Bills Digest No. 4  2000-01 Treasury Legislation Amendment (Application of Criminal Code) Bill 2000


Numerical Index | Alphabetical Index

WARNING:
This Digest was prepared for debate. It reflects the legislation as introduced and does not canvass subsequent amendments. This Digest does not have any official legal status. Other sources should be consulted to determine the subsequent official status of the Bill.

CONTENTS

Passage History
Purpose
Background
Main Provisions
Concluding Comments
Endnotes
Contact Officer & Copyright Details

Passage History

Treasury Legislation Amendment (Application of Criminal Code) Bill 2000

Date Introduced: 29 June 2000

House: House of Representatives

Portfolio: Treasury

Commencement: 15 December 2001 apart from:

  • schedule 2 (relating to the Corporations Law) and items 1-4 of Schedule 1 (the formal provisions, relating to the Financial Sector Shareholdings Act 1998) which commence on Royal Assent; and
  • items 171 and 172 whose commencement depends on when proposed amendments to the Superannuation Industry (Supervision) Act 1993 commence.(1)

Purpose

To harmonise certain criminal offence provisions contained in legislation administered by the Treasurer with the general principles of criminal responsibility set out in Chapter 2 of the Commonwealth Criminal Code.

Background

The Commonwealth Criminal Code

The Criminal Code Act 1995 (the Code) deals with principles of criminal responsibility. It originated in the Model Criminal Code Project which had its genesis in the 1990 recommendations of the Review of Commonwealth Criminal Law headed by Sir Harry Gibbs. The recommendation was that there be uniform principles of criminal responsibility throughout Australia.

In 1990, the Standing Committee of Attorneys-General (SCAG) placed the question of the development of a national Model Criminal Code for Australia on its agenda. SCAG then established a Committee (which became the Model Criminal Code Officers Committee) to develop the model code. In 1992 the Committee produced a final report on General Principles of Criminal Responsibility and this report then formed the basis of the Criminal Code Act 1995.(2)

One of the purposes of the Criminal Code Act 1995 is to codify the principles of criminal responsibility which apply to Commonwealth offences. These principles of criminal responsibility include matters such as fault, burdens of proof and absolute and strict liability.

The Code Act was passed in 1995, but has a staggered implementation timetable. It commenced to apply to all new offences from 1 January 1997 and all new offences are now drafted according to the requirements of the Code. The Code is scheduled to apply to pre-existing offences from 15 December 2001. The Bill is part of this implementation process. It amends the criminal offence provisions in certain legislation administered by Treasury to bring them into line with the Criminal Code in readiness for 15 December 2001.

Criminal responsibility as set out in the Criminal Code

The Commonwealth Criminal Code (the Code) is contained in the Schedule to the Criminal Code Act 1995. Chapter 2 of the Code sets out the general principles of criminal responsibility, which apply under Commonwealth Law. The following outline provides a summary of features of the Code that are relevant to the Bill.

Traditionally, crimes are analysed in terms of actus reus (guilty act) and mens rea (guilty mind). In the Code these elements are called physical elements and fault elements. To establish guilt it must be proven that the relevant physical and accompanying fault elements existed.

The Code defines the physical element of an offence to be the conduct, circumstances in which it occurs or the consequences of conduct.(3) An omission to act can be a physical element if there is appropriate statutory provision or if it is the result of a breach of duty to act(4). Each offence must contain at least one of these physical elements, but any combination of physical elements may be present in an offence provision.

For every physical element of an offence, the prosecution must also prove a corresponding fault element. The Code does not prevent an offence from specifying an alternative fault element, but the Code indicates that the default fault element will apply in the absence of a specified fault element. The Code establishes four default fault elements: intention, knowledge, recklessness and negligence in descending order of culpability. Where the physical element of an offence consists of conduct, intention is the fault element. However, if the physical element is a circumstance or a result the minimum fault element is recklessness.(5)

Offences without a fault element

At common law, a guilty mind is usually a necessary element in an offence. However, an increasing number of statutory offences have evolved which dispense with proof of intent. Such offences are usually designated regulatory offences and deal with public health, public safety, hygiene, weights and measures etc. Where a defence of honest and reasonable mistake of fact is available, these offences are called strict liability offences. Where proof of intent is dispensed with entirely ie there is no defence of mistake of fact available, the offences are designated as absolute liability offences. The terminology of strict and absolute liability offences has not always been used consistently. Division 6 of the Code is designed to clarify the law.

