Bills Digest No. 72 2001-02
Industry, Science and Resources 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
Industry, Science and Resources
Legislation Amendment (Application of Criminal Code) Bill
2001
Date Introduced: 22 August 2001
House: Senate
Portfolio: Industry, Science and Resources
Commencement: The day after Royal Assent
The Bill's main purpose is to revise criminal
offence provisions in legislation administered by the Department of
Industry, Science and Resources 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, Employment, Workplace
Relations and Small Business 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 Industry, Science and Resources 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 Industry, Science and Resources 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.
The Bill also retains several provisions that
place a legal burden of proof on the defendant. Standards notes are
placed after these provisions to indicate this burden of proof.
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 Industry, Science and Resources. 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 some ancillary offence provisions from statutes
administered by the Department of Industry, Science and Resources.
Equivalent Criminal Code provisions will take their place.
Amendments to the Atomic Energy
Act 1953
Item 1 applies the principles
of criminal responsibility contained in Chapter 2 of the Criminal
Code to all offences against the Atomic Energy Act.
Subsection 37(2) provides that it is an offence
for a person to refuse or fail, without reasonable excuse, to
comply with a notice served on the person under subsection (1).
Item 5 repeals and restructures
this provision in several ways:
-
- It separates the conduct elements of 'refusal to comply' and
'failure to comply' into two separate offences (new
subsections 37(2) and 37(4) respectively) The default
fault element under the Criminal Code for a 'refusal to comply'
will be intention
-
- It specifies that the 'failure to comply' is an offence of
strict liability (new subsection 37(6)). This
means that the prosecution does not have to prove fault elements in
relation to the physical elements of the offence. However, the
defendant can use a defence of mistake of fact, and
-
- It recreates and relocates the defence of reasonable excuse to
the offences in new subsections 37(3) and (5). The
purpose of these amendments is 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. These new subsections
include an explanatory note indicating that the defendant bears an
evidential burden in proving the defence.
Items 6-8 make similar
amendments.
Amendments to the Bounty and
Capitalisation Grants (Textile Yarns) Act 1981
Item 9 applies the principles
of criminal responsibility contained in Chapter 2 of the Criminal
Code to all offences against the Bounty and Capitalisation Grants
(Textile Yarns) Act.
Subsection 10B(1) requires a person, who has
lodged a bounty claim and becomes aware that the claim was
excessive, to lodge a variation form within 28 days. The penalty
for this offence is $3000. Item 10 amends
subsection 10B(1) by replacing 'becomes aware' with 'subsequently
knows'. This amendment is necessary because, if left unamended,
then following application of the Criminal Code the phrase
'becomes aware' would constitute a physical element of
circumstance, to which the default fault element of recklessness
would apply. The effect would be that the prosecution would be
required to prove that the defendant was reckless as to becoming
aware of the relevant event - which would be an unworkable
proposition. The amendment ensures that this element of the offence
remains a fault element of knowing the relevant fact.
Items 11 and 12 relocate and
rephrase the element of reasonable excuse currently found in
subsection 18(1). Under subsection 18(1) it an offence for a
person, 'without reasonable excuse' to refuse or fail to attend
before an authorised officer, make an oath or affirmation, answer a
question or produce a document. Item 11 omits the
words, 'without reasonable excuse' from subsection 18(1) and
item 12 inserts a defence of reasonable excuse in
new subsection 18(2). The purpose of these
amendments is 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. New subsection 18(2) includes
an explanatory note indicating that the defendant bears an
evidential burden in proving the defence.
Amendments to the Bounty (Bed
Sheeting) Act 1977
Items 13-16 amend the offence provisions of this
Act in the same manner as the Bounty and Capitalisation Grants
(Textile Yarns) Act is amended. See above for a discussion of these
amendments.
Amendments to the Bounty (Books)
Act 1986
Items 17-20 amend the offence
provisions of this Act in the same manner as the Bounty and
Capitalisation Grants (Textile Yarns) Act is amended. See above for
a discussion of these amendments.
