Bills Digest No. 136 2000-01
Migration 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
Concluding Comments
Endnotes
Contact Officer & Copyright Details
Migration Legislation Amendment
(Application of Criminal Code) Bill 2001
Date Introduced: 5 April
2001
House: House of Representatives
Portfolio: Immigration
and Multicultural Affairs
Commencement: The effect
of the commencement provision is that, with one possible exception, the
Act commences 28 days after Royal Assent. The exception is item 98
which will not commence if the Migration Legislation Amendment (Immigration
Detainees) Act 2001 commences first.
To revise criminal offence provisions in three statutes
in the Immigration and Multicultural Affairs portfolio so that they harmonise
with the principles of criminal responsibility found in Chapter 2 of the
Criminal Code. Chapter 2 is scheduled to apply to all pre-existing Commonwealth
offences from 15 December 2001.
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-Communication and
the Arts Legislation Amendment (Application of Criminal Code) Act 2001,
Environment and Heritage Legislation Amendment (Application of Criminal
Code) Act 2001, Foreign Affairs and Trade Legislation Amendment
(Application of Criminal Code) Act 2001, Law and Justice Legislation
Amendment (Application of Criminal Code) Act 2001, Treasury Legislation
Amendment (Application of Criminal Code) Act (No.1) 2001, and Veterans'
Affairs Legislation Amendment (Application of Criminal Code) Act 2001.
Currently before the Parliament are the Finance and Administration Legislation
(Application of Criminal Code) Bill (No.1) 2001, Prime Minister and Cabinet
Legislation Amendment (Application of Criminal Code) Bill 2001, Treasury
Legislation Amendment (Application of Criminal Code) Bill (No.2) 2001
and the present Bill.
Some major aspects of criminal responsibility relevant
to the Migration 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. 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.
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. The Code does not prevent an
offence from specifying an alternative fault element, but indicates that
the default fault element will apply in the absence of a specified fault
element.
Proof of criminal responsibility
It is the duty of the prosecution to prove the guilt
of the accused person. 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'. 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. 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. 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.
The Bill places legal burdens on the defendant in some
cases and identifies evidential burdens.
Corporate criminal responsibility
In general, the Bill applies Chapter 2 to all offence
provisions in relevant legislation administered by the Department of Immigration
and Multicultural Affairs. However, in some cases, the application of
Chapter 2 is modified. For example, where a statute contains its own scheme
relating to corporate criminal responsibility this is retained and Chapter
2 principles of corporate criminal responsibility are expressly excluded.
This is in keeping with policy expressed when the Criminal Code Bill 1994
was introduced. At that time, 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.'
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. Whether an offence is a strict
liability offence depends on the interpretation of the offence provision.
However, if a defence of honest and reasonable mistake of fact is available,
such offences are called strict liability offences. Working from common
law principles, Chapter 2 of the Criminal Code requires offences of strict
liability to be expressly identified as such. Failure to do so means that
fault elements are applied to all the physical elements in the offence.
The Criminal Code supplies a defence of mistake of fact
to strict liability offences. 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.
Absolute liability
An absolute liability offence is one where the prosecution
does not have to prove any fault elements and where no defence of mistake
of fact is available. 'Guilt is established by proof of the objective
elements of the offence'. The Criminal Code provides that an offence
which is an absolute liability offence must be identified as such. While
mistake of fact is not available as a defence, the Criminal Code recognises
that other defences may be provided in particular statutes.
The Bill identifies two absolute liability offences and
retains existing statutory defences to those offences.
Defences
Defences to criminal offences are usually external to
the physical and fault elements of offences and to offences themselves.
Possibly for this reason, and to clearly identify defences as defences
and not as elements of offences which have to be proved or disproved by
the prosecution, the amendments relocate defences from provisions which
set out the physical elements of an offence into their own separate subsections.
The Bill relocates and re-phrases defences to both strict liability offences
and offences which have a fault element.
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.