Proof of criminal responsibility

It is the duty of the prosecution to prove the guilt of the accused person.(6) If something is asserted by the prosecution then the prosecution must supply supporting evidence which meets the required standard of proof. This is called the legal burden of proof and generally rests on the prosecution. An evidential burden relates to the duty to present evidence that will be able to be considered by the jury.

The prosecution bears the legal burden of proving every element of an offence. The legal burden means 'in relation to a matter, the burden of proving the existence of that matter'.(7) The prosecution bears the legal burden of proof beyond reasonable doubt, unless the law creating the offence provides otherwise.

Where a burden of proof is placed on a defendant it is an evidential burden only.(8) The evidential burden can be discharged by the defendant pointing to evidence suggesting there was a reasonable possibility that a matter existed or did not exist(9). The defendant will only have a legal burden of proof if the law creating the offence so provides. When a legal burden is placed on the defendant it must be discharged on the balance of probabilities.(10)

Main Provisions

Schedule 1 - Amendments of Acts

Financial Sector (Shareholdings) Act 1998

Subsection 24(3) of the Financial Sector (Shareholdings) Act 1998 (Shareholdings Act) currently contains an offence of recklessly contravening a requirement to relinquish practical control of a financial sector company. Recklessness is defined in section 5.4 of the Criminal Code. Item 2 of the Bill ensures that section 5.4 of the Criminal Code will not apply to the offence.(11) In part, this is because the definition of recklessness provided in the Code is not relevant to the offence in the Shareholdings Act. The definitions in the Code relate to circumstance and result(12), whereas the offence in the Shareholdings Act is an offence consisting of conduct (ie an omission). The definition of recklessness in the Code reflects the more usual situation where the prosecution must prove intention where conduct is involved. Proposed subsection 24(4) in item 2 substitutes a relevant definition of recklessness which is based on that found in the Criminal Code but in addition relates to acts or omissions of a person.

Item 1 rewords paragraph 24(3)(b) so that the offence can be proved by proof of intention as well as by proof of recklessness. As the Explanatory Memorandum says, by remaking the application of section 5.4 to fit the offence in subsection 24(3) specific reference needs to be made to the fact that the offence can be proved by proof of intention as well as by proof of recklessness.(13)

Items 3-4 make identical amendments in relation to the offence in subsection 26(4).

Foreign Acquisitions and Takeovers Act 1975

Section 25 of the Foreign Acquisitions and Takeovers Act 1975 relates to the Treasurer's advice regarding notification of certain transactions. Item 5 repeals subsection 25(1C) and replaces it with proposed subsections 25(1C) and 25(1D). According to the Explanatory Memorandum the rationale for this amendment is to clarify the physical elements of the offence so that that contravention of a condition in the advice given to a person or corporation forms a physical element of result rather than part of the physical element of conduct. According to subsection 5.6(2) of the Criminal Code where the offence consists of a physical element of result the prosecution would need to prove the fault element of recklessness rather than the fault element of intention.

Items 6-8 are technical amendments. Maximum monetary penalties of $50,000 are replaced with penalties of 500 penalty units. This makes the provisions consistent with current Commonwealth drafting practice, which is to express penalties in penalty units rather than monetary amounts. Since the current value of a penalty unit is $110,(14) the new penalties represent an increase of 10% over the current maximum penalties.

In addition references to fines for corporations are deleted in reliance on the provisions in subsection 4B(3) of the Crimes Act 1914 which allows corporations to be fined a sum up to 5 times the maximum pecuniary penalty applied to natural persons without requiring any reference to corporations in the subsection.

