting the offence
following application of the Criminal Code.
This item inserts a
new subsection 40(2) which provides the defence of where removal is permitted
by the Regulations made for the purposes of section 39. This amendment is
necessary to ensure that the defence is not mistakenly interpreted to be an
element of the offence that must be proved by the prosecution.
This item
also notes that the defendant bears an evidential burden of proof with regard to
the defence provided at subsection 40(2). Criminal Code policy is that
the prosecution should prove every element of the offence relevant to the guilt
of the person charged (see subsection 13.1(1) of the Criminal Code).
However, there are some instances where it is appropriate for a defendant to
bear a burden of proof, such as where a matter is peculiarly within the
knowledge of the defendant. In those instances, the Criminal Code policy
is that the burden should be an evidential burden rather than a legal burden
(see subsection 13.3(1) of the Criminal Code). An evidential burden is
lighter than a legal burden. Subsection 13.3(1) of the Criminal Code
provides that, subject to section 13.4, a burden of proof that a law imposes
on a defendant is an evidential burden only. An evidential burden is the
burden of adducing or pointing to evidence that suggests a reasonable
possibility that the matter exists or does not exist (see subsection 13.3(6)
of the Criminal Code), whereas a legal burden is the burden of proving
the existence of the matter (see subsection 13.1(3) of the Criminal
Code).
Subsection 13.3(3) of the Criminal Code provides that a
defendant who wishes to rely on any exception, exemption, excuse, qualification
or justification provided by law creating an offence bears an evidential burden
in such circumstances.
This item adds a new subsection 40(3) that
provides that strict liability applies to the offence under subsection 40(1).
This amendment does not create a new offence of strict liability. The nature of
the offence and the low level penalty in the existing offence under subsection
(1) indicates that the offence is strict liability and therefore not requiring
proof of fault. The amendment is necessary to maintain the current operation of
subsection 40(1). Once the Criminal Code applies, in the absence of an
express reference to the fact that an offence is a strict liability offence, a
court will be required to interpret the offence as a fault offence rather than a
strict liability offence.
The note to subsection 40(3) refers to
section 6.1 of the Criminal Code. Section 6.1 provides that if a law
that creates an offence provides that the offence is an offence of strict
liability:
(a) there are no fault elements for any of the physical
elements of the offence; and
(b) the defence of mistake of fact under
section 9.2 is available.
This means that the prosecution does not
have to prove fault on the part of the defendant. Fault includes
intention if it is with regard to conduct, and recklessness
where it is with regard to a circumstance in which conduct occurs or a
result of conduct. The defendant will be able to activate the defence of
honest or reasonable mistake of fact if he or she can point to or adduce
evidence that he or she made a relevant mistake of fact. If that occurs, the
prosecution bears the onus to prove beyond reasonable doubt that there was no
mistake.
Item 70 – Section 41
The item replaces
section 41 with a provision that more accurately identifies the physical
elements of result in the offence to which the default fault element of
recklessness will be applied by the Criminal Code.
The
amendment has also rephrased the offence to clarify that alter, deface,
mutilate, falsify, damage, conceal or destroy are physical elements of
result of the defendant’s conduct to which the default fault
element of recklessness will apply.
The rationale for the
amendment is that an accused person does not alter, deface, mutilate,
falsify, damage, conceal or destroy. Rather the damage to or alteration,
defacing, mutilation, falsification, concealment or destruction are the
result of the accused person’s conduct, and are physical elements of
result rather than physical elements of conduct. Using alter,
deface, mutilate, falsify, damage, conceal or destroy as the active verb in
the criminal offence may lead to difficulties in interpreting the offence
following application of the Criminal Code.
Item 71 –
Subparagraph 43(1)(a)(ii)
This item repeals subparagraph 43(1)(a)(ii)
that refers to sections 6, 7, 7A and 86(1) of the Crimes Act 1914 and
substitutes a new subparagraph 43(1)(a)(ii) which refers to section 6 of the
Crimes Act 1914 or an offence against section 11.1, 11.4 or 11.5 of the
Criminal Code. Sections 7 and 7A of the Crimes Act 1914 are
concerned with the offences of attempt and inciting or urging the commission of
an offence. Subsection 86(1) is concerned with the offence of conspiracy.
These sections were repealed by the Law and Justice Legislation Amendment
(Application of Criminal Code) Act 2000. The equivalent provisions in the
Criminal Code are sections 11.1, 11.4 and 11.5.
Item 72 –
Subsection 44(2)
This item repeals section 44(2) and substitutes a
new section 44(2) that more accurately identifies the physical elements in the
offence to which the fault elements are applied by the Criminal
Code.
The maximum penalty for this subsection is 10 penalty
units.
This item also inserts a new subparagraph (2)(a) that sets out a
defence to subsection (2). The defence is drafted as a separate subsection to
ensure that the defence is not mistakenly interpreted to be an element of the
offence that must be proved by the prosecution. This item inserts a note that
the defendant bears an evidential burden in relation to the matter in subsection
(2A).
This item also notes that the defendant bears an evidential burden
of proof with regard to the defence provided at subsection 44(2A). Criminal
Code policy is that the prosecution should prove every element of the
offence relevant to the guilt of the person charged (see subsection 13.1(1) of
the Criminal Code). However, there are some instances where it is
appropriate for a defendant to bear a burden of proof, such as where a matter is
peculiarly within the knowledge of the defendant. In those instances, the
Criminal Code policy is that the burden should be an evidential burden
rather than a legal burden (see subsection 13.3(1) of the Criminal Code).
An evidential burden is lighter than a legal burden. Subsection 13.3(1) of the
Criminal Code provides that, subject to section 13.4, a burden of
proof that a law imposes on a defendant is an evidential burden only. An
evidential burden is the burden of adducing or pointing to evidence
that suggests a reasonable possibility that the matter exists or does not exist
(see subsection 13.3(6) of the Criminal Code), whereas a legal burden
is the burden of proving the existence of the matter (see subsection
13.1(3) of the Criminal Code).
Subsection 13.3(3) of the
Criminal Code provides that a defendant who wishes to rely on any
exception, exemption, excuse, qualification or justification provided by law
creating an offence bears an evidential burden in such
circumstances.
This item also adds a new subsection 44(2B) that provides
that strict liability applies to the offence under subsection (2). This
amendment does not create a new offence of strict liability. The use of the
term fails in the existing offence under subsection 44(2) is interpreted
as strict liability and therefore not requiring proof of fault. The amendment
is necessary to maintain the current operation of subsection 44(2). Once the
Criminal Code applies, in the absence of an express reference to the fact
that an offence is a strict liability offence, a court will be required to
interpret the offence as a fault offence rather than a strict liability
offence.
The note to subsection (2B) refers to section 6.1 of the
Criminal Code. Section 6.1 provides that if a law that creates an
offence provides that the offence is an offence of strict
liability:
(a) there are no fault elements for any of the physical
elements of the offence; and
(b) the defence of mistake of fact under
section 9.2 is available.
This means that the prosecution does not
have to prove fault on the part of the defendant. Fault includes
intention if it is in regards to conduct, and recklessness
where it is with regard to a circumstance in which conduct occurs or a
result of conduct. The defendant will be able to activate the defence of
honest and reasonable mistake of fact if he or she can point to or adduce
evidence that he or she made a relevant mistake of fact. If that occurs, the
prosecution bears the onus to prove beyond reasonable doubt that there was no
mistake.
Item 73 – Subsection 45(2)
This item repeals
section 45(2) and substitutes a new section 45(2) that sets out the
offence.
The maximum penalty for this subsection is 10 penalty
units.
This item also inserts new subparagraphs (2A) and (2B) that set
defences to subsection (2). The defences are drafted as separate subsections to
ensure that the defences are not mistakenly interpreted to be elements of the
offence that must be proved by the prosecution.
This item also notes
that the defendant bears an evidential burden of proof with regard to the
defence provided at subsection 44(2A) and (2B). Criminal Code policy is
that the prosecution should prove every element of the offence relevant to the
guilt of the person charged (see subsection 13.1(1) of the Criminal
Code). However, there are some instances where it is appropriate for a
defendant to bear a burden of proof, such as where a matter is peculiarly within
the knowledge of the defendant. In those instances, the Criminal Code
policy is that the burden should be an evidential burden rather than a legal
burden (see subsection 13.3(1) of the Criminal Code). An evidential
burden is lighter than a legal burden. Subsection 13.3(1) of the Criminal
Code provides that, subject to section 13.4, a burden of proof that a law
imposes on a defendant is an evidential burden only. An evidential burden
is the burden of adducing or pointing to evidence that suggests a
reasonable possibility that the matter exists or does not exist (see
subsection 13.3(6) of the Criminal Code), whereas a legal burden is
the burden of proving the existence of the matter (see subsection 13.1(3)
of the Criminal Code).
Subsection 13.3(3) of the Criminal
Code provides that a defendant who wishes to rely on any exception,
exemption, excuse, qualification or justification provided by law creating an
offence bears an evidential burden in such circumstances.
This item also
adds a new subsection 45(2C) that provides that strict liability applies to the
offence under subsection (2). This amendment does not create a new offence of
strict liability. The use of the term fails in the existing offence
under subsection 45(2) is interpreted as strict liability and therefore not
requiring proof of fault. The amendment is necessary to maintain the current
operation of subsection 45(2). Once the Criminal Code applies, in the
absence of an express reference to the fact that an offence is a strict
liability offence, a court will be required to interpret the offence as a fault
offence rather than a strict liability offence.
The note to subsection
(2C) refers to section 6.1 of the Criminal Code. Section 6.1 provides
that if a law that creates an offence provides that the offence is an offence
of strict liability:
(a) there are no fault elements for any of the
physical elements of the offence; and
(b) the defence of mistake of
fact under section 9.2 is available.
This means that the prosecution
does not have to prove fault on the part of the defendant. Fault includes
intention if it is in regards to conduct, and recklessness
where it is with regard to a circumstance in which conduct occurs or a
result of conduct. The defendant will be able to activate the defence of
honest and reasonable mistake of fact if he or she can point to or adduce
evidence that he or she made a relevant mistake of fact. If that occurs, the
prosecution bears the onus to prove beyond reasonable doubt that there was no
mistake.
Item 74 – Subsection 45(6)
This item repeals
subsection 45(6) that refers to sections 6, 7, 7A and 86(1) of the Crimes Act
1914 and substitutes a new subsection 45(6) which refers to section 6 of the
Crimes Act 1914 or an offence against section 11.1, 11.4 or 11.5 of the
Criminal Code. Sections 7 and 7A of the Crimes Act 1914 are
concerned with the offences of attempt and inciting or urging the commission of
an offence. Subsection 86(1) is concerned with the offence of conspiracy.
These sections were repealed by the Law and Justice Legislation Amendment
(Application of Criminal Code) Act 2000. The equivalent provisions in the
Criminal Code are sections 11.1, 11.4 and 11.5.
Item 75 –
Subsection 47A(9)
This item repeals subsection 47A(9) that refers to
sections 6, 7A and 86(1) of the Crimes Act 1914 and substitutes a new
subsection 47A(9) which refers to section 6 of the Crimes Act 1914 or an
offence against section 11.4 or 11.5 of the Criminal Code. Sections 7A
of the Crimes Act 1914 are concerned with the offences of inciting or
urging the commission of an offence. Subsection 86(1) is concerned with the
offence of conspiracy. These sections were repealed by the Law and Justice
Legislation Amendment (Application of Criminal Code) Act 2000. The
equivalent provisions in the Criminal Code are sections 11.4 and
11.5.
Item 76 – After section 4
This item inserts a new
section 4A that provides that Chapter 2 of the Criminal Code applies to
all offences against the Lighthouses Act 1911. It also inserts a note
that says that Chapter 2 of the Criminal Code sets out the general
principles of criminal responsibility.
Item 77 – Subsection
8(2)
This item omits the offence of hindering or
obstructing the Authority or authorised person in exercising powers under the
section from subsection 8(2). A general offence of hindering, obstructing
or resisting a Commonwealth public official in the performance of his or her
functions is at section 149.1 of the Criminal Code.
Item 78
– Subsection 10(5)
This item amends subsection 10(5) to omit
the words without reasonable cause (proof whereof shall lie upon him).
The defence is now drafted as a separate subsection at item 79. This amendment
is necessary to ensure that the defence is not mistakenly interpreted to be an
element of the offence that must be proved by the prosecution.
Item 79
– After subsection 10(5)
This item is consequential upon item
78. New subsection (5A) provides a defence if the person has reasonable
cause. Subsection (5A) also notes that the defendant bears a legal burden of
proof with regard to the matter in subsection (5A).
Criminal Code
policy is that the prosecution should prove every element of the offence
relevant to the guilt of the person charged (see subsection 13.1(1) of the
Criminal Code). However, there are some instances where it is
appropriate for a defendant to bear a burden of proof, such as where a matter is
peculiarly within the knowledge of the defendant. In those instances, the
Criminal Code policy is that the burden should be an evidential burden
rather than a legal burden (see subsection 13.3(1) of the Criminal Code).
An evidential burden is lighter than a legal burden. Subsection 13.3(1) of the
Criminal Code provides that, subject to section 13.4, a burden of
proof that a law imposes on a defendant is an evidential burden only. An
evidential burden is the burden of adducing or pointing to evidence
that suggests a reasonable possibility that the matter exists or does not exist
(see subsection 13.3(6) of the Criminal Code), whereas a legal burden
is the burden of proving the existence of the matter (see subsection
13.1(3) of the Criminal Code).
Section 13.4 of the Criminal
Code outlines the instances that would result in the imposition of a legal
burden on a defendant. A legal burden may be imposed on a defendant if and only
if the relevant legislation expressly:
• specifies that the burden
of proof in relation to the matter in question is a legal
burden;
• requires the defendant to prove the matter;
or
• creates a presumption that the matter exists unless the contrary
is proved.
Subsection 10(5) currently requires that no person shall
without reasonable cause (proof whereof shall lie upon him) fail to comply with
a notice under this section. The provision therefore currently requires the
defendant to bear a legal burden of proof in relation to the defences in the
subsection. The amendment is necessary to maintain the current operation of
subsection (5). The defence currently places a legal burden on the defendant.
This is clear by the use of the phrase proof whereof shall lie upon
him.
This item also adds a new subsection 10(5B) that provides that
strict liability applies to the offence under subsection (5). This amendment
does not create a new offence of strict liability. The use of the term
fails in the existing offence under subsection 10(5) is interpreted as
strict liability and therefore not requiring proof of fault. The amendment is
necessary to maintain the current operation of subsection 10(5). Once the
Criminal Code applies, in the absence of an express reference to the fact
that an offence is a strict liability offence, a court will be required to
interpret the offence as a fault offence rather than a strict liability
offence.
The note to subsection (5B) refers to section 6.1 of the
Criminal Code. Section 6.1 provides that if a law that creates an
offence provides that the offence is an offence of strict
liability:
(a) there are no fault elements for any of the physical
elements of the offence; and
(b) the defence of mistake of fact under
section 9.2 is available.
This means that the prosecution does not
have to prove fault on the part of the defendant. Fault includes
intention if it is in regards to conduct, and recklessness
where it is with regard to a circumstance in which conduct occurs or a
result of conduct. The defendant will be able to activate the defence of
honest and reasonable mistake of fact if he or she can point to or adduce
evidence that he or she made a relevant mistake of fact. If that occurs, the
prosecution bears the onus to prove beyond reasonable doubt that there was no
mistake.
Item 80 – Subsection 19(1)
This item repeals
subsection 19(1) and substitutes a new subsection 19(1) which redrafts the
existing paragraphs (1)(a), (b) and (ba). The new subsection 19(1A) redrafts
the existing paragraph (1)(c). The new subsection 19(1B) redrafts the existing
paragraph (1)(d). The redrafted offence provisions omit the term
wilfully from the subsection. The use of the word wilfully in
relation to the physical element of conduct is akin to the use of
intentionally. The fault element of intention is the equivalent
used in the Criminal Code. The omission of the term wilfully
ensures that future courts do not attempt to distinguish wilfullness
from intention on the basis that it appears to differ from the
Criminal Code fault element.
This amendment has also rephrased the
offence to clarify that the injury, destruction, running foul of, or damage
to; removal, altering, riding by or making fast is a physical element of the
result of the defendant’s conduct to which the default fault element of
recklessness will apply.
The rationale for the amendment is that
an accused person does injure, destroy, run foul of, or damage; remove,
alter, ride by or make fast. Rather the injury, destruction, running
foul of, or damage to; removal, altering, riding by or making fast is the
result of the accused person’s conduct, and is a physical element of
result rather than a physical element of conduct. It follows that using
injure, destroy, run foul of, or damage; remove, alter, ride by or make fast
as the active verb in a criminal offence may lead to difficulties in
interpreting the offence following application of the Criminal Code.
The maximum penalty under this subsection is $200.
Item 81
– At the end of section 19B
This item adds a new subsection
19B(2) that provides that strict liability applies to the offence under
subsection 19B(1). This amendment does not create a new offence of strict
liability. The nature of the offence and the low level penalty in the existing
offence under subsection (1) indicates that the offence is strict liability and
therefore not requiring proof of fault. The amendment is necessary to maintain
the current operation of subsection 19B(1). Once the Criminal Code
applies, in the absence of an express reference to the fact that an offence is a
strict liability offence, a court will be required to interpret the offence as a
fault offence rather than a strict liability offence.
The note to
subsection 19B(2) refers to section 6.1 of the Criminal Code. Section
6.1 provides that if a law that creates an offence provides that the offence
is an offence of strict liability:
(a) there are no fault elements
for any of the physical elements of the offence; and
(b) the defence
of mistake of fact under section 9.2 is available.
This means that
the prosecution does not have to prove fault on the part of the defendant.
Fault includes intention if it is with regard to conduct, and
recklessness where it is with regard to a circumstance in which
conduct occurs or a result of conduct. The defendant will be able to
activate the defence of honest or reasonable mistake of fact if he or she can
point to or adduce evidence that he or she made a relevant mistake of fact. If
that occurs, the prosecution bears the onus to prove beyond reasonable doubt
that there was no mistake.
Item 82 – After section 4
This item inserts a new
section 4A that provides that Chapter 2 of the Criminal Code applies to
all offences against the Maritime College Act 1978. It also inserts a
note that says that Chapter 2 of the Criminal Code sets out the general
principles of criminal responsibility.
Item 83 – After section 4
This item inserts a new
section 4A that provides that Chapter 2 of the Criminal Code (except Part
2.5) applies to all offences against the Motor Vehicle Standards Act
1989. It also inserts a note that says that Chapter 2 of the Criminal
Code sets out the general principles of criminal responsibility.
Part
2.5 of the Criminal Code is the only Part of Chapter 2 that does not
automatically apply to offences. When the Criminal Code was introduced
into the Senate on 30 June 1994, it was stated that Part 2.5 would be the basis
of corporate criminal liability if no other basis were provided. Section 36 of
the Motor Vehicle Standards Act 1989deals with corporate criminal
responsibility by vicariously establishing criminal responsibility for
corporations as a result of the conduct of its directors, employees or agents.
The disapplication of Part 2.5 is necessary to prevent competing corporate
criminal liability regimes operating in relation to the same criminal
offences.
Item 84 – Subsection 5(1)
This item defines
“engage in conduct” to mean:
(a) do an act; or
(b) omit to
perform an act.
This definition is consistent with the definition at
subsection 4.1(2) of the Criminal Code.
Item 85 –
Paragraph 12(a)
This item omits the offence of providing false or
misleading information from subsection 12(a). A general offence provision of
providing false or misleading information is at section 137.1 of the Criminal
Code.