Amendments to the Bounty (Citric
Acid) Act 1991
Items 21-24 amend the offence
provisions of this Act in the same manner as the Bounty and
Capitalisation Grants (Textile Yarns) Act is amended. See above for
a discussion of these amendments.
Amendments to the Bounty
(Computers) Act 1984
Items 25-28 amend the offence
provisions of this Act in the same manner as the Bounty and
Capitalisation Grants (Textile Yarns) Act is amended. See above for
a discussion of these amendments.
Amendments to the Bounty (Fuel
Ethanol) Act 1994
Items 29-30 amend the offence
provisions of this Act in the same manner as the Bounty and
Capitalisation Grants (Textile Yarns) Act is amended. See above for
a discussion of these amendments.
Item 31 repeals and replaces
subsection 55(1). Under subsection 55(1) it an offence for a
person, without reasonable excuse, to refuse or fail to:
-
- attend before an authorised officer,
-
- make an oath or affirmation, or
-
- answer a question or produce a document.
The maximum penalty for this offence is
imprisonment for 6 months.
Item 31 restructures this
provision in several ways.
-
- It separates the conduct elements of 'failure' to attend etc
and 'refusal to attend etc' into two separate offences (new
subsections 55(1) and 55(3A) respectively). The default
fault element under the Criminal Code for a 'refusal to attend'
will be intention.
-
- It specifies that 'failure to attend etc' is an offence of
strict liability (new subsection 55(2)). This
means that the prosecution does not have to prove fault elements in
relation to the physical elements of the offence. However, the
defendant can use a defence of mistake of fact.
-
- It recreates and relocates the defence of reasonable excuse to
these offences in new subsections 55(3) and
55(3B). The purpose of these amendments is 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. The new
subsections include an explanatory note indicating that the
defendant bears an evidential burden in proving the defence.
Amendments to the Bounty
(Machine Tools and Robots) Act 1985
Items 32-33 and 35-36 amend the
offence provisions of this Act in the same manner as the Bounty and
Capitalisation Grants (Textile Yarns) Act is amended. See above for
a discussion of these amendments.
Item 34 repeals subsection
24(7) which creates an offence of providing false or misleading
information in a return of costs to the Collector. General offences
of supplying false or misleading information are found in the
Criminal Code (Part 7.4).
Amendments to the Bounty
(Photographic Film) Act 1989
Items 37-40 amend the offence
provisions of this Act in the same manner as the Bounty and
Capitalisation Grants (Textile Yarns) Act is amended. See above for
a discussion of these amendments.
Amendments to the Bounty
(Printed Fabrics) Act 1981
Items 41-44 amend the offence
provisions of this Act in the same manner as the Bounty and
Capitalisation Grants (Textile Yarns) Act is amended. See above for
a discussion of these amendments.
- Subsection 18(2) of the Bounty (Printed Fabrics) Act provides
that it is an offence for a person. to knowingly obtain or
attempt to obtain bounty that is not payable.
Item 45 removes the words
'knowingly obtain or attempt to obtain' and replaces them with the
word 'obtain'. 'Knowingly' is removed because it is an
inappropriate fault element in this provision. By operation of the
Criminal Code, default fault elements-intention in relation to the
physical element of conduct and recklessness in relation to the
physical elements of circumstance and result-will apply. The words
'attempt to obtain' are removed on the basis that ancillary
offences such as attempt will be supplied by the Criminal Code.
Item 46 removes the words 'attempt to obtain' from
subsection 18(3) for the same reason.
Amendments to the Bounty (Ships)
Act 1989
Items 47-48 amend the offence
provisions of this Act in the same manner as the Bounty and
Capitalisation Grants (Textile Yarns) Act is amended. See above for
a discussion of these amendments.
Items 49 and 50 repeal and
restructure subsection 25(1). Under subsection 25(1) it an offence
for a person, without reasonable excuse, to refuse or fail
to:
-
- attend before an authorised officer
-
- make an oath or affirmation, or
-
- answer a question or produce an account, book, document or
other record,
when so required under this Act.
The maximum penalty for this offence is $3,000
and/or imprisonment for 6 months.
Items 49 and 50 restructure
this provision in several ways.
