Bills Digest No. 65 2001-02
Transport and Regional Services 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
Transport and Regional Services
Legislation Amendment (Application of Criminal Code) Bill
2001
Date Introduced: 19 September 2001
House: House of Representatives
Portfolio: Transport and Regional Services
Commencement: The day after Royal Assent is
given.
The major purpose
of the Bill is to amend statutes in the Transport and Regional
Services portfolio(1) to harmonise them with the
principles of criminal responsibility contained in Chapter 2 of the
Criminal Code.
The Bill also:
-
- modifies the application of Chapter 2 in relation to certain of
the laws in force in Australia's external territories and the
Jervis Bay Territory, and
-
- excludes the application of Chapter 2 from a number of
Commonwealth statutes which are part of a national cooperative
scheme relating to road transport.
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.
As part of this exercise, 20 bills designed to
amend legislation across a range of portfolios have been introduced
into the Parliament. The Transport and Regional Services
Legislation Amendment (Application of Criminal Code) Bill 2001 is
the last of these. In all, 38 statutes are amended by the Bill.
The Parliament has passed the following laws
which apply Chapter 2 to legislation in a range of
portfolios-Agriculture, Fisheries and Forestry Legislation
Amendment (Application of Criminal Code) Act 2001;
Communications and the Arts Legislation Amendment (Application
of Criminal Code) Act 2001; Environment and Heritage
Legislation Amendment (Application of Criminal Code) Act 2001;
Finance and Administration Legislation (Application of Criminal
Code) Act 2001; Foreign Affairs and Trade Legislation
Amendment (Application of Criminal Code) Act 2001, Health
and Aged Care Legislation Amendment (Application of Criminal Code)
Act 2001; Law and Justice Legislation Amendment
(Application of Criminal Code) Act 2001; Migration
Legislation Amendment (Application of Criminal Code) Act 2001;
Prime Minister and Cabinet Legislation Amendment (Application
of Criminal Code) Act 2001; Reconciliation and Aboriginal
and Torres Strait Islander Affairs Legislation Amendment
(Application of Criminal Code) Act 2001; Treasury
Legislation Amendment (Application of Criminal Code) Act (No. 1)
2001; Treasury Legislation Amendment (Application of
Criminal Code) Act (No. 3) 2001; and Veterans' Affairs
Legislation Amendment (Application of Criminal Code) Act
2001.
At the time of writing, one Bill-the Education,
Training and Youth Affairs Legislation Amendment (Application of
Criminal Code) Bill 2001-had passed the Parliament but not received
Royal Assent.
Currently before the Parliament are the Defence
Legislation Amendment (Application of Criminal Code) Bill 2001;
Employment, Workplace Relations and Small Business Legislation
Amendment (Application of Criminal Code) Bill 2001; Family and
Community Services Legislation Amendment (Application of Criminal
Code) Bill 2001; Industry, Science and Resources Legislation
Amendment (Application of Criminal Code) Bill 2001; Treasury
Legislation Amendment (Application of Criminal Code) Bill (No. 2)
2001; and the present Bill.
Some major aspects of criminal responsibility
relevant to the Transport and Regional Services 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.(2) 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.(3) Each
offence must contain at least one physical element, 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(4)-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.(5)
The Code does not prevent an offence from specifying an alternative
fault element(6), but indicates that the default fault
element will apply in the absence of a specified fault
element.(7)
In the main, the Bill amends offence provisions
so that their constituent fault and physical elements correspond
with the scheme supplied by the Criminal Code. However, it also
retains existing fault elements in some offences which do not
correspond with the default fault elements supplied by the Criminal
Code.
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', 'maliciously', and 'for the purpose of'. The meaning of
some of these expressions is uncertain. For example, it is not
certain, when reading expressions like 'for the purpose of' 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).
The Bill removes ambiguous and non-Code
expressions such as 'for the purpose', 'wilfully' and
'maliciously'(8) where they occur in offence-creating
provisions.
Proof of
criminal responsibility
It is the duty of the prosecution to prove the
guilt of the accused person.(9) 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'.(10) 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.(11) 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.(12) 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.(13) 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. The
amendments also identify instances where a defendant carries a
legal burden of proof.
Corporate
criminal responsibility
For the most part, the Bill applies Chapter 2 to
offence provisions in relevant legislation administered by the
Transport and Regional Affairs portfolio. 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.'(14) For a
discussion of the issue of corporate criminal responsibility, see
Bills Digest No. 20, 2001-02.(15)
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.(16)
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.(17)
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.(18)
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.(19) The Code does not prevent
defences other than mistake of fact applying.(20)
The Bill identifies strict liability offences
and particular physical elements of other offences as attracting
strict liability.