Item 86 – Paragraph 12(b)
This item amends
subsection 12(b) to delete the alternative fault elements of knowingly or
recklessly that currently apply to the physical element of conduct in the
offence. Under the Criminal Code the fault elements of knowingly or
recklessly can only apply to the physical elements of circumstances
of conduct or result of conduct (see Division 5, Part 2.2, Chapter2 of
the Criminal Code). Once omitted, the fault element of intention
will apply to the physical element of conduct in the offence. The fault
element of recklessness will apply to the physical element of
circumstances in the offence (see section 5.6 of the Criminal
Code). Section 5.4 of the Criminal Code provides that where
recklessness is the fault element for a physical element of an offence,
proof of intention, knowledge or recklessness will satisfy
that fault element. Thus, the actions of the defendant who either had the
requisite knowledge or recklessness will be
criminalised.
The amendment also omits the reference to the defence of
without lawful authority. A general lawful authority defence provision
is at section 10.5 of the Criminal Code.
Item 87 –
Paragraph 12(d)
This item amends subsection 12(d) to delete the
alternative fault elements of knowingly or recklessly that currently
apply to the physical element of conduct in the offence. Under the Criminal
Code the fault elements of knowingly or recklessly can only apply to
the physical elements of circumstances of conduct or result of
conduct (see Division 5, Part 2.2, Chapter2 of the Criminal Code). Once
omitted, the fault element of intention will apply to the physical
element of conduct in the offence. The fault element of
recklessness will apply to the physical element of circumstances
in the offence (see section 5.6 of the Criminal Code). Section 5.4 of
the Criminal Code provides that where recklessness is the fault
element for a physical element of an offence, proof of intention,
knowledge or recklessness will satisfy that fault element. Thus,
the actions of the defendant who either had the requisite knowledge or
recklessness will be criminalised.
Item 88 – Paragraph
12(d)
The amendment also omits the reference to in relation to
which no authority for the placement of that plate has been given. A
general lawful authority defence provision is at section 10.5 of the Criminal
Code.
Item 89 – Subsection 13A(1)
This item
amends subsection 13A(1) to delete the alternative fault elements of
knowingly or recklessly that currently apply to the physical element of
conduct in the offence. Under the Criminal Code the fault elements of
knowingly or recklessly can only apply to the physical elements of
circumstances of conduct or result of conduct (see Division 5,
Part 2.2, Chapter2 of the Criminal Code). Once omitted, the fault
element of intention will apply to the physical element of conduct
in the offence. The fault element of recklessness will apply to the
physical element of circumstances in the offence (see section 5.6 of the
Criminal Code). Section 5.4 of the Criminal Code provides that
where recklessness is the fault element for a physical element of an
offence, proof of intention, knowledge or recklessness will
satisfy that fault element. Thus, the actions of the defendant who either had
the requisite knowledge or recklessness will be
criminalised.
This amendment has also rephrased the offence to clarify
that the modification is a physical element of the result of the
defendant’s conduct to which the default fault element of
recklessness will apply.
The rationale for the amendment is that
an accused person does modify. Rather the modification is the
result of the accused person’s conduct, and is a physical element of
result rather than a physical element of conduct. It follows that using
modify as the active verb in a criminal offence may lead to difficulties
in interpreting the offence following application of the Criminal Code.
The maximum penalty under this subsection is 120 penalty
units.
Item 90 – Subsection 13A(2)
This item amends
subsection 13A(2) to delete the alternative fault elements of knowingly or
recklessly that currently apply to the physical element of conduct in the
offence. Under the Criminal Code the fault elements of knowingly or
recklessly can only apply to the physical elements of circumstances
of conduct or result of conduct (see Division 5, Part 2.2, Chapter2 of
the Criminal Code). Once omitted, the fault element of intention
will apply to the physical element of conduct in the offence. The fault
element of recklessness will apply to the physical element of
circumstances in the offence (see section 5.6 of the Criminal
Code). Section 5.4 of the Criminal Code provides that where
recklessness is the fault element for a physical element of an offence,
proof of intention, knowledge or recklessness will satisfy
that fault element. Thus, the actions of the defendant who either had the
requisite knowledge or recklessness will be
criminalised.
Item 91 – Subsection 14(1)
This item
amends subsection 14(1) to delete the alternative fault elements of knowingly
or recklessly that currently apply to the physical element of conduct in the
offence. Under the Criminal Code the fault elements of knowingly or
recklessly can only apply to the physical elements of circumstances
of conduct or result of conduct (see Division 5, Part 2.2, Chapter2 of
the Criminal Code). Once omitted, the fault element of intention
will apply to the physical element of conduct in the offence. The fault
element of recklessness will apply to the physical element of
circumstances in the offence (see section 5.6 of the Criminal
Code). Section 5.4 of the Criminal Code provides that where
recklessness is the fault element for a physical element of an offence,
proof of intention, knowledge or recklessness will satisfy
that fault element. Thus, the actions of the defendant who either had the
requisite knowledge or recklessness will be
criminalised.
Item 92 – Subsection 15(1)
This item
amends subsection 15(1) to delete the alternative fault elements of knowingly
or recklessly that currently apply to the physical element of conduct in the
offence. Under the Criminal Code the fault elements of knowingly or
recklessly can only apply to the physical elements of circumstances
of conduct or result of conduct (see Division 5, Part 2.2, Chapter2 of
the Criminal Code). Once omitted, the fault element of intention
will apply to the physical element of conduct in the offence. The fault
element of recklessness will apply to the physical element of
circumstances in the offence (see section 5.6 of the Criminal
Code). Section 5.4 of the Criminal Code provides that where
recklessness is the fault element for a physical element of an offence,
proof of intention, knowledge or recklessness will satisfy
that fault element. Thus, the actions of the defendant who either had the
requisite knowledge or recklessness will be
criminalised.
Item 93 – Subsection 17(2)
This item
amends subsection 17(2) to delete the alternative fault elements of knowingly
or recklessly that currently apply to the physical element of conduct in the
offence. Under the Criminal Code the fault elements of knowingly or
recklessly can only apply to the physical elements of circumstances
of conduct or result of conduct (see Division 5, Part 2.2, Chapter2 of
the Criminal Code). Once omitted, the fault element of intention
will apply to the physical element of conduct in the offence. The fault
element of recklessness will apply to the physical element of
circumstances in the offence (see section 5.6 of the Criminal
Code). Section 5.4 of the Criminal Code provides that where
recklessness is the fault element for a physical element of an offence,
proof of intention, knowledge or recklessness will satisfy
that fault element. Thus, the actions of the defendant who either had the
requisite knowledge or recklessness will be
criminalised.
This item also replaces subsection 17(2) with a provision
that more accurately identifies the physical elements of circumstance,
conduct and result in the offence, to which the default fault elements of
recklessness and intention, will be applied by the Criminal
Code.
This item also inserts a provision at subsection 17(3) that
strict liability applies to the physical element of result at
subparagraph (2)(a). This amendment ensures that the provision is not
interpreted as requiring the prosecution to prove, as part of the offence, that
the defendant had knowledge of a condition under subsection (1).
Subsection 9.3(1) of the Criminal Code provides that mistake or
ignorance of statute law is no excuse. Subsection 9.3(2) provides that
subsection 9.3(1) does not apply if the particular Act is expressly or impliedly
to the contrary effect. This amendment does not create a new offence of strict
liability. The amendment is necessary to maintain the current operation of
subsection 17(2), and ensure that it is not interpreted to indicate a contrary
intention for the purposes of section 9.3 of the Criminal Code.
Item 94 – Subsections 18(1) and (2)
This item amends
subsections 18(1) and (2) to delete the alternative fault elements of
knowingly or recklessly that currently apply to the physical elements of
conduct in the offence. Under the Criminal Code the fault elements of
knowingly or recklessly can only apply to the physical elements of
circumstances of conduct or result of conduct (see Division 5,
Part 2.2, Chapter2 of the Criminal Code). Once omitted, the fault
element of intention will apply to the physical element of conduct
in the offence. The fault element of recklessness will apply to the
physical element of circumstances in the offence (see section 5.6 of the
Criminal Code). Section 5.4 of the Criminal Code provides that
where recklessness is the fault element for a physical element of an
offence, proof of intention, knowledge or recklessness will
satisfy that fault element. Thus, the actions of the defendant who either had
the requisite knowledge or recklessness will be
criminalised.
Item 95 – Subsection 19(3)
This item
repeals subsection 19(3) and renumbers it section 19(2). The amendment deletes
the alternative fault elements of knowingly or recklessly that currently
apply to the physical element of conduct in the offence. Under the Criminal
Code the fault elements of knowingly or recklessly can only apply to
the physical elements of circumstances of conduct or result of
conduct (see Division 5, Part 2.2, Chapter2 of the Criminal Code). Once
omitted, the fault element of intention will apply to the physical
element of conduct in the offence. The fault element of
recklessness will apply to the physical element of circumstances
in the offence (see section 5.6 of the Criminal Code). Section 5.4 of
the Criminal Code provides that where recklessness is the fault
element for a physical element of an offence, proof of intention,
knowledge or recklessness will satisfy that fault element. Thus,
the actions of the defendant who either had the requisite knowledge or
recklessness will be criminalised.
This item also replaces
subsection 19(2) with a provision that more accurately identifies the physical
elements of circumstance, conduct and result in the offence, to which the
default fault elements of recklessness and intention, will be applied by
the Criminal Code.
Item 96 – Subsection
20(4)
This item amends subsection 20(4) to delete the alternative
fault elements of knowingly or recklessly that currently apply to the
physical element of conduct in the offence. Under the Criminal Code the
fault elements of knowingly or recklessly can only apply to the physical
elements of circumstances of conduct or result of conduct (see
Division 5, Part 2.2, Chapter2 of the Criminal Code). Once omitted, the
fault element of intention will apply to the physical element of
conduct in the offence. The fault element of recklessness will
apply to the physical element of circumstances in the offence (see
section 5.6 of the Criminal Code). Section 5.4 of the Criminal
Code provides that where recklessness is the fault element for a
physical element of an offence, proof of intention, knowledge or
recklessness will satisfy that fault element. Thus, the actions of the
defendant who either had the requisite knowledge or recklessness
will be criminalised.
This item also replaces subsection 20(4) with a
provision that more accurately identifies the physical elements of
circumstance, conduct and result in the offence, to which the default
fault elements of recklessness and intention, will be applied by the
Criminal Code.
Item 97 – At the end of section
26
This item adds a new subsection 26(3) that provides that strict
liability applies to the offence under subsection 26(2). This amendment does
not create a new offence of strict liability. The nature of the offence and the
low level penalty in the existing offence under subsection (2) indicates that
the offence is strict liability and therefore not requiring proof of fault. The
amendment is necessary to maintain the current operation of subsection 26(2).
Once the Criminal Code applies, in the absence of an express reference to
the fact that an offence is a strict liability offence, a court will be required
to interpret the offence as a fault offence rather than a strict liability
offence.
The note to subsection 26(3) refers to section 6.1 of the
Criminal Code. Section 6.1 provides that if a law that creates an
offence provides that the offence is an offence of strict
liability:
(a) there are no fault elements for any of the physical
elements of the offence; and
(b) the defence of mistake of fact under
section 9.2 is available.
This means that the prosecution does not
have to prove fault on the part of the defendant. Fault includes
intention if it is with regard to conduct, and recklessness
where it is with regard to a circumstance in which conduct occurs or a
result of conduct. The defendant will be able to activate the defence of
honest or reasonable mistake of fact if he or she can point to or adduce
evidence that he or she made a relevant mistake of fact. If that occurs, the
prosecution bears the onus to prove beyond reasonable doubt that there was no
mistake.
Item 98 – Section 32
This item amends
section 32 to remove the defence of reasonable excuse. The defence is
now drafted as a separate subsection 32(2) at item 99.
Item 99 –
At the end of section 32
This item inserts a new subsection 32(2)
which provides the defence of reasonable excuse. This amendment is
necessary to ensure that the defence is not mistakenly interpreted to be an
element of the offence that must be proved by the prosecution.
This item
also notes that the defendant bears an evidential burden of proof with regard to
the defence provided at subsection 32(2). Criminal Code policy is that
the prosecution should prove every element of the offence relevant to the guilt
of the person charged (see subsection 13.1(1) of the Criminal Code).
However, there are some instances where it is appropriate for a defendant to
bear a burden of proof, such as where a matter is peculiarly within the
knowledge of the defendant. In those instances, the Criminal Code policy
is that the burden should be an evidential burden rather than a legal burden
(see subsection 13.3(1) of the Criminal Code). An evidential burden is
lighter than a legal burden. Subsection 13.3(1) of the Criminal Code
provides that, subject to section 13.4, a burden of proof that a law imposes
on a defendant is an evidential burden only. An evidential burden is the
burden of adducing or pointing to evidence that suggests a reasonable
possibility that the matter exists or does not exist (see subsection 13.3(6)
of the Criminal Code), whereas a legal burden is the burden of proving
the existence of the matter (see subsection 13.1(3) of the Criminal
Code).
Subsection 13.3(3) of the Criminal Code provides that a
defendant who wishes to rely on any exception, exemption, excuse, qualification
or justification provided by law creating an offence bears an evidential burden
in such circumstances.
This item also adds a new subsection 32(3) that
provides that strict liability applies to the offence under subsection (1).
This amendment does not create a new offence of strict liability. The use of
the term fails in the existing offence under subsection 32(1) is
interpreted as strict liability and therefore not requiring proof of fault. The
amendment is necessary to maintain the current operation of subsection 32(1).
Once the Criminal Code applies, in the absence of an express reference to
the fact that an offence is a strict liability offence, a court will be required
to interpret the offence as a fault offence rather than a strict liability
offence.
The note to subsection 32(3) refers to section 6.1 of the
Criminal Code. Section 6.1 provides that if a law that creates an
offence provides that the offence is an offence of strict
liability:
(a) there are no fault elements for any of the physical
elements of the offence; and
(b) the defence of mistake of fact under
section 9.2 is available.
This means that the prosecution does not
have to prove fault on the part of the defendant. Fault includes
intention if it is with regard to conduct, and recklessness
where it is with regard to a circumstance in which conduct occurs or a
result of conduct. The defendant will be able to activate the defence of
honest or reasonable mistake of fact if he or she can point to or adduce
evidence that he or she made a relevant mistake of fact. If that occurs, the
prosecution bears the onus to prove beyond reasonable doubt that there was no
mistake.
Item 100 – Paragraph 36(8)(b)
This item
omits the reference to sections 5, 6, 7, 7A and 86(1) of the Crimes Act 1914
in paragraph 36(8)(b), and substitutes a reference to section 6 of the
Crimes Act 1914.
Section 5 is concerned with the offence of
aiding and abetting. Sections 7 and 7A are concerned with the offences of
attempt and inciting or urging the commission of an offence. Subsection 86(1)
is concerned with the offence of conspiracy. These sections were repealed by
the Law and Justice Legislation Amendment (Application of Criminal Code) Act
2000. The equivalent provisions in the Criminal Code are sections
11.2, 11.1, 11.4 and 11.5 respectively. These provisions are found in Part 2.4
of the Criminal Code and are substituted in the replacement paragraph
36(8)(c) at item 101.
Item 101 – At the end of subsection
36(8)
This item adds a new paragraph 36(8)(c) that substitutes Part
2.4 of the Criminal Code for the relevant provisions of the Crimes Act
1914 omitted by the amendments at item 100.
Item 102 – After section 3
This item inserts a new
section 3A that provides that Chapter 2 of the Criminal Code applies to
all offences against the Port Statistics Act 1977. It also inserts a
note that says that Chapter 2 of the Criminal Code sets out the
general principles of criminal responsibility.
Item 103 –
Subsections 5(3) and (4)
This item amends subsection 5(3) to omit the
words to the extent which he or she is capable. The defence is now
drafted as a separate subsection 5(4). This amendment is necessary to
ensure that the defence is not mistakenly interpreted to be an element of the
offence that must be proved by the prosecution.
This item also notes that
the defendant bears an evidential burden of proof with regard to the defence
provided at subsection 5(4). Criminal Code policy is that the
prosecution should prove every element of the offence relevant to the guilt of
the person charged (see subsection 13.1(1) of the Criminal Code).
However, there are some instances where it is appropriate for a defendant to
bear a burden of proof, such as where a matter is peculiarly within the
knowledge of the defendant. In those instances, the Criminal Code policy
is that the burden should be an evidential burden rather than a legal burden
(see subsection 13.3(1) of the Criminal Code). An evidential burden is
lighter than a legal burden. Subsection 13.3(1) of the Criminal Code
provides that, subject to section 13.4, a burden of proof that a law imposes
on a defendant is an evidential burden only. An evidential burden is the
burden of adducing or pointing to evidence that suggests a reasonable
possibility that the matter exists or does not exist (see subsection 13.3(6)
of the Criminal Code), whereas a legal burden is the burden of proving
the existence of the matter (see subsection 13.1(3) of the Criminal
Code).
Subsection 13.3(3) of the Criminal Code provides that a
defendant who wishes to rely on any exception, exemption, excuse, qualification
or justification provided by law creating an offence bears an evidential burden
in such circumstances.
This item also adds a new subsection 5(5) that
provides that strict liability applies to the offence under subsection (3).
This amendment does not create a new offence of strict liability. The use of
the term fails in the existing offence under subsection 5(3) is
interpreted as strict liability and therefore not requiring proof of fault. The
amendment is necessary to maintain the current operation of subsection 5(3).
Once the Criminal Code applies, in the absence of an express reference to
the fact that an offence is a strict liability offence, a court will be required
to interpret the offence as a fault offence rather than a strict liability
offence.
The note to subsection 5(5) refers to section 6.1 of the
Criminal Code. Section 6.1 provides that if a law that creates an
offence provides that the offence is an offence of strict
liability:
(a) there are no fault elements for any of the physical
elements of the offence; and
(b) the defence of mistake of fact under
section 9.2 is available.
This means that the prosecution does not
have to prove fault on the part of the defendant. Fault includes
intention if it is with regard to conduct, and recklessness
where it is with regard to a circumstance in which conduct occurs or a
result of conduct. The defendant will be able to activate the defence of
honest or reasonable mistake of fact if he or she can point to or adduce
evidence that he or she made a relevant mistake of fact. If that occurs, the
prosecution bears the onus to prove beyond reasonable doubt that there was no
mistake.
This item also creates a new subsection (6) with a provision
that more accurately identifies the physical elements of circumstance,
conduct and result in the offence, to which the default fault elements of
recklessness and intention, will be applied by the Criminal
Code.
This amendment has also rephrased the offence to clarify that
destroy, mutilate, deface, conceal or remove is a physical element of the
result of the defendant’s conduct to which the default fault element of
recklessness will apply.
The rationale for the amendment is that
an accused person does not destroy, mutilate, deface, conceal or remove.
Rather, the destruction, mutilation, defacing, concealment or removal is
the result of the accused person’s conduct, and is a physical element of
result rather than a physical element of conduct. It follows that
using destroy, mutilate, deface, conceal or remove as the active verb in
a criminal offence may lead to difficulties in interpreting the offence
following application of the Criminal Code.
The maximum penalty
under this subsection is $500.
Item 104 – At the end of Part 1
This item inserts a
new section 6A that provides that Chapter 2 of the Criminal Code (except
Part 2.5) applies to all offences against the Protection of the Sea (Civil
Liability) Act 1981. It also inserts a note that says that Chapter 2 of the
Criminal Code sets out the general principles of criminal
responsibility.