-
- It separates the conduct elements of 'refusal to attend etc'
and 'failure to attend etc' into two separate offences (new
subsections 25(1) and 25(3) respectively) The default
fault element under the Criminal Code for a 'refusal to attend'
will be intention.
-
- It specifies that the 'failure to attend etc' is an offence of
strict liability (new subsection 25(5)). This
means that the prosecution does not have to prove fault elements in
relation to the physical elements of the offence. However, the
defendant can use a defence of mistake of fact.
-
- It recreates and relocates the defence of reasonable excuse to
these offences in new subsections 25(2) and 25(4).
The purpose of these amendments is 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. The new subsections
include an explanatory note indicating that the defendant bears an
evidential burden in proving the defence.
Amendments to the Designs Act
1906
Item 51 applies the principles
of criminal responsibility contained in Chapter 2 of the Criminal
Code to all offences against the Designs Act.
Item 52 removes the non-Code
fault expression, 'wilfully' from section 36. In its place the
default fault element of intention will apply.
Items 53-57 remove the defence
of 'lawful excuse' from the offence provisions subsections 42B(3)
and 42C(2) and section 42C and recreates it in separate subsections
42B(1) and (2) and section 42C. According to the Explanatory
Memorandum the reason for doing so is to ensure that the words are
interpreted as words of defence and not as an element of the
particular offence (which would have to be disproved in the
negative by the prosecution).(19) The new provisions
include an explanatory note indicating that the defendant bears an
evidential burden in proving the defence.
It is of note that the Criminal Code contains a
general defence of lawful authority in section 10.5. This defence
applies to all offences against Commonwealth law and thus make
redundant the defence of lawful excuse presently found in
subsections 42B and 42C. In contrast to this Bill, other
'application of criminal code' Bills have removed this defence from
offence provisions and instead rely on the general defence of
lawful authority supplied by the Criminal Code (section 10.5).
Subsection 45(1) of the Designs Act provides
that it is an offence for a person to knowingly falsely represent
that any design applied to any article sold by him is a registered
design. Item 58 removes the inappropriate fault
element, 'knowingly', from the offence in subsection 45(1). By
operation of the Criminal Code, default fault elements-intention in
relation to the physical element of conduct and recklessness in
relation to the physical elements of circumstance and result-will
apply.
Item 59 repeals subsections
45A(1) and (2) which deal with the vicarious liability of a body
corporate for offences committed by a director, servant or agent of
the body corporate. The vicarious liability of a body corporate
will, instead, be dealt with under Part 2.5 of the Criminal Code.
Item 61 repeals subsection 45A(7) for the same
reason. Item 60 is a consequential amendment.
Amendments to the Liquefied
Petroleum Gas (Grants) Act 1980
Item 64 applies Chapter 2 of
the Criminal Code to all offences against the Liquefied Petroleum
Gas (Grants) Act, except for principles of corporate criminal
responsibility. Corporate criminal responsibility is dealt with in
subsections 7A(19), (20) and (20A) of the Act.
Subsection 7A(12) of the Liquefied Petroleum Gas (Grants) Act
provides that a corporation shall not knowingly obtain or
attempt to obtain the benefit of payments under schemes to
which it is not entitled. Item 65 removes the
words 'knowingly obtain or attempt to obtain' and replaces them
with the word 'obtain'. 'Knowingly' is removed because it is an
inappropriate fault element in this provision. By operation of the
Criminal Code, default fault elements-intention in relation to the
physical element of conduct and recklessness in relation to the
physical elements of circumstance and result-will apply. The words
'attempt to obtain' are removed on the basis that ancillary
offences such as attempt will be supplied by the Criminal Code.
Amendments to the Liquid Fuel
Emergency Act 1984
Item 67 applies Chapter 2 of
the Criminal Code to all offences against the Liquid Fuel Emergency
Act, except for principles of corporate criminal responsibility.
Corporate criminal responsibility is dealt with in section 40 of
the Act.
Under subsection 30(2) it is an offence for a person to refuse
or fail to comply with a notice under this section to the extent
that the person is capable of complying with it. The maximum
penalty for this offence is $1000. Item 71 repeals
this section and restructures it in several ways.