At the time of writing the Senate Standing
Committee on the Scrutiny of Bills had not reported on the
Transport and Regional Services Legislation Amendment (Application
of Criminal Code) Bill 2001. However, its Alert Digests
for companion 'application of criminal code' bills have generally
sought an assurance from the Minister that no new strict liability
offences are created by the proposed amendments.(21)
Similar assurances have been sought where 'application of criminal
code' bills contain absolute liability provisions.(22)
However, the Bill does not identify any absolute liability offences
or particular elements of other offences to which absolute
liability is applied.
Defences
Defences to criminal offences are usually
external to the physical and fault elements of offences and to
offences themselves.(23) 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,
some amendments relocate and re-phrase elements of excuse-such as
'without reasonable excuse', 'without reasonable cause' or 'without
the leave of the master'-so it is clear that they are defences.
The amendments in general remove statutory
defences relating to lawful excuse or statutory authority. A
general defence of lawful authority will supplied by the Criminal
Code.(24)
Ancillary offences
Many Commonwealth statutes contain references to
provisions in the Crimes Act 1914 which deal with
ancillary offences such as attempts to commit offences, incitement
and conspiracy. These Crimes Act provisions are being disapplied
and will be replaced by equivalent provisions in the Criminal Code.
The Bill thus contains amendments removing references to the Crimes
Act and replacing them with references to the Criminal Code.
Schedule 1-Amendments of the
Airports Act 1996
Item 1 of Schedule 1 inserts a
definition of 'engage in conduct' into the Airports Act to ensure
that acts and omissions are covered by the expression. The Criminal
Code provides that an omission to perform an act can only be a
physical element of an offence if the law creating the offence
expressly provides or if the law impliedly provides that the
offence is committed by an omission to perform a statutory
duty.(25)
Item 2 applies Chapter 2 of the
Criminal Code, except for the Code's principles of corporate
criminal responsibility, to the Airports Act. Corporate criminal
responsibility is dealt with in section 224 of the Airports
Act.
Offences in the Airports Act are relevant to
matters such as the grant of airport leases, restrictions on the
ownership of airport-operator-companies, cross-ownership, land use,
planning and building controls and environmental management.
Items 3-22, 27-33, 45-57, 59-63
amend offence provisions in the Airports Act in a number of ways.
First, they restructure the offences to clearly identify their
constituent physical elements, thus allowing the Criminal Code's
default fault elements to apply. In doing so they also remove
existing fault elements such as 'intentionally or recklessly' which
are either redundant or may apply inappropriately according to the
standards of the Criminal Code.
The amendments to the Airports Act do not
identify any strict liability offences. However, many of them
identify particular physical elements to which strict liability
applies. In general, these amendments relieve the prosecution of
having to show that the defendant put his or her mind to the letter
of the law. An example is new subsection 85(2)
which provides that a company will commit an offence if it is
required to give a written notice under subsection 85(1), it
engages in conduct, and the conduct contravenes the requirement.
Strict liability applies to the first of these three physical
elements [new subsection 85(3)]. Note, however,
that in a number of facially similar offences, strict liability is
not applied to identical or similar physical elements. For example,
item 6 identifies a physical element in the
offence against subsection 46(2) of the Navigation Act-being
required to take steps under subsection 46(1)-as attracting strict
liability.(26) However, strict liability is not applied
to one of the physical elements in the offence against subsection
42(2)-being required to take steps under subsection 42(1) of the
Airports Act (see item 5).(27) In both
offences, the penalty is 500 penalty units.
Where statutory elements of excuse presently
exist in offences under the Airports Act, the amendments
reconstitute the words 'without reasonable excuse' so that they are
clearly identified as a defence and not as elements of the offence
which would have to be proved by the prosecution.
The amendments also insert notes indicating
where a defendant carries an evidential burden in relation to
matters raised in his or her defence.
Item 58 repeals and replaces
subsection 224(6) of the Airports Act in order to substitute
references to ancillary offences in the Criminal Code for the
existing references to ancillary offences under the Crimes Act. The
Crimes Act provisions are repealed by the Law and Justice
Legislation Amendment (Application of Criminal Code) Act
2000.
Items 34, 37, 40 and 44 omit
references in offences to 'acts or omissions' and substitute
references to 'conduct' or 'engages in conduct'. These amendments
are consequential on item 1.