Part 2.5 of the Criminal Code is the only Part of
Chapter 2 that does not automatically apply to offences. When the Criminal
Code was introduced into the Senate on 30 June 1994, it was stated that Part
2.5 would be the basis of corporate criminal liability if no other basis were
provided. Subsections 23(4), (5) and (6) of the Protection of the Sea (
Civil Liability) Act 1981 deal with corporate criminal responsibility by
vicariously establishing criminal responsibility for corporations as a result of
the conduct of its directors, employees or agents. The disapplication of Part
2.5 is necessary to prevent competing corporate criminal liability regimes
operating in relation to the same criminal offences.
Item 105 –
After subsection 15(3)
This item adds a new subsection 15(3A) that
provides that strict liability applies to the offences under subsections 15(1),
(2) and (3). This amendment does not create a new offences of strict liability.
The existing offences under subsections 15(1), (2) and (3) make the master
and owner of the ship vicariously liable for any contravention of
requirements under subsections (1), (2) and (3). Vicarious liability is
interpreted as giving rise to strict liability and therefore not requiring proof
of fault. The amendment is necessary to maintain the current operation of
subsections 15(1), (2) and (3). Once the Criminal Code applies, in the
absence of an express reference to the fact that an offence is a strict
liability offence, a court will be required to interpret the offence as a fault
offence rather than a strict liability offence.
The note to subsection
15(3A) refers to section 6.1 of the Criminal Code. Section 6.1 provides
that if a law that creates an offence provides that the offence is an offence
of strict liability:
(a) there are no fault elements for any of
the physical elements of the offence; and
(b) the defence of mistake
of fact under section 9.2 is available.
This means that the
prosecution does not have to prove fault on the part of the defendant. Fault
includes intention if it is with regard to conduct, and
recklessness where it is with regard to a circumstance in which
conduct occurs or a result of conduct. The defendant will be able to
activate the defence of honest or reasonable mistake of fact if he or she can
point to or adduce evidence that he or she made a relevant mistake of fact. If
that occurs, the prosecution bears the onus to prove beyond reasonable doubt
that there was no mistake.
The maximum penalties under subsections (1)
and (2) are 500 penalty units for a natural person and 1,000 penalty units for a
body corporate.
The Protection of the Sea (Civil Liability) Act
1981 gives effect to the International Convention on Civil Liability for Oil
Pollution Damage 1922 (The Convention) that provides that adequate compensation
must be available to persons who suffer damage caused by pollution resulting
from the escape or discharge of oil from ships. Subsections 15(1) and (2) of
the Act are key enforcement provisions.
Significant penalties are
required to serve as a deterrent and to ensure that there is an incentive to
obey the requirements and standards prescribed and that the incentive outweighs
any economic advantage that may present in breaching the offence provisions.
Item 106 – Subsection 15(4)
This item omits
refuses or from subsection 15(4).
Item 107 – After
subsection 15(4)
This item adds a new subsection 15(4A) that provides
that strict liability applies to the offence under subsection (4). This
amendment does not create a new offence of strict liability. The use of the
term fails in the existing offence under subsection 15(4) is interpreted
as strict liability and therefore not requiring proof of fault. The amendment
is necessary to maintain the current operation of subsection 15(4). Once the
Criminal Code applies, in the absence of an express reference to the fact
that an offence is a strict liability offence, a court will be required to
interpret the offence as a fault offence rather than a strict liability
offence.
The note to subsection 15(4A) refers to section 6.1 of the
Criminal Code. Section 6.1 provides that if a law that creates an
offence provides that the offence is an offence of strict
liability:
(a) there are no fault elements for any of the physical
elements of the offence; and
(b) the defence of mistake of fact under
section 9.2 is available.
This means that the prosecution does not
have to prove fault on the part of the defendant. Fault includes
intention if it is with regard to conduct, and recklessness
where it is with regard to a circumstance in which conduct occurs or a
result of conduct. The defendant will be able to activate the defence of
honest or reasonable mistake of fact if he or she can point to or adduce
evidence that he or she made a relevant mistake of fact. If that occurs, the
prosecution bears the onus to prove beyond reasonable doubt that there was no
mistake.
Item 108 – After subsection 22(3)
This item
adds a new subsection 22(3A) that provides that strict liability applies to the
offences under subsections 22(3). This amendment does not create a new offence
of strict liability. The existing offence under subsection 22(3) makes the
master and owner of the ship vicariously liable for any contravention of
requirements under subsection 22(3). Vicarious liability is interpreted as
giving rise to strict liability and therefore not requiring proof of fault. The
amendment is necessary to maintain the current operation of subsection 22(3).
Once the Criminal Code applies, in the absence of an express reference to
the fact that an offence is a strict liability offence, a court will be required
to interpret the offence as a fault offence rather than a strict liability
offence.
The note to subsection 22(3A) refers to section 6.1 of the
Criminal Code. Section 6.1 provides that if a law that creates an
offence provides that the offence is an offence of strict
liability:
(a) there are no fault elements for any of the physical
elements of the offence; and
(b) the defence of mistake of fact under
section 9.2 is available.
This means that the prosecution does not
have to prove fault on the part of the defendant. Fault includes
intention if it is with regard to conduct, and recklessness
where it is with regard to a circumstance in which conduct occurs or a
result of conduct. The defendant will be able to activate the defence of
honest or reasonable mistake of fact if he or she can point to or adduce
evidence that he or she made a relevant mistake of fact. If that occurs, the
prosecution bears the onus to prove beyond reasonable doubt that there was no
mistake.
The maximum penalty for this subsection is 50 penalty units for
a natural person or 100 penalty units for a body corporate.
The
Protection of the Sea (Civil Liability) Act 1981 gives effect to the
International Convention on Civil Liability for Oil Pollution Damage 1922 (The
Convention) that provides that adequate compensation must be available to
persons who suffer damage caused by pollution resulting from the escape or
discharge of oil from ships. Subsection 22(3) prohibits a ship from going to
sea where it has been detained for failing to have the necessary certificate on
board.
Significant penalties are required to serve as a deterrent and to
ensure that there is an incentive to obey the requirements and standards
prescribed and that the incentive outweighs any economic advantage that may
present in breaching the offence provisions.
Item 109 – At the end of Chapter 1
This item inserts
a new section 5A that provides that Chapter 2 of the Criminal Code
applies to all offences against the Protection of the Sea (Oil Pollution
Compensation Fund) Act 1993. It also inserts a note that says that
Chapter 2 of the Criminal Code sets out the general principles of
criminal responsibility.
This item replaces section 24 with a provision that more accurately
identifies the physical elements of circumstance, conduct and result in
the offence, to which the default fault elements of recklessness and
intention, will be applied by the Criminal Code.
This
amendment has rephrased the offence to clarify that:
• paragraph
24(1)(a) is the physical element of the circumstances of the
defendant’s conduct to which the default fault element of
recklessness will apply;
• paragraph 24(1)(b) is the physical
element of conduct to which the default fault element of intention
will apply; and
• paragraph 24(1)(c) is the physical element of
result to which the default element of recklessness will
apply.
The maximum penalty under this subsection is 300 penalty
units.
This item also inserts a provision at subsection (2) that strict
liability applies to the physical element of result at paragraph (1)(a).
This amendment ensures that the provision is not interpreted as requiring the
prosecution to prove, as part of the offence, that the defendant had knowledge
of regulations made for the purposes of this Division.
Subsection
9.3(1) of the Criminal Code provides that mistake or ignorance of statute
law is no excuse. Subsection 9.3(2) provides that subsection 9.3(1) does not
apply if the particular Act is expressly or impliedly to the contrary effect.
This amendment does not create a new offence of strict liability. The amendment
is necessary to maintain the current operation of section 24, and ensure that it
is not interpreted to indicate a contrary intention for the purposes of section
9.3 of the Criminal Code.
This item defines “engage in
conduct” to mean:
(a) do an act; or
(b) omit to perform an
act.
This definition is consistent with the definition at subsection
4.1(2) of the Criminal Code.
This item replaces section 45 with a provision that more accurately
identifies the physical elements of circumstance, conduct and result in
the offence, to which the default fault elements of recklessness and
intention, will be applied by the Criminal Code.
This
amendment has rephrased the offence to clarify that:
• paragraph
45(1)(a) is the physical element of the circumstances of the
defendant’s conduct to which the default fault element of
recklessness will apply;
• paragraph 45(1)(b) is the physical
element of conduct to which the default fault element of intention
will apply; and
• paragraph 45(1)(c) is the physical element of
result to which the default element of recklessness will
apply.
The maximum penalty under this subsection is 300 penalty
units.
This item also inserts a provision at subsection (2) that strict
liability applies to the physical element of circumstance at paragraph
(1)(a). This amendment ensures that the provision is not interpreted as
requiring the prosecution to prove, as part of the offence, that the defendant
had knowledge of regulations made for the purposes of this Division.
Subsection 9.3(1) of the Criminal Code provides that mistake or
ignorance of statute law is no excuse. Subsection 9.3(2) provides that
subsection 9.3(1) does not apply if the particular Act is expressly or impliedly
to the contrary effect. This amendment does not create a new offence of strict
liability. The amendment is necessary to maintain the current operation of
section 45, and ensure that it is not interpreted to indicate a contrary
intention for the purposes of section 9.3 of the Criminal
Code.
This item defines “engage in conduct” to
mean:
(a) do an act; or
(b) omit to perform an act.
This
definition is consistent with the definition at subsection 4.1(2) of the
Criminal Code.
Item 112 – After section 3
This item inserts a new
section 3A that provides that Chapter 2 of the Criminal Code applies to
all offences against the Protection of the Sea (Powers of Intervention) Act
1981. It also inserts a note that says that Chapter 2 of the Criminal
Code sets out the general principles of criminal
responsibility.
Item 113 – At the end of subsection
21(2)
Subsection 21(2) also notes that the defendant bears a legal
burden of proof with regard to the matter in subsection
21(2).
Criminal Code policy is that the prosecution should prove
every element of the offence relevant to the guilt of the person charged (see
subsection 13.1(1) of the Criminal Code). However, there are some
instances where it is appropriate for a defendant to bear a burden of proof,
such as where a matter is peculiarly within the knowledge of the defendant. In
those instances, the Criminal Code policy is that the burden should be an
evidential burden rather than a legal burden (see subsection 13.3(1) of the
Criminal Code). An evidential burden is lighter than a legal burden.
Subsection 13.3(1) of the Criminal Code provides that, subject to section
13.4, a burden of proof that a law imposes on a defendant is an evidential
burden only. An evidential burden is the burden of adducing or
pointing to evidence that suggests a reasonable possibility that the matter
exists or does not exist (see subsection 13.3(6) of the Criminal
Code), whereas a legal burden is the burden of proving the existence of
the matter (see subsection 13.1(3) of the Criminal
Code).
Section 13.4 of the Criminal Code outlines the
instances that would result in the imposition of a legal burden on a defendant.
A legal burden may be imposed on a defendant if and only if the relevant
legislation expressly:
• specifies that the burden of proof in
relation to the matter in question is a legal burden;
• requires the
defendant to prove the matter; or
• creates a presumption that the
matter exists unless the contrary is proved.
Subsection 21(2) currently
requires that the defendant to bear a legal burden of proof in relation to the
defences in the subsection. This amendment ensures that the provision
operate in this way following application of the Criminal Code. The
provision therefore currently requires the defendant to bear a legal burden of
proof in relation to the defences in the subsection. The defences currently
place a legal burden on the defendant. This is clear by the use of the phrase
unless the contrary is proved.
Protection of the Sea (Prevention
of Pollution from Ships) Act 1983
Item 114 – At the end
of Part 1
This item inserts a new section 7 that provides that
Chapter 2 of the Criminal Code (except Part 2.5) applies to all offences
against the Protection of the Sea (Prevention of Pollution from Ships) Act
1983. It also inserts a note that says that Chapter 2 of the Criminal
Code sets out the general principles of criminal responsibility.
Part
2.5 of the Criminal Code is the only Part of Chapter 2 that does not
automatically apply to offences. When the Criminal Code was introduced
into the Senate on 30 June 1994, it was stated that Part 2.5 would be the basis
of corporate criminal liability if no other basis were provided. Subsections
28(5), (6) and (7) of the Protection of the Sea (Prevention of Pollution from
Ships) Act 1983 deals with corporate criminal responsibility by vicariously
establishing criminal responsibility for corporations as a result of the conduct
of its directors, employees or agents. The disapplication of Part 2.5 is
necessary to prevent competing corporate criminal liability regimes operating in
relation to the same criminal offences.
Item 115 – After
subsection 11(3)
This item adds a new subsection 11(3A) that provides
that strict liability applies to an offence under subsection 11(3). This
amendment does not create a new offences of strict liability. The existing
offence under subsection 11(3) makes the master, owner, charterer, manager or
operator, or an agent of the ship vicariously liable for any contravention
of requirements under subsections (3). Vicarious liability is interpreted as
giving rise to strict liability and therefore not requiring proof of fault. The
amendment is necessary to maintain the current operation of subsection (3).
Once the Criminal Code applies, in the absence of an express reference to
the fact that an offence is a strict liability offence, a court will be required
to interpret the offence as a fault offence rather than a strict liability
offence.
The note to subsection 11(3A) refers to section 6.1 of the
Criminal Code. Section 6.1 provides that if a law that creates an
offence provides that the offence is an offence of strict
liability:
(a) there are no fault elements for any of the physical
elements of the offence; and
(b) the defence of mistake of fact under
section 9.2 is available.
This means that the prosecution does not
have to prove fault on the part of the defendant. Fault includes
intention if it is with regard to conduct, and recklessness
where it is with regard to a circumstance in which conduct occurs or a
result of conduct. The defendant will be able to activate the defence of
honest or reasonable mistake of fact if he or she can point to or adduce
evidence that he or she made a relevant mistake of fact. If that occurs, the
prosecution bears the onus to prove beyond reasonable doubt that there was no
mistake.
Current penalty : Fine not exceeding $50,000.
The Protection of the Sea (Prevention of Pollution from Ships) Act 1983 implements the operational provisions of the International Convention for the Prevention of Pollution from Ships known as MARPOL 73/78. This Convention is in force in 114 countries and covers 94% of world shipping tonnage.
The Convention places an obligation on parties to prohibit any violation of the Convention and to establish sanctions under national laws. To provide adequate deterrent for shipowners, the Protection of the Sea (Prevention of Pollution from Ships) Act 1983 therefore needs to provide for the maximum available financial penalty, in accordance with Commonwealth policy for environmental offences.
The running of a ship is an expensive business enterprise, and unless there
is provision for significant penalties, there will be little incentive for
owners to do more than the minimum to avoid discharge of
pollutants.
Item 116 – Subsection 11(8)
This item
amends subsection 11(8) to delete the alternative fault elements of knowingly
or recklessly that currently apply to the physical element of conduct in the
offence. Under the Criminal Code the fault elements of knowingly or
recklessly can only apply to the physical elements of circumstances
of conduct or result of conduct (see Division 5, Part 2.2, Chapter2 of
the Criminal Code). Once omitted, the fault element of intention
will apply to the physical element of conduct in the offence. The fault
element of recklessness will apply to the physical element of
circumstances in the offence (see section 5.6 of the Criminal
Code). Section 5.4 of the Criminal Code provides that where
recklessness is the fault element for a physical element of an offence,
proof of intention, knowledge or recklessness will satisfy
that fault element. Thus, the actions of the defendant who either had the
requisite knowledge or recklessness will be
criminalised.
Item 117 – At the end of section
11A
This item adds a new subsection 11A(8) that provides that strict
liability applies to an offence under subsection 11A(7). This amendment does
not create a new offences of strict liability. The existing offence under
subsection 11A(7) makes the master and owner of the ship vicariously
liable for any contravention of requirements under subsections (7). Vicarious
liability is interpreted as giving rise to strict liability and therefore not
requiring proof of fault. The amendment is necessary to maintain the current
operation of subsection (7). Once the Criminal Code applies, in the
absence of an express reference to the fact that an offence is a strict
liability offence, a court will be required to interpret the offence as a fault
offence rather than a strict liability offence.
The note to subsection
11A(8) refers to section 6.1 of the Criminal Code. Section 6.1 provides
that if a law that creates an offence provides that the offence is an offence
of strict liability:
(a) there are no fault elements for any of
the physical elements of the offence; and
(b) the defence of mistake
of fact under section 9.2 is available.
This means that the
prosecution does not have to prove fault on the part of the defendant. Fault
includes intention if it is with regard to conduct, and
recklessness where it is with regard to a circumstance in which
conduct occurs or a result of conduct. The defendant will be able to
activate the defence of honest or reasonable mistake of fact if he or she can
point to or adduce evidence that he or she made a relevant mistake of fact. If
that occurs, the prosecution bears the onus to prove beyond reasonable doubt
that there was no mistake.
Current penalty : Fine not exceeding
$50,000.
The Protection of the Sea (Prevention of Pollution from Ships) Act 1983 implements the operational provisions of the International Convention for the Prevention of Pollution from Ships known as MARPOL 73/78. This Convention is in force in 114 countries and covers 94% of world shipping tonnage.
The Convention places an obligation on parties to prohibit any violation of
the Convention and to establish sanctions under national laws. To provide
adequate deterrent for shipowners, the Protection of the Sea (Prevention of
Pollution from Ships) Act 1983 therefore needs to provide for the maximum
available financial penalty, in accordance with Commonwealth policy for
environmental offences.
The running of a ship is an expensive business
enterprise, and unless there is provision for significant penalties, there will
be little incentive for owners to do more than the minimum to avoid discharge of
pollutants.
Item 118 – After subsection 12(4)
This
item adds a new subsection 12(4A) that provides that strict liability applies to
an offence under subsection 12(4). This amendment does not create a new
offences of strict liability. The existing offence under subsection 12(4) makes
the master and owner of the ship vicariously liable for any contravention
of requirements under subsections (4). Vicarious liability is interpreted as
giving rise to strict liability and therefore not requiring proof of fault. The
amendment is necessary to maintain the current operation of subsection (4).
Once the Criminal Code applies, in the absence of an express reference to
the fact that an offence is a strict liability offence, a court will be required
to interpret the offence as a fault offence rather than a strict liability
offence.
The note to subsection 12(4A) refers to section 6.1 of the
Criminal Code. Section 6.1 provides that if a law that creates an
offence provides that the offence is an offence of strict
liability:
(a) there are no fault elements for any of the physical
elements of the offence; and
(b) the defence of mistake of fact under
section 9.2 is available.
This means that the prosecution does not
have to prove fault on the part of the defendant. Fault includes
intention if it is with regard to conduct, and recklessness
where it is with regard to a circumstance in which conduct occurs or a
result of conduct. The defendant will be able to activate the defence of
honest or reasonable mistake of fact if he or she can point to or adduce
evidence that he or she made a relevant mistake of fact. If that occurs, the
prosecution bears the onus to prove beyond reasonable doubt that there was no
mistake.
Current penalty : Fine not exceeding $20,000.
The Protection of the Sea (Prevention of Pollution from Ships) Act 1983 implements the operational provisions of the International Convention for the Prevention of Pollution from Ships known as MARPOL 73/78. This Convention is in force in 114 countries and covers 94% of world shipping tonnage.
The Convention places an obligation on parties to prohibit any violation of
the Convention and to establish sanctions under national laws. To provide
adequate deterrent for shipowners, the Protection of the Sea (Prevention of
Pollution from Ships) Act 1983 therefore needs to provide for the maximum
available financial penalty, in accordance with Commonwealth policy for
environmental offences.
