Bills Digest No. 35 2001-02
Education, Training and Youth Affairs Legislation Amendment
(Application of Criminal Code) Bill 2001
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
Endnotes
Contact Officer & Copyright Details
Education, Training and Youth Affairs
Legislation Amendment (Application of Criminal Code) Bill
2001
Date Introduced: 8 August 2001
House: House of Representatives
Portfolio: Education, Training and Youth Affairs
Commencement: The day after the date of Royal
Assent
The Bill's
purpose is to revise criminal offence provisions in two statutes in
the Education, Training and Youth Affairs portfolio so that they
harmonise with the principles of criminal responsibility found in
Chapter 2 of the Criminal Code.
For an account of the background to the Criminal
Code and a brief description of Chapter 2 of the Code, see the
Bills Digest for the Environment and Heritage Legislation Amendment
(Application of Criminal Code) Bill 2000 (Bills Digest No. 92,
2000-2001). Chapter 2 of the Criminal Code contains principles
of criminal responsibility. Since 1995 there has been a staggered
program of applying those principles to Commonwealth criminal laws.
Chapter 2 applies to all offences against the Code. From 1 January
1997 it applied to all new Commonwealth offences. From 15 December
2001 it will apply to pre-existing Commonwealth offences. In order
to meet this deadline, the Commonwealth has been reviewing
pre-existing offence provisions with a view to harmonising them
with Chapter 2, modifying the application of Chapter 2 where
necessary or clarifying how Chapter 2 will apply.
The Parliament has passed the following laws
which apply Chapter 2 to legislation in a range of
portfolios-Communications and the Arts Legislation Amendment
(Application of Criminal Code) Act 2001, Environment and
Heritage Legislation Amendment (Application of Criminal Code) Act
2001, Foreign Affairs and Trade Legislation Amendment
(Application of Criminal Code) Act 2001, Law and Justice
Legislation Amendment (Application of Criminal Code) Act 2001,
Prime Minister and Cabinet Legislation Amendment (Application
of Criminal Code) Act 2001, Treasury Legislation Amendment
(Application of Criminal Code) Act (No. 1) 2001, and
Veterans' Affairs Legislation Amendment (Application of
Criminal Code) Act 2001.
Currently before the Parliament are the
Agriculture, Fisheries and Forestry Legislation Amendment
(Application of Criminal Code) Bill 2001, Family and Community
Services Legislation Amendment (Application of Criminal Code) Bill
2001, Finance and Administration Legislation (Application of
Criminal Code) Bill 2001, Health and Aged Care Legislation
Amendment (Application of Criminal Code) Bill 2001, Industry,
Science and Resources Legislation Amendment (Application of
Criminal Code) Bill 2001, Migration Legislation Amendment
(Application of Criminal Code) Bill 2001, Reconciliation and
Aboriginal and Torres Strait Islander Affairs Legislation Amendment
(Application of Criminal Code) Bill 2001, Treasury Legislation
Amendment (Application of Criminal Code) Bill (No. 2) 2001,
Treasury Legislation Amendment (Application of Criminal Code) Bill
(No. 3) 2001 and the present Bill.
Some major aspects of criminal responsibility
relevant to the Education, Training and Youth Affairs Legislation
Amendment (Application of Criminal Code) Bill 2001 are described
below.
Offences-Physical elements and fault
elements
The Criminal Code provides that an offence
consists of physical elements and fault elements. Physical elements
relate to external events such as conduct or the result of conduct.
Fault elements relate to a person's state of mind eg intention,
knowledge, recklessness and negligence.
The Criminal Code defines the physical elements
of an offence to be conduct, the circumstances in which it occurs
and the results of conduct.(1) 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.(2) Each
offence must contain at least one of these physical elements, but
any combination of physical elements may be present in an offence
provision.
In general, for every physical element of an
offence, the prosecution must also prove a corresponding fault
element. The Code establishes four fault elements-intention,
knowledge, recklessness and negligence(3)-in descending
order of culpability. Where the physical element of an offence
consists of conduct, intention is the default fault element.
However, if the physical element is a circumstance or a result of
conduct the default fault element is recklessness.(4)
The Code does not prevent an offence from specifying an alternative
fault element, but indicates that the default fault element will
apply in the absence of a specified fault element.
Proof of criminal responsibility
It is the duty of the prosecution to prove the
guilt of the accused person.(5) 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 the matter'.(6) The prosecution must
discharge the legal burden of proof beyond reasonable doubt, unless
the law creating the offence provides otherwise. Further, the
prosecution bears a legal burden of disproving any matter where the
defendant has discharged an evidential burden.