Schedule 2-Amendments of the
Navigation Act 1912
Item 1 of Schedule 2 applies
Chapter 2 of the Criminal Code, except for principles of corporate
criminal responsibility, to all offences against the Navigation
Act. The Act's existing provision dealing with corporate criminal
responsibility (section 395A) is thus retained.
Item 2 inserts a definition of
'engage in conduct' into the Airports Act to ensure that acts and
omissions are covered by the expression. The Criminal Code provides
that an omission to perform an act can only be a physical element
of an offence if the law creating the offence expressly provides or
if the law impliedly provides that the offence is committed by an
omission to perform a statutory duty.(28)
The Navigation Act contains a range of offences
relating to such things as the qualifications of masters, officers
and seamen, dead seamen's belongings, the keeping of log books and
ships and shipping.
A number of amendments identify offences against
the Navigation Act as strict liability offences (items 3-5,
7, 8, 12-16, 20, 22, 23, 25, 27, 31-35, 37, 40, 46-55, 63-66, 75,
76, 83, 85, 88 and 89). An example of an offence which is
identified as a strict liability offence is the offence against
subsection 17(1) (see item 7). This is an offence
of failure by a person serving on a ship to produce their
certificates of qualification when required to do so by the proper
authority. The penalty is $500.
Items 9, 19 and 90 identify
physical elements in a number of offences(29) in the
Navigation Act as attracting strict liability.
Items 6, 7, 21, 23-26, 28, 29, 39, 40,
42-45, 69, 70, 72, 73, 77-80 and 84-87 all omit words of
excuse in offence provisions and reconstitute them in a way that
clearly indicates that they are statutory defences, not elements of
the offences which would have to be proved by the prosecution. The
statutory defences include reasonable excuse and reasonable cause.
Another example of a statutory defence which is preserved is seen
in the amendments effected by items 44 and 45.
Subsection 265(1) of the Navigation Act makes it an offence for a
ship's master not to assist persons in distress on a ship or
aircraft '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'. Item 44 omits these words from
subsection 265(1) and reconstitutes them as a defence in
new subsection 265(1A).
Items 9, 11, 18, 19, 26, 40, 57, 58, 60,
65, 71, 74 and 90 re-word and restructure offence
provisions in the Navigation Act. As a result, the constituent
physical elements of each offence are identified and the default
fault elements supplied by the Criminal Code can be applied.
Items 10, 30, 41, 61, 62, 68, 81 and
82 omit redundant, inappropriate or non-Criminal Code
fault elements from offence provisions under the Navigation Act.
Default fault elements will be supplied by the Criminal Code. For
example, item 68 omits the word 'wilfully' from
subsection 296(2) of the Navigation Act which presently reads, 'No
person shall wilfully disobey the directions of the [Australian
Maritime Safety Authority]'. Wilfully is a non-Code fault element
which is equivalent to the Code fault element of intention.
'Intention' will apply by default to the physical element of
conduct in the offence-disobeying the instructions of the
Authority. Another example is item 61 which omits
the word, 'knowingly', from the offence against paragraph
282(1)(d). This is an offence of 'knowingly' proceeding further on
board a ship than the fare allows. The appropriate Criminal Code
fault element for the physical element of conduct in the offence is
'intention' not 'knowledge'.
Items 29, 38 and 56 insert
notes into the Navigation Act indicating where a defendant will
bear a legal burden of proof. For instance, section 227B of the
Navigation Act creates an offence of overloading a ship. It is a
defence 'if it is proved that the circumstances giving rise to the
offence were due only to a deviation or delay of the ship caused
solely by stress of weather or other circumstances which neither
the master not owner of the ship could have prevented or
forestalled'. Item 38 provides that the defendant
bears a legal burden in relation to this matter. This reflects the
existing intention of the provision and is a matter likely to be
within the knowledge of the ship's master or owner.
Item 36 omits the words,
'except as permitted by or under the regulations', in subsection
227B(1) of the Navigation Act. A defence of lawful authority will
apply to Commonwealth offences by operation of section 10.5 of the
Criminal Code. A similar amendment is effected by item
72.
Schedule 3-Amendment of other transport
legislation
Some examples of statutes amended by
Schedule 3 are provided below. Questions about
other amendments can be directed to the author of this Digest.