Insurance Act 1973

Proposed subsections 34A(10A) and 34A(10B) (item 14) define when a body corporate is taken to be reckless for the purposes of the offence in subsection 34A(10). The offence in subsection 34A(10) relates to failure by a corporate body to submit specified information to the Australian Prudential Regulation Authority (APRA) about reinsurance agreements. The definition of recklessness is based on that found in the Criminal Code but extends recklessness to omissions. Recklessness will occur where the person is aware of a substantial risk that an omission exists, or will exist, and that, having regard to the circumstances known to him or her, it is unjustifiable for the person to take that risk. This definition more accurately reflects the nature of the particular offence.(15)

The amendments in items 11, 12, 15-26 confirm that a range of existing offences are strict liability offences and direct the reader to the relevant provisions of the Criminal Code. These offences include such things as failure by an insurance company to keep accounting records and failure to furnish statutory accounts to APRA. A strict liability offence is one without a fault element, however a defence of mistake of fact is available.

Subsection 128(1) of the Insurance Act makes it an offence for a director, officer or auditor of a corporation to be knowingly involved in an offence committed by that corporation under the Act. Item 28 deletes the word 'knowingly' from subsection 128(1), the effect being that the prosecution will need to prove that the particular defendant had the fault element of intention rather than knowledge.(16) Note however that the definition of knowledge and intention contained in section 5 of the Code are very similar so that in practical terms the change to the offence is negligible.(17)

Insurance Acquisitions and Takeovers Act 1991

Item 29 inserts proposed subsection 76(10) indicating that Part 2.5 of the Code will not apply in relation to an offence against the Act. Section 76 deals with matters of proof involving corporate wrongdoing.

Part 2.5 of the Criminal Code deals with the issue of corporate criminal responsibility. It sets a basic standard of responsibility for bodies corporate in relation to general offences. According to the Second Reading Speech for the Criminal Code Bill 1995, the Code introduces the concept that criminal responsibility should attach to bodies corporate where the corporate culture encourages situations which lead to the commission of offences. The provisions make companies accountable for their general managerial responsibilities and policy. It provides that negligence may be proven by failure to provide adequate communication within the body corporate. (18)

However the then Minister for Justice, the Honourable Duncan Kerr, in introducing the Criminal Code Bill 1995 said in his Second Reading Speech:

In speaking about this part I must stress that it is still open to the legislature to employ reverse onus of proof provisions or strict liability for offences where the normal rules of criminal responsibility are considered inappropriate.

At the federal level this will need to occur in a number of important areas where corporations are the main players, such as environmental protection, where the potential harm of committing the offence may be enormous and the breach difficult to detect before the damage is done. For example, the government is not planning to water down the requirements of section 65 of the Ozone Protection Act 1989 in regard to the matters covered by that Act. Part 2.5 concerns general principles suitable for ordinary offences. It will be the basis of liability if no other basis is provided. (19)

Section 76 of the Insurance Acquisitions and Takeovers Act 1991 mirrors section 65 of the Ozone Protection Act 1989.

Life Insurance Act 1995

Proposed subsections 150(10A) and 150(10B) (item 46) define when a person is taken to be reckless for the purposes of the offence in subsection 150(10). Under subsection 150(10) it is an offence for a life insurance company to intentionally or recklessly fail to comply with a direction by APRA or ASIC. The definition of recklessness is based on that in the Criminal Code but in addition includes acts or omissions of a person. Recklessness is where the person is aware of a substantial risk that an omission exists, or will exist, and that, having regard to the circumstances known to him or her, it is unjustifiable for the person to take that risk. This definition more accurately reflects the nature of the particular offence.(20) Items 52 and 57 insert the same definition of recklessness in order to reflect the nature of the particular offences in those provisions.

The amendments in items 30-40, 47, 48, and 53-54 confirm that a range of existing offences are strict liability offences and direct the reader to the relevant provisions of the Criminal Code.

Item 55 amends section 245 in order to reword the offences contained in subsection 245(2) so that they harmonise with the Criminal Code. The subsection is redrafted so that the offences can more easily be categorised as physical acts of conduct and physical acts of circumstances. According to section 5.6 of the Code the prosecution would need to prove the fault element of intention with respect to conduct and the fault element of recklessness with respect of circumstances.