Generally, where a burden of proof is placed on
a defendant it is an evidential burden only.(7) 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.(8) The Code provides
that a defendant will have a legal burden of proof only 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.(9) The prosecution must still prove that
the defendant committed the offence beyond reasonable doubt.
The Bill inserts a number of notes explaining
where a defendant carries an evidential burden of proof. It does
not retain or place any legal burdens on defendants.
Aligning fault elements and physical
elements
The Bill amends a number of offence provisions
so that their constituent fault and physical elements correspond
with the scheme supplied by the Criminal Code. For example, one
amendment ensures that the fault element of recklessness does not
apply to a physical element of conduct in an offence. In the
process of applying appropriate fault elements, some of the
amendments also restructure offence provisions so that their
constituent physical elements are clearly identified and the Code's
default fault elements can be applied to them.
Non-Code expressions
Many offence provisions in Commonwealth statutes
do not specify fault elements. In other cases, a variety of
expressions are used including 'a purpose intended to be',
'wilfully', and 'for the purpose of'. The meaning of many of these
expressions is uncertain.
The Bill removes ambiguous, non-Code expressions
such as 'for the purpose of', 'for any other purpose' and 'for that
purpose' where they occur in offence-creating provisions. It is not
certain, when reading these expressions, whether they incorporate a
fault element of intention which attaches to conduct or a physical
element of result (to which the default fault element of
recklessness would apply).
Corporate criminal
responsibility
In general, the Bill applies Chapter 2 to all
offence provisions in relevant legislation administered by the
Department of Education, Training and Youth Affairs. However, in
some cases, the application of Chapter 2 is modified. The
application of the Code's principles of corporate criminal
responsibility is one example. At the time the Criminal Code Bill
1994 was introduced, the responsible Minister said, 'Part 2.5 [of
the Criminal Code dealing with corporate criminal responsibility]
concerns general principles suitable for ordinary offences. It will
be the basis of liability if no other basis is
provided.'(10)
The Bill retains the existing provision in the
Student Assistance Act dealing with corporate criminal
responsibility (section 50) rather than replacing it with Part
2.5.
For a discussion of the issue of corporate
criminal responsibility, see Bills Digest No. 20,
2001-02.(11)
Strict liability
At common law there is a presumption that every
offence contains a mental element. However, an increasing number of
statutory offences dispense with fault elements.(12)
Whether an offence is a strict liability offence depends on the
interpretation of the offence provision. Working from common law
principles, Chapter 2 of the Criminal Code requires offences of
strict liability to be expressly identified as such.(13)
Failure to do so means that fault elements are applied to all the
physical elements in the offence.
Strict liability is most often used in minor or
regulatory offences attracting small penalties where requiring the
prosecution to prove a fault element would render the legislation
unenforceable because it would inhibit prosecution and make the
hearing of cases more complex and lengthy.
As well as providing for the identification of
strict liability offences, the Criminal Code allows a law which
creates an offence to provide that strict liability applies to some
physical elements of that offence.(14) Although the
prosecution need not prove fault in relation to strict liability,
the Criminal Code supplies a defence of mistake of fact to strict
liability offences and to other offences to where strict liability
is applied to some of their physical elements.(15) The
Code does not prevent defences other than mistake of fact
applying.(16)
The Bill does not identify any strict liability
offences but does identify some physical elements of offences as
attracting strict liability.
The Explanatory Memorandum explains it is
intended that when Chapter 2 is applied 'the relevant offences
[will] continue to have the same meaning and to operate in the same
manner as they do at present'.(17) As with other
'application of criminal code' bills, the Senate Standing Committee
for the Scrutiny of Bills has requested an assurance from the
Minister that no new strict liability offences are created by the
Bill.(18)
Defences
Defences to criminal offences are usually
external to the physical and fault elements of offences and to
offences themselves.(19) Possibly for this reason, and
to clearly identify defences as defences and not as elements of
offences which have to be proved or disproved by the prosecution,
the amendments relocate defences from provisions which set out the
physical elements of an offence into their own separate
subsections.
The Bill relocates and re-phrases defences of
reasonable excuse and incapacity to comply with a statutory
requirement. It also repeals references in portfolio legislation to
defences of lawful excuse or lawful authority. Part 2.3 of the
Criminal Code contains a range of general defences. In its 1998 and
1999 Offences Against the Person reports, the Model
Criminal Code Officers Committee recommended that there be a
general lawful authority defence.(20) The effect of
repealing existing lawful authority defences is that the general
defence in section 10.5 of the Criminal Code will apply.
Application of amendments
Clause 4 provides that each
amendment made by the Education, Training and Youth Affairs
Legislation Amendment (Application of Criminal Code) Act 2001
applies to acts and omissions that occur or commence after that
amendment commences.