The running of a ship is an expensive business
enterprise, and unless there is provision for significant penalties, there will
be little incentive for owners to do more than the minimum to avoid discharge of
pollutants.
Item 119 – After subsection 14(2)
This
item adds a new subsection 14(2A) that provides that strict liability applies to
an offence under subsection 14(2). This amendment does not create a new offence
of strict liability. The existing offence under subsection 14(2) makes the
master and owner of the ship vicariously liable for any contravention of
requirements under subsection (2). Vicarious liability is interpreted as giving
rise to strict liability and therefore not requiring proof of fault. The
amendment is necessary to maintain the current operation of subsection (2).
Once the Criminal Code applies, in the absence of an express reference to
the fact that an offence is a strict liability offence, a court will be required
to interpret the offence as a fault offence rather than a strict liability
offence.
The note to subsection 14(2A) refers to section 6.1 of the
Criminal Code. Section 6.1 provides that if a law that creates an
offence provides that the offence is an offence of strict
liability:
(a) there are no fault elements for any of the physical
elements of the offence; and
(b) the defence of mistake of fact under
section 9.2 is available.
This means that the prosecution does not
have to prove fault on the part of the defendant. Fault includes
intention if it is with regard to conduct, and recklessness
where it is with regard to a circumstance in which conduct occurs or a
result of conduct. The defendant will be able to activate the defence of
honest or reasonable mistake of fact if he or she can point to or adduce
evidence that he or she made a relevant mistake of fact. If that occurs, the
prosecution bears the onus to prove beyond reasonable doubt that there was no
mistake.
Current penalty : Fine not exceeding $20,000.
The Protection of the Sea (Prevention of Pollution from Ships) Act 1983 implements the operational provisions of the International Convention for the Prevention of Pollution from Ships known as MARPOL 73/78. This Convention is in force in 114 countries and covers 94% of world shipping tonnage.
The Convention places an obligation on parties to prohibit any violation of
the Convention and to establish sanctions under national laws. To provide
adequate deterrent for shipowners, the Protection of the Sea (Prevention of
Pollution from Ships) Act 1983 therefore needs to provide for the maximum
available financial penalty, in accordance with Commonwealth policy for
environmental offences.
The running of a ship is an expensive business
enterprise, and unless there is provision for significant penalties, there will
be little incentive for owners to do more than the minimum to avoid discharge of
pollutants.
Item 120 – After subsection 22(3)
This
item adds a new subsection 22(3A) that provides that strict liability applies to
an offence under subsection 22(3). This amendment does not create a new
offences of strict liability. The existing offence under subsection 22(3) makes
the master, owner, charterer, manager or operator, or an agent of the
ship vicariously liable for any contravention of requirements under subsection
(3). Vicarious liability is interpreted as giving rise to strict liability and
therefore not requiring proof of fault. The amendment is necessary to maintain
the current operation of subsection (3). Once the Criminal Code applies,
in the absence of an express reference to the fact that an offence is a strict
liability offence, a court will be required to interpret the offence as a fault
offence rather than a strict liability offence.
The note to subsection
22(3A) refers to section 6.1 of the Criminal Code. Section 6.1 provides
that if a law that creates an offence provides that the offence is an offence
of strict liability:
(a) there are no fault elements for any of
the physical elements of the offence; and
(b) the defence of mistake
of fact under section 9.2 is available.
This means that the
prosecution does not have to prove fault on the part of the defendant. Fault
includes intention if it is with regard to conduct, and
recklessness where it is with regard to a circumstance in which
conduct occurs or a result of conduct. The defendant will be able to
activate the defence of honest or reasonable mistake of fact if he or she can
point to or adduce evidence that he or she made a relevant mistake of fact. If
that occurs, the prosecution bears the onus to prove beyond reasonable doubt
that there was no mistake.
Current penalty : Fine not exceeding
$50,000.
The Protection of the Sea (Prevention of Pollution from Ships) Act 1983 implements the operational provisions of the International Convention for the Prevention of Pollution from Ships known as MARPOL 73/78. This Convention is in force in 114 countries and covers 94% of world shipping tonnage.
The Convention places an obligation on parties to prohibit any violation of
the Convention and to establish sanctions under national laws. To provide
adequate deterrent for shipowners, the Protection of the Sea (Prevention of
Pollution from Ships) Act 1983 therefore needs to provide for the maximum
available financial penalty, in accordance with Commonwealth policy for
environmental offences.
The running of a ship is an expensive business
enterprise, and unless there is provision for significant penalties, there will
be little incentive for owners to do more than the minimum to avoid discharge of
pollutants.
Item 121 – Subsection 22(8)
This item amends
subsection 22(8) to delete the alternative fault elements of knowingly or
recklessly that currently apply to the physical element of conduct in the
offence. Under the Criminal Code the fault elements of knowingly or
recklessly can only apply to the physical elements of circumstances
of conduct or result of conduct (see Division 5, Part 2.2, Chapter2 of
the Criminal Code). Once omitted, the fault element of intention
will apply to the physical element of conduct in the offence. The fault
element of recklessness will apply to the physical element of
circumstances in the offence (see section 5.6 of the Criminal
Code). Section 5.4 of the Criminal Code provides that where
recklessness is the fault element for a physical element of an offence,
proof of intention, knowledge or recklessness will satisfy
that fault element. Thus, the actions of the defendant who either had the
requisite knowledge or recklessness will be
criminalised.
Item 122 – After subsection 23(4)
This
item adds a new subsection 23(4A) that provides that strict liability applies to
an offence under subsection 23(4). This amendment does not create a new offence
of strict liability. The existing offence under subsection 23(4) makes the
master and owner of the ship vicariously liable for any contravention of
requirements under subsection (4). Vicarious liability is interpreted as giving
rise to strict liability and therefore not requiring proof of fault. The
amendment is necessary to maintain the current operation of subsection (4).
Once the Criminal Code applies, in the absence of an express reference to
the fact that an offence is a strict liability offence, a court will be required
to interpret the offence as a fault offence rather than a strict liability
offence.
The note to subsection 23(4A) refers to section 6.1 of the
Criminal Code. Section 6.1 provides that if a law that creates an
offence provides that the offence is an offence of strict
liability:
(a) there are no fault elements for any of the physical
elements of the offence; and
(b) the defence of mistake of fact under
section 9.2 is available.
This means that the prosecution does not
have to prove fault on the part of the defendant. Fault includes
intention if it is with regard to conduct, and recklessness
where it is with regard to a circumstance in which conduct occurs or a
result of conduct. The defendant will be able to activate the defence of
honest or reasonable mistake of fact if he or she can point to or adduce
evidence that he or she made a relevant mistake of fact. If that occurs, the
prosecution bears the onus to prove beyond reasonable doubt that there was no
mistake.
Current penalty : Fine not exceeding $20,000.
The Protection of the Sea (Prevention of Pollution from Ships) Act 1983 implements the operational provisions of the International Convention for the Prevention of Pollution from Ships known as MARPOL 73/78. This Convention is in force in 114 countries and covers 94% of world shipping tonnage.
The Convention places an obligation on parties to prohibit any violation of
the Convention and to establish sanctions under national laws. To provide
adequate deterrent for shipowners, the Protection of the Sea (Prevention of
Pollution from Ships) Act 1983 therefore needs to provide for the maximum
available financial penalty, in accordance with Commonwealth policy for
environmental offences.
The running of a ship is an expensive business
enterprise, and unless there is provision for significant penalties, there will
be little incentive for owners to do more than the minimum to avoid discharge of
pollutants.
Item 123 – After subsection 25(2)
This
item adds a new subsection 25(2A) that provides that strict liability applies to
an offence under subsection 25(2). This amendment does not create a new offence
of strict liability. The existing offence under subsection 25(2) makes the
master and owner of the ship vicariously liable for any contravention of
requirements under subsection (2). Vicarious liability is interpreted as giving
rise to strict liability and therefore not requiring proof of fault. The
amendment is necessary to maintain the current operation of subsection (2).
Once the Criminal Code applies, in the absence of an express reference to
the fact that an offence is a strict liability offence, a court will be required
to interpret the offence as a fault offence rather than a strict liability
offence.
The note to subsection 25(2A) refers to section 6.1 of the
Criminal Code. Section 6.1 provides that if a law that creates an
offence provides that the offence is an offence of strict
liability:
(a) there are no fault elements for any of the physical
elements of the offence; and
(b) the defence of mistake of fact under
section 9.2 is available.
This means that the prosecution does not
have to prove fault on the part of the defendant. Fault includes
intention if it is with regard to conduct, and recklessness
where it is with regard to a circumstance in which conduct occurs or a
result of conduct. The defendant will be able to activate the defence of
honest or reasonable mistake of fact if he or she can point to or adduce
evidence that he or she made a relevant mistake of fact. If that occurs, the
prosecution bears the onus to prove beyond reasonable doubt that there was no
mistake.
Current penalty : Fine not exceeding $20,000.
The Protection of the Sea (Prevention of Pollution from Ships) Act 1983 implements the operational provisions of the International Convention for the Prevention of Pollution from Ships known as MARPOL 73/78. This Convention is in force in 114 countries and covers 94% of world shipping tonnage.
The Convention places an obligation on parties to prohibit any violation of
the Convention and to establish sanctions under national laws. To provide
adequate deterrent for shipowners, the Protection of the Sea (Prevention of
Pollution from Ships) Act 1983 therefore needs to provide for the maximum
available financial penalty, in accordance with Commonwealth policy for
environmental offences.
The running of a ship is an expensive business
enterprise, and unless there is provision for significant penalties, there will
be little incentive for owners to do more than the minimum to avoid discharge of
pollutants.
Item 124 – After subsection 26B(5)
This
item adds a new subsection 26B(5A) that provides that strict liability applies
to an offence under subsection 26B(5). This amendment does not create a new
offence of strict liability. The existing offence under subsection 26B(5) makes
the master, owner, charterer, manager or operator, or an agent of the
ship vicariously liable for any contravention of requirements under subsection
(5). Vicarious liability is interpreted as giving rise to strict liability and
therefore not requiring proof of fault. The amendment is necessary to maintain
the current operation of subsection (5). Once the Criminal Code applies,
in the absence of an express reference to the fact that an offence is a strict
liability offence, a court will be required to interpret the offence as a fault
offence rather than a strict liability offence.
The note to subsection
26B(5A) refers to section 6.1 of the Criminal Code. Section 6.1 provides
that if a law that creates an offence provides that the offence is an offence
of strict liability:
(a) there are no fault elements for any of
the physical elements of the offence; and
(b) the defence of mistake
of fact under section 9.2 is available.
This means that the
prosecution does not have to prove fault on the part of the defendant. Fault
includes intention if it is with regard to conduct, and
recklessness where it is with regard to a circumstance in which
conduct occurs or a result of conduct. The defendant will be able to
activate the defence of honest or reasonable mistake of fact if he or she can
point to or adduce evidence that he or she made a relevant mistake of fact. If
that occurs, the prosecution bears the onus to prove beyond reasonable doubt
that there was no mistake.
Current penalty : Fine not exceeding
$50,000.
The Protection of the Sea (Prevention of Pollution from Ships) Act 1983 implements the operational provisions of the International Convention for the Prevention of Pollution from Ships known as MARPOL 73/78. This Convention is in force in 114 countries and covers 94% of world shipping tonnage.
The Convention places an obligation on parties to prohibit any violation of
the Convention and to establish sanctions under national laws. To provide
adequate deterrent for shipowners, the Protection of the Sea (Prevention of
Pollution from Ships) Act 1983 therefore needs to provide for the maximum
available financial penalty, in accordance with Commonwealth policy for
environmental offences.
The running of a ship is an expensive business
enterprise, and unless there is provision for significant penalties, there will
be little incentive for owners to do more than the minimum to avoid discharge of
pollutants.
Item 125 – Subsection 26B(10)
This item
amends subsection 26B(10) to delete the alternative fault elements of
knowingly or recklessly that currently apply to the physical element of
conduct in the offence. Under the Criminal Code the fault elements of
knowingly or recklessly can only apply to the physical elements of
circumstances of conduct or result of conduct (see Division 5,
Part 2.2, Chapter2 of the Criminal Code). Once omitted, the fault
element of intention will apply to the physical element of conduct
in the offence. The fault element of recklessness will apply to the
physical element of circumstances in the offence (see section 5.6 of the
Criminal Code). Section 5.4 of the Criminal Code provides that
where recklessness is the fault element for a physical element of an
offence, proof of intention, knowledge or recklessness will
satisfy that fault element. Thus, the actions of the defendant who either had
the requisite knowledge or recklessness will be
criminalised.
Item 126 – Subsection 27(2)
This item
amends subsection 27(2) to omit the words without reasonable excuse, refuse
or. The defence is now drafted as a separate subsection 27(5) at item
127.
Item 127 – At the end of section 27
This item
also adds a new subsection 27(4) that provides that strict liability applies to
the offence under subsection (2). This amendment does not create a new offence
of strict liability. The use of the term fails in the existing offence
under subsection 27(2) is interpreted as strict liability and therefore not
requiring proof of fault. The amendment is necessary to maintain the current
operation of subsection 27(2). Once the Criminal Code applies, in the
absence of an express reference to the fact that an offence is a strict
liability offence, a court will be required to interpret the offence as a fault
offence rather than a strict liability offence.
The note to subsection
27(4) refers to section 6.1 of the Criminal Code. Section 6.1 provides
that if a law that creates an offence provides that the offence is an offence
of strict liability:
(a) there are no fault elements for any of
the physical elements of the offence; and
(b) the defence of mistake
of fact under section 9.2 is available.
This means that the
prosecution does not have to prove fault on the part of the defendant. Fault
includes intention if it is with regard to conduct, and
recklessness where it is with regard to a circumstance in which
conduct occurs or a result of conduct. The defendant will be able to
activate the defence of honest or reasonable mistake of fact if he or she can
point to or adduce evidence that he or she made a relevant mistake of fact. If
that occurs, the prosecution bears the onus to prove beyond reasonable doubt
that there was no mistake.
Current penalty : Fine not exceeding
$8,000.
The Protection of the Sea (Prevention of Pollution from Ships) Act 1983 implements the operational provisions of the International Convention for the Prevention of Pollution from Ships known as MARPOL 73/78. This Convention is in force in 114 countries and covers 94% of world shipping tonnage.
The Convention places an obligation on parties to prohibit any violation of
the Convention and to establish sanctions under national laws. To provide
adequate deterrent for shipowners, the Protection of the Sea (Prevention of
Pollution from Ships) Act 1983 therefore needs to provide for the maximum
available financial penalty, in accordance with Commonwealth policy for
environmental offences.
The running of a ship is an expensive business
enterprise, and unless there is provision for significant penalties, there will
be little incentive for owners to do more than the minimum to avoid discharge of
pollutants.
This item is consequential upon the omission of the phrase
without reasonable excuse, refuses or from subsection 27(2) at item 126.
This amendment is necessary to ensure that the defence is not mistakenly
interpreted to be an element of the offence that must be proved by the
prosecution.
This item notes that the defendant bears an evidential
burden of proof with regard to the matter in subsection (5). Criminal
Code policy is that the prosecution should prove every element of the
offence relevant to the guilt of the person charged (see subsection 13.1(1) of
the Criminal Code). However, there are some instances where it is
appropriate for a defendant to bear a burden of proof, such as where a matter is
peculiarly within the knowledge of the defendant. In those instances, the
Criminal Code policy is that the burden should be an evidential burden
rather than a legal burden (see subsection 13.3(1) of the Criminal Code).
An evidential burden is lighter than a legal burden. Subsection 13.3(1) of the
Criminal Code provides that, subject to section 13.4, a burden of
proof that a law imposes on a defendant is an evidential burden only. An
evidential burden is the burden of adducing or pointing to evidence
that suggests a reasonable possibility that the matter exists or does not exist
(see subsection 13.3(6) of the Criminal Code), whereas a legal burden
is the burden of proving the existence of the matter (see subsection
13.1(3) of the Criminal Code).
Subsection 13.3(3) of the
Criminal Code provides that a defendant who wishes to rely on any
exception, exemption, excuse, qualification or justification provided by law
creating an offence bears an evidential burden in such
circumstances.
Item 128 – After subsection
27A(5)
This item adds a new subsection 27A(5A) that provides that
strict liability applies to an offence under subsection 27A(5). This amendment
does not create a new offence of strict liability. The existing offence under
subsection 27A(5) makes the master and owner of the ship vicariously
liable for any contravention of requirements under subsection (5). Vicarious
liability is interpreted as giving rise to strict liability and therefore not
requiring proof of fault. The amendment is necessary to maintain the current
operation of subsection (5). Once the Criminal Code applies, in the
absence of an express reference to the fact that an offence is a strict
liability offence, a court will be required to interpret the offence as a fault
offence rather than a strict liability offence.
The note to subsection
27A(5A) refers to section 6.1 of the Criminal Code. Section 6.1 provides
that if a law that creates an offence provides that the offence is an offence
of strict liability:
(a) there are no fault elements for any of
the physical elements of the offence; and
(b) the defence of mistake
of fact under section 9.2 is available.
This means that the
prosecution does not have to prove fault on the part of the defendant. Fault
includes intention if it is with regard to conduct, and
recklessness where it is with regard to a circumstance in which
conduct occurs or a result of conduct. The defendant will be able to
activate the defence of honest or reasonable mistake of fact if he or she can
point to or adduce evidence that he or she made a relevant mistake of fact. If
that occurs, the prosecution bears the onus to prove beyond reasonable doubt
that there was no mistake.
Current penalty : 2,000 penalty
units.
The Protection of the Sea (Prevention of Pollution from Ships) Act 1983 implements the operational provisions of the International Convention for the Prevention of Pollution from Ships known as MARPOL 73/78. This Convention is in force in 114 countries and covers 94% of world shipping tonnage.
The Convention places an obligation on parties to prohibit any violation of
the Convention and to establish sanctions under national laws. To provide
adequate deterrent for shipowners, the Protection of the Sea (Prevention of
Pollution from Ships) Act 1983 therefore needs to provide for the maximum
available financial penalty, in accordance with Commonwealth policy for
environmental offences.
The running of a ship is an expensive business
enterprise, and unless there is provision for significant penalties, there will
be little incentive for owners to do more than the minimum to avoid discharge of
pollutants.
Item 129 – At the end of section 27C
This
item adds a new subsection 27C(2) that provides that strict liability applies to
an offence under subsection 27C(1). This amendment does not create a new
offence of strict liability. The existing offence under subsection 27C(1) makes
the master and owner of the ship vicariously liable for any contravention
of requirements under subsection (1). Vicarious liability is interpreted as
giving rise to strict liability and therefore not requiring proof of fault. The
amendment is necessary to maintain the current operation of subsection (1).
Once the Criminal Code applies, in the absence of an express reference to
the fact that an offence is a strict liability offence, a court will be required
to interpret the offence as a fault offence rather than a strict liability
offence.
The note to subsection 27C(2) refers to section 6.1 of the
Criminal Code. Section 6.1 provides that if a law that creates an
offence provides that the offence is an offence of strict
liability:
(a) there are no fault elements for any of the physical
elements of the offence; and
(b) the defence of mistake of fact under
section 9.2 is available.
This means that the prosecution does not
have to prove fault on the part of the defendant. Fault includes
intention if it is with regard to conduct, and recklessness
where it is with regard to a circumstance in which conduct occurs or a
result of conduct. The defendant will be able to activate the defence of
honest or reasonable mistake of fact if he or she can point to or adduce
evidence that he or she made a relevant mistake of fact. If that occurs, the
prosecution bears the onus to prove beyond reasonable doubt that there was no
mistake.