Non-Code fault elements
Many offence provisions in Commonwealth statutes do not
specify fault elements. In other cases, a variety of expressions may be
used including 'a purpose intended to be', 'wilfully', and 'for the purpose
of'. The meaning of many of these expressions is uncertain.
As stated above, the Criminal Code uses four fault elements
(intention, knowledge, recklessness and negligence). It does not prevent
other fault elements being used in a particular offence provision. However,
the Bill replaces non-Code expressions such as 'for the purpose' and 'purpose'
with the Code fault element of 'intention' in order to remove ambiguity.
Ancillary offences
Many Commonwealth statutes contain references to provisions
in the Crimes Act 1914 which deal with ancillary offences such
as attempts to commit offences, incitement and conspiracy. These Crimes
Act provisions are being disapplied and will be replaced by equivalent
provisions in the Criminal Code. The Bill thus contains amendments removing
references to the Crimes Act and replacing them with references to the
Criminal Code.
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 Immigration and Multicultural
Affairs. Equivalent Criminal Code provisions will take their place.
Clause 4 applies each amendment made by the Act to acts
and omissions that occur or commence after the amendment commences.
Schedule 1-Amendment of the Migration
Act 1958
Application of the Criminal Code
Item 1 applies Chapter 2 of the Criminal Code,
with the exception of principles of corporate criminal responsibility,
to all offences (new section 4A). The Migration Act contains its
own regime for corporate criminal responsibility in section 493. A note
to new section 4A explains that Chapter 2 of the Criminal Code
sets out the general principles of criminal responsibility.
Ancillary offences
Item 2 replaces the definition of 'offence against
[the Migration] Act' with a new definition. The existing definition refers
to sections 5, 6, 7, 7A and subsection 86(1) of the Crimes Act and to
ancillary offence provisions in the Criminal Code. The Crimes Act imports
the ancillary offences of aiding and abetting, being an accessory, attempt,
inciting, and conspiracy into the Migration Act. With the exception of
section 6 of the Crimes Act, these provisions are scheduled for repeal
in December 2001 when the Criminal Code will supply ancillary offences
to all Commonwealth offences. The new definition retains the reference
to section 6 of the Crimes Act and incorporates references to relevant
sections of the Criminal Code.
Section 203 of the Migration Act provides for the deportation
of non-citizens who have been convicted of certain serious primary offences
including treason and treachery or ancillary offences supplied by sections
6, 7 and subsection 86(1) of the Crimes Act. Item 10 repeals and
replaces subparagraph 203(1)(c)(ii) of the Migration Act to remove Crimes
Act references and substitute references to ancillary offences in the
Criminal Code.
Item 98 amends subsection 491(1) of the Migration
Act which states that 'A person who is being kept in lawful immigration
detention in accordance with a relevant provision of this Act shall not
escape or attempt to escape from that immigration detention'. The
amendment removes the underlined words which are not needed because ancillary
offences such as attempt will be supplied by the Criminal Code. However,
item 98 will not commence if the Migration Legislation Amendment
(Immigration Detainees) Act 2001 has already commenced-see subclause
2(2). This is because the Migration Legislation Amendment (Immigration
Detainees) Act will repeal section 491 in its entirety and create a new
offence of escaping from immigration detention.
Strict liability offences
The Bill identifies a number of offences against the
Migration Act as strict liability offences. These are offences lacking
a fault element where a defence of mistake of fact is supplied by the
Criminal Code. The Criminal Code does not prevent other defences being
available for a strict liability offence-a defence commonly found in Commonwealth
law is that of reasonable excuse. In a number of instances, the amendments
restructure strict liability offence provisions to ensure that words such
as 'without reasonable excuse' are clearly identified as defences to those
offences and not as elements of the offence which would have to be proved
or disproved by the prosecution.
For example, section 21 of the Migration Act creates
an offence of refusing or failing to comply, 'without reasonable excuse',
with a section 18 notice 'to the extent that the person is capable of
complying with it'. The penalty is 6 months imprisonment. Items 3-6
amend section 21 in the following ways:
- they relocate and re-phrase the words 'without reasonable excuse'
and 'to the extent that the person is capable of complying with it'.
