Bills Digest No. 66 2001-02
Employment, Workplace Relations and Small Business 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
Employment, Workplace Relations and
Small Business Legislation Amendment (Application of Criminal Code)
Bill 2001
Date Introduced: 23 August 2001
House: House of Representatives
Portfolio: Employment, Workplace Relations and Small
Business
Commencement: Mainly the day after the Act
receives Royal Assent
The Bill's main
purpose is to revise criminal offence provisions in legislation
administered by the Department of Employment, Workplace Relations
and Small Business in the light of uniform principles of criminal
responsibility contained 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-
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, Family and
Community Services Legislation Amendment (Application of Criminal
Code) Act 2001, Finance and Administration Legislation Amendment
(Application of Criminal Code) Act 2001, Health and Aged Care
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,
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.
Currently before the Parliament are the
Education, Training and Youth Affairs 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, Defence Legislation Amendment (Application of
Criminal Code) Bill 2001 and the present Bill.
Some major aspects of criminal responsibility
relevant to the Employment, Workplace Relations and Small Business
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-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.(3) 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.
The Bill amends a number of offence provisions
within Employment portfolio legislation so that their constituent
fault and physical elements correspond with the scheme supplied by
the Criminal Code.
Proof of criminal responsibility
It is the duty of the prosecution to prove the
guilt of the accused person.(4) 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'.(5) The prosecution bears the
legal burden of proof beyond reasonable doubt, unless the law
creating the offence provides otherwise.
Generally, where a burden of proof is placed on
a defendant it is an evidential burden only.(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.(7) 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.(8)
The Bill inserts standard notes after those
offence provisions which present defences so as to indicate the
defendant bears an evidential burden if s/he wishes to rely upon
such a defence.
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.(9)
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.(10)
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.(11) The Bill
identifies some physical elements of offences as attracting strict
liability.
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.(12) The Code does not prevent
defences other than mistake of fact applying.(13)
The Bill retains additional defences to some
strict liability offences. For example, the Bill relocates and
re-phrases defences of reasonable excuse where they presently exist
in offences identified as strict liability offences.
The Minister's Second Reading Speech notes that
the Bill does not change the criminal law but rather ensures the
current law is maintained following application of the Criminal
Code.(14) 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.(15)
Corporate criminal
responsibility
In general, the Bill applies Chapter 2 to all
offence provisions in relevant legislation administered by the
Department of Employment, Workplace Relations and Small Business.
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.'(16)
For a discussion of the issue of corporate
criminal responsibility, see Bills Digest No. 20,
2001-02.(17)
Defences
Defences to criminal offences are usually
external to the physical and fault elements of offences and to
offences themselves.(18) 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 away from provisions which set out
the physical elements of an offence, into their own separate
subsections.
Removing and replacing
inappropriate fault 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,
amendments ensure that the Code fault element of knowledge does not
apply to the 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.
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 contains amendments removing references to the Crimes Act
and replacing them with references to the Criminal Code.
Additionally, some Commonwealth statutes
themselves contain provisions creating ancillary offences. These
provisions will no longer be necessary once the Criminal Code is
applied as it contains ancillary offence provisions. The Bill
therefore removes ancillary offence provisions from statutes
administered by the Department of Employment, Workplace Relations
and Small Business. Equivalent Criminal Code provisions will take
their place.
Amendments to the Building
Industry Act 1985
Item 1 applies the principles
of criminal responsibility contained in Chapter 2 of the Criminal
Code to all offences against the Building Industry Act.
Amendments to the Coal Mining
Industry (Long Service Leave) Payroll Levy Collection Act
1992
Items 2-9 amend sections of the
Coal Mining Industry (Long Service Leave) Payroll Levy Collection
Act. These amendments are designed to:
-
- apply Chapter 2 of the Criminal Code to all offences against
the Act (item 2)
-
- identify offences as offences of strict liability
(items 3, 4 and 6)
-
- relocate and re-phrase the defence of reasonable excuse
(items 5 and 6)
-
- relocate and re-phrase other defences (items 8 and
9)
-
- reword an offence provision so that the fault element of
knowledge applies to the physical elements of circumstance rather
than the physical element of conduct (item 7),
and
-
- insert a standard note after the offence provision which
present defences, that the defendant bears an evidential
burden if s/he wishes to rely upon such defences
(items 6 and 9).