- It separates the two offences of 'refusing to comply' and
'failing to comply'. The default fault element under the Criminal
Code for a 'refusal to comply' will be intention.
- It specifies that the 'failure to comply' is an offence of
strict liability (new subsection 30(2B)). This
means that the prosecution does not have to prove fault elements in
relation to the physical elements of the offence. However, the
defendant can use a defence of mistake of fact.
-
- It also recreates and relocates the defence of being incapable
of complying to new subsection 30(2A). This is 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. An explanatory note is included indicating that the
defendant bears an evidential burden in proving the defence.
Item 69 repeals section 28
which deals with ancillary offences such as attempts to commit
offences, incitement and conspiracy. This provision will no longer
be necessary once the Criminal Code is applied as it contains
ancillary offence provisions.
Under subsection 30(3) it is an offence for a
person to knowingly furnish information that is false or
misleading in regard to complying with a notice under this section.
Item 72 removes the words 'knowingly furnish
information that' and replaces them with the words 'furnish
information knowing that it'. Knowingly is an inappropriate fault
element, for the conduct of furnishing information. By rephrasing
the offence in this way, the default fault element, intention will
apply to the conduct and the fault element of 'knowledge' has been
preserved in relation to the physical element of circumstance that
the information furnished is false or misleading. Item
68 makes a similar amendment to subsection 14(5).
Item 70 identifies an offence
against subsection 29(5) as an offence of strict liability. This is
an offence of failing to return an identity card on ceasing to be
an authorised officer appointed under the Act. The maximum penalty
for this offence is $100.
Amendments to the Management and
Investment Companies Act 1983
Item 74 applies the principles
of criminal responsibility contained in Chapter 2 of the Criminal
Code to all offences against the Management and Investment
Companies Act.
Amendments to the National
Measurement Act 1960
Item 75 applies the principles
of criminal responsibility contained in Chapter 2 of the Criminal
Code to all offences against the National Measurement Act.
Item 76 is a consequential amendment.
Amendments to the Offshore
Minerals Act 1994
Item 78 applies the principles
of criminal responsibility contained in Chapter 2 of the Criminal
Code to all offences against the Offshore Minerals Act.
Item 77 amends subsection 11(1) by omitting the
words 'intentionally or recklessly'. Recklessness is an
inappropriate fault element for a physical element of conduct.
'Intention' is the appropriate Code fault element for conduct and
will apply as a default fault element by operation of the Criminal
Code. Item 79 makes a similar amendment to
paragraph 44(b).
Under subsection 364(3) a person must not fail to comply with a
request for further information under subsection (1) without
reasonable excuse. Item 80 restructures this
offence and removes the defence of 'reasonable excuse' from the
offence provision and recreates it in a separate subsection. The
reason for doing so is to ensure that the words are interpreted as
words of defence and not as an element of the particular offence
(which would have to be disproved in the negative by the
prosecution). New subsection 364(4) includes an
explanatory note indicating that the defendant bears an evidential
burden in proving the defence. Items 81-82 and
85 make similar amendments to subsection 372(1)
and section 423 respectively.
Item 84 re-structures
subsection 404(5) in order to clarify the associated defence. This
is to ensure that the defence is not read as an element of the
offence (which would have to be proved by the prosecution), but is
clearly identified as a defence. Item 84 also
inserts a note after subsection 404(5) to clarify that the
defendant bears a legal burden if s/he wishes to rely upon the
particular defences. A legal burden of proof must be discharged by
a defendant on the balance of probabilities. Item
83 adds a similar explanatory note to subsection
404(4).
Amendments to the Patents Act
1990
Item 86 applies the principles
of criminal responsibility contained in Chapter 2 of the Criminal
Code to all offences against the Patents Act.