The purpose of these amendments is to ensure that the words are interpreted
as defences.
- they identify the offence as one of strict liability.
Items 7, 8, 19-24, 52, 53, 84, 85, 88, 89, 91-96 make
similar amendments with respect to the expression 'reasonable excuse'
in a number of other Migration Act offences and also identify them as
strict liability offences. In other words, these strict liability offences
will have a defence of mistake of fact supplied by the Criminal Code and
a defence of reasonable excuse supplied by the Migration Act. The penalties
for these offences range from fines of 100 penalty units to imprisonment
for 6 months.
Items 11, 12, 17, 25, 35, 60, 61-64, 67, 70, 77, 80,
82 identify other offences of strict liability in the Migration Act.
In relation to these offences, a defence of mistake of fact is supplied
by the Criminal Code but no additional defence-such as 'reasonable excuse'-is
supplied by the Migration Act. Examples are offences against subsections
217(2) and 218(2) which require a person to remove certain removees (items
11 and 12). Penalties range from 100 penalty units to a fine of $30
000.
Placing the legal burden of proof on the defendant
The Bill stipulates that a defendant bears a legal burden
of proof in relation to matters in:
- section 219-dealing with defences to a prosecution under section 218
for failing to comply with a notice to transport a non-citizen (item
14). An example of a defence is that the defendant was prevented
from complying due to 'stress of weather'.
- subsection 229(5)-dealing with defences to a prosecution for bringing
a non-citizen to Australia on a vessel (item 27). An example
of a defence under subsection 229(5) is that the non-citizen had a current
visa that did not appear to have been cancelled.
- section 232(2)-dealing with the defences available to a ship's master
or owner who is charged with an offence of bringing an unlawful non-citizen
into Australia (item 32). An example of a defence is that the
vessel entered Australian waters due to the illness of one of its passengers.
- subsection 240(3)-dealing with the defence to a prosecution of arranging
a marriage to obtain permanent residence (item 39). It is a defence
to believe that the marriage would result in a genuine and continuing
relationship.
- subsection 247(5)-dealing with defences to prosecutions for unlawfully
landing an aircraft in Australia (item 59). An example of a defence
is 'stress of weather'.
Relocating and re-phrasing defences
Items 15 and 16 amend subsection 222(8) of the
Migration Act. Subsection 222(8) is an offence of contravening an order
restraining the disposal of property. This offence is not identified as
a strict liability offence possibly because it carries a penalty of 2
years imprisonment. The amendments relocate and re-phrase the expression
'without reasonable excuse' found in subsection 222(8) so it is clear
that the words are a defence and not an element of the offence which would
have to be proved by the prosecution.
Items 54 and 55 relocate and re-phrase defences
in subsection 247(1) and paragraph 247(2)(b) so it is clear they are not
elements of the offences.
Absolute liability
Subsection 229(2) of the Migration Act creates an offence
of bringing an unlawful non-citizen into Australia. The penalty is a fine
not exceeding $10 000. Item 26 identifies this offence as one of
absolute liability-that is, no fault elements attach to the physical elements
of the offence and no defence mistake of fact is available. The Criminal
Code does not prevent defences other than a defence of mistake of fact
applying to an absolute liability offence [subsection 6.2(3)]. Existing
defences under subsection 229(5) are unaffected by the Bill.
Subsection 232(1) prohibits the master, owner, agent
or charterer of a vessel bringing an unlawful non-citizen into Australia.
The penalty is 100 penalty units. Item 31 identifies an offence
against subsection 232(1) as an absolute liability offence. As with an
offence against subsection 229(2), existing statutory defences will continue
to apply.