Amendments to the Equal
Opportunity for Women in the Workplace Act 1999
Items 10-14 amend sections of
the Equal Opportunity for Women in the Workplace Act. These
amendments are designed to:
-
- apply Chapter 2 of the Criminal Code to all offences against
the Act (item 10), and
-
- relocate and re-phrase the elements of excuse so it is clear
they are defences and not elements of the offence which would have
to be proved by the prosecution (items
11-14).
Amendments to the Industrial
Chemicals (Notification and Assessment) Act 1989
Items 15-57 amend
sections of the Industrial Chemicals (Notification and Assessment)
Act. These amendments relate to the following matters.
Application of Chapter 2 of the
Criminal Code
Item 15 applies Chapter 2 of
the Criminal Code to all offences against the Industrial Chemicals
(Notification and Assessment) Act.
Strict
liability
Items 45 and 49 identify
offences against subsections 80QD(1) and 85(2) respectively, as
offences of strict liability. 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.
In addition, items 35, 38, 44, 47 and 54 identify
certain physical elements of offence provisions as offences of
strict liability. For example, item 35 identifies
strict liability in relation to the physical element of conduct
that the importer, manufacturer (subsection 61(4)) or person
(subsection 61(5)) failed to comply with a notice from the Minister
to prohibit an activity in relation to a chemical because of an
unacceptable risk of adverse health or environmental risks. The
maximum penalty for this offence is $30,000 for an importer or
manufacturer and $24,000 for an individual. The Explanatory
Memorandum argues that while these penalties are high, this offence
is suitable for the application of strict liability because the
subject matter being regulated is that of chemical substances which
pose unacceptable risks and is typically the type of regulatory
provision where strict liability is applied.(19)
Re-structuring offences to
clearly identify their constituent physical
elements
Items 22 and 23 restructure and
reword subsections 21L(4) and 21W(5) to clearly identify the
physical elements of conduct and result in the offences.
Identification of the physical elements of the offence will allow
the relevant default fault elements (ie, intention and
recklessness) to be applied by the Criminal Code.
Inappropriate fault
elements
Items 16, 17, 24, 27, 28, 36, 39, 40 and
41 remove the words 'knowingly or recklessly' from offence
provisions. The Explanatory Memorandum explains
that following application of the Criminal Code, it will not be
possible to apply a fault element of knowledge or recklessness to a
physical element consisting of conduct. Intention will be the
default fault element of conduct.
Other
amendments
Other amendments are designed to:
-
- relocate and re-phrase the defence of reasonable excuse so it
is clear it is a defence and not an element of the offence which
would have to be proved by the prosecution (items 22, 25,
26, 30-35, 37, 38, 43, 44, 46, 47, 51, 52 and 53)
-
- relocate and re-phrase other defences so it is clear that they
are defences and not elements of the offence which would have to be
proved by the prosecution (items 17, 18, 29 and
42)
-
- insert a standard note in the offence provisions which present
defences, that the defendant bears an evidential burden if
s/he wishes to rely upon such defences (items 18-21, 26,
29, 31, 33, 35, 38, 42, 44, 47, 52 and 54). 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.(20)
-
- remove a reference to an ancillary offence provision in the
Crimes Act and replace it with a reference to the equivalent
offence provision in the Criminal Code (item 48),
and
-
- repeal subsections 109(1) and (2) dealing with corporate
criminal responsibility (items 55-57).
Amendments to the National
Occupational Health and Safety Commission Act 1985
Items 58-70 amend sections of
the National Occupational Health and Safety Commission Act. These
amendments are designed to:
-
- apply Chapter 2 of the Criminal Code to all offences against
the Act (item 58)
-
- relocate and re-phrase the defence of reasonable excuse so it
is clear it is a defence and not an element of the offence which
would have to be proved by the prosecution (items 60, 62,
63, 64, 67 and 69)
-
- relocate and re-phrase other defences so it is clear that they
are defences and not elements of the offence which would have to be
proved by the prosecution (items 61, 62, 68 and
69)
-
- insert a standard note in the offence provisions which present
defences, that the defendant bears an evidential burden if
s/he wishes to rely upon such defences (items 62, 64 and
69). 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(21).
