Bills Digest No. 88 2001-02
Transport and Regional Services Legislation Amendment
(Application of Criminal Code) Bill 2002
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
Passage History
Transport and Regional Services Legislation
Amendment (Application of Criminal Code) Bill 2002
Date Introduced: 20 February 2002
House: House of Representatives
Portfolio: Transport and Regional Services
Commencement: On the day after Royal
Assent
Purpose
The Bill amends
four statutes in the Transport and Regional Services portfolio to
harmonise them with the 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. Beginning in 1995, a staggered program
commenced 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 applied to all pre-existing Commonwealth
offences.
With the 15 December deadline in mind, the
Commonwealth reviewed 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 applied. As a
result, 20 bills designed to amend legislation across a range of
portfolios were introduced into the Parliament and passed before it
was prorogued for the November 2001 General
Election.(1)
However, the program of legislative reform was
not completed prior to 15 December 2001. The Explanatory Memorandum
for the Bill remarks:
The amendments will ensure that the offence
provisions operate in the manner they did prior to the application
of the Criminal Code. The Bill affects a small number of offence
provisions that were not included in the Transport and Regional
Services Legislation Amendment (Application of Criminal Code) Act
2001, and are therefore inconsistent with the Criminal Code
principles.(2)
Some major aspects of criminal responsibility
relevant to the Transport and Regional Services Legislation
Amendment (Application of Criminal Code) Bill 2002 are described
below.
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.(3) An omission to act can be
a physical element if there is appropriate statutory provision or
if it is the result of a breach of duty to act.(4) Each
offence must contain at least one 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(5) 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.(6)
The Code does not prevent an offence from specifying an alternative
fault element(7), but indicates that the default fault
element will apply in the absence of a specified fault
element.(8)
The Bill amends offence provisions so that their
constituent fault and physical elements correspond with the scheme
supplied by the Criminal Code.
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 indicating
that a defendant bears an evidential burden of proof in relation to
certain matters.
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.(14)
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.(15)
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.(16)
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 where strict liability is applied to some of their
physical elements.(17) The Code does not prevent
defences other than mistake of fact applying.(18)
The Bill identifies one strict liability offence
and one instance in which strict liability attaches to a physical
element of an offence.
Defences to criminal offences are usually
external to the physical and fault elements of offences and to
offences themselves.(19) Possibly for this reason, and
to clearly identify defences as defences and not as elements of
offences which have to be proved or disproved by the prosecution,
the Bill relocates and re-phrases elements of excuse such as
'without reasonable excuse' in some offences so it is clear that
they are defences and not elements of those offences.
Clause 4 provides that an
amendment applies to acts and omissions commencing or concluding
after the amendment commences.
Item 1 of Schedule 1 amends
subsection 15(4) of the Aircraft Noise Levy Collection Act
1995. At present this section provides that it is an offence
to 'knowingly' present a document or make a statement that is false
in a material particular to a person carrying out a function under
the Act. The amendment removes the word 'knowingly' from subsection
15(4) because 'intention' is the Criminal Code fault element for a
physical element of conduct and 'recklessness' is the fault element
for a physical element of circumstance or result. 'Intention' and
'recklessness' will apply to the physical elements of conduct and
circumstance respectively in the offence by default as a result of
the application of Chapter 2 of the Criminal Code.
Items 4, 7, 18-21, 34 and 69
amend the Air Navigation Act 1920 to remove the words
'intentionally or recklessly' in a number of existing offence
provisions. An example is subsection 22D(1) which provides that an
aircraft passenger:
must not intentionally or recklessly:
(a) carry a weapon; or
(b) otherwise have in his or her possession a
weapon that is located at a place in the aircraft that is
accessible to the person.