Adelaide Airport Curfew Act
2000
Item 1 of Schedule 3 applies
Chapter 2 of the Criminal Code, with the exception of the Code's
principles of corporate criminal responsibility, to all offences
against the Adelaide Airport Curfew Act. The relevant provision in
the Act is section 23.
Items 2, 3 and 5 reword and
restructure offence provisions in the Act so that their constituent
physical elements are clearly identified and the Code's default
fault elements can be applied.
Items 2 and 4 provide that in
sections 6 and 19 of the Adelaide Airport Curfew Act, the
expression, 'engage in conduct' includes omissions as well as
acts.
Item 6 replaces references to
ancillary offences under the Crimes Act with references to
equivalent provisions in the Criminal Code.
Air Navigation Act
1920
Item 11 applies Chapter 2 of
the Criminal Code, except for the Code's principles of corporate
criminal responsibility, to the Air Navigation Act. The relevant
provision in the Air Navigation Act is section 24A.
Items 12, 15, 23, 24, 29 and 31
remove the words 'intentionally or recklessly' in a number of
offence provisions under the Act. In doing so, the amendments
remove the possibility that these fault elements might be
inappropriately applied to the physical elements of the offences.
The amendments also allow the default fault elements in the
Criminal Code to apply to the offences so that the provisions
operate harmoniously with the Code. For example, item
12 omits the words, 'intentionally or recklessly' from
subsection 10(2) of the Act. As it presently reads, this is an
offence of 'intentionally or recklessly' flying an aircraft in
contravention of subsection 10(1). With the application of the
Criminal Code, the word 'intentionally' is redundant because it
will apply by default to the physical element of conduct in the
offence-flying an aircraft. The fault element, 'recklessness' is an
inappropriate fault element in relation to the element of conduct
in the offence. Recklessness is the default fault element for
elements of circumstance or result.
Items 13, 14, 16, 17, 18, 21, 25 and
27 remove existing elements of excuse from a number of
offences against the Air Navigation Act and relocate them in
separate provisions so it is clear that they operate as statutory
defences and not as elements of the offences which would have to be
proved by the prosecution. Examples are reasonable excuse and the
existence of a permission.
Items 18, 21 and 28 reword and
restructure offence provisions in the Air Navigation Act. These
amendments clearly identify the constituent physical elements of
these offences and, in general, the default fault elements supplied
by the Criminal Code will apply. However, in some cases these fault
elements are modified. For instance, item 28
replaces existing section 19CS but retains the existing fault
element of 'knowledge' which applies to the physical element of
result in the offence. Recklessness is the default fault element
which would ordinarily apply to this physical element.
Item 18 applies strict
liability to certain physical elements in offence against
new subsections 15A(1) and (2). For example,
strict liability will apply to the physical element of discharging
passengers for reward at an 'intermediate stopping place' during a
non-scheduled flight. Item 21 applies strict
liability to paragraph 1(b) of the offence against section 17 of
the Air Navigation Act.
Items 27 and 30 identify some
offences as strict liability offences. Examples are offences
against paragraphs 19CC(4)(a), (c) and (d). These are offences of
failing to provide information when required to do so by the
Director of Air Safety Investigation, refusing or failing to answer
a question lawfully put by the Director or failing to produce a
document to the Director. As a consequence of the offence of
'refusing or failing to answer questions' being identified as a
strict liability offence the word, 'refusing' is omitted from the
provision (item 26). 'Refusing' suggests a mental
element which is inappropriate in a strict liability offence.
Item 32 removes references to
ancillary offences in the Crimes Act and replaces them with
references to ancillary offences in the Criminal Code.
Interstate Road Transport
Act 1985
Item 59 applies Chapter 2 of
the Criminal Code, except for the Code's principles of corporate
criminal responsibility, to all offences against the Interstate
Road Transport Act. The relevant section in the Interstate Road
Transport Act is section 47A.
Items 62, 67, 68, 69, 72 and 73
identify a number of offences against the Interstate Road Transport
Act as strict liability offences. An example is item
69 which identifies the offences of destroying, damaging,
hindering the operation of or removing a monitoring device on a
motor vehicle as strict liability offences [new subsection
40(3)].
Items 63-66, 69, 72 and 73
remove existing words of excuse in a number of provisions and
reconstitute them as statutory defences so it is clear they are not
elements of the offences which would have to be proved by the
prosecution. The Criminal Code applies a mistake of fact defence to
strict liability offences but allows other defences to be supplied.