Items 87-92 remove the defence
of 'lawful excuse' from sections 179, 180 and 181 and recreates it
in separate subsections 179(2), 180(2) and 181(2). According to the
Explanatory Memorandum the reason is to ensure that the words are
interpreted as words of defence and not as an element of the
particular offence (which would have to be disproved in the
negative by the prosecution).(20) The new provisions
include an explanatory note indicating that the defendant bears an
evidential burden in proving the defence. It is of note that the
Criminal Code contains a general defence of lawful authority in
section 10.5. This defence applies to all offences against
Commonwealth law and thus make redundant the lawful excuse defence
presently found in sections 179, 180 and 181. In contrast to this
Bill, other 'application of criminal code' Bills have removed the
words 'without lawful excuse' from offence provisions and rely on
the general defence of lawful authority supplied by the Criminal
Code (section 10.5).
Item 93 omits the words, 'knowingly or
recklessly' from offences against section 191 of the Patents Act.
Under section 191 it is an offence for a person to knowingly or
recklessly make a false entry in the Register. 'Knowingly or
recklessly' are inappropriate fault elements in relation to the
physical element of conduct in an offence. They are therefore
removed by item 93. The Criminal Code default
fault elements-for example, 'intention' in the case of conduct-will
apply to each physical element of the offence.
Item 94 repeals subsections
225(1) and (2) which deal with the vicarious liability of a body
corporate for offences committed by a director, servant or agent of
the body corporate. The vicarious liability of a body corporate
will, instead, be dealt with under Part 2.5 of the Criminal Code.
Item 97 repeals subsection 225(8) for the same
reason. Item 96 is a consequential amendment.
Amendments to the Petroleum
Excise (Prices) Act 1987
Item 99 applies Chapter 2 of
the Criminal Code to all offences against the Petroleum Excise
(Prices) Act except for principles of corporate criminal
responsibility. Corporate criminal responsibility is dealt with in
section 11 of the Act.
Under subsection 10(7) it is an offence for a
person to fail to provide information to the Minister or authorised
officer as required under this section. The maximum penalty for
this offence is $1000 and/or or imprisonment for 6 months, in the
case of a natural person, and $5000 in the case of a body
corporate. Item 100 identifies this as a strict
liability offence.
Amendments to the Petroleum
Retail Marketing Sites Act 1980
Item 101 applies the principles
of criminal responsibility contained in Chapter 2 of the Criminal
Code to all offences against the Petroleum Retail Marketing Sites
Act.
Under subsection 14(2) it is an offence for a person, without
reasonable excuse, to fail to provide information and produce books
for authorised officers as requested under this section. The
maximum penalty for this offence is a fine of $1000.
Items 102 and 103 amend
subsection 14(2) in two ways.
-
- It relocates and rephrases the element of reasonable excuse in
order 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 (new subsection 14(2A)).
-
- It stipulates that an offence against subsection 14(2) is an
offence of strict liability (new subsection
14(2B)).
Amendments to the Petroleum
(Submerged Lands) Act 1967
Item 104 applies the principles
of criminal responsibility contained in Chapter 2 of the Criminal
Code to all offences against the Petroleum (Submerged Lands) Act
with the exception that the principles of corporate criminal
responsibility will not apply to offences created by Schedule 7.
Schedule 7 deals with occupational health and safety. Corporate
criminal responsibility in this schedule is dealt with in clause
50.
Subsection 82(1) prohibits a person from lodging
with the Designated Authority an instrument in relation to a
transfer that, to the knowledge of the person, is false or
misleading regarding the amount of money paid or payable.
Item 105 stipulates that strict liability applies
to the physical element of circumstance in the offence-the
circumstance that the instrument is an instrument of the kind
referred to in paragraph 81(4)(b). In other words, the prosecution
will not have to prove that the defendant turned his or her mind to
the letter of the law.
Under subsection 84(2) a person, required to
furnish information under this section, shall not
knowingly furnish information that is false or misleading.
Item 106 rewords this by replacing the words
'shall not knowingly furnish information that...' with the words
'furnish information knowing that it...' Knowingly is an
inappropriate fault element, for the conduct of furnishing
information. By rephrasing the offence in this way, the default
fault element, 'intention' will apply to the conduct and the fault
element of 'knowledge' has been preserved in relation to the
physical element of circumstance that the information furnished is
false or misleading.