Aligning fault elements in the Migration Act
with fault elements in the Criminal Code and re-structuring offence provisions
Section 233(2) of the Migration Act provides that 'A
person must not knowingly or recklessly harbour an unlawful non-citizen,
a removee or deportee'. As currently worded, the fault elements of 'knowledge'
and 'recklessness' are applied to the physical element of conduct in the
offence. The Criminal Code provides that the fault element of intention
applies to conduct. As a result, item 33 repeals and replaces subsection
233(2) to identify the constituent physical elements of the offence-conduct
and circumstance. The default fault elements of intention and recklessness,
respectively will apply as a result of the operation of the Criminal Code.
The Criminal Code applies the fault element of 'knowledge' to circumstances
or results. Further, the Explanatory Memorandum notes that '[a]pplying
"knowingly" to a physical element of conduct in the pre-Criminal
Code environment is equivalent to applying the Criminal Code
fault element of intention.'
Subsection 371(3) of the Migration Act creates an offence
of 'knowingly' giving evidence to the Migration Review Tribunal that is
false or misleading. Subsection 433(3) creates an offence of 'knowingly'
giving false or misleading evidence to the Refugee Review Tribunal. These
are offences involving the physical element of conduct. As a result, items
90 and 97 substitute the fault element of intention for the pre-Code
fault element of knowledge in the offences.
Items 36 and 83 re-structure offence provisions
in order to clearly identify their constituent physical elements. The
default fault elements for each physical element will be supplied by the
Criminal Code. For example, as well as removing non-Code fault elements
item 36 repeals and replaces section 236 of the Migration Act in
a way that clearly separates the physical elements of circumstance, conduct
and result in the offence.
Replacing non-Code fault elements
Section 236 of the Migration Act creates offences relating
to visas. Sections 241 and 242 create offences of arranging pretended
de facto and interdependence relationships to obtain permanent residence.
Items 36, 40-43 replace non-Code fault elements such as 'for the
purpose' in sections 236, 241 and 242 with the Code fault element of intention.
The Explanatory Memorandum comments that, as presently expressed, the
meaning of these sections is ambiguous.
Repeals of sections and notes
Items 65 and 75 are housekeeping amendments which
repeal sections 268AC and 279A of the Migration Act. These sections apply
the Criminal Code to Divisions 14A and 15 of the Migration Act. Division
15-relating to migration agents-was inserted into the Migration Act by
the Migration Legislation Amendment (Migration Agents) Act 1997.
Division 14A-relating to monitoring compliance with student visas-was
inserted into the Migration Act by the Migration Legislation Amendment
(Overseas Students) Act 2000. The Criminal Code was designed to be
applied to all new Commonwealth offences from 1 January 1997. As a result,
the 1997 and 2000 Acts applied the Criminal Code to the new offences contained
in Divisions 14A and 15. When new section 4A is inserted into the
Migration Act (see item 1), sections 268AC and 279A will become
redundant.
Items 66, 68, 69, 71, 72, 73, 74, 76, 78, 79 and 81
repeal a number of notes in the Migration Act. The notes that are repealed
state that 'Chapter 2 of the Criminal Code sets out the general
principles of criminal responsibility'. These notes will become redundant
because a general note to this effect is supplied by item 1.
Item 99 is said to repeal subsection 493(9). There
does not appear to be a subsection 493(9) in the Migration Act. Item
99 may be intended to repeal subsection 493(8) which states that,
'A reference in this section to engaging in conduct includes a reference
to failing or refusing to engage in conduct'. This provision could be
regarded as redundant because section 4.1 of the Criminal Code defines
'conduct' as 'an act, an omission to perform an act or a state of affairs'.
Schedule 2-Amendment of the Australian
Citizenship Act 1948
Item 1 applies Chapter 2 of the Criminal Code
to all offences against the Australian Citizenship Act.
Section 49 of the Australian Citizenship Act creates
an offence of altering a citizenship certificate 'without lawful authority'.
Item 2 omits the words 'without lawful authority' from section
49 of the Act. These words will be redundant because a defence of lawful
authority will be supplied by the Criminal Code.