Current penalty : 500 penalty units.
The Protection of the Sea (Prevention of Pollution from Ships) Act 1983 implements the operational provisions of the International Convention for the Prevention of Pollution from Ships known as MARPOL 73/78. This Convention is in force in 114 countries and covers 94% of world shipping tonnage.
The Convention places an obligation on parties to prohibit any violation of
the Convention and to establish sanctions under national laws. To provide
adequate deterrent for shipowners, the Protection of the Sea (Prevention of
Pollution from Ships) Act 1983 therefore needs to provide for the maximum
available financial penalty, in accordance with Commonwealth policy for
environmental offences.
The running of a ship is an expensive business
enterprise, and unless there is provision for significant penalties, there will
be little incentive for owners to do more than the minimum to avoid discharge of
pollutants.
Item 130 – After section 4
This item inserts a new
section 4A that provides that Chapter 2 of the Criminal Code applies to
all offences against the Protection of the Sea (Shipping Levy Collection) Act
1981. It also inserts a note that says that Chapter 2 of the Criminal
Code sets out the general principles of criminal
responsibility.
Item 131 – After subsection
12(2)
This item adds a new subsection 12(2A) that provides that
strict liability applies to the offence under subsection 12(2). This amendment
does not create a new offence of strict liability. The nature of the offence
and the low level penalty in the existing offence under subsection (2) indicates
that the offence is strict liability and therefore not requiring proof of fault.
The amendment is necessary to maintain the current operation of subsection
12(2). Once the Criminal Code applies, in the absence of an express
reference to the fact that an offence is a strict liability offence, a court
will be required to interpret the offence as a fault offence rather than a
strict liability offence.
The note to subsection 12(2A) refers to
section 6.1 of the Criminal Code. Section 6.1 provides that if a law
that creates an offence provides that the offence is an offence of strict
liability:
(a) there are no fault elements for any of the physical
elements of the offence; and
(b) the defence of mistake of fact under
section 9.2 is available.
This means that the prosecution does not
have to prove fault on the part of the defendant. Fault includes
intention if it is with regard to conduct, and recklessness
where it is with regard to a circumstance in which conduct occurs or a
result of conduct. The defendant will be able to activate the defence of
honest or reasonable mistake of fact if he or she can point to or adduce
evidence that he or she made a relevant mistake of fact. If that occurs, the
prosecution bears the onus to prove beyond reasonable doubt that there was no
mistake.
Shipping Registration Act 1981
Item 132 – Subsection 3(1)
This item inserts a definition
of offence based on into subsection 3(1).
Item 133
– After section 11
This item inserts a new section 11A that
provides that Chapter 2 of the Criminal Code applies to all offences
against the Shipping Registration Act 1981. It also inserts a
note that says that Chapter 2 of the Criminal Code sets out the general
principles of criminal responsibility.
Item 134 – After
subsection 12(3)
This item adds a new subsection 12(3A) that provides
that strict liability applies to the offence under subsection 12(3). This
amendment does not create a new offence of strict liability. The nature of the
offence in the existing offence under subsection (3) indicates that the offence
is strict liability and therefore not requiring proof of fault. The amendment
is necessary to maintain the current operation of subsection 12(3). Once the
Criminal Code applies, in the absence of an express reference to the fact
that an offence is a strict liability offence, a court will be required to
interpret the offence as a fault offence rather than a strict liability offence.
The note to subsection 12(3A) refers to section 6.1 of the Criminal
Code. Section 6.1 provides that if a law that creates an offence
provides that the offence is an offence of strict
liability:
(a) there are no fault elements for any of the physical
elements of the offence; and
(b) the defence of mistake of fact under
section 9.2 is available.
This means that the prosecution does not
have to prove fault on the part of the defendant. Fault includes
intention if it is with regard to conduct, and recklessness
where it is with regard to a circumstance in which conduct occurs or a
result of conduct. The defendant will be able to activate the defence of
honest or reasonable mistake of fact if he or she can point to or adduce
evidence that he or she made a relevant mistake of fact. If that occurs, the
prosecution bears the onus to prove beyond reasonable doubt that there was no
mistake.
Item 135 – Subsection 20(2)
This item amends
subsection 20(2) to omit the defence of reasonable excuse. The defence
is now drafted as a separate subsection 20(2A) at item 136. This amendment is
necessary to ensure that the defence is not mistakenly interpreted to be an
element of the offence that must be proved by the prosecution.
Item
136 – After subsection 20(2)
This item inserts a new subsection
20(2A) which provides the defence of reasonable excuse. This amendment
is necessary to ensure that the defence is not mistakenly interpreted to be an
element of the offence that must be proved by the prosecution.
This item
also notes that the defendant bears an evidential burden of proof with regard to
the defence provided at subsection 20(2A). Criminal Code policy is that
the prosecution should prove every element of the offence relevant to the guilt
of the person charged (see subsection 13.1(1) of the Criminal Code).
However, there are some instances where it is appropriate for a defendant to
bear a burden of proof, such as where a matter is peculiarly within the
knowledge of the defendant. In those instances, the Criminal Code policy
is that the burden should be an evidential burden rather than a legal burden
(see subsection 13.3(1) of the Criminal Code). An evidential burden is
lighter than a legal burden. Subsection 13.3(1) of the Criminal Code
provides that, subject to section 13.4, a burden of proof that a law imposes
on a defendant is an evidential burden only. An evidential burden is the
burden of adducing or pointing to evidence that suggests a reasonable
possibility that the matter exists or does not exist (see subsection 13.3(6)
of the Criminal Code), whereas a legal burden is the burden of proving
the existence of the matter (see subsection 13.1(3) of the Criminal
Code).
Subsection 13.3(3) of the Criminal Code provides that a
defendant who wishes to rely on any exception, exemption, excuse, qualification
or justification provided by law creating an offence bears an evidential burden
in such circumstances.
This item also adds a new subsection 20(2B) that
provides that strict liability applies to the offence under subsection (2).
This amendment does not create a new offence of strict liability. The use of
the term fails in the existing offence under subsection 20(2) is
interpreted as strict liability and therefore not requiring proof of fault. The
amendment is necessary to maintain the current operation of subsection 20(2).
Once the Criminal Code applies, in the absence of an express reference to
the fact that an offence is a strict liability offence, a court will be required
to interpret the offence as a fault offence rather than a strict liability
offence.
The note to subsection 20(2B) refers to section 6.1 of the
Criminal Code. Section 6.1 provides that if a law that creates an
offence provides that the offence is an offence of strict
liability:
(a) there are no fault elements for any of the physical
elements of the offence; and
(b) the defence of mistake of fact under
section 9.2 is available.
This means that the prosecution does not
have to prove fault on the part of the defendant. Fault includes
intention if it is with regard to conduct, and recklessness
where it is with regard to a circumstance in which conduct occurs or a
result of conduct. The defendant will be able to activate the defence of
honest or reasonable mistake of fact if he or she can point to or adduce
evidence that he or she made a relevant mistake of fact. If that occurs, the
prosecution bears the onus to prove beyond reasonable doubt that there was no
mistake.
Current penalty : fine not exceeding $2,000 or
imprisonment for a period not exceeding 12 months, or both
Failure to
deliver a registration certificate either, to the person entitled to the custody
of it for lawful navigation of the ship, or to the Registrar, Deputy Registrar,
a proper officer or any other person entitled by law to require its delivery,
has two serious consequences :
a) interference with the efficient
operation of the Register; and
b) interference with the operation of the
vessel.
Significant penalties are required to ensure
compliance.
Item 137 – After subsection 26(2)
This
item adds a new subsection 26(2A) that provides that strict liability applies to
an offence under subsection 26(2). This amendment does not create a new offence
of strict liability. The existing offence under subsection 26(2) makes the
master and owner of the ship vicariously liable for any contravention of
requirements under subsection (2). Vicarious liability is interpreted as giving
rise to strict liability and therefore not requiring proof of fault. The
amendment is necessary to maintain the current operation of subsection (2).
Once the Criminal Code applies, in the absence of an express reference to
the fact that an offence is a strict liability offence, a court will be required
to interpret the offence as a fault offence rather than a strict liability
offence.
The note to subsection 26(2A) refers to section 6.1 of the
Criminal Code. Section 6.1 provides that if a law that creates an
offence provides that the offence is an offence of strict
liability:
(a) there are no fault elements for any of the physical
elements of the offence; and
(b) the defence of mistake of fact under
section 9.2 is available.
This means that the prosecution does not
have to prove fault on the part of the defendant. Fault includes
intention if it is with regard to conduct, and recklessness
where it is with regard to a circumstance in which conduct occurs or a
result of conduct. The defendant will be able to activate the defence of
honest or reasonable mistake of fact if he or she can point to or adduce
evidence that he or she made a relevant mistake of fact. If that occurs, the
prosecution bears the onus to prove beyond reasonable doubt that there was no
mistake.
Item 138 – Subsection 26(3)
This item
replaces subsection 26(3) with a provision that more accurately identifies the
physical elements of result in the offence to which the default fault
element of recklessness will be applied by the Criminal
Code.
This amendment has rephrased the offence to clarify that the
terms conceal, alter, deface or obliterate are physical elements of the
result of the defendant’s conduct to which the default fault
element of recklessness will apply.
The rationale for the
amendment is that an accused person does not conceal, remove, alter, deface
or obliterate. Rather, the concealment, removal, alteration, defacing or
obliteration is the result of the accused person’s conduct, and is a
physical element of result rather than a physical element of conduct. It
follows that using concealment, removal, alteration, defacing or
obliteration as the active verb in a criminal offence may lead to
difficulties in interpreting the offence following application of the
Criminal Code. Reconstructing the offence enables the physical elements
of conduct and result to be better identified.
This item also inserts a
provision at subsection 26(3A) that strict liability applies to an offence under
subsection (3). This amendment ensures that the provision is not interpreted as
requiring the prosecution to prove, as part of the offence, that the defendant
had knowledge of the requirements of subsection (1).
Subsection
9.3(1) of the Criminal Code provides that mistake or ignorance of statute
law is no excuse. Subsection 9.3(2) provides that subsection 9.3(1) does not
apply if the particular Act is expressly or impliedly to the contrary effect.
This amendment does not create a new offence of strict liability. The amendment
is necessary to maintain the current operation of section 29, and ensure that it
is not interpreted to indicate a contrary intention for the purposes of section
9.3 of the Criminal Code.
Item 139 – At the end of
section 26
This item defines “engage in conduct” to
mean:
(a) do an act; or
(b) omit to perform an act.
This
definition is consistent with the definition at subsection 4.1(2) of the
Criminal Code.
Item 140 – After subsection
30(2)
This item adds a new subsection 30(2A) that provides that
strict liability applies to the offence under subsection 30(2). This amendment
does not create a new offence of strict liability. The nature of the offence in
the existing offence under subsection (2) indicates that the offence is strict
liability and therefore not requiring proof of fault. The amendment is
necessary to maintain the current operation of subsection 30(2). Once the
Criminal Code applies, in the absence of an express reference to the fact
that an offence is a strict liability offence, a court will be required to
interpret the offence as a fault offence rather than a strict liability offence.
The note to subsection 30(2A) refers to section 6.1 of the Criminal
Code. Section 6.1 provides that if a law that creates an offence
provides that the offence is an offence of strict
liability:
(a) there are no fault elements for any of the physical
elements of the offence; and
(b) the defence of mistake of fact under
section 9.2 is available.
This means that the prosecution does not
have to prove fault on the part of the defendant. Fault includes
intention if it is with regard to conduct, and recklessness
where it is with regard to a circumstance in which conduct occurs or a
result of conduct. The defendant will be able to activate the defence of
honest or reasonable mistake of fact if he or she can point to or adduce
evidence that he or she made a relevant mistake of fact. If that occurs, the
prosecution bears the onus to prove beyond reasonable doubt that there was no
mistake.
Item 141 – After subsection 30(3)
This item
adds a new subsection 30(3A) that provides that strict liability applies to the
offence under subsection 30(3). This amendment does not create a new offence of
strict liability. The nature of the offence in the existing offence under
subsection (3) indicates that the offence is strict liability and therefore not
requiring proof of fault. The amendment is necessary to maintain the current
operation of subsection 30(3). Once the Criminal Code applies, in the
absence of an express reference to the fact that an offence is a strict
liability offence, a court will be required to interpret the offence as a fault
offence rather than a strict liability offence.
The note to subsection
30(3A) refers to section 6.1 of the Criminal Code. Section 6.1 provides
that if a law that creates an offence provides that the offence is an offence
of strict liability:
(a) there are no fault elements for any of
the physical elements of the offence; and
(b) the defence of mistake
of fact under section 9.2 is available.
This means that the
prosecution does not have to prove fault on the part of the defendant. Fault
includes intention if it is with regard to conduct, and
recklessness where it is with regard to a circumstance in which
conduct occurs or a result of conduct. The defendant will be able to
activate the defence of honest or reasonable mistake of fact if he or she can
point to or adduce evidence that he or she made a relevant mistake of fact. If
that occurs, the prosecution bears the onus to prove beyond reasonable doubt
that there was no mistake.
Item 142 – After subsection
30(8)
This item adds a new subsection 30(8A) that provides that
strict liability applies to the offence under subsections 30(6), (7) or (8).
This amendment does not create new offences of strict liability. The nature of
the offences under subsection (6), (7) or (8) indicate that the offence is
strict liability and therefore not requiring proof of fault. The amendment is
necessary to maintain the current operation of subsection 30(6), (7) or (8).
Once the Criminal Code applies, in the absence of an express reference to
the fact that an offence is a strict liability offence, a court will be required
to interpret the offence as a fault offence rather than a strict liability
offence.
The note to subsection 30(8A) refers to section 6.1 of the
Criminal Code. Section 6.1 provides that if a law that creates an
offence provides that the offence is an offence of strict
liability:
(a) there are no fault elements for any of the physical
elements of the offence; and
(b) the defence of mistake of fact under
section 9.2 is available.
This means that the prosecution does not
have to prove fault on the part of the defendant. Fault includes
intention if it is with regard to conduct, and recklessness
where it is with regard to a circumstance in which conduct occurs or a
result of conduct. The defendant will be able to activate the defence of
honest or reasonable mistake of fact if he or she can point to or adduce
evidence that he or she made a relevant mistake of fact. If that occurs, the
prosecution bears the onus to prove beyond reasonable doubt that there was no
mistake.
This item amends subsection 32(1) to omit the words for the purpose of
escaping the capture by an enemy. The defence is now drafted as a separate
subsection 32(2). This amendment is necessary to ensure that the defence
is not mistakenly interpreted to be an element of the offence that must be
proved by the prosecution.
This item also notes that the defendant bears
an evidential burden of proof with regard to the defence provided at subsection
32(2). Criminal Code policy is that the prosecution should prove every
element of the offence relevant to the guilt of the person charged (see
subsection 13.1(1) of the Criminal Code). However, there are some
instances where it is appropriate for a defendant to bear a burden of proof,
such as where a matter is peculiarly within the knowledge of the defendant. In
those instances, the Criminal Code policy is that the burden should be an
evidential burden rather than a legal burden (see subsection 13.3(1) of the
Criminal Code). An evidential burden is lighter than a legal burden.
Subsection 13.3(1) of the Criminal Code provides that, subject to section
13.4, a burden of proof that a law imposes on a defendant is an evidential
burden only. An evidential burden is the burden of adducing or
pointing to evidence that suggests a reasonable possibility that the matter
exists or does not exist (see subsection 13.3(6) of the Criminal
Code), whereas a legal burden is the burden of proving the existence of
the matter (see subsection 13.1(3) of the Criminal
Code).
Subsection 13.3(3) of the Criminal Code provides that a
defendant who wishes to rely on any exception, exemption, excuse, qualification
or justification provided by law creating an offence bears an evidential burden
in such circumstances.
This item also adds a new subsection 32(3) that
provides that strict liability applies to an offence under subsection 32(1).
This amendment does not create a new offence of strict liability. The existing
offence under subsection 32(1) makes the master and owner of the ship
vicariously liable for any contravention of requirements under subsection (1).
Vicarious liability is interpreted as giving rise to strict liability and
therefore not requiring proof of fault. The amendment is necessary to maintain
the current operation of subsection (1). Once the Criminal Code applies,
in the absence of an express reference to the fact that an offence is a strict
liability offence, a court will be required to interpret the offence as a fault
offence rather than a strict liability offence.
The note to subsection
32(3) refers to section 6.1 of the Criminal Code. Section 6.1 provides
that if a law that creates an offence provides that the offence is an offence
of strict liability:
(a) there are no fault elements for any of
the physical elements of the offence; and
(b) the defence of mistake
of fact under section 9.2 is available.
This means that the
prosecution does not have to prove fault on the part of the defendant. Fault
includes intention if it is with regard to conduct, and
recklessness where it is with regard to a circumstance in which
conduct occurs or a result of conduct. The defendant will be able to
activate the defence of honest or reasonable mistake of fact if he or she can
point to or adduce evidence that he or she made a relevant mistake of fact. If
that occurs, the prosecution bears the onus to prove beyond reasonable doubt
that there was no mistake.
Item 144 – Section 33
This
item amends section 33 to omit the words for the purpose of escaping the
capture by an enemy. The defence is now drafted as a separate subsection
33(2). This amendment is necessary to ensure that the defence is not
mistakenly interpreted to be an element of the offence that must be proved by
the prosecution.
This item also notes that the defendant bears an
evidential burden of proof with regard to the defence provided at subsection
33(2). Criminal Code policy is that the prosecution should prove every
element of the offence relevant to the guilt of the person charged (see
subsection 13.1(1) of the Criminal Code). However, there are some
instances where it is appropriate for a defendant to bear a burden of proof,
such as where a matter is peculiarly within the knowledge of the defendant. In
those instances, the Criminal Code policy is that the burden should be an
evidential burden rather than a legal burden (see subsection 13.3(1) of the
Criminal Code). An evidential burden is lighter than a legal burden.
Subsection 13.3(1) of the Criminal Code provides that, subject to section
13.4, a burden of proof that a law imposes on a defendant is an evidential
burden only. An evidential burden is the burden of adducing or
pointing to evidence that suggests a reasonable possibility that the matter
exists or does not exist (see subsection 13.3(6) of the Criminal
Code), whereas a legal burden is the burden of proving the existence of
the matter (see subsection 13.1(3) of the Criminal
Code).
Subsection 13.3(3) of the Criminal Code provides that a
defendant who wishes to rely on any exception, exemption, excuse, qualification
or justification provided by law creating an offence bears an evidential burden
in such circumstances.
This item also adds a new subsection 33(3) that
provides that strict liability applies to an offence under subsection 33(1).
This amendment does not create a new offence of strict liability. The existing
offence under subsection 33(1) makes the master and owner of the ship
vicariously liable for any contravention of requirements under subsection (1).
Vicarious liability is interpreted as giving rise to strict liability and
therefore not requiring proof of fault. The amendment is necessary to maintain
the current operation of subsection (1). Once the Criminal Code applies,
in the absence of an express reference to the fact that an offence is a strict
liability offence, a court will be required to interpret the offence as a fault
offence rather than a strict liability offence.
The note to subsection
33(3) refers to section 6.1 of the Criminal Code. Section 6.1 provides
that if a law that creates an offence provides that the offence is an offence
of strict liability:
(a) there are no fault elements for any of
the physical elements of the offence; and
(b) the defence of mistake
of fact under section 9.2 is available.