-
- remove a reference to procuring an offence against paragraphs
52(1)(b) and (c) (item 66). An equivalent Criminal
Code provision, section 11.2, will automatically take its place,
and
-
- remove a reference to an ancillary offence provision in the
Crimes Act and replace it with a reference to the equivalent
offence provision in the Criminal Code (item
59).
Amendments to the Occupational
Health and Safety (Commonwealth Employment) Act 1991
Items 71-88 amend sections of
the Occupational Health and Safety (Commonwealth Employment) Act.
These amendments are designed to:
-
- apply Chapter 2 of the Criminal Code-apart from Part 2.5 which
deals with corporate criminal responsibility-to all offences
against the Act (item 72)
-
- relocate and re-phrase the defence of reasonable excuse so it
is clear it is a defence and not an element of the offence which
would have to be proved by the prosecution (items 73-79,
81-83, 85 and 87)
-
- relocate and re-phrase other defences so it is clear that they
are defences and not elements of the offence which would have to be
proved by the prosecution (items 80 and 81)
-
- insert a standard note in the offence provisions which present
defences, that the defendant bears an evidential burden if
s/he wishes to rely upon such defences (items 74, 76, 78,
81, 83 and 87). 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(22).
-
- restructure and reword offence provisions to clearly identify
the physical elements of conduct and result in the offences
(items 84 and 88). Identification of the physical
elements of the offence will allow the relevant default fault
elements (ie, intention and recklessness) to be applied by the
Criminal Code.
-
- remove a reference to an ancillary offence provision in the
Crimes Act and replace it with a reference to the equivalent
offence provision in the Criminal Code (item 71),
and
-
- remove the words 'wilfully and recklessly' from an offence
provision (item 85).
Amendments to the Occupational
Health and Safety (Commonwealth Employment) Amendment Act
2001
Items 89-97 will only take
effect if the amendments made to the Occupational Health and Safety
(Commonwealth Employment) Act (see above) commence before the
Occupational Health and Safety (Commonwealth Employment) Amendment
Act 2001.
Amendments to the Occupational
Health and Safety (Maritime Industry) Act 1993
Items 98-110 amend sections of
the Occupational Health and Safety (Maritime Industry) Act. These
amendments are designed to:
-
- apply Chapter 2 of the Criminal Code to all offences against
the Act (item 98)
-
- identify the offence in subsection 85(3) as an offence of
strict liability (item 100)
-
- relocate and re-phrase the defence of reasonable excuse so it
is clear they are defences and not elements of the offence which
would have to be proved by the prosecution (items 101-105
and 107), and
-
- insert a standard note after offence provisions which present
defences of reasonable excuse, that the defendant bears an
evidential burden if s/he wishes to rely upon such
defences (items 102, 104, 105 and 107). 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.(23)
Amendments to the Safety,
Rehabilitation and Compensation Act 1988
Items 111-115 amend sections of
the Safety, Rehabilitation and Compensation Act. These amendments
are designed to:
-
- apply Chapter 2 of the Criminal Code to all offences against
the Act (item 111), and
-
- identify offences as offences of strict liability
(items 112-115).
Amendments to the Safety,
Rehabilitation and Compensation and Other Legislation Amendment Act
2001
Items 116-118 make minor
consequential amendments to the Safety, Rehabilitation and
Compensation Amendment Act. These are consequential to the
amendments made by items 112 and 113 of the
Bill.
