Explanatory Memorandum
(Circulated by authority of the Treasurer, the Hon Peter Costello, MP)Schedules 1 to 8
Schedule 1 - Amendments commencing on the 28th day after Royal Assent
Item 1 - Disapplication of certain Crimes Act provisions
10. The item inserts proposed section 3BB which provides for the progressive disapplication of sections 4, 5, 7, 7A, 14, 15D and 86 of the Crimes Act 1914 in relation to an offence against a provision of the Crimes Act 1914 or an offence against any other law of the Commonwealth if Chapter 2 of the Criminal Code has been applied to that offence. Sections 5, 7, 7A, 14, 15D and 86 are being replaced in effect by sections 10.5, 11.1, 11.2, 11.4, 11.5, 13.3, 13.4 and 13.5 of the Criminal Code . Section 4, which applies the common law in relation to the principles of criminal responsibility, will no longer be required as the Criminal Code establishes codified principles concerning criminal responsibility. Criminal Code section 10.5 is being inserted into the Criminal Code by virtue of Item 7, Schedule 1 of the Criminal Code Amendment (Theft, Fraud, Bribery and Related Offences) Act 2000 , which is scheduled to commence in tandem with this Bill.
11. This item is scheduled for early commencement because of the need to begin its operation in relation to offences to which the Criminal Code has already been applied: see clause 2(2) for more details.
12. This item amends section 4D of the Crimes Act 1914 . The existing section 4D creates two presumptions:
- (i)
- that a prohibition coupled with a penalty is an offence; and
- (ii)
- that a penalty is a maximum penalty only.
13. However, the existing provision fails to clearly lay down the second presumption where an offence is drafted under the ' Criminal Code ' style. Before the enactment of the Criminal Code , offences were generally drafted according to one of two formulae.
Formula 1:
A person must not do X
Penalty: Y penalty units
When this formula was employed, section 4D operated to create an offence of contravening the prohibition against doing X and provided that the penalty at the foot of the provision is the maximum penalty that may be imposed for that offence
Formula 2:
A person who does X is guilty of an offence punishable, on conviction, by a fine of not more than Y penalty units
14. Where this formula was employed it was not necessary to rely on section 4D as the provision was explicitly stated to be an offence and the penalty was explicitly stated to be a maximum only.
15. Under the Criminal Code , a third formula has been adopted.
Formula 3:
A person is guilty of an offence if the person does X
Penalty: Y penalty units
16. Where this formula is employed, section 4D arguably does not operate to create the presumption that the penalty is a maximum only, because a person who commits the offence does not contravene any prohibition. This problem has generally been avoided by using the phrase Maximum Penalty rather than Penalty. However, the proposed amendment overcomes any doubt by making it clear that a penalty for an offence is to be presumed to be a maximum only, regardless of whether the provision can be 'contravened'.
17. In practice, the existing ambiguity did not create a problem. It was always implicit in the provision governing sentencing for Commonwealth offences ( Crimes Act , section 16A) that courts had a discretion in imposing sentence, unless expressly overridden. This is also consistent with the position at common law, so a court would tend to read any ambiguity in favour of the retention of a sentencing discretion. Nonetheless, the amendment will it clear to readers of the Crimes Act that there is a presumption that Commonwealth criminal penalties are maximums only.
Item 3 - Application of the Criminal Code to regulations
18. This item proposes to insert section 3AA concerning the application of the Criminal Code to regulations. There is some doubt whether section 2.2 of the Criminal Code presently permits the application of Chapter 2 of the Criminal Code to regulations prior to the general date of application of Chapter 2 to all offences against Commonwealth law, which is stated by subsection 2.2(2) to be 15 December 2001. Proposed section 3AA is designed to remove any doubt in this regard and make it clear that if the Governor-General has power under any Act to make regulations then that power includes the power to apply the Criminal Code to those regulations.
19. Subsection 3AA(1) will permit the application of Chapter 2 to any offences contained in regulations prior to 15 December 2001. Subsection 3AA(2) effectively provides that such application may occur at any time from the day on which regulations are made up to 14 December 2001, after which time section 3AA will be subsumed in effect by subsection 2.2(2). Subsection 3AA(3) makes provision for this outcome by providing that section 3AA ceases to have effect, and is taken to have been repealed, on 15 December 2001.
Schedule 2 - Australian Federal Police Act 1979
Item 1 - Application of Criminal Code
20. This item inserts proposed section 5B which applies Chapter 2 of the Criminal Code to all offences against the Act. Chapter 2 establishes the codified general principles of criminal responsibility.
21. The standard note concerning Chapter 2 of the Criminal Code setting out the principles of criminal responsibility is also added after this provision.