In some cases, the statutory defences which are retained by the
amendments apply to strict liability offences. Item
69 can be used as an example. Apart from the Code's
defence of mistake of fact, statutory defences which are retained
for offences relating to destroying or damaging monitoring devices
include removal which is permitted by the regulations. A question
which might be asked here is why this statutory defence is retained
when the Criminal Code will supply a defence of lawful authority
(section 10.5).
Item 69 also restructures the
offence against section 40 of the Interstate Road Transport Act to
clearly identify its constituent physical elements. The Criminal
Code's default fault elements will be applied to these
elements.
Schedule 4-Amendment of territories and
regional services legislation
Items 1, 6, 16 and 43 apply
Chapter 2 of the Criminal Code to a number of 'regional services'
statutes. These statutes are the Albury-Wodonga Development Act
1973, the Australian Capital Territory Taxation
(Administration) Act 1969, the Canberra Water Supply
(Googong Dam) Act 1974 and the Pay-roll Tax (Territories)
Assessment Act 1971.
Items 4, 5, 25, 32, 39, 40 and
41 determine how Chapter 2 will apply to Australia's
external territories and the Jervis Bay Territory. Australia has
seven external territories. Section 3A of the Criminal Code Act
1995 provides that the Criminal Code applies to every external
Territory. However, this general principle needs to be modified
because the law applying in Australia's territories may include
Commonwealth, State and Territory laws. Applying Chapter 2 to the
State and Territory laws in force in those jurisdictions could make
the laws unworkable. In a number of cases where Chapter 2 is
applied by the amendments, consequential changes are made to the
relevant statutes. Some examples appear below.
Ashmore and Cartier Islands are situated in the
Timor Sea, 800 km west of Darwin. The laws applying in these
islands include Northern Territory laws, Commonwealth Acts and
Ordinances made by the Governor-General. Item 4
provides that Chapter 2 does not apply to, or in relation to
matters arising under, a law in force in Ashmore and Cartier
Islands as a result of section 6 of the Ashmore and Cartier
Islands Acceptance Act 1933. This is because section 6 applies
the laws of the Northern Territory to Ashmore and Cartier Islands.
The Explanatory Memorandum points out:
As the Commonwealth cannot harmonise State and
Territory offences, [if the amendment were not made] ... Ashmore
and Cartier Islands Territory [may have].. unworkable criminal
offences.(30)
Item 5 provides that Chapter 2
does not apply to or matters arising under a law in force in the
Australian Antarctic Territory as a result of subsections 6(1) or
(2) of the Australian Antarctic Territory Act 1954.
Subsections 6(1) and (2) apply the law of the Jervis Bay
Territory-for the most part, ACT laws-to the Australian Antarctic
Territory.
The law in force on Christmas Island includes
Commonwealth Acts which extend to the island, Christmas Island
Ordinances and Western Australian laws. Item 25
provides that Chapter 2 applies to all offences created by the
Christmas Island Act 1958. An example of such an offence
is attempting to corrupt a juror [section 12B(3), Christmas Island
Act].
Items 26 and 27 remove the
words 'without reasonable excuse' from subsection 12B(1) of the
Christmas Island Act and relocate them in a new subsection so it is
clear that they are words of defence and not an element of the
offence which would have to be proved by the prosecution.
Item 28 rewords the offence of impersonating a
juror contained in subsection 12B(2), in part by omitting the words
'for the purpose'. This is an ambiguous non-Code expression. The
Code fault element, 'intention' is inserted in their place.
Item 30 removes the statutory defence of lawful
authority in paragraph 12B(3)(b) of the Christmas Island Act. A
general defence of lawful authority is provided by section 10.5 of
the Criminal Code.
Item 25 also provides that
Chapter 2 will not apply to, or in relation to matters arising
under, a law in force on Christmas Island because of section 8A of
the Christmas Island Act. Section 8A applies Western Australian
laws to Christmas Island.
Cocos (Keeling) Islands are located in the
Indian Ocean about 2,700 km northwest of Perth. The law in the
Cocos (Keeling) Islands includes Commonwealth laws extending either
expressly or impliedly to the islands, Ordinances made by the
Governor-General and Western Australian laws. Item
32 applies Chapter 2 to all offences created by the
Cocos (Keeling) Islands Act 1955. An example of such an
offence is impersonating a juror [subsection 15AE(3), Cocos
(Keeling) Islands Act]. Amendments effected by items
33-37 make similar changes to offences relating to jurors
as are made by amendments to the Christmas Island Act (see above).