Amendments to the Seafarers
Rehabilitation and Compensation Act 1992
Items 119-132 amend sections of
the Seafarers Rehabilitation and Compensation Act. These amendments
are designed to:
-
- apply Chapter 2 of the Criminal Code to all offences against
the Act (item 119)
-
- identify offences as offences of strict liability
(items 120-122, 124-127 and 129-132)
-
- relocate and re-phrase the defence of reasonable excuse so it
is clear they are defences and not elements of the offence which
would have to be proved by the prosecution (items 123, 124,
128 and 129), and
-
- insert a standard note after offence provisions which present
defences of reasonable excuse, that the defendant bears an
evidential burden if s/he wishes to rely upon such
defences (items 124 and 129). 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.(24)
Amendments to the Seafarers
Rehabilitation and Compensation Levy Collection Act 1992
Items 133-139 amend sections of
the Seafarers Rehabilitation and Compensation Levy Collection Act.
These amendments are designed to:
-
- apply Chapter 2 of the Criminal Code to all offences against
the Act (item 133)
-
- identify the offence in subsection 14(5) as an offence of
strict liability (item 139)
-
- identify the physical element of circumstance in the offences
in subsections 7(1) and (2) as strict liability (items 135
and 136)
-
- relocate and re-phrase the defence of reasonable excuse so it
is clear they are defences and not elements of the offence which
would have to be proved by the prosecution (items
134-139)
-
- insert a standard note after offence provisions which present
defences, that the defendant bears an evidential burden if
s/he wishes to rely upon such defences (items 135, 137 and
139). 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,(25)
and
-
- remove the fault element of knowledge from an offence provision
(item 136).
Amendments to the Workplace
Relations Act 1996
Items 140-205 amend
sections of the Workplace Relations Act. These amendments relate to
the following matters.
Application of Chapter 2 of the
Criminal Code
Item 140 applies Chapter 2 of
the Criminal Code-apart from Part 2.5 which deals with corporate
criminal responsibility-to all offences against the Act.
Strict
liability
Items 142, 146, 156, 176-179, 181, 183,
184-189, 190, 195, 196, 199 and 201 identify certain
offences against the Workplace Relations Act as offences of strict
liability. 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. In addition,
items 150, 155, 158, 189 and 194 identify certain
physical elements of offence provisions as offences of strict
liability. For example, item 150 identifies strict
liability in relation to the physical element of conduct that the
person fails to be sworn, fails to answer a question or fails to
produce a document (paragraphs 303(1)(b), (c) and (d)). The
Explanatory Memorandum explains that factors such as the low
penalty and regulatory nature of the offence support identification
of this offence as one that attracts strict
liability.(26)
The defence of lawful
excuse
Items 160, 163, 165, 166, 170, 173 and
175 omit the defence of lawful authority from offence
provisions in the Workplace Relations Act. A general defence of
lawful authority will be provided by section 10.5 of the Criminal
Code.
Re-structuring offences to
clearly identify their constituent physical
elements
Items 161-162, 171 and 172
restructure and reword offence provisions to clearly identify the
physical elements of conduct and result in the offence.
Identification of the physical elements of the offence will allow
the relevant default fault elements (ie, intention and
recklessness) to be applied by the Criminal Code.
Inappropriate fault
elements
Item 159 removes the words
'knowingly and recklessly' from section 314A. The
Explanatory Memorandum explains that following application of the
Criminal Code, it will not be possible to apply a fault element of
knowledge or recklessness to a physical element consisting of
conduct. Intention will be the default fault element of conduct.
Items 200 and 202 reword section 337 and
subsection 340(1) respectively, to also remove the fault element of
knowledge. Item 148 removes the word 'wilfully'
from paragraph 299(1)(a) because it is a non-Code expression.
Other
amendments
Other amendments are designed to:
-
- relocate and re-phrase the defence of reasonable excuse so it
is clear it is a defence and not an element of the offence which
would have to be proved by the prosecution (items 141, 149,
150, 151, 152, 153, 154, 182, 183, 191, 194, 197 and
198)
-
- relocate and re-phrase other defences so it is clear that they
are defences and not elements of the offence which would have to be
proved by the prosecution (items 158, 168 and
169)
-
- insert a standard note in the offence provisions which present
defences, that the defendant bears an evidential burden if
s/he wishes to rely upon such defences (items 142, 150,
152, 154, 158, 183, 194 and 198). 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(27), and
-
- remove the ancillary offence of 'procuring' an offence from
offence provisions of the Act (item 164, 167, 169 and
174). This will no longer be necessary once the Criminal
Code is applied as section 11.2 of the Code creates an offence of
aiding, abetting, counselling or procuring the commission of an
offence by another person.