Subsection 87(2) provides that it is an offence
for a person to refuse or fail, without reasonable excuse, to
comply with a requirement given to him under subsections (1) or
(1A). Item 107 restructures this provision by
separating the conduct elements of 'failure to comply' and 'refusal
to comply' into two separate offences (new subsections
85(2) and 85(4) respectively). The default fault element
under the Criminal Code for a 'refusal to comply' will be
intention. The 'failure to comply' is expressly stated to be an
offence of strict liability (new subsection
85(3)). This means that the prosecution does not have to
prove fault elements in relation to the physical elements of the
offence. However, the defendant can use a defence of mistake of
fact.
Item 108 removes the non-Code
fault expression, 'wilfully' from section 90. In its place the
default Code fault element of intention will apply.
Items 110, 114, 120, 122,
125 and 128 identify a number of offences against
the Petroleum (Submerged Lands) Act as strict liability offences.
These are offences against subsections 98(2) and (3), 101(7),
119(3), 140D(1), paragraph 140E(2)(a), and subclauses 32(2) and
39(1) of Schedule 7.
A number of amendments - see, for example
items 117, 118, 124, 125, 127, 128 and 129, remove
the defence of 'reasonable excuse' from the offence provisions and
recreate it in separate subsections. The reason for doing so is to
ensure that the words are interpreted as words of defence and not
as an element of the particular offence (which would have to be
disproved in the negative by the prosecution). The new provisions
include an explanatory note indicating that the defendant bears an
evidential burden in proving the defence.
Items 109, 121, 131 and 132
insert a note after subsections 97(6), 140D(2) and subclause 48(2)
and clause 52 of Schedule 7 respectively, indicating that the
defendant bears a legal burden in proving the defences in those
provisions. For example subsection 97(6) provides that it is a
defence if a person, charged with failing to comply with a
provision of this section, can prove that he took all reasonable
steps to comply with the provision. The note inserted by
item 109 confirms that this provision imposes a
legal burden on the defendant(21). This means that the
defendant must prove the existence of the matter.
Paragraph 117(a) makes it an offence to refuse or fail to comply
with an instrument under section 115 to the extent the person is
capable of complying with it. Paragraphs 117(b) and (c) make it an
offence for a person, to knowingly furnish information, make a
statement or provide a document that contains false or misleading
information in relation to these requirements. The maximum penalty
for these offences is a fine of 100 penalty units.
Item 113 repeals and
restructures section 117 in several ways.
-
- It separates the conduct elements of 'refusal to comply' and
'failure to comply' into two separate offences (new
paragraphs 117(1)(a) and (b) respectively). The default
fault element under the Criminal Code for a 'refusal to comply'
will be intention.
-
- It specifies that the 'failure to comply' is an offence of
strict liability (new subsection 117(3)).
-
- It recreates and relocates the defence of incapacity to comply
in new subsection 117(2).
-
- It removes the words 'knowingly furnish', 'knowingly make a
statement' or 'knowingly produce documents' and replaces them with
'furnish information knowing that ... ' and 'make a statement or
produce a document knowing that ...' (new paragraphs
117(1)(c) and 117(1)(d)). By rephrasing the offences in
this way, the default fault element, intention will apply to the
conduct and the fault element of 'knowledge' has been preserved in
relation to the physical element of circumstance that the
information furnished is false or misleading.
Under subsection 124A(1) it is an offence for a person to
intentionally or recklessly to damage or interfere with a structure
or vessel. Item 115 repeals and restructures the
offence in subsection 124A(1) to clearly identify the physical
elements of the offence (in this case, conduct and result).
Identification of the physical elements of the offence will allow
the relevant default fault elements (in this case, intention and
recklessness) to be applied by the Criminal Code. For this reason
the words 'intentionally or recklessly' are deleted.
Items 129 and 130 repeal and
restructure the offences in clause 45 and paragraphs 48(1)(b) and
(c) of Schedule 7 in order to clearly identify the physical
elements of the offences (ie conduct and result). In addition
item 129 removes the defence of reasonable excuse
from clause 45 and recreates it in new subclause
45(2). The reason for doing so is to ensure that the words
are interpreted as words of defence and not as an element of the
particular offence (which would have to be disproved in the
negative by the prosecution). The new provisions include an
explanatory note indicating that the defendant bears an evidential
burden in proving the defence.