This means that the
prosecution does not have to prove fault on the part of the defendant. Fault
includes intention if it is with regard to conduct, and
recklessness where it is with regard to a circumstance in which
conduct occurs or a result of conduct. The defendant will be able to
activate the defence of honest or reasonable mistake of fact if he or she can
point to or adduce evidence that he or she made a relevant mistake of fact. If
that occurs, the prosecution bears the onus to prove beyond reasonable doubt
that there was no mistake.
Item 145 – After subsection
37A(1)
This item adds a new subsection 37A(1A) that provides that
strict liability applies to the offence under subsection 37A(1). This amendment
does not create a new offence of strict liability. The nature of the offence in
the existing offence under subsection (1) indicates that the offence is strict
liability and therefore not requiring proof of fault. The amendment is
necessary to maintain the current operation of subsection 37A(1). Once the
Criminal Code applies, in the absence of an express reference to the fact
that an offence is a strict liability offence, a court will be required to
interpret the offence as a fault offence rather than a strict liability offence.
The note to subsection 37A(1A) refers to section 6.1 of the Criminal
Code. Section 6.1 provides that if a law that creates an offence
provides that the offence is an offence of strict
liability:
(a) there are no fault elements for any of the physical
elements of the offence; and
(b) the defence of mistake of fact under
section 9.2 is available.
This means that the prosecution does not
have to prove fault on the part of the defendant. Fault includes
intention if it is with regard to conduct, and recklessness
where it is with regard to a circumstance in which conduct occurs or a
result of conduct. The defendant will be able to activate the defence of
honest or reasonable mistake of fact if he or she can point to or adduce
evidence that he or she made a relevant mistake of fact. If that occurs, the
prosecution bears the onus to prove beyond reasonable doubt that there was no
mistake.
Item 146 – After subsection 37A(2)
This item
adds a new subsection 37A(2A) that provides that strict liability applies to the
offence under subsection 37A(2). This amendment does not create a new offence
of strict liability. The nature of the offence in the existing offence under
subsection (2) indicates that the offence is strict liability and therefore not
requiring proof of fault. The amendment is necessary to maintain the current
operation of subsection 37A(2). Once the Criminal Code applies, in the
absence of an express reference to the fact that an offence is a strict
liability offence, a court will be required to interpret the offence as a fault
offence rather than a strict liability offence.
The note to subsection
37(2A) refers to section 6.1 of the Criminal Code. Section 6.1 provides
that if a law that creates an offence provides that the offence is an offence
of strict liability:
(a) there are no fault elements for any of
the physical elements of the offence; and
(b) the defence of mistake
of fact under section 9.2 is available.
This means that the
prosecution does not have to prove fault on the part of the defendant. Fault
includes intention if it is with regard to conduct, and
recklessness where it is with regard to a circumstance in which
conduct occurs or a result of conduct. The defendant will be able to
activate the defence of honest or reasonable mistake of fact if he or she can
point to or adduce evidence that he or she made a relevant mistake of fact. If
that occurs, the prosecution bears the onus to prove beyond reasonable doubt
that there was no mistake.
Item 147 – Section 61
This
item omits the term wilfully from section 61. The use of the word
wilfully in relation to the physical element of conduct, is akin
to the use of intentionally. The fault element of intention is
the equivalent used in the Criminal Code. The omission of the term
wilfully ensures that future courts do not attempt to distinguish
wilfulness from intention on the basis that it appears to differ
from the basic Criminal Code fault element.
Item 148 –
After subsection 64(2)
This item adds a new subsection 64(2A) that
provides that strict liability applies to the offence under subsection 64(2).
This amendment does not create a new offence of strict liability. The nature of
the offence in the existing offence under subsection (2) indicates that the
offence is strict liability and therefore not requiring proof of fault. The
amendment is necessary to maintain the current operation of subsection 64(2).
Once the Criminal Code applies, in the absence of an express reference to
the fact that an offence is a strict liability offence, a court will be required
to interpret the offence as a fault offence rather than a strict liability
offence.
The note to subsection 64(2A) refers to section 6.1 of the
Criminal Code. Section 6.1 provides that if a law that creates an
offence provides that the offence is an offence of strict
liability:
(a) there are no fault elements for any of the physical
elements of the offence; and
(b) the defence of mistake of fact under
section 9.2 is available.
This means that the prosecution does not
have to prove fault on the part of the defendant. Fault includes
intention if it is with regard to conduct, and recklessness
where it is with regard to a circumstance in which conduct occurs or a
result of conduct. The defendant will be able to activate the defence of
honest or reasonable mistake of fact if he or she can point to or adduce
evidence that he or she made a relevant mistake of fact. If that occurs, the
prosecution bears the onus to prove beyond reasonable doubt that there was no
mistake.
Item 149 – Subsection 66(1)
This item
redrafts subsection 66(1) to make clear that knowledge is the fault
element for the physical element of circumstance.
Item 150
– After subsection 68(2)
This item also adds a new subsection
68(2A) that provides that strict liability applies to the offence under
subsection (2). This amendment does not create a new offence of strict
liability. The use of the term fails in the existing offence under
subsection 68(2) is interpreted as strict liability and therefore not requiring
proof of fault. The amendment is necessary to maintain the current operation of
subsection 68(2). Once the Criminal Code applies, in the absence of an
express reference to the fact that an offence is a strict liability offence, a
court will be required to interpret the offence as a fault offence rather than a
strict liability offence.
The note to subsection 68(2A) refers to section
6.1 of the Criminal Code. Section 6.1 provides that if a law that
creates an offence provides that the offence is an offence of strict
liability:
(a) there are no fault elements for any of the physical
elements of the offence; and
(b) the defence of mistake of fact under
section 9.2 is available.
This means that the prosecution does not
have to prove fault on the part of the defendant. Fault includes
intention if it is with regard to conduct, and recklessness
where it is with regard to a circumstance in which conduct occurs or a
result of conduct. The defendant will be able to activate the defence of
honest or reasonable mistake of fact if he or she can point to or adduce
evidence that he or she made a relevant mistake of fact. If that occurs, the
prosecution bears the onus to prove beyond reasonable doubt that there was no
mistake.
Item 151 – After subsection 69(2)
This item adds
a new subsection 69(2A) that provides that strict liability applies to an
offence under subsection 69(2). This amendment does not create a new offence of
strict liability. The existing offence under subsection 69(2) makes the
master and owner of the ship vicariously liable for any contravention of
requirements under subsection (2). Vicarious liability is interpreted as giving
rise to strict liability and therefore not requiring proof of fault. The
amendment is necessary to maintain the current operation of subsection (2).
Once the Criminal Code applies, in the absence of an express reference to
the fact that an offence is a strict liability offence, a court will be required
to interpret the offence as a fault offence rather than a strict liability
offence.
The note to subsection 69(2A) refers to section 6.1 of the
Criminal Code. Section 6.1 provides that if a law that creates an
offence provides that the offence is an offence of strict
liability:
(a) there are no fault elements for any of the physical
elements of the offence; and
(b) the defence of mistake of fact under
section 9.2 is available.
This means that the prosecution does not
have to prove fault on the part of the defendant. Fault includes
intention if it is with regard to conduct, and recklessness
where it is with regard to a circumstance in which conduct occurs or a
result of conduct. The defendant will be able to activate the defence of
honest or reasonable mistake of fact if he or she can point to or adduce
evidence that he or she made a relevant mistake of fact. If that occurs, the
prosecution bears the onus to prove beyond reasonable doubt that there was no
mistake.
Item 152 – After subsection 71(2)
This item
adds a new subsection 71(2A) that provides that strict liability applies to an
offence under subsection 71(2). This amendment does not create a new offence of
strict liability. The existing offence under subsection 71(2) makes the
master and owner of the ship vicariously liable for any contravention of
requirements under subsection (2). Vicarious liability is interpreted as giving
rise to strict liability and therefore not requiring proof of fault. The
amendment is necessary to maintain the current operation of subsection (2).
Once the Criminal Code applies, in the absence of an express reference to
the fact that an offence is a strict liability offence, a court will be required
to interpret the offence as a fault offence rather than a strict liability
offence.
The note to subsection 71(2A) refers to section 6.1 of the
Criminal Code. Section 6.1 provides that if a law that creates an
offence provides that the offence is an offence of strict
liability:
(a) there are no fault elements for any of the physical
elements of the offence; and
(b) the defence of mistake of fact under
section 9.2 is available.
This means that the prosecution does not
have to prove fault on the part of the defendant. Fault includes
intention if it is with regard to conduct, and recklessness
where it is with regard to a circumstance in which conduct occurs or a
result of conduct. The defendant will be able to activate the defence of
honest or reasonable mistake of fact if he or she can point to or adduce
evidence that he or she made a relevant mistake of fact. If that occurs, the
prosecution bears the onus to prove beyond reasonable doubt that there was no
mistake.
Item 153 – Subsection 73(1)
This item omits
or attempts to cause from subsection 73(1). Ancillary offences of
attempting to commit proscribed conduct will be superfluous following
application of the Criminal Code. Section 11.1 of the Criminal
Code creates a general offence of attempt and will be applicable to all
offences against the Commonwealth.
Item 154 – Subsection
74(1)
This item is consequential upon item 156.
Item 155
– Subsection 74(2)
This item is consequential upon item
156.
Item 156 – After subsection 74(4B)
This item
inserts a new subsection 74(4C) to reduce the current term of imprisonment from
12 months to 6 months in line with Criminal Code policy on term of
imprisonment for strict liability offences.
Item 157 – At the end of Part 1
This item inserts a
new section 7A that provides that Chapter 2 of the Criminal Code applies
to all offences against the Ships (Capital Grants) Act 1987. It also
inserts a note that says that Chapter 2 of the Criminal Code sets out the
general principles of criminal responsibility.
Item 158 –
Subsection 17(1)
This item omits the term becomes aware from
subsection 17(1) of the Ships (Capital Grants) Act 1987. The term is
used in relation to the physical element of circumstance. Under the
Criminal Code, the physical element of circumstance will attract
the default element of recklessness and will change the way the offence
currently operates. That fault element is therefore inappropriate and the fault
element of knowledge is specified.
Item 159 – Subsection
30(3)
This item amends subsection 30(3) to omit the words without
reasonable excuse. The defence is now drafted as a separate subsection
30(5) at item 160.
Item 160 – After subsection
30(3)
This item also adds a new subsection 30(4) that provides that
strict liability applies to the offence under subsection (3). This amendment
does not create a new offence of strict liability. The use of the term
fails in the existing offence under subsection 30(3) is interpreted as
strict liability and therefore not requiring proof of fault. The amendment is
necessary to maintain the current operation of subsection 30(3). Once the
Criminal Code applies, in the absence of an express reference to the fact
that an offence is a strict liability offence, a court will be required to
interpret the offence as a fault offence rather than a strict liability
offence.
The note to subsection 30(4) refers to section 6.1 of the
Criminal Code. Section 6.1 provides that if a law that creates an
offence provides that the offence is an offence of strict
liability:
(a) there are no fault elements for any of the physical
elements of the offence; and
(b) the defence of mistake of fact under
section 9.2 is available.
This means that the prosecution does not
have to prove fault on the part of the defendant. Fault includes
intention if it is with regard to conduct, and recklessness
where it is with regard to a circumstance in which conduct occurs or a
result of conduct. The defendant will be able to activate the defence of
honest or reasonable mistake of fact if he or she can point to or adduce
evidence that he or she made a relevant mistake of fact. If that occurs, the
prosecution bears the onus to prove beyond reasonable doubt that there was no
mistake.
This item also notes that the defendant bears an evidential
burden of proof with regard to the defence provided at subsection 30(5).
Criminal Code policy is that the prosecution should prove every element
of the offence relevant to the guilt of the person charged (see subsection
13.1(1) of the Criminal Code). However, there are some instances where
it is appropriate for a defendant to bear a burden of proof, such as where a
matter is peculiarly within the knowledge of the defendant. In those instances,
the Criminal Code policy is that the burden should be an evidential
burden rather than a legal burden (see subsection 13.3(1) of the Criminal
Code). An evidential burden is lighter than a legal burden. Subsection
13.3(1) of the Criminal Code provides that, subject to section 13.4, a
burden of proof that a law imposes on a defendant is an evidential burden
only. An evidential burden is the burden of adducing or pointing
to evidence that suggests a reasonable possibility that the matter exists or
does not exist (see subsection 13.3(6) of the Criminal Code), whereas
a legal burden is the burden of proving the existence of the matter (see
subsection 13.1(3) of the Criminal Code).
Subsection 13.3(3) of
the Criminal Code provides that a defendant who wishes to rely on any
exception, exemption, excuse, qualification or justification provided by law
creating an offence bears an evidential burden in such circumstances.
Item 161 – After section 5
This item inserts a new
section 5A that provides that Chapter 2 of the Criminal Code applies to
all offences against the Submarine Cables and Pipelines Protection Act
1963. It also inserts a note that says that Chapter 2 of the Criminal
Code sets out the general principles of criminal
responsibility.
Item 162 – Subsection 7(1)
This item
repeals subsection 7(1) and substitutes new subsection 7(1) and 7(1A). The
redrafted offence provisions omit the term wilfully from the subsection.
The use of the word wilfully in relation to the physical element of
conduct is akin to the use of intentionally. The fault element of
intention is the equivalent used in the Criminal Code. The
omission of the term wilfully ensures that future courts do not attempt
to distinguish wilfulness from intention on the basis that it
appears to differ from the Criminal Code fault element.
This
amendment has also rephrased the offence to clarify that interrupt, obstruct,
break or injure are physical elements of the result of the
defendant’s conduct to which the default fault element of
recklessness will apply.
The rationale for the amendment is that
an accused person does not interrupt, obstruct, break or injure. Rather,
the interrupting, obstructing, breaking or injuring is the result of the
accused person’s conduct, and is a physical element of result rather than
a physical element of conduct. It follows that using interrupt, obstruct,
break or injure as the active verb in a criminal offence may lead to
difficulties in interpreting the offence following application of the
Criminal Code.
The maximum penalty under this subsection is
$200.
This item also replaces subsection 7(1) with a provision (1A) that
more accurately identifies the physical elements of result in the
pre-existing offence to which the alternative fault element of negligence
applies.
This amendment has rephrased the offence to clarify that the
interrupting, breaking, injuring or obstructing is a physical element of
the result of the defendant’s conduct to which the alternative
fault element of negligence applies.
The maximum penalty under
this subsection is $1,000, or imprisonment for 3 months.
Item 163
– At the end of section 7
This item defines “engage in
conduct” to mean:
(a) do an act; or
(b) omit to perform an
act.
This definition is consistent with the definition at subsection
4.1(2) of the Criminal Code.
Item 164 – Section 3
This item defines “engage
in conduct” to mean:
(a) do an act; or
(b) omit to perform an
act.
This definition is consistent with the definition at subsection
4.1(2) of the Criminal Code.
Item 165 – After section
3
This item inserts a new section 3A that provides that Chapter 2 of
the Criminal Code (except Part 2.5) applies to all offences against the
Sydney Airport Curfew Act 1995. It also inserts a note that says that
Chapter 2 of the Criminal Code sets out the general principles of
criminal responsibility.
Part 2.5 of the Criminal Code is the only
Part of Chapter 2 that does not automatically apply to offences. When the
Criminal Code was introduced into the Senate on 30 June 1994, it was
stated that Part 2.5 would be the basis of corporate criminal liability if no
other basis were provided. Section ? of the Sydney Airport Curfew Act
1995 deals with corporate criminal responsibility by vicariously
establishing criminal responsibility for corporations as a result of the conduct
of its directors, employees or agents. The disapplication of Part 2.5 is
necessary to prevent competing corporate criminal liability regimes operating in
relation to the same criminal offences.
Item 166 – Subsection
7(2)
This item amends subsection 7(2) to delete the alternative fault
elements of knowingly or recklessly that currently apply to the physical
element of conduct in the offence. Under the Criminal Code the fault
elements of knowingly or recklessly can only apply to the physical
elements of circumstances of conduct or result of conduct (see
Division 5, Part 2.2, Chapter2 of the Criminal Code). Once omitted, the
fault element of intention will apply to the physical element of
conduct in the offence. The fault element of recklessness will
apply to the physical element of circumstances in the offence (see
section 5.6 of the Criminal Code). Section 5.4 of the Criminal
Code provides that where recklessness is the fault element for a
physical element of an offence, proof of intention, knowledge or
recklessness will satisfy that fault element. Thus, the actions of the
defendant who either had the requisite knowledge or recklessness
will be criminalised.
This item also inserts a provision at subsection
7(3) that strict liability applies to an offence under subsection (2)(b). This
amendment ensures that the provision is not interpreted as requiring the
prosecution to prove, as part of the offence, that the defendant had knowledge
of the requirements of subsection (1).
Subsection 9.3(1) of the
Criminal Code provides that mistake or ignorance of statute law is no
excuse. Subsection 9.3(2) provides that subsection 9.3(1) does not apply if the
particular Act is expressly or impliedly to the contrary effect. This amendment
does not create a new offence of strict liability. The amendment is necessary
to maintain the current operation of section 29, and ensure that it is not
interpreted to indicate a contrary intention for the purposes of section 9.3 of
the Criminal Code.
Item 167 – Subsection
8(2)
This item replaces subsection 8(2) with a provision that more
accurately identifies the physical elements of conduct and result in the
offence, to which the default fault elements of intention and recklessness,
will be applied by the Criminal Code.
This amendment has
rephrased the offence to clarify that:
• paragraph 8(2)(a) is the
physical element of conduct to which the default fault element of
intention will apply; and
• paragraph 8(2)(b) is the physical
element of result to which the default element of recklessness
will apply.
The maximum penalty under this subsection is 50 penalty
units.
This item also adds a new subsection 8(2A) that provides that
strict liability applies to the offence under subsection (2)(b). This amendment
does not create a new offence of strict liability. The use of the term
fails in the existing offence under paragraph 8(2)(b) is interpreted as
strict liability and therefore not requiring proof of fault. The amendment is
necessary to maintain the current operation of paragraph (2)(b). Once the
Criminal Code applies, in the absence of an express reference to the fact
that an offence is a strict liability offence, a court will be required to
interpret the offence as a fault offence rather than a strict liability
offence.
The note to subsection 8(2A) refers to section 6.1 of the
Criminal Code. Section 6.1 provides that if a law that creates an
offence provides that the offence is an offence of strict
liability:
(e) there are no fault elements for the any of the
physical elements of the offence; and
(f) the defence of mistake of
fact under section 9.2 is available.
This means that the prosecution
does not have to prove fault on the part of the defendant. Fault includes
intention if it is with regard to conduct, and recklessness
where it is with regard to a circumstance in which conduct occurs or a
result of conduct. The defendant will be able to activate the defence of
honest or reasonable mistake of fact if he or she can point to or adduce
evidence that he or she made a relevant mistake of fact. If that occurs, the
prosecution bears the onus to prove beyond reasonable doubt that there was no
mistake.
Item 168 – Subsection 9(2)
This item
replaces subsection 9(2) with a provision that more accurately identifies the
physical elements of conduct and result in the offence, to which the
default fault elements of intention and recklessness, will be applied by
the Criminal Code.
This amendment has rephrased the offence to
clarify that:
• paragraph 9(2)(a) is the physical element of
conduct to which the default fault element of intention will
apply; and
• paragraph 9(2)(b) is the physical element of result
to which the default element of recklessness will apply.
The
maximum penalty under this subsection is 50 penalty units.