Amendments of the Higher
Education Funding Act 1988
Item 1 of Schedule 1 applies
the principles of criminal responsibility contained in Chapter 2 of
the Criminal Code to all offences against the Higher Education
Funding Act.
Sections 52 and 53 of the Higher Education
Funding Act prohibit a person from making an unauthorised demand
that a person disclose or record a student's tax file number.
Item 2 restructures subsection 52(1) to clearly
identify the physical elements of the offence and its associated
defences. The clear identification of physical elements will allow
the Criminal Code's default fault elements to apply. The separation
of defence provisions will ensure that they are not interpreted as
elements of the offence, which would have to be proved by the
prosecution. The amendments also remove the ambiguous non-Code
expressions, 'for the purpose of' and 'for any other purpose'.
Evidential burdens placed on the defendant are noted. Item
3 restructures subsection 53(1) for broadly similar
reasons and in similar ways.
Section 78 of the Higher Education Funding Act
places secrecy obligations on Commonwealth officers and others who
acquire confidential information in the course of their duties
under Chapter 4 of the Act.(21) It is an offence for
such a person to record or divulge such information 'except for the
purposes of ... Chapter [4], or otherwise than in the performance
of the person's duties as an officer ...'. Items 4 and
5 restructure subsection 78(4) by relocating and
rephrasing these words. The reason for doing so is to ensure that
the words are interpreted as defences and not as elements of the
offence which would have to be proved by the prosecution. A note
explains that a defendant bears an evidential burden in relation to
these matters. Item 5 also inserts new
subsection 78(4B) which applies strict liability to the
physical element of circumstance in the offence-that the
information was acquired for the purposes of Chapter
4.(22) In other words, the prosecution will not need to
prove that the defendant turned his or her mind to the letter of
the law.
Amendments of the Student
Assistance Act 1973
Item 1 of Schedule 2 applies
Chapter 2 of the Criminal Code to all offences against the Student
Assistance Act, except for principles of corporate criminal
responsibility.
Section 12ZU of the Student Assistance Act
places secrecy obligations on Commonwealth officers and others who
acquire confidential information in the course of their duties
under Division 6 of the Act.(23) It is an offence for
such a person to record or disclose confidential information
'except for the purposes of this Division, or in the performance of
the person's duties as an officer ...'.
Items 2 and 3 affect subsection
12ZU(4) of the Student Assistance Act. They do three things. First,
they relocate these words to a new subsection to ensure that they
are interpreted as defences and not as elements of the offence
which would have to be proved by the prosecution. Second, they
insert a note that the defendant bears an evidential burden in
relation to these matters. Third, they stipulate that strict
liability applies to the physical element of circumstance in the
offence-that the information was obtained for the purposes of
Division 6.(24) In other words, the prosecution will not
have to prove that the defendant put his or her mind to the letter
of the law.
Section 42 of the Student Assistance Act enables
the Commonwealth to recover overpayments from certain third
parties. A third party who is given a notice requiring payment to
be made under the section must not contravene the notice 'without
reasonable excuse' [subsection 42(5)]. Items 4 and
5 relocate the element of reasonable excuse to a new
subsection to ensure that the words are interpreted as a defence
and not as an element of the offence which would have to be proved
by the prosecution. Additionally, a note is added explaining that
the defendant bears an evidential burden.
Section 48 of the Student Assistance Act
provides that students must tell the Department about certain
changes in their circumstances ('prescribed
events').(25) Subsection 49(1) of the Student Assistance
Act makes it an offence, 'without reasonable excuse', to contravene
section 48. Items 6 and 7 make amendments to
subsection 49(1) of the Act which are similar to those effected by
items 4 and 5 in relation to subsection 42(5).
Item 8 affects subsection
347(10) of the Student Assistance Act. This subsection currently
provides that:
A person must not, without reasonable excuse,
intentionally or recklessly refuse or fail to comply with a
requirement made under section 343, 344 or 345 to the extent that
the person is capable of complying with it.
Sections 343, 344 and 345 empower the Secretary
to obtain information including information about student
assistance benefits, and from and about Commonwealth debtors. The
amendments:
-
- restructure subsection 347(10) into its component parts by
separating the physical elements of the offence from the elements
of 'reasonable excuse' and 'incapacity to comply'. This ensures
that 'reasonable excuse' and 'incapacity to comply' will be
interpreted as defences and not as elements of the offence which
would have to be proved by the prosecution.
-
- remove the words 'intentionally or recklessly'. As presently
worded, the provision applies the fault elements of intention and
recklessness to the physical element of conduct in the offence.
Recklessness is applied by the Criminal Code to the results and
circumstances of conduct. The amendments thus remove an
inappropriate fault element. The default fault provisions of the
Criminal Code will ensure that intention will continue to apply to
the physical element of conduct in the offence.