The remaining amendments are technical. They include:

  • explanatory notes confirming that a defendant bears a legal burden in relying on particular defences
  • explanatory notes drawing attention to the provisions of the Criminal Code relating to the general principles of criminal responsibility, and
  • an explanatory note clarifying that Part 2.5 of the Criminal Code which deals with corporate criminal responsibility does not apply in relation to an offence against the Life Insurance Act.

Prices Surveillance Act 1983

The amendments are purely technical. They include:

  • explanatory notes confirming that a defendant bears an evidential burden in relying on particular defences, and
  • amendments replacing maximum monetary penalties with penalties described in terms of penalty units.(21)

Productivity Commission Act 1998

The amendments are technical. They include:

  • explanatory notes confirming that a defendant bears an evidential burden in relying on particular defences
  • explanatory notes drawing attention to the provisions of the Criminal Code relating to the general principles of criminal responsibility, and
  • an explanatory note clarifying that Part 2.5 of the Criminal Code that deals with corporate criminal responsibility does not apply in relation to offences against the Act committed by corporations. Instead the principles set out in section 59 of the Act continue to apply.

Retirement Savings Accounts Act 1997

Proposed subsections 39(2A) and 39(2B) (item 91) define when a person is taken to be reckless for the purposes of the offence in subsection 39(2). It is an offence under subsection 39(2) for a provider of a retirement savings account to intentionally or recklessly fail to comply with prescribed operating standards. The definition of recklessness is based on that found in the Criminal Code but in addition includes acts or omissions of a person. Recklessness is where the person is aware of a substantial risk that an omission exists, or will exist, and that, having regard to the circumstances known to him or her, it is unjustifiable for the person to take that risk. This definition more accurately reflects the nature of the particular offence.

Items 96, 98, 100, 102, 104, 106, 109, 111, 113, 117, 119, 122, 124, 126, 128, 130, 134, 144, 145, 147, 149, 151, 153, 155, 159, 166 and 170 insert the same definition of recklessness to more accurately reflect the nature of the offences found in the particular sections.

Item 131 deletes the word 'knowingly' from the offence in section 65(5)(c). The offence relates to retirement savings account providers failing to provide documents for auditing within the prescribed timeframe. As the offence is one of conduct, then under section 5.6 of the Code, the prosecution will need to prove that the particular defendant had the fault element of intention rather than knowledge.(22) Note however that the definition of knowledge and intention in the Code are very similar so that in practical terms the change to the offence is negligible.(23) Items 141 and 142 contain similar amendments.

The amendments in items 137 and 138 remove the words 'intentionally or recklessly' from the particular offence in section 77(1). This offences relates to retirement savings account providers issuing certain documents. As the offence is one of conduct then according to section 5.6 of the Code the prosecution must prove the fault element of intention. In practical terms the amendment has the effect of deleting the words 'or recklessly'. Items 135 and 136 contain similar amendments.

The amendments in items 87-89, 92, 94, 139, 140, 156, 163, 164 confirm that a range of existing offences are strict liability offences and direct the reader to the relevant provisions of the Criminal Code.

The remaining amendments are technical. They include explanatory notes confirming that a defendant bears an evidential burden in relying on particular defences and explanatory notes drawing attention to the provisions of the Criminal Code relating to the general principles of criminal responsibility.

Superannuation Industry (Supervision) Act 1993

Section 34(2) of the Superannuation Industry (Supervision) Act 1993 (Supervision Act) currently contains an offence of recklessly contravening a requirement to ensure compliance with prescribed standards for superannuation entities. Recklessness is defined in section 5.4 of the Criminal Code. Item 174 of the Bill ensures that section 5.4 of the Criminal Code will not apply to the offence. In part, this is because the definition of recklessness provided in the Code is not relevant to the offence in the Supervision Act. The definitions in the Code relate to circumstance and result,(24) whereas the offence in the Supervision Act is an offence consisting of conduct (ie an omission). The definition of recklessness in the Code reflects the more usual situation where the prosecution must prove intention where conduct is involved. Proposed subsections 34(2A) and 34(2B) in item 174 substitute a relevant definition of recklessness which is based on that found in the Criminal Code but in addition relates to acts or omissions of a person.