The amendments also provide that Chapter 2 will not apply to, or in
relation to matters arising under, a law in force on Cocos
(Keeling) Islands because of section 8A of the Cocos (Keeling)
Islands Act (item 32). Section 8A is the provision
which applies Western Australian laws to Cocos (Keeling)
Islands.
Item 39 provides that Chapter 2
does not apply to, or in relation to matters arising under, a law
in force in Heard Island or McDonald Islands under subsections 5(1)
or (2) of the Heard Island and McDonald Islands Act 1953.
These subsections apply Jervis Bay Territory laws-for the most
part, ACT laws-to the Territory of Heard Island and McDonald
Islands.
The Jervis Bay Territory covers an area of about
70 square km and is situated about 160 km south of Sydney. Laws in
force in the Jervis Bay Territory include ACT laws and Ordinances
made by the Governor-General. Item 40 provides
that Chapter 2 does not apply to, or in relation to matters arising
under, a law in force in the Jervis Bay Territory under section 4A
of the Jervis Bay Territory Acceptance Act 1915. Section
4A is the provision that applies ACT laws to the Jervis Bay
Territory.
Norfolk Island is a self-governing territory.
Its laws include Commonwealth Acts extending to Norfolk Island,
Ordinances made by the Governor-General and laws made by the
Norfolk Island Legislative Assembly under the Norfolk Island
Act 1979. Item 41 applies Chapter 2 to all
offences against the Norfolk Island Act. Item 42
provides that an offence against subsection 51E(4) of the Norfolk
Island Act is a strict liability offence. This is an offence of
contravening a requirement to provide information to the Norfolk
Island Auditor.
Schedule 5-Amendment of road transport
legislation
Items 1-3 of Schedule 5 provide
that Chapter 2 does not apply to, or in relation to matters arising
under, offences created by the following statutes:
-
- Road Transport Reform (Dangerous Goods) Act 1995
-
- Road Transport Reform (Heavy Vehicles Registration) Act
1997
-
- Road Transport Reform (Vehicles and Traffic) Act
1993.
The Explanatory Memorandum states that these
statutes(31) have been temporarily exempted from the
application of the Chapter 2 because they form part of
Commonwealth, State and Territory cooperative schemes which need to
be amended in concert, something which is done after a
recommendation from the National Road Transport Commission (NTRC)
and an endorsement by the relevant Ministerial Council. The
Explanatory Memorandum states that the Commonwealth will refer the
question of amending the statues to the NTRC.(32)
-
- Two of the statutes amended-the Australian Antarctic
Territory Act 1954 and the Heard Island and
McDonald Islands Act 1953-are administered by the Environment
and Heritage portfolio. The rest are administered by the Transport
and Regional Services portfolio.
- 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).
- Criminal Code, subsection 5.1(1).
- Criminal Code, section 5.6.
- See item 21 of Schedule 4 which omits the
expression, 'maliciously or fraudulently' from section 15 of the
Canberra Water Supply (Googong Dam) Act 1974.
- 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).
- See, for example, Alert Digest, No. 10 of 2001, 22
August 2001, which commented on the Education, Training and Youth
Affairs Legislation Amendment (Application of Criminal Code) Bill
2001.
- See, for example, Alert Digest, No. 6 of 2001, 23 May
2001, which commented on the Migration Legislation Amendment
(Application of Criminal Code) Bill 2001.
- Matthew Goode, 'The Modern Criminal Code Project',
Australian Law Librarian, 5(4), December 1997, pp. 267-76
at p. 267.
- Criminal Code, section 10.5.
- Criminal Code, section 4.3.
- Under subsection 46(1) of the Airports Act, a company must take
reasonable steps to ensure that an 'unacceptable airline-ownership
situation' does not exist in relation to the company. Under
subsection 46(2) a company commits an offence if it is required to
take steps under subsection 1; it engages in conduct and the
conduct contravenes the requirement.
- Under subsection 42(1) an airport-operator company must take
reasonable steps to ensure that an 'unacceptable foreign ownership
situation' does not arise in relation to the company. Under
subsection 42(2) a company commits an offence if it is required to
take steps under subsection 42(1), engages in conduct, and the
conduct contravenes the requirement.
- Criminal Code, section 4.3.
- Subsections 186E(2), 186E(5), 53(2) and 421(5).
- Explanatory Memorandum, p. 157.
- These Commonwealth statutes operate only in the ACT and Jervis
Bay Territory.
- Explanatory Memorandum, p. 170.
Jennifer Norberry
24 September 2001
Bills Digest Service
Information and Research Services
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