This item also
adds a new subsection 9(2A) that provides that strict liability applies to the
offence under subsection (2)(b). This amendment does not create a new offence
of strict liability. The use of the term fails in the existing offence
under paragraph 9(2)(b) is interpreted as strict liability and therefore not
requiring proof of fault. The amendment is necessary to maintain the current
operation of paragraph (2)(b). Once the Criminal Code applies, in the
absence of an express reference to the fact that an offence is a strict
liability offence, a court will be required to interpret the offence as a fault
offence rather than a strict liability offence.
The note to subsection
9(2A) refers to section 6.1 of the Criminal Code. Section 6.1 provides
that if a law that creates an offence provides that the offence is an offence
of strict liability:
(g) there are no fault elements for the any
of the physical elements of the offence; and
(h) the defence of
mistake of fact under section 9.2 is available.
This means that the
prosecution does not have to prove fault on the part of the defendant. Fault
includes intention if it is with regard to conduct, and
recklessness where it is with regard to a circumstance in which
conduct occurs or a result of conduct. The defendant will be able to
activate the defence of honest or reasonable mistake of fact if he or she can
point to or adduce evidence that he or she made a relevant mistake of fact. If
that occurs, the prosecution bears the onus to prove beyond reasonable doubt
that there was no mistake.
Item 169 – Subsection
10(2)
This item amends subsection 10(2) to delete the alternative
fault elements of knowingly or recklessly that currently apply to the
physical element of conduct in the offence. Under the Criminal Code the
fault elements of knowingly or recklessly can only apply to the physical
elements of circumstances of conduct or result of conduct (see
Division 5, Part 2.2, Chapter2 of the Criminal Code). Once omitted, the
fault element of intention will apply to the physical element of
conduct in the offence. The fault element of recklessness will
apply to the physical element of circumstances in the offence (see
section 5.6 of the Criminal Code). Section 5.4 of the Criminal
Code provides that where recklessness is the fault element for a
physical element of an offence, proof of intention, knowledge or
recklessness will satisfy that fault element. Thus, the actions of the
defendant who either had the requisite knowledge or recklessness
will be criminalised.
This item also inserts a provision at subsection
10(3) that strict liability applies to an offence under subsection (2)(b). This
amendment ensures that the provision is not interpreted as requiring the
prosecution to prove, as part of the offence, that the defendant had knowledge
of the requirements of subsection (1).
Subsection 9.3(1) of the
Criminal Code provides that mistake or ignorance of statute law is no
excuse. Subsection 9.3(2) provides that subsection 9.3(1) does not apply if the
particular Act is expressly or impliedly to the contrary effect. This amendment
does not create a new offence of strict liability. The amendment is necessary
to maintain the current operation of section 29, and ensure that it is not
interpreted to indicate a contrary intention for the purposes of section 9.3 of
the Criminal Code.
Item 170 – Subsection
11(3)
This item amends subsection 11(3) to delete the alternative
fault elements of knowingly or recklessly that currently apply to the
physical element of conduct in the offence. Under the Criminal Code the
fault elements of knowingly or recklessly can only apply to the physical
elements of circumstances of conduct or result of conduct (see
Division 5, Part 2.2, Chapter2 of the Criminal Code). Once omitted, the
fault element of intention will apply to the physical element of
conduct in the offence. The fault element of recklessness will
apply to the physical element of circumstances in the offence (see
section 5.6 of the Criminal Code). Section 5.4 of the Criminal
Code provides that where recklessness is the fault element for a
physical element of an offence, proof of intention, knowledge or
recklessness will satisfy that fault element. Thus, the actions of the
defendant who either had the requisite knowledge or recklessness
will be criminalised.
This item also inserts a provision at subsection
11(3A) that strict liability applies to an offence under subsection (3)(b).
This amendment ensures that the provision is not interpreted as requiring the
prosecution to prove, as part of the offence, that the defendant had knowledge
of the requirements of subsection (1) or (2).
Subsection 9.3(1) of
the Criminal Code provides that mistake or ignorance of statute law is no
excuse. Subsection 9.3(2) provides that subsection 9.3(1) does not apply if the
particular Act is expressly or impliedly to the contrary effect. This amendment
does not create a new offence of strict liability. The amendment is necessary
to maintain the current operation of section 29, and ensure that it is not
interpreted to indicate a contrary intention for the purposes of section 9.3 of
the Criminal Code.
Item 171 – Subsection
21(2)
This item amends subsection 21(2) to delete the alternative
fault elements of knowingly or recklessly that currently apply to the
physical element of conduct in the offence. Under the Criminal Code the
fault elements of knowingly or recklessly can only apply to the physical
elements of circumstances of conduct or result of conduct (see
Division 5, Part 2.2, Chapter2 of the Criminal Code). Once omitted, the
fault element of intention will apply to the physical element of
conduct in the offence. The fault element of recklessness will
apply to the physical element of circumstances in the offence (see
section 5.6 of the Criminal Code). Section 5.4 of the Criminal
Code provides that where recklessness is the fault element for a
physical element of an offence, proof of intention, knowledge or
recklessness will satisfy that fault element. Thus, the actions of the
defendant who either had the requisite knowledge or recklessness
will be criminalised.
Item 172 – Section 22
This item
amends section 22 to delete the alternative fault elements of knowingly or
recklessly that currently apply to the physical element of conduct in the
offence. Under the Criminal Code the fault elements of knowingly or
recklessly can only apply to the physical elements of circumstances
of conduct or result of conduct (see Division 5, Part 2.2, Chapter2 of
the Criminal Code). Once omitted, the fault element of intention
will apply to the physical element of conduct in the offence. The fault
element of recklessness will apply to the physical element of
circumstances in the offence (see section 5.6 of the Criminal
Code). Section 5.4 of the Criminal Code provides that where
recklessness is the fault element for a physical element of an offence,
proof of intention, knowledge or recklessness will satisfy
that fault element. Thus, the actions of the defendant who either had the
requisite knowledge or recklessness will be
criminalised.
Item 173 – Subsection 25(5) (definition of offence
against this Act)
This item omits the reference to section 6,
7 or 7A or subsection 86(1) of the Crimes Act 1914 in subsection 41F(9), and
substitutes the reference to section 6 of the Crimes Act 1914 or section
11.1, 11.4 or 11.5 of the Criminal Code. Sections 7 and 7A of the
Crimes Act 1914 are concerned with the offences of attempt and inciting
or urging the commission of an offence, while subsection 86(1) is concerned with
the offence of conspiracy. These sections were repealed by the Law and
Justice Legislation Amendment (Application of Criminal Code) Act 2000. The
equivalent provisions in the Criminal Code are sections 11.1, 11.4 and
11.5 respectively.
Item 1 – At the end of Part 1
This item inserts a new
section 5A that provides that Chapter 2 of the Criminal Code applies to
all offences against the Albury-Wodonga Development Act 1973. It also
inserts a note that says that Chapter 2 of the Criminal Code sets out the
general principles of criminal responsibility.
Item 2 – At the
end of section 16
This item adds a new subsection 16(4) that provides
that strict liability applies to the offence under section 16. This amendment
does not create a new offence of strict liability. The use of the term
fails in the existing offence under section 16 is interpreted as strict
liability and therefore not requiring proof of fault. The amendment is
necessary to maintain the current operation of section16. Once the Criminal
Code applies, in the absence of an express reference to the fact that an
offence is a strict liability offence, a court will be required to interpret the
offence as a fault offence rather than a strict liability offence.
The
note to subsection 16(4) refers to section 6.1 of the Criminal Code.
Section 6.1 provides that if a law that creates an offence provides that the
offence is an offence of strict liability:
(c) there are no fault
elements for any of the physical elements of the offence; and
(d) the
defence of mistake of fact under section 9.2 is available.
This means
that the prosecution does not have to prove fault on the part of the defendant.
Fault includes intention if it is with regard to conduct, and
recklessness where it is with regard to a circumstance in which
conduct occurs or a result of conduct. The defendant will be able to
activate the defence of honest or reasonable mistake of fact if he or she can
point to or adduce evidence that he or she made a relevant mistake of fact. If
that occurs, the prosecution bears the onus to prove beyond reasonable doubt
that there was no mistake.
Item 3 – At the end of section
30
This item adds a new subsection 30(9) that provides that strict
liability applies to the offence under subsection 30(8). This amendment does
not create a new offence of strict liability. The nature of the offence and the
low level penalty in the existing offence under subsection 30(8) indicates that
the offence is strict liability and therefore not requiring proof of fault. The
amendment is necessary to maintain the current operation of subsection 30(8).
Once the Criminal Code applies, in the absence of an express reference to
the fact that an offence is a strict liability offence, a court will be required
to interpret the offence as a fault offence rather than a strict liability
offence.
The note to subsection 30(9) refers to section 6.1 of the
Criminal Code. Section 6.1 provides that if a law that creates an
offence provides that the offence is an offence of strict
liability:
(a) there are no fault elements for any of the physical
elements of the offence; and
(b) the defence of mistake of fact under
section 9.2 is available.
This means that the prosecution does not
have to prove fault on the part of the defendant. Fault includes
intention if it is with regard to conduct, and recklessness
where it is with regard to a circumstance in which conduct occurs or a
result of conduct. The defendant will be able to activate the defence of
honest or reasonable mistake of fact if he or she can point to or adduce
evidence that he or she made a relevant mistake of fact. If that occurs, the
prosecution bears the onus to prove beyond reasonable doubt that there was no
mistake.
Item 4 – After section 6
This item inserts a new
section 6A to specifically disapply Chapter 2 of the Criminal Code to the
criminal law of the Northern Territory that is applied to the Commonwealth
non-self-governing Territory of Ashmore and Cartier Islands, by virtue of
section 6 of the Ashmore and Cartier Islands Acceptance Act 1933.
Chapter 2 of the Criminal Code will apply to all offences created
by or under the authority of a Commonwealth Act (see Schedule, Section 1.1,
Criminal Code Act 1995). The Criminal Code is also expressly
applied to all of the external territories (section 3A Criminal Code Act
1995). Therefore, if this amendment is not made, the Chapter 2 principles
will apply to Northern Territory offences applied under the Commonwealth Act.
As the Commonwealth cannot harmonise State or Territory offences, this may
result in the Ashmore and Cartier Islands Territory having unworkable criminal
offences.
Item 5 – After subsection 6(2)
This item inserts a
new subsection 6 (2A) to specifically disapply Chapter 2 of the Criminal
Code to the criminal law of the Jervis Bay Territory that is applied to the
Commonwealth non-self-governing Australian Antarctic Territory, by virtue of
section 6 of the Australian Antarctic Territory Act 1954.
Chapter 2 of the Criminal Code will apply to all offences created
by or under the authority of a Commonwealth Act (see Schedule, Section 1.1,
Criminal Code Act 1995). The Criminal Code is also expressly
applied to all of the external territories (section 3A Criminal Code Act
1995). Therefore, if this amendment is not made, the Chapter 2 principles
will apply to Jervis Bay Territory offences applied under the Commonwealth Act.
As the Commonwealth cannot harmonise State or Territory offences, this may
result in the Australian Antarctic Territory having unworkable criminal
offences.
Item 6 – At the end of Part 1
This item inserts a new
section 4A that provides that Chapter 2 of the Criminal Code applies to
all offences against the Australian Capital Territory Taxation
(Administration) Act 1969. It also inserts a note that says that Chapter 2
of the Criminal Code sets out the general principles of criminal
responsibility.
Item 7 – Subsection 8(2)
This item
omits the defence of lawful authority from subsection 8(2). The defence
of lawful authority is included in the Criminal Code (see section
10.5 of the Criminal Code). The defence applies to all offence
provisions under Commonwealth law, and the specific mention in subsection 8(2)
is redundant.
Item 8 – Paragraph 21(1)(a)
This item
omits the term deface and substitutes do an act that results in the
defacing of. This amendment has reconstructed the offence to clarify that
defacing is a physical result of the accused person’s
conduct to which the fault element of recklessness will
apply.
The rationale behind the amendment is that an accused person does
not deface. Rather, the defacing is the result of the accused
person’s conduct, and is a physical element of result rather
than a physical element of conduct. Using deface as the active
verb in a criminal offence may lead to difficulties in interpreting the offence
following application of the Criminal Code. Reconstructing the offence
enables the physical elements of conduct and result to be better
identified.
Item 9 – Subsection 17(4)
This item omits
the defence of lawful authority from subsection 17(4). The defence of
lawful authority is included in the Criminal Code (see section
10.5 of the Criminal Code). The defence applies to all offence
provisions under Commonwealth law, and the specific mention in subsection 17(4)
is redundant.
Item 10 – At the end of section 19
This
item adds a new subsection 19(2) that provides that strict liability applies to
the offence under paragraph 19(1)(a) or (b). This amendment does not create a
new offence of strict liability. The use of the term shall, the nature
of the offence and the low level penalty in the existing offences under
paragraphs 19(1) (a) and (b) indicates that the offence is strict liability and
therefore not requiring proof of fault. The amendment is necessary to maintain
the current operation of paragraphs 19(1) (a) and (b). Once the Criminal
Code applies, in the absence of an express reference to the fact that an
offence is a strict liability offence, a court will be required to interpret the
offence as a fault offence rather than a strict liability offence.
The
note to subsection 19(2) refers to section 6.1 of the Criminal Code.
Section 6.1 provides that if a law that creates an offence provides that the
offence is an offence of strict liability:
(a) there are no fault
elements for any of the physical elements of the offence; and
(b) the
defence of mistake of fact under section 9.2 is available.
This means
that the prosecution does not have to prove fault on the part of the defendant.
Fault includes intention if it is with regard to conduct, and
recklessness where it is with regard to a circumstance in which
conduct occurs or a result of conduct. The defendant will be able to
activate the defence of honest or reasonable mistake of fact if he or she can
point to or adduce evidence that he or she made a relevant mistake of fact. If
that occurs, the prosecution bears the onus to prove beyond reasonable doubt
that there was no mistake.
Item 11 – After subsection
39(1)
This item adds a new subsection 39(1A) that provides that
strict liability applies to the offence under subsection 39(1). This amendment
does not create a new offence of strict liability. The nature of the offence
and the low penalty in the existing offence under subsection 39(1) indicates
that the offence is strict liability and therefore not requiring proof of fault.
The amendment is necessary to maintain the current operation of subsection
39(1). Once the Criminal Code applies, in the absence of an express
reference to the fact that an offence is a strict liability offence, a court
will be required to interpret the offence as a fault offence rather than a
strict liability offence.
The note to subsection 39(1A) refers to
section 6.1 of the Criminal Code. Section 6.1 provides that if a law
that creates an offence provides that the offence is an offence of strict
liability:
(c) there are no fault elements for any of the physical
elements of the offence; and
(d) the defence of mistake of fact under
section 9.2 is available.
This means that the prosecution does not
have to prove fault on the part of the defendant. Fault includes
intention if it is with regard to conduct, and recklessness
where it is with regard to a circumstance in which conduct occurs or a
result of conduct. The defendant will be able to activate the defence of
honest or reasonable mistake of fact if he or she can point to or adduce
evidence that he or she made a relevant mistake of fact. If that occurs, the
prosecution bears the onus to prove beyond reasonable doubt that there was no
mistake.
Item 12 – After subsection 44B(1)
This item
adds a new subsection 44B(1A) that provides that strict liability applies to the
offence under subsection 44B(1). This amendment does not create a new offence
of strict liability. The nature of the offence and the low level penalty in the
existing offence under subsection 44B(1) indicates that the offence is strict
liability and therefore not requiring proof of fault. The amendment is
necessary to maintain the current operation of subsection 44B(1). Once the
Criminal Code applies, in the absence of an express reference to the fact
that an offence is a strict liability offence, a court will be required to
interpret the offence as a fault offence rather than a strict liability offence.
The note to subsection 44B(1A) refers to section 6.1 of the Criminal
Code. Section 6.1 provides that if a law that creates an offence
provides that the offence is an offence of strict
liability:
(a) there are no fault elements for any of the physical
elements of the offence; and
(b) the defence of mistake of fact under
section 9.2 is available.
This means that the prosecution does not
have to prove fault on the part of the defendant. Fault includes
intention if it is with regard to conduct, and recklessness
where it is with regard to a circumstance in which conduct occurs or a
result of conduct. The defendant will be able to activate the defence of
honest or reasonable mistake of fact if he or she can point to or adduce
evidence that he or she made a relevant mistake of fact. If that occurs, the
prosecution bears the onus to prove beyond reasonable doubt that there was no
mistake.
Item 13 – Subsection 52(3)
This item omits
the defence of lawful authority from subsection 52(3). The defence of
lawful authority is included in the Criminal Code (see section
10.5 of the Criminal Code). The defence applies to all offence
provisions under Commonwealth law, and the specific mention in subsection 52(3)
is redundant.
Item 14 – Subsection 84(2)
This item
omits the phrase refuses or from subsection 84(2).
Item 15
– After subsection 84(2)
This item adds a new subsection
84(2AA) that provides that strict liability applies to the offence under
subsection 84(2). This amendment does not create a new offence of strict
liability. The use of the term fails in the existing offence under
subsection 84(2) indicates that the offence is strict liability and therefore
not requiring proof of fault. The amendment is necessary to maintain the
current operation of subsection 84(2). Once the Criminal Code applies,
in the absence of an express reference to the fact that an offence is a strict
liability offence, a court will be required to interpret the offence as a fault
offence rather than a strict liability offence.
The note to subsection
84(2AA) refers to section 6.1 of the Criminal Code. Section 6.1 provides
that if a law that creates an offence provides that the offence is an offence
of strict liability:
(a) there are no fault elements for any of
the physical elements of the offence; and
(b) the defence of mistake
of fact under section 9.2 is available.
This means that the
prosecution does not have to prove fault on the part of the defendant. Fault
includes intention if it is with regard to conduct, and
recklessness where it is with regard to a circumstance in which
conduct occurs or a result of conduct. The defendant will be able to
activate the defence of honest or reasonable mistake of fact if he or she can
point to or adduce evidence that he or she made a relevant mistake of fact. If
that occurs, the prosecution bears the onus to prove beyond reasonable doubt
that there was no mistake.
Item 16 – After section 3
This item inserts a new
section 3A that provides that Chapter 2 of the Criminal Code applies to
all offences against the Canberra Water Supply (Googong Dam) Act 1974.
It also inserts a note that says that Chapter 2 of the Criminal Code sets
out the general principles of criminal responsibility.
Item 17 –
At the end of section 7
This item adds a new subsection 7(4) that
provides that strict liability applies to the offence under subsection 7(3).
This amendment does not create a new offence of strict liability. The nature of
the offence and the low level penalty in the existing offence under subsection
7(3) indicates that the offence is strict liability and therefore not requiring
proof of fault. The amendment is necessary to maintain the current operation of
subsection 7(3). Once the Criminal Code applies, in the absence of an
express reference to the fact that an offence is a strict liability offence, a
court will be required to interpret the offence as a fault offence rather than a
strict liability offence.
The note to subsection 7(4) refers to section
6.1 of the Criminal Code. Section 6.1 provides that if a law that
creates an offence provides that the offence is an offence of strict
liability:
(a) there are no fault elements for any of the physical
elements of the offence; and
(b) the defence of mistake of fact under
section 9.2 is available.
This means that the prosecution does not
have to prove fault on the part of the defendant. Fault includes
intention if it is with regard to conduct, and recklessness
where it is with regard to a circumstance in which conduct occurs or a
result of conduct. The defendant will be able to activate the defence of
honest or reasonable mistake of fact if he or she can point to or adduce
evidence that he or she made a relevant mistake of fact. If that occurs, the
prosecution bears the onus to prove beyond reasonable doubt that there was no
mistake.
Item 18 – Subsection 8(3)
This item omits
the words without reasonable excuse from subsection 8(3). The defence is
drafted as a new subsection 8(3A) at item 19.