Items 178, 180, 183, 186, 188, 190, 197, 204, 217, 285, 220, 223, 225, 229, 231, 233, 235, 237 and 239 insert the same definition of recklessness to more accurately reflect the nature of the offences found in the particular clauses.

The amendments in items 206 and 207 remove the words 'intentionally or recklessly' from the particular offence in section 161. The offence relates to the issuing of false or misleading documents. As the offence is one of conduct then under section 5.6 of the Code the prosecution must prove the fault element of intention. In practical terms the amendment has the effect of deleting the words 'or recklessly'. Items 175, 176, 208, 209, 211, 212, 213, 214 and 215 contain similar amendments.

The remaining amendments are technical. They include explanatory notes confirming that a defendant bears an evidential burden in relying on particular defences and explanatory notes drawing attention to the provisions of the Criminal Code relating to the general principles of criminal responsibility.

Trade Practices Act 1974

Proposed Part VC - Offences

Part V of the Trade Practices Act 1974 (the TPA) provides protection for both domestic consumers and business in trade practices. Amongst other things Division 1 of Part V sets standards of behaviour for corporations and prohibits misleading and deceptive conduct in trade or commerce, employment and advertising. Division 1A sets standards for corporations in relation to product safety and product information.

The TPA currently provides that a criminal prosecution may be brought against a party that contravenes Division 1 or Division 1A of Part V. An individual may also bring a civil action against a party that contravenes a provision within Divisions 1 or 1A of Part V of the TPA.

Item 257 inserts proposed Part VC into the TPA. Proposed Part VC will divide this present civil and criminal regime between the current Part V and the new Part VC respectively. Part V will retain the contraventions which give rise to civil actions. Proposed Part VC will establish a separate criminal consumer protection regime within the TPA which will replicate the provisions currently within Division 1 and 1A of Part V of the Act but in addition will give effect to the Code. The amendments are drafted so that:

  • the fault elements applicable to each offence are identifiable
  • the defences applicable to each offence are identifiable, and
  • the maximum penalty for each offence is prescribed.

Proposed section 75AZB is an interpretative clause. Representations by corporations about future matters will be considered misleading unless corporations can produce evidence to show that they were made on reasonable grounds.

Proposed sections 75AZC, 75AZE, 75AZH, 75AZI, 75AZK, 75AM, 75AO and 75AZU replicate consumer protection provisions contained in Part V relating to:

  • false or misleading representations in relation to the supply of goods (proposed 75AZC which corresponds to section 53A)
  • misleading conduct relating to employment (proposed 75AZE which corresponds to section 53B)
  • misleading conduct to which the Industrial Property Convention applies (proposed 75AZH which corresponds to section 55)
  • misleading conduct relating to services (proposed 75AZI which corresponds to section 55A)
  • referral selling (proposed 75AZK which corresponds to section 57)
  • misleading representations about certain business activities (proposed 75AZM which corresponds to section 59)
  • pyramid selling (proposed 75AZO which corresponds to section 61), and
  • compliance with product recall notice (proposed 75AZU which corresponds to section 65G).

These amendments contain notes confirming that the offences are strict liability offences and direct the reader to the relevant provisions of the Criminal Code. A strict liability offence is one without a fault element, however a defence of mistake of fact is available.

Proposed sections 75AZP, 75AZF, 75AZS, and 75AZT replicate consumer protection provisions contained in Part V relating to:

  • regulation of representations about the price of goods (proposed 75AZF which corresponds to section 53C)
  • unsolicited credit and debit cards (proposed 75AZP which corresponds to section 63A)
  • product safety standards and unsafe goods (proposed 75AZS which corresponds to section 65C), and
  • product information standards (proposed 75AZT which corresponds to section 65D).