Item 116 inserts a penalty of
50 penalty units at the end of subsection 126(2) to clarify that
the penalty at the end of section 126 applies equally to subsection
(2).
Amendments to the Petroleum
(Timor Gap Zone of Cooperation) Act 1990
Item 133 applies the principles
of criminal responsibility contained in Chapter 2 of the Criminal
Code to all offences against the Petroleum (Timor Gap Zone of
Cooperation) Act.
Item 134 inserts a penalty of
$5000 at the end of subsection (2) to clarify that the penalty at
the end of section 9 applies equally to subsection 9(2).
Items 135 and 136 remove the
defence of 'reasonable excuse' from subsection 9(3) and recreate it
in new subsection 9(4). The reason for doing so is
to ensure that the words are interpreted as words of defence and
not as an element of the particular offence (which would have to be
disproved in the negative by the prosecution).
Amendments to the Pooled
Development Funds Act 1992
Item 137 applies the principles
of criminal responsibility contained in Chapter 2 of the Criminal
Code to all offences against the Pooled Development Funds Act.
Subsection 28(2B) provides that it is an offence
for a Pooled Development Fund to make an investment that breaches a
condition covered by subsection 28(2A). Item 138
restructures the offence in subsection 28(2B) to clearly identify
the physical elements of the offence (in this case, circumstance,
conduct and result). Identification of the physical elements of the
offence will allow the relevant default fault elements (in this
case, intention and recklessness) to be applied by the Criminal
Code.
Item 140 amends subsection
42(1) by replacing 'becomes aware' with 'the PDF knows'. This
amendment is necessary because, if left unamended, then following
application of the Criminal Code the phrase 'becomes
aware' would constitute a physical element of circumstance, to
which the default fault element of recklessness would attach. The
effect would be that the prosecution would be required to prove
that the defendant was reckless as to becoming aware of the
relevant event - which would be an unworkable proposition. The
amendment ensures that this element of the offence remains a fault
element of knowing the relevant fact. Item 141
amends section 49 in a similar fashion.
Item 142 omits the words,
'knowingly or recklessly' from offences against paragraphs
50(3)(a), (b) and (d) of the Pooled Development Funds Act. Section
50 deals with the criminal consequences of contravening certain
provisions in the Act and paragraphs 50(3)(a), (b) and (d) deal
specifically with ancillary offences such as incitement and
conspiracy. 'Knowingly or recklessly' are inappropriate fault
elements in relation to the physical element of conduct in an
offence. They are therefore removed by item 142.
The Criminal Code default fault elements-for example, 'intention'
in the case of conduct-will apply to each physical element of the
offence. It is of note that another option may have been to repeal
these paragraphs on the basis that ancillary offences are now
covered by the Criminal Code.
Item 143 removes the defence of
'reasonable excuse' from subsections 51(1) and (2) and item
144 recreates it in new subsection 51(3).
The reason for doing so is to ensure that the words are interpreted
as words of defence and not as an element of the particular offence
(which would have to be disproved in the negative by the
prosecution). The new provision includes an explanatory note
indicating that the defendant bears an evidential burden in proving
the defence.
Amendments to the Scout
Association Act 1924
Item 145 applies the principles
of criminal responsibility contained in Chapter 2 of the Criminal
Code to all offences against the Scout Association Act.
Section 4 deals with the offence of unauthorised
use of the scout uniform. Item 146 inserts a note
after section 4 indicating that the defendant bears a legal burden
in proving the defence to offence. This means that the defendant
must prove the existence of the matter.
Amendments to the Trade Marks
Act 1995
Item 149 applies the principles
of criminal responsibility contained in Chapter 2 of the Criminal
Code to all offences against the Trade Marks Act.
Under subsection 143(2) it is an offence for an
importer, to intentionally or recklessly fail to comply with a
request for information as set out in subsection (1). Item
150 amends subsection 143(2) by omitting the words
'intentionally or recklessly'. Recklessness is an inappropriate
fault element for a physical element of conduct. 'Intention' is the
appropriate Code fault element for conduct and will apply as a
default fault element by operation of the Criminal Code.