Item 19 – After
subsection 8(3)
This item is consequential upon item 18, and provides
a defence of reasonable excuse in relation to the offence at subsection
8(3). This amendment is necessary to ensure that the defence is not mistakenly
interpreted to be an element of the offence that must be proved by the
prosecution.
This item also notes that the defendant bears an evidential
burden of proof with regard to the matter in subsection 8(3). Criminal
Code policy is that the prosecution should prove every element of the
offence relevant to the guilt of the person charged (see subsection 13.1(1) of
the Criminal Code). However, there are some instances where it is
appropriate for a defendant to bear a burden of proof, such as where a matter is
peculiarly within the knowledge of the defendant. In those instances, the
Criminal Code policy is that the burden should be an evidential burden
rather than a legal burden (see subsection 13.3(1) of the Criminal Code).
An evidential burden is lighter than a legal burden. An evidential burden is
the burden of adducing or pointing to evidence that suggests a reasonable
possibility that the matter exists or does not exist (see subsection 13.3(6) of
the Criminal Code), whereas a legal burden is the burden of proving
the existence of the matter (see subsection 13.3(3) of the Criminal
Code).
Item 20 – Section 14
This amendment
reconstructs the offence at section 14 to clarify that damage is a
physical result of the accused person’s conduct to which the
fault element of recklessness will apply.
The rationale behind the
amendment is that an accused person does not damage. Rather, the
damage is the result of the accused person’s conduct, and is
a physical element of result rather than a physical element of
conduct. Using damage as the active verb in a criminal offence
may lead to difficulties in interpreting the offence following application of
the Criminal Code. Reconstructing the offence enables the physical
elements of conduct and result to be better identified.
This item omits the terms maliciously or fraudulently from
section 15. Following application of the Criminal Code it will not be
possible to apply a fault element of maliciously or fraudulently to a
physical element of conduct (see Part 2.2, Division 5 of the Criminal
Code). The Criminal Code will apply intention as the fault
element for the physical element of conduct.
This item omits the defence of lawful authority from section 19.
The defence of lawful authority is included in the Criminal Code
(see section 10.5 of the Criminal Code). The defence applies to all
offence provisions under Commonwealth law, and the specific mention in section
19 is redundant.
Item 23 – Section 21
This item
removes the phrase remove, move, damage, deface, obscure, cover up or
otherwise interfere with a sign erected, placed or displayed under section 17 or
19 and substitutes do an act that results in the removal, moving,
defacing, damaging, obscuring or covering up of a sign erected, placed or
displayed under section 17 or 19, or otherwise interfere with such a
sign.
This amendment reconstructs the offence at section 21 to
clarify that remove, move, damage, deface, obscure, cover up or otherwise
interfere is a physical result of the accused person’s
conduct to which the fault element of recklessness will
apply.
The rationale behind the amendment is that an accused person does
not remove, move, damage, deface, obscure, cover up or otherwise interfere.
Rather, remove, move, damage, deface, obscure, cover up or otherwise
interfere is the result of the accused person’s conduct, and is
a physical element of result rather than a physical element of
conduct. Using remove, move, damage, deface, obscure, cover up or
otherwise interfere as the active verb in a criminal offence may lead to
difficulties in interpreting the offence following application of the
Criminal Code. Reconstructing the offence enables the physical elements
of conduct and result to be better identified.
Item 24
– At the end of section 21
This item adds a new subsection
21(2) that provides that strict liability applies to the offence under
subsection 21(1). This amendment does not create a new offence of strict
liability. The nature of the offence and the low level penalty in the existing
offence under subsection 21(1) indicates that the offence is strict liability
and therefore not requiring proof of fault. The amendment is necessary to
maintain the current operation of subsection 21(1). Once the Criminal
Code applies, in the absence of an express reference to the fact that an
offence is a strict liability offence, a court will be required to interpret the
offence as a fault offence rather than a strict liability offence.
The
note to subsection 21(2) refers to section 6.1 of the Criminal Code.
Section 6.1 provides that if a law that creates an offence provides that the
offence is an offence of strict liability:
(a) there are no fault
elements for any of the physical elements of the offence; and
(b) the
defence of mistake of fact under section 9.2 is available.
This means
that the prosecution does not have to prove fault on the part of the defendant.
Fault includes intention if it is with regard to conduct, and
recklessness where it is with regard to a circumstance in which
conduct occurs or a result of conduct. The defendant will be able to
activate the defence of honest or reasonable mistake of fact if he or she can
point to or adduce evidence that he or she made a relevant mistake of fact. If
that occurs, the prosecution bears the onus to prove beyond reasonable doubt
that there was no mistake.
Item 25 – At the end of Part 1
This item inserts a
new subsection 4A(1) that provides that Chapter 2 of the Criminal Code
applies to all offences that are created by the Christmas Island Act
1958. It also inserts a note that Chapter 2 of the Criminal Code
sets out the general principles of criminal responsibility.
This item
also inserts a new subsection 4A (2) to specifically disapply Chapter 2 of the
Criminal Code to the criminal law of Western Australia that is applied to
the Commonwealth non-self-governing Territory of Christmas Island, by virtue of
Section 8A of the Christmas Island Act 1958.
Chapter 2 of the
Criminal Code will apply to all offences created by or under the
authority of a Commonwealth Act (see Schedule, Section 1.1, Criminal Code Act
1995). The Criminal Code is also expressly applied to all of the
external territories (section 3A Criminal Code Act 1995). Therefore, if
this amendment is not made, the Chapter 2 principles will apply to Western
Australian offences applied under the Commonwealth Act. As the Commonwealth
cannot harmonise State or Territory offences, this may result in the Territory
of Christmas Island having unworkable criminal offences.
Item 26 – Subsection 12B(1)
This item omits the words
without reasonable excuse from subsection 12B(1). The defence is drafted
as a new subsection 12B(1A) at item 27.
Item 27 – After
subsection 12B(1)
This item is consequential upon item 26, and
provides a defence of reasonable excuse in relation to the offence at
subsection 12B(1). This amendment is necessary to ensure that the defence is
not mistakenly interpreted to be an element of the offence that must be proved
by the prosecution.
This item also notes that the defendant bears an
evidential burden of proof with regard to the matter in subsection 12B(1A).
Criminal Code policy is that the prosecution should prove every element
of the offence relevant to the guilt of the person charged (see subsection
13.1(1) of the Criminal Code). However, there are some instances where
it is appropriate for a defendant to bear a burden of proof, such as where a
matter is peculiarly within the knowledge of the defendant. In those instances,
the Criminal Code policy is that the burden should be an evidential
burden rather than a legal burden (see subsection 13.3(1) of the Criminal
Code). An evidential burden is lighter than a legal burden. An evidential
burden is the burden of adducing or pointing to evidence that suggests a
reasonable possibility that the matter exists or does not exist (see subsection
13.3(6) of the Criminal Code), whereas a legal burden is the burden of
proving the existence of the matter (see subsection 13.3(3) of the
Criminal Code).
Item 28 – Subsection
12B(2)
This item omits the phrase or attempt to personate, a
person who is a juror for the purpose and substitutes a person who is a
juror with the intention.
The offence of attempt is provided
at section 11.1 of the Criminal Code and specific mention at subsection
12B(2) is redundant.
The phrase for the purpose should no longer
be used as part of a physical element of an offence because of the potential
confusion as to the applicable fault element. The confusion could arise because
most offences do not specify the fault element and because the phrase for the
purpose is sometimes used to mean with the intention of and is
sometimes used to mean to achieve the result of. Where it is used to
mean with the intention of it will be an additional fault element for a
physical element of conduct, but where it is used to mean to achieve the
result of it will be part of a physical element of result and will thereby
attract the fault element of recklessness.
Substituting the phrase
with the intention, makes clear that it is the fault element for the
physical element of conduct.
Item 29 – Paragraph
12B(3)(a)
This amendment reconstructs the offence at paragraph
12B(3)(a) to clarify that corrupt is a physical result of the
accused person’s conduct to which the fault element of
recklessness will apply.
The rationale behind the amendment is
that an accused person does not corrupt. Rather, corrupt is the
result of the accused person’s conduct, and is a physical element
of result rather than a physical element of conduct. Using
corrupt as the active verb in a criminal offence may lead to difficulties
in interpreting the offence following application of the Criminal Code.
Reconstructing the offence enables the physical elements of conduct and
result to be better identified.
This item also omits the phrase
or attempt to corrupt. The offence of attempt is provided at
section 11.1 of the Criminal Code and specific mention at subsection
12B(3)(a) is redundant.
Item 30 – Paragraph
12B(3)(b)
This item omits the phrase except as provided by law
from paragraph 12B(3)(b). The defence of lawful authority is included in
the Criminal Code (see section 10.5 of the Criminal Code). The
defence applies to all offence provisions under Commonwealth law, and the
specific mention in paragraph 12B(3)(b) is redundant.
Item 31 –
Subsection 12B(4)
This item defines engage in conduct to
mean:
(a) do an act; or
(b) omit to perform an act.
This
definition is consistent with the definition at subsection 4.1 of the
Criminal Code.
Item 32 – At the end of Part 1
This item inserts a
new subsection 4A(1) that provides that Chapter 2 of the Criminal Code
applies to all offences that are created by the Cocos (Keeling)
Islands Act 1955. It also inserts a note that Chapter 2 of the
Criminal Code sets out the general principles of criminal
responsibility.
This item inserts a new subsection 4A (2) to specifically
disapply Chapter 2 of the Criminal Code to the criminal law of Western
Australia that is applied to the Commonwealth non-self-governing Territory of
Cocos (Keeling) Islands, by virtue of section 8A of the Cocos (Keeling)
Islands Act 1955.
Chapter 2 of the Criminal Code will
apply to all offences created by or under the authority of a Commonwealth Act
(see Schedule, Section 1.1, Criminal Code Act 1995). The Criminal
Code is also expressly applied to all of the external territories (section
3A Criminal Code Act 1995). Therefore, if this amendment is not made,
the Chapter 2 principles will apply to Western Australian offences applied under
the Commonwealth Act. As the Commonwealth cannot harmonise State or Territory
offences, this may result in the Territory of Cocos (Keeling) Islands having
unworkable criminal offences.
Item 33 – Subsection 15AE(2)
This item omits the
words without reasonable excuse from subsection 15AE(2). The defence is
drafted as a new subsection 15AE(2A) at item 34.
Item 34 – After
subsection 15AE(2)
This item is consequential upon item 33, and
provides a defence of reasonable excuse in relation to the offence at
subsection 15AE(2). This amendment is necessary to ensure that the defence is
not mistakenly interpreted to be an element of the offence that must be proved
by the prosecution.
This item also notes that the defendant bears an
evidential burden of proof with regard to the matter in subsection 12AE(2A).
Criminal Code policy is that the prosecution should prove every element
of the offence relevant to the guilt of the person charged (see subsection
13.1(1) of the Criminal Code). However, there are some instances where
it is appropriate for a defendant to bear a burden of proof, such as where a
matter is peculiarly within the knowledge of the defendant. In those instances,
the Criminal Code policy is that the burden should be an evidential
burden rather than a legal burden (see subsection 13.3(1) of the Criminal
Code). An evidential burden is lighter than a legal burden. An evidential
burden is the burden of adducing or pointing to evidence that suggests a
reasonable possibility that the matter exists or does not exist (see subsection
13.3(6) of the Criminal Code), whereas a legal burden is the burden of
proving the existence of the matter (see subsection 13.3(3) of the
Criminal Code).
Item 35 – Subsection
15AE(3)
This item omits the phrase or attempt to personate, a
person who is a juror for the purpose, and substitutes the phrase a
person who is a juror with the intention.
The offence of
attempt is provided at section 11.1 of the Criminal Code and
specific mention at subsection 12AE(3) is redundant.
The phrase for
the purpose should no longer be used as part of a physical element of an
offence because of the potential confusion as to the applicable fault element.
The confusion could arise because most offences do not specify the fault element
and because the phrase for the purpose is sometimes used to mean with
the intention of and is sometimes used to mean to achieve the result
of. Where it is used to mean with the intention of it will be an
additional fault element for a physical element of conduct, but where it is used
to mean to achieve the result of it will be part of a physical element of
result and will thereby attract the fault element of
recklessness.
Substituting the phrase with the intention,
makes clear that it is the fault element for the physical element of
conduct.
Item 36 – Paragraph 15AE(4)(a)
This
amendment reconstructs the offence at paragraph 15AE(4)(a) to clarify that
corrupt is a physical result of the accused person’s
conduct to which the fault element of recklessness will
apply.
The rationale behind the amendment is that an accused person does
not corrupt. Rather, corrupt is the result of the accused
person’s conduct, and is a physical element of result rather
than a physical element of conduct. Using corrupt as the active
verb in a criminal offence may lead to difficulties in interpreting the offence
following application of the Criminal Code. Reconstructing the offence
enables the physical elements of conduct and result to be better
identified.
This item also omits the phrase or attempt to corrupt.
The offence of attempt is provided at section 11.1 of the Criminal
Code and specific mention at subsection 15AE(4)(a) is
redundant.
Item 37 – Paragraph 15AE(4)(b)
This item
omits the phrase except as provided by law from paragraph 15AE(4)(b).
The defence of lawful authority is included in the Criminal Code
(see section 10.5 of the Criminal Code). The defence applies to all
offence provisions under Commonwealth law, and the specific mention in paragraph
12AE(4)(b) is redundant.
Item 38 – At the end of section
15AE
This item defines engage in conduct to
mean:
(c) do an act; or
(d) omit to perform an act.
This
definition is consistent with the definition at subsection 4.1 of the
Criminal Code.
Item 39 – After subsection 5(2)
This item inserts a
new subsection 5(2A) to specifically disapply Chapter 2 of the Criminal
Code to the criminal law of the Jervis Bay Territory that is applied to the
Commonwealth non-self-governing Territory of Heard Island and McDonald Islands,
by virtue of section 5 of the Heard Island and McDonald Islands Act 1953.
Chapter 2 of the Criminal Code will apply to all offences created
by or under the authority of a Commonwealth Act (see Schedule, Section 1.1,
Criminal Code Act 1995). The Criminal Code is also expressly
applied to all of the external territories (section 3A Criminal Code Act
1995). Therefore, if this amendment is not made, the Chapter 2 principles
will apply to Jervis Bay Territory offences applied under the Commonwealth Act.
As the Commonwealth cannot harmonise State or Territory offences, this may
result in the Territory of Heard Island and McDonald Islands having unworkable
criminal offences.
Item 40 – After section 4A
This item inserts a new
section 4AA to specifically disapply Chapter 2 of the Criminal Code to
the criminal law of the Australian Capital Territory that is applied to the
Commonwealth non-self-governing Jervis Bay Territory, by virtue of section 4A of
the Jervis Bay Territory Acceptance Act 1915.
Chapter 2 of the
Criminal Code will apply to all offences created by or under the
authority of a Commonwealth Act (see Schedule, Section 1.1, Criminal Code Act
1995). The Criminal Code is also expressly applied to all of the
external territories (section 3A Criminal Code Act 1995). Therefore, if
this amendment is not made, the Chapter 2 principles will apply to Australian
Capital Territory offences applied under the Commonwealth Act. As the
Commonwealth cannot harmonise State or Territory offences, this may result in
the Jervis Bay Territory having unworkable criminal offences.
Item 41 – At the end of Part 1
This item inserts a
new section 4A that provides that Chapter 2 of the Criminal Code applies
to all offences against the Norfolk Island Act 1979. It also inserts a
note that says that Chapter 2 of the Criminal Code sets out the general
principles of criminal responsibility.
Item 42- After subsection
51E(4)
This item adds a new subsection 51E(4A) that provides that
strict liability applies to the offence under subsection 51E(4). This amendment
does not create a new offence of strict liability. The nature of the offence
and the low level penalty in the existing offence under subsection 51E(4)
indicates that the offence is strict liability and therefore not requiring proof
of fault. The amendment is necessary to maintain the current operation of
subsection 51E(4). Once the Criminal Code applies, in the absence of an
express reference to the fact that an offence is a strict liability offence, a
court will be required to interpret the offence as a fault offence rather than a
strict liability offence.
The note to subsection 51E(4A) refers to
section 6.1 of the Criminal Code. Section 6.1 provides that if a law
that creates an offence provides that the offence is an offence of strict
liability:
(a) there are no fault elements for any of the physical
elements of the offence; and
(b) the defence of mistake of fact under
section 9.2 is available.
This means that the prosecution does not
have to prove fault on the part of the defendant. Fault includes
intention if it is with regard to conduct, and recklessness
where it is with regard to a circumstance in which conduct occurs or a
result of conduct. The defendant will be able to activate the defence of
honest or reasonable mistake of fact if he or she can point to or adduce
evidence that he or she made a relevant mistake of fact. If that occurs, the
prosecution bears the onus to prove beyond reasonable doubt that there was no
mistake.
Item 43 – At the end of Part 1
This item inserts a
new section 4A that provides that Chapter 2 of the Criminal Code applies
to all offences against the Payroll Tax (Territories) Assessment Act
1971. It also inserts a note that says that Chapter 2 of the Criminal
Code sets out the general principles of criminal
responsibility.
SCHEDULE 5 – Amendment of transport
legislation
This provision exempts the Road Transport Reform (Dangerous Goods) Act
1995 from
the application of the Criminal Code. The Act has been
exempted because it was passed under a cooperative scheme relating to road
transport existing between the Commonwealth and the States and Territories. As
a consequence of the terms of the scheme the Legislation can only be amended on
the basis of a recommendation from the National Road Transport Commission (NRTC)
and subsequent approval from the Australian Transport Council (ATC). The Act is
template legislation which is referenced or mirrored in other jurisdictions.
Although the Act is a Commonwealth Act it only operates in the Australian
Capital Territory and the Jervis Bay Territory. The exemption is not to be
permanent. The Commonwealth will refer the question of amending the Act so that
it is Criminal Code compliant to the NRTC immediately to be pursued
though the workings of the ATC.
This provision exempts the Road Transport Reform (Heavy Vehicles
Registration) Act 1997 from the application of the Criminal Code.
The Act has been exempted because it was passed under a cooperative scheme
relating to road transport existing between the Commonwealth and the States and
Territories. As a consequence of the terms of the scheme the Legislation can
only be amended on the basis of a recommendation from the National Road
Transport Commission (NRTC) and subsequent approval from the Australian
Transport Council (ATC). The Act is template legislation which is referenced or
mirrored in other jurisdictions. Although the Act is a Commonwealth Act it only
operates in the Australian Capital Territory and the Jervis Bay Territory. The
exemption is not to be permanent. The Commonwealth will refer the question of
amending the Act so that it is Criminal Code compliant to the NRTC
immediately to be pursued though the workings of the ATC.
This provision exempts the Road Transport Reform (Vehicles and
Traffic) Act 1993 from
the application of the Criminal Code. The
Act has been exempted because it was passed under a cooperative scheme relating
to road transport existing between the Commonwealth and the States and
Territories. As a consequence of the terms of the scheme the Legislation can
only be amended on the basis of a recommendation from the National Road
Transport Commission (NRTC) and subsequent approval from the Australian
Transport Council (ATC). The Act is template legislation which is referenced or
mirrored in other jurisdictions. Although the Act is a Commonwealth Act it only
operates in the Australian Capital Territory and the Jervis Bay Territory. The
exemption is not to be permanent. The Commonwealth will refer the question of
amending the Act so that it is Criminal Code compliant to the NRTC
immediately to be pursued though the workings of the ATC.