As the offence stands, the fault elements are
inappropriate to the scheme established by the Criminal Code. The
Criminal Code provides that 'intention' is the fault element for a
physical element of conduct and 'recklessness' is the fault element
for a physical element of circumstance or result. Item
34 removes the words 'intentionally or recklessly' from
subsection 22D(1). The fault elements of 'intention' and
'recklessness' will apply by default to the elements of conduct and
circumstance respectively in the offence as a result of the
operation of the Criminal Code.
Item 74 removes the words
'knowingly or recklessly' in subsection 132(2) of the Airports
Act 1996 for similar reasons.
Items 2, 3, 5, 6, 8-17, 22-33, 35-68 and
70-73 of Schedule 1 amend offence
provisions in the Air Navigation Act by removing the words 'without
reasonable excuse'(20) and reconstituting them to
clearly indicate that they are statutory defences and not elements
of the offences which would have to be proved by the prosecution.
In each case, the amendments also note that the defendant bears an
evidential burden in proving the defence. An example is the
amendments made to subsection 22A(6) of the Air Navigation Act.
Subsection 22A(6) presently provides that 'A screening authority
must not, without reasonable excuse, contravene subsection (5)'.
Subsection (5) provides that a screening authority must screen
people, goods or vehicles in accordance with requirements relating
to training, equipment specifications and other matters set down by
the Departmental Secretary. Item 22 removes the
words 'without reasonable excuse' from subsection 22A(6).
Item 25 creates a new subsection which specifies
that subsection (6) does not apply if 'the authority has a
reasonable excuse'.
Items 80-81 make similar
amendments in relation to reasonable excuse for the purposes of
subsection 32AJ(2) of the Civil Aviation Act 1988.
Item 75 amends section 132 of
the Airports Act. Section 132 enables regulations to be made about
environmental standards at airports. Subsection 132(2) provides
that a person who contravenes these regulations is guilty of an
offence. Item 75 inserts new subsection 132(2A)
which provides that strict liability applies to the element of the
offence that regulations were made under the section. As a result
the prosecution will not have to prove a fault element for this
physical element. However, as a result of the operation of the
Criminal Code, a defendant will have a defence of mistake of
fact.
Item 77 identifies subsection
23(2A) of the Civil Aviation Act as a strict liability offence.
Subsection 23(2A) provides that it is an offence to consign
dangerous goods aboard an aircraft except in accordance with the
regulations or with the written permission of the Civil Aviation
Safety Authority. The prosecution will not need to prove fault
elements for this offence but a defendant will have a defence of
mistake of fact as a result of the application of the Criminal
Code. The maximum penalty for an offence against subsection 23(2A)
is 2 years imprisonment. This is a substantial penalty for a strict
liability offence.
At the time of writing, the Senate Standing
Committee for the Scrutiny of Bills had not reported on the
Transport and Regional Services Legislation Amendment (Application
of Criminal Code) Bill 2002. However, the Committee has taken a
particular interest in offences identified as strict liability
offences by Application of Criminal Code bills.(21) One
of the assurances sought by the Senate Committee has been that no
new strict liability offences are created by Application of
Criminal Code bills. It does not appear that the amendments to
subsection 23(2A) do create a new strict liability offence. When
section 23 was amended in 1990, it contained two offence provisions
relating to persons who carried or consigned dangerous goods aboard
an aircraft.(22) The first [subsection 23(2)] was an
offence containing the mental elements of 'knowledge' and
'recklessness'. The penalty was 7 years imprisonment. The second
offence [subsection 23(2A)] was worded in precisely the same terms
except that no reference was made to fault elements and the maximum
penalty was 2 years imprisonment. From this it can be concluded
that the offence against subsection 23(2A) was probably intended to
be a strict liability offence.
When the Transport and Regional Services
Legislation Amendment (Application of Criminal Code) Act 2001
was passed it removed the words 'knowingly or recklessly' from
subsection 23(2) of the Civil Aviation Act. These words were not
appropriate for the scheme of criminal responsibility introduced by
the Criminal Code and their removal meant that default fault
elements applied to the offence. However, no change was made to
subsection 23(2A) to identify it as a strict liability offence. As
a result, as section 23 now stands, it contains two identically
worded, fault-based offence provisions(23) which carry
different penalties.(24) The identification of
subsection 23(2A) as a strict liability offence removes this
anomaly.