Amendments to the Workplace
Relations (Registered Organisations) Act 2001
Application of Chapter 2 of the Criminal
Code
Item 205 applies Chapter 2 of
the Criminal Code to all offences against the Workplace Relations
(Registered Organisations) Act.
The
defence of lawful excuse
Items 207, 211, 213, 215, 219, 221-223,
226, 230, 231, 233, 234 and 243 omit the defence of lawful
authority from offence provisions in the Workplace Relations
(Registered Organisations) Act. A general defence of lawful
authority will be provided by section 10.5 of the Criminal
Code.
Ancillary offences
Items 212, 222 and 230 remove
the ancillary offence of 'procuring' an offence from provisions in
the Act. These will no longer be necessary once the Criminal Code
is applied as section 11.2 of the Code creates an offence of
aiding, abetting, counselling or procuring the commission of an
offence by another person.
Strict liability
Items 206, 214, 224, 225, 235, 236, 238
and 242 identify a number of offences against the
Workplace Relations (Registered Organisations) Act as offences of
strict liability. 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.
Re-structuring offences to clearly identify their
constituent physical elements
Items 209, 210, 217, 218, 220, 228, 229
and 237 restructure and reword a number of offence
provisions to clearly identify the physical elements of conduct and
result in the offences. Identification of the physical elements of
the offence will allow the relevant default fault elements (ie,
intention and recklessness) to be applied by the Criminal Code.
Other amendments
Other amendments are designed to:
-
- relocate and re-phrase the defence of 'inability to comply', so
it is clear it is a defence and not an element of the offence which
would have to be proved by the prosecution (item
225)
-
- insert a standard note in the offence provision which presents
this defence, that the defendant bears an evidential
burden if s/he wishes to rely upon such a defence
(item 225). 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(28).
-
- remove the fault element of knowledge from an offence provision
(item 243), and
-
- remove the words 'intentionally' and 'recklessly' from an
offence provision (item 240).
Amendments to the Workplace
Relations (Registered Organisations) (Consequential Provisions) Act
2001
Item 49 of Schedule 1 of the Workplace Relations
(Registered Organisations) (Consequential Provisions) Bill 2001
proposes to substitute new subsections 316(1) and (2) into the
Workplace Relations Act 1996.
Item 244 of the Bill
restructures and rewords these new subsections 316(1) and (2) in
several ways. It:
-
- replaces the concept of 'refuse or fail' with the concept of a
person not complying with the relevant requirements
-
- identifies new paragraph 316(1)(a) as an offence of strict
liability, and
-
- creates a defence of reasonable excuse in relation to this
offence of strict liability.
-
- Criminal Code, section 4.1.
- Criminal Code, section 4.3.
- Criminal Code, section 5.6.
- 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.
- 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).
- Second Reading Speech, Parliamentary Debates
(Hansard), 23 August 2001, p.30094.
- Senate Standing Committee for the Scrutiny of Bills, Alert
Digest, No. 11 of 2001, 22 August 2001, p. 9.
- 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.
- Matthew Goode, 'The Modern Criminal Code Project',
Australian Law Librarian, 5(4), December 1997, pp. 267-76
at p. 267.
- Explanatory Memorandum, p. 17.
- Criminal Code, subsection 13.3(6).
- Criminal Code, subsection 13.3(6).
- Criminal Code, subsection 13.3(6).
- Criminal Code, subsection 13.3(6).
- Criminal Code, subsection 13.3(6).
- Criminal Code, subsection 13.3(6).
- Explanatory Memorandum, pp. 40-41.
- Criminal Code, subsection 13.3(6).
- Criminal Code, subsection 13.3(6).
Mary Anne Neilsen
25 September 2001
Bills Digest Service
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ISSN 1328-8091
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