-
- stipulate that strict liability will apply to the physical
element of circumstance in the offence-that the requirement was
made under section 343, 344 or 345. In other words, the prosecution
will not have to prove that the accused person put his or her mind
to the letter of the law.
Items 9 and 10 repeal
paragraphs 352(b) and 353(b) of the Student Assistance Act,
respectively. These paragraphs provide defences of lawful authority
where a person is prosecuted for unauthorised access to or use of
protected information. The repeal of the two paragraphs means that
the general defence of lawful authority in section 10.5 of the
Criminal Code will be available instead.
It is an offence against section 357 of the
Student Assistance Act to solicit the disclosure of protected
information if the disclosure would contravene Division 3 of Part
10 of the Act and the person knows that the information is
protected information. Item 11 specifies that
strict liability applies to the physical element of circumstance in
subsection 357(1). This is the circumstance that the conduct
contravenes Division 3 of Part 10 of the Act, which deals with
confidentiality. In other words, the prosecution will not have to
prove that a defendant put his or her mind to the letter of the
law.
Section 358 of the Student Assistance Act
reads:
If:
(a) a person solicits the disclosure
of protected information from an officer; and
(b) for that purpose makes representations that
the person knows or ought reasonably to know are untrue;
then, whether or not any protected information
is actually disclosed, the person is guilty of an offence
punishable on conviction by imprisonment for a period of not more
than 2 years.
Item 12 repeals and replaces
paragraph 358(b). The amendment:
-
- removes the ambiguous, non-Code expression, 'for that purpose'
in paragraph (b), and
-
- re-words paragraph (b) to clarify that the offence requires a
person to knowingly make untrue representations with the
intention of soliciting the disclosure of protected
information.
- Criminal Code, section 4.1.
- Criminal Code, section 4.3.
- 'Knowledge' is not a default fault element but can be applied
to the physical elements of circumstance and result-see Criminal
Code, section 5.3. 'Negligence' is not a default fault element but
can be applied to a physical element of an offence-see Criminal
Code, section 5.5.
- Criminal Code, section 5.6. If 'recklessness' is the fault
element for a physical element of an offence, proof of intention,
knowledge or recklessness will satisfy the fault element-Criminal
Code, subsection 5.4(4).
- This is the 'golden thread' of English criminal law referred to
in Woolmington v. DPP (1935) AC 462.
- Criminal Code, subsection 13.1(3).
- Criminal Code, subsection 13.3(1).
- Criminal Code, subsection 13.3(6).
- Criminal Code, sections 13.4 and 13.5.
- Second Reading Speech, Senate, Parliamentary Debates
(Hansard), 30 June 1994, p. 2381.
- James Prest, Bills Digest No. 20, 2001-02,
Agriculture, Fisheries and Forestry Legislation Amendment
(Application of Criminal Code) Bill 2001.
- He Kaw Teh v. R (1985) 157 CLR 523.
- Criminal Code, subsection 6.1(1).
- Criminal Code, subsection 6.1(2).
- Criminal Code, paragraphs 6.1(1)(b) and 6.1(2)(b).
- Criminal Code, subsection 6.1(3).
- Explanatory Memorandum, p. 1.
- Senate Standing Committee for the Scrutiny of Bills, Alert
Digest, No. 10 of 2001, 22 August 2001, p. 8.
- Matthew Goode, 'The Modern Criminal Code Project',
Australian Law Librarian, 5(4), December 1997, pp. 267-76
at p. 267.
- Revised Explanatory Memorandum, Criminal Code (Theft, Fraud,
Bribery and Related Offences) Bill 2000.
- Chapter 4 relates to the Higher Education Contribution
Scheme-HECS.
- As strict liability is applied to the circumstance that the
information recorded or disclosed was obtained 'under or for the
purposes of this Chapter', any interpretative difficulties that may
have been associated with the words (see Background), are
presumably not an issue.
- Division 6 relates to a student's indebtedness in relation to
financial supplements.
- As strict liability is applied to the circumstance that the
information recorded or disclosed was obtained 'under or for the
purposes of this Division', any interpretative difficulties that
may have been associated with the words (see Background), are
presumably not an issue.
- These 'prescribed events' are set out in regulation 109 of the
AUSTUDY Regulations.
Jennifer Norberry
27 August 2001
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
Except to the extent of the uses permitted under the
Copyright Act 1968, no part of this publication may be
reproduced or transmitted in any form or by any means, including
information storage and retrieval systems, without the prior
written consent of the Parliamentary Library, other than by Members
of the Australian Parliament in the course of their official
duties.
Published by the Department of the Parliamentary Library,
2001.
Back to top