Schedule 3-Amendment of the Immigration
(Guardianship of Children) Act 1946
Item 1 applies Chapter 2 of the Criminal Code
to all offences against the Immigration (Guardianship of Children) Act.
Like its companion Bills, the Migration Legislation
Amendment (Application of Criminal Code) Bill 2001 identifies a number
of strict liability offences in portfolio legislation. One difference
in approach that has emerged between portfolios relates to offences identified
as strict liability offences which contain the words 'refuse or fail'.
For instance, subsection 433(1) of the Migration Act creates an offence
of refusing or failing to be sworn or answer questions when required by
the Refugee Review Tribunal. The penalty is 6 months imprisonment. The
amendments identify this offence as a strict liability offence. The Explanatory
Memorandum says that the presumption that an offence will contain a fault
element is displaced in the case of subsection 433(1) for a number of
reasons including 'the offence does not have an express fault element
nor can one be necessarily implied'. The word 'refuses' is retained.
The Prime Minister and Cabinet Legislation Amendment
(Application of Criminal Code) Bill 2001 also identifies a number of offence
provisions in the legislation it amends as strict liability offences.
Among their number are provisions which include the words 'refuses or
fails'. For example, subsection 18(7) of the Inspector-General of Intelligence
and Security Act 1986 provides that it is an offence to refuse or
fail to provide information or documents to the Inspector-General. The
penalty, in the case of a natural person, is a fine of $1000 or 6 months
imprisonment, or both. The Prime Minister and Cabinet Legislation Amendment
(Application of Criminal Code) Bill 2001 removes the word 'refuses' from
these offences. The Explanatory Memorandum for that Bill remarks that
the word 'refuses' suggests that 'some fault on the part of the defendant
is required and [is] inconsistent with the strict liability nature of
the offence'.
- Clause 2 provides that the Act commences on the later of the following
two days-28 days after it receives Royal Assent or 28 days after the
day on which the Law and Justice Legislation Amendment (Application
of Criminal Code) Act 2001 receives Royal Assent. The latter statute
received Royal Assent on 6 April 2001.
- At the time of writing the Migration Legislation Amendment (Immigration
Detainees) Bill 2001 was before the Parliament.
- See Criminal Code Amendment (Application) Act 2000.
- 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.
- In relation to evidential burdens see items 5, 8, 16, 20, 22, 24,
29, 30, 34, 36, 49, 53, 56, 85, 87, 89, 92, 94, and 96.
- Second Reading Speech, Senate, Parliamentary Debates (Hansard),
30 June 1994, p. 2381.
- He Kaw Teh v R (1985) 157 CLR 523.
- Criminal Code, subsection 6.1(1).
- Criminal Code, paragraph 6.1(1)(b).
- Halsbury's Laws of Australia, 130-7965.
- Subsection 6.2(1).
- Paragraph 6.2(1)(b).
- Matthew Goode, 'The Modern Criminal Code Project', Australian Law
Librarian, 5(4), December 1997, pp.267-76 at p.267.
- Criminal Code, subsection 5.1(1).
- Criminal Code, subsection 5.1(2).
- Except to section 6 of the Crimes Act-see previous paragraph.
- At the time of writing the Migration Legislation Amendment (Immigration
Detainees) Bill 2001 was before the Parliament.
- See Bills Digest No.131, 2000-2001.
- A section 18 notice is a Ministerial notice requiring a person to
provide information about the identity or whereabouts of an unlawful
non-citizen.
- Subsection 245F(15). A penalty unit = $110.
- For example, subsection 370(1).
- For example, subsection 217(2).
- Subsection 223(7).
- One penalty unit = $110.
- Explanatory Memorandum, p.16.
- Explanatory Memorandum, pp.17-18.
- As amended by section 10.5 of the Criminal Code Amendment (Theft,
Fraud, Bribery and Related Offences) Act 2000.
- Explanatory Memorandum, p.34.
- Explanatory Memorandum, p.6.
Jennifer Norberry
31 May 2001
Bills Digest Service
Information and Research Services
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ISSN 1328-8091
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