The amendments contain notes confirming that the offences are strict liability offences and direct the reader to the relevant provisions of the Criminal Code. A strict liability offence is one without a fault element, however a defence of mistake of fact is available. These proposed sections also contain other defences that the defendant may rely on. Notes confirm that the defendant bears an evidential burden in relying on these defences.(25)

Proposed sections 75AZJ and 75AZQ replicate consumer protection provisions contained in Part V relating to:

  • bait advertising (proposed 75AZI which corresponds to section 56), and
  • assertion of right to payment for unsolicited goods or services or for making an entry in a directory (proposed 75AZQ which corresponds to section 64).

The amendments contain notes confirming that the offences are strict liability offences and direct the reader to the relevant provisions of the Criminal Code. In addition to the defence of mistake of fact, the sections contain other defences that the defendant may rely on. Notes confirm that the defendant bears a legal burden in relying on these defences.(26)

Proposed sections 75AZD, 75AZG and 75AZL replicate consumer protection provisions contained in Part V that deal with:

  • accepting payment without intending or being able to supply an order (proposed 75AZL which corresponds to section 58)
  • making false representations and other misleading and deceptive conduct in relation to land (proposed 75AZD which corresponds to section 53A)
  • offering gifts and prizes (proposed 75AZG which corresponds to section 54), and
  • using physical force or undue harassment and coercion (proposed 75AZN which corresponds to section 60).

These provisions contain offences of strict liability and also offences with a fault or mental element. Where the offences are strict liability offences the reader is referred to the relevant sections of the Criminal Code. Where the offences are not strict liability and the offences consist of conduct such as offering gifts, prizes or other free items as identified in proposed paragraph 75AZD(2)(c) then the prosecution would be required to prove the defendant had the relevant intention.

Items 258-290 make technical amendments required to harmonise proposed Part VC with Part V.

Schedule 2 - Amendment of the Corporations Law

Schedule 2 contains technical amendments in relation to civil penalty provisions that had both civil and criminal consequences attached to their contravention prior to the commencement of the Corporate Law Economic Reform Program Act 1999 (CLERP Act).

Items 2-4 make amendments to section 601FC of the Corporations Law in order to more clearly characterise the civil and criminal consequences of contravening section 601FC and set out the requisite fault elements and penalties.

Proposed subsections 601FC(7) and 601FC(8) (item 4) define when a person is taken to be reckless for the purposes of the offence in subsection 39(2) of the Corporations Law. The definition of recklessness is based on that found in the Criminal Code but in addition includes acts or omissions of a person. This definition more accurately reflects the nature of the particular offence.(27) Item 7 contains a similar amendment.

Concluding Comments

The Bill is indicative of the complexity of the task of harmonising existing offence provisions in Commonwealth legislation with the Criminal Code. Some existing offences do not sit easily within the framework of the Criminal Code and arguably the Bill is made more cumbersome by attempting to maintain the status quo.(28) Presumably this somewhat cumbersome drafting would be avoided when drafting new offence provisions according to the requirements of the Criminal Code.

Endnotes

  1. The proposed amendments can be found in the Financial Sector Legislation Amendment Bill (No. 1) 2000. At the time of writing the Bill had passed the House of Representatives and been introduced into the Senate.
  2. For a more detailed background to the Criminal Code the reader is referred to Bills Digest No. 139, 1994.
  3. section 4.1.
  4. section 4.3.
  5. section 5.6.
  6. This is the golden thread of English criminal law referred to in Woolmington v. DPP (1935) AC 462.
  7. subsection 13.1(3).
  8. subsection 13.3(1).
  9. subsection 13.3(6).
  10. section 13.4 and 13.5.
  11. Note that the Code does not prevent an offence from specifying an alternative fault element, but section 5.6 of the Code indicates what default fault element will apply in the absence of a specified fault element.
  12. The Criminal Code definition of recklessness is as follows:

5.4(1) A person is reckless with respect to a circumstance if:

a)
he or she is aware of a substantial risk that the circumstance exists or will exist; and
b)
having regard to the circumstances known to him or her, it is unjustifiable to take the risk.