Items 151, 152, and 155 make similar amendments to
subsections 145(1), 146(1), 151(1), (2), (3) and (4)
respectively.
A number of amendments -items 156, 157,
159 and 160 remove the defence of 'reasonable excuse' from
the offence provisions, subsections 153(1) and (2) and subsection
154(1), and recreate it in separate subsections. The reason for
doing so is to ensure that the words are interpreted as words of
defence and not as an element of the particular offence (which
would have to be disproved in the negative by the prosecution). The
new provisions include an explanatory note indicating that the
defendant bears an evidential burden in proving the defence.
Sections 145, 146 and 147 deal with offences
relating to the conterfeiting and the forging of trade marks.
Specifically subsection 147 deals with the offences of the
manufacture and possession of die or other materials, likely to be
used for, or in the course of committing an offence against
sections 145 or 146. Item 153 stipulates that
strict liability applies to the physical element of circumstance in
the offences referred to in paragraphs 147(1)(a), 1(b), 147(2)(a),
2(b) and subsection 147(3)-an offence against sections 145 or 146.
In other words, it is not necessary for the prosecution to prove
that the defendant put his or her mind to the letter of the law. As
the Explanatory Memorandum suggests, if the prosecution were
required to demonstrate fault in regard to this matter, the offence
would become almost unenforceable. Further it argues that the
person's degree of culpability under this offence is not materially
affected by absence of the subject fault.(22)
A number of offences against the Trade Marks Act
are already identified as strict liability offences. These
identifying provisions currently contain a note referring the
reader to section 153 for an explanation of strict liability.
Items 158, 161, 163 and 164 repeal this
explanation and the referring notes and replace them with a note
referring the reader to section 6.1 of the Criminal Code.
Item 167 repeals subsections
160(2) and (3) which deal with the vicarious liability of a body
corporate for offences committed by a director, servant or agent of
the body corporate. The vicarious liability of a body corporate
will, instead, be dealt with under Part 2.5 of the Criminal Code.
Items 166 and 168 are consequential
amendments.
- Subsection 156(3) of the Trade Marks Act provides that if it a
body is found guilty of an offence against this section, and an
officer of the body corporate has knowingly been a party to
the offence, that officer is guilty of an offence punishable, on
conviction by a fine not exceeding 30 penalty units. Item
162 removes an inappropriate fault element, 'knowingly',
from the offence in subsection 156(3). By operation of the Criminal
Code, default fault elements-intention in relation to the physical
element of conduct and recklessness in relation to the physical
elements of circumstance and result-will apply.
Amendments to the Tradex Scheme
Act 1999
Section 47 of the Tradex Scheme Act already
applies the principles of criminal responsibility contained in
Chapter 2 of the Criminal Code to all offences against the Act.
Section 26(1) provides that it is an offence for
a holder of a tradex order to fail to comply with a requirement of
subsection 9(6) to notify the Secretary of the details of a change
in any of the particulars entered in the Register. The maximum
penalty for this offence is 30 penalty units. Item
169 inserts new subsection 26(2) which
stipulates that strict liability applies to the physical element of
circumstance in subsection 26(1)-that the requirement is a
requirement made by subsection 9(6). In other words, it is not
necessary for the prosecution to prove that the defendant put his
or her mind to the letter of the law. According to the Explanatory
Memorandum, if the prosecution were required to demonstrate fault
in regard to this matter of circumstance, the offence would become
almost unenforceable. It argues that this element of the offence is
therefore appropriately classified as strict
liability.(23) Items 170 and 171 make
similar amendments to section 27 and 29 respectively.
-
- 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), 22 August 2001, p. 26288.
- Senate Standing Committee for the Scrutiny of Bills, Alert
Digest, No. 11 of 2001, 29 August 2001, p. 13.
- 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. 16.
- Explanatory Memorandum, pp. 24-25.
- Criminal Code, section 13.4.
- page 42.
- page 45.
Mary Anne Neilsen
26 September 2001
Bills Digest Service
Information and Research Services
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ISSN 1328-8091
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