Item 76 rewords subsections
20AA(3)-(5) of the Civil Aviation Act which create offences of
operating aircraft without the requisite airworthiness certificates
or maintenance releases. The amendments clarify both the fault
elements and physical elements of the offences.
Item 78 amends paragraph
24(1)(a) of the Civil Aviation Act. Section 24 provides that a
person in an aircraft shall not 'interfere with a crew member'. The
amendment changes the provision so it provides that a person in an
aircraft shall not 'do any act that interferes with a crew member'.
The reason for making the amendment is to clarify the physical
elements of the offence. The amendments indicate that 'interfering'
with a crew member is a physical circumstance of result rather than
one of conduct. The fault element of 'recklessness' applies to
result whereas the higher threshold fault element, 'intention',
applies to conduct. An amendment with a similar purpose and effect
is made to subsection 24(2) by item 79.
Endnotes
-
- Agriculture, Fisheries and Forestry Legislation Amendment
(Application of Criminal Code) Act 2001; Communications
and the Arts Legislation Amendment (Application of Criminal Code)
Act 2001; Defence Legislation Amendment (Application of
Criminal Code) Act 2001; Education, Training and Youth
Affairs Legislation Amendment (Application of Criminal Code) Act
2001; Employment, Workplace Relations and Small Business
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 (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; Industry, Science and Resources 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; Transport and Regional Services 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. 2) 2001; Treasury
Legislation Amendment (Application of Criminal Code) Act (No. 3)
2001; and Veterans' Affairs Legislation Amendment
(Application of Criminal Code) Act 2001.
- Explanatory Memorandum, Transport and Regional Services
Legislation Amendment (Application of Criminal Code) Bill 2002, p.
1.
- 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.
- 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).
- Matthew Goode, 'The Modern Criminal Code Project',
Australian Law Librarian, 5(4), December 1997, pp. 267 76
at p. 267.
- Or similar expressions.
- 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.
- Section 23 as amended by the Civil Aviation Amendment Act
1990 read:
(2) A person must not knowingly or recklessly
carry or consign for carriage
any dangerous goods on board an aircraft
except:
(a) in accordance with the regulations,
including any conditions
subject to which the regulations permit the
carriage or consignment of those
goods; or
(b) with the written permission of the Authority
and in accordance
with any conditions specified in the
permission.
Penalty: Imprisonment for 7 years.
(2A) A person must not carry or consign for
carriage any dangerous goods on
board an aircraft, except:
(a) in accordance with the regulations,
including any conditions
subject to which the regulations permit the
carriage or consignment of those
goods; or
(b) with the written permission of the Authority
and in accordance
with any conditions specified in the
permission.
Penalty: Imprisonment for 2 years.
- Civil Aviation Act, section 23 as amended by the Transport
and Regional Services Legislation Amendment (Application of
Criminal Code) Act 2001 reads:
(2) A person must not carry or consign for
carriage any dangerous goods on board an aircraft except:
(a) in accordance with the regulations,
including any conditions subject to which the regulations permit
the carriage or consignment of those goods; or
(b) with the written permission of CASA and in
accordance with
any conditions specified in the permission.
Penalty: Imprisonment for 7 years.
(2A) A person must not carry or consign for
carriage any dangerous goods on board an aircraft, except:
(a) in accordance with the regulations,
including any conditions subject to which the regulations permit
the carriage or consignment of those goods; or
(b) with the written permission of CASA and in
accordance with
any conditions specified in the permission.
Penalty: Imprisonment for 2 years.
- Seven years imprisonment in subsection 23(2) and two years
imprisonment in subsection 23(2A).
Jennifer Norberry
8 March 2002
Bills Digest Service
Information and Research Services
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ISSN 1328-8091
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