5.4(2) A person is reckless with respect to a result if:

a)
he or she is aware of a substantial risk that the result will occur; and
b)
having regard to the circumstances known to him or her, it is unjustifiable to take the risk.
  1. p. 4.
  2. section 4AA of the Crimes Act 1914.
  3. A fuller discussion of this concept is found above under the heading Financial Sector (Shareholdings) Act 1998 at pp. 3-4 and under the general description of the Criminal Code at pp. 2-3.
  4. Under section 5.6 of the Criminal Code the fault element for conduct (ie acts or omissions) is intention.
  5. Under section 5.2 a person has intention with respect to conduct if he or she means to engage in that conduct. A person has intention with respect to a circumstance if he or she believes that it exists or will exist. A person has intention with respect to a result if he or she means to bring it about or is aware that it will occur in the ordinary course of events.

    Under section 5.3 a person has knowledge of a circumstance or a result if he or she is aware that it exists or will exist in the ordinary course of events.

  6. Second Reading Speech, Criminal Code Bill 1995, Parliamentary Debates (Hansard), House of Representatives, 1 March 1995, p. 1331.
  7. Ibid.
  8. A fuller discussion of this concept is found above under the heading Financial Sector Shareholdings Act 1998 at pp. 3-4 and under the general description of the Criminal Code at pp. 2-3.
  9. This makes the provisions consistent with current Commonwealth drafting practice, which is to express penalties in penalty units rather than monetary amounts. Since the current value of a penalty unit is $110, the new penalties represent an increase of 10% over the current maximum penalties.
  10. Under section 5.6 of the Criminal Code the fault element for conduct (ie acts or omissions) is intention.
  11. Under section 5.2 a person has intention with respect to conduct if he or she means to engage in that conduct. A person has intention with respect to a circumstance if he or she believes that it exists or will exist. A person has intention with respect to a result if he or she means to bring it about or is aware that it will occur in the ordinary course of events. Under section 5.3 a person has knowledge of a circumstance or a result if he or she is aware that it exists or will exist in the ordinary course of events.
  12. The Criminal Code definition of recklessness is as follows:

5.4(1) A person is reckless with respect to a circumstance if:

a)
he or she is aware of a substantial risk that the circumstance exists or will exist; and
b)
having regard to the circumstances known to him or her, it is unjustifiable to take the risk.

5.4(2) A person is reckless with respect to a result if:

a)
he or she is aware of a substantial risk that the result will occur; and
b)
having regard to the circumstances known to him or her, it is unjustifiable to take the risk.
  1. An evidential burden relates to the duty to present evidence that will be able to be considered by the jury. Under subsection 13.3(6) the evidential burden can be discharged by the defendant pointing to evidence suggesting there was a reasonable possibility that a matter existed or did not exist.
  2. Section 13.4 deals with the defence's legal burden of proof. A burden is a legal burden only if the law creating the offence so provides. It requires the defendant to prove the matter or creates a presumption that a matter exists unless the contrary is proved.
  3. A fuller discussion of this concept is found above under the heading Financial Sector (Shareholdings) Act 1998, at pp. 3-4 and under the general description of the Criminal Code at pp. 2-3.
  4. See for example the constant repetition of the definition of recklessness with respect to omissions.

Contact Officer and Copyright Details

Mary Anne Neilsen
29 August 2000
Bills Digest Service
Information and Research Services

This paper has been prepared for general distribution to Senators and Members of the Australian Parliament. While great care is taken to ensure that the paper is accurate and balanced, the paper is written using information publicly available at the time of production. The views expressed are those of the author and should not be attributed to the Information and Research Services (IRS). Advice on legislation or legal policy issues contained in this paper is provided for use in parliamentary debate and for related parliamentary purposes. This paper is not professional legal opinion. Readers are reminded that the paper is not an official parliamentary or Australian government document.

IRS staff are available to discuss the paper's contents with Senators and Members
and their staff but not with members of the public.

ISSN 1328-8091
© Commonwealth of Australia 2000

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Published by the Department of the Parliamentary Library, 2000.

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