Item 2 - Amendment of inappropriate fault element
22. Subsection 49M(1) applies the fault element of knowledge (or knowingly) in relation to the proscribed physical element of conduct, namely contravening a restraining order. Following application of the Criminal Code , the fault element of knowledge will be restricted to physical elements of circumstance or result, and intention will be the sole Criminal Code fault element that can be applied to a physical element of conduct: see sections 5.2 and 5.3 of the Criminal Code . Applying knowingly to a physical element of conduct in the pre- Criminal Code environment is equivalent to applying the Criminal Code fault element of intention. Accordingly this item proposes the replacement of knowingly in subsection 49M(1) by the appropriate and equivalent fault element, namely intention. It is considered that subsection 49M(1) will continue to operate in the same manner as at present following this amendment.
Item 3 - Lawful excuse defence
23. This item proposes to remove the specific defence of lawful excuse from paragraph 63(b). Reliance may instead be placed upon the general defence of lawful excuse, which is being inserted into the Criminal Code and will be applicable to this Act simultaneous with the amendment proposed by this item.
24. The general defences of lawful excuse and lawful authority are being inserted into Chapter 2 of the Criminal Code as section 10.5 by virtue of clause 7 of the Criminal Code Amendment (Theft, Fraud, Bribery and Related Offences) Act 2000. Section 10.5 will be progressively made applicable to all offences under Commonwealth law. The specific lawful excuse defence in paragraph 63(b) will duplicate section 10.5 and will correspondingly be unnecessary.
25. Section 10.5 will differ from the present general lawful excuse and lawful authority defence provision (section 15D of the Crimes Act 1914 ) in one important respect, namely the degree of burden placed upon an accused person who intends to raise the defence. Section 15D requires the defendant to prove the lawful excuse or lawful authority, thus imposing a legal burden of proof upon the accused person which he or she must discharge on the balance of probabilities. By contrast, following application of the Criminal Code the accused will incur an evidential burden in establishing the defence under section 10.5, namely the burden of adducing evidence that suggests a reasonable possibility that the defence exists (subsections 13.3(3) and 13.3(6) of the Criminal Code ). Section 15D will become unnecessary upon the general application of Chapter 2 of the Criminal Code on 15 December 2001 (section 2.2 of the Criminal Code ) and will be repealed on that date by virtue of item 4 of Schedule 51 of this Bill.
26. The general commencement provision to this Bill (clause 2) provides that most of this Bill, including this item, will commence simultaneously with the commencement of the Criminal Code Amendment (Theft, Fraud, Bribery and Related Offences) Act 2000. It follows that the deletion of the specific lawful excuse provision from paragraph 63(b) will occur simultaneously with the entry into force of section 10.5 of the Criminal Code . The operation of paragraph 63(b) will therefore be unaffected by the amendment proposed by this item.
Item 4 - Lawful excuse defence
27. This item proposes to remove the specific defence of lawful excuse from paragraphs 63(c) and (d). Reliance may instead be placed upon the general defence of lawful excuse, which is being inserted into the Criminal Code and will be applicable to this Act simultaneous with the amendment proposed by this item. For more details on the operation of the lawful excuse defence see the explanation at item 3 of this Schedule.
Item 5 - Reasonable excuse defence
28. This item proposes to insert subsection 63(2) which provides a defence of reasonable excuse in relation to an offence against paragraphs 63(b), (c) and (d). This will replace the present defence of lawful excuse, which is being deleted by items 3 and 4 of this Schedule.
29. The offences in paragraphs 63(b), (c) and (d) prohibit people who are not AFP members wearing or possessing AFP uniform, insignia, weapons, documentation and other items without a lawful excuse. Under proposed section 10.5, which is being inserted into the Criminal Code by the Criminal Code Amendment (Theft, Fraud, Bribery and Related Offences) Act 2000 , there is to be a defence which provides a person is not criminally responsible for an offence if the conduct constituting the offence is justified or excused by a law. The proposed defence will cover the situation where a person is for some reason authorised by law to wear or possess AFP clothing or equipment, but it does not cover the situation where someone might have some other reasonable excuse for possessing that clothing or equipment. For example, a member of the public might find an AFP weapon that has been lost. It would be undesirable in those circumstances for the person not to be exempted from the offence if the person merely picked up the weapon with the intention of returning it to the AFP so that it could be put in safe keeping. It is therefore appropriate to replace lawful excuse with a reasonable excuse exception. It is likely that those who originally drafted the offence expected it to apply to those circumstances.
30. This item also adds the standard note after proposed subsection 63(2) concerning the imposition of an evidential burden on a defendant by subsection 13.3(3) of the Criminal Code if a defendant relies on the reasonable excuse defence established by subsection 63(2).
Item 6 - Strict liability applied
31. This item proposes to insert subsection 64(1A) which provides that the offence contained in subsection 64(1) is an offence of strict liability. The offence provides that an AFP member must, at all times when he or she is wearing his or her police uniform, wear his or her identification number on, or attached to, the front of his or her uniform. The maximum penalty for this offence is 5 penalty units. The application of strict liability to this offence reflects the most likely way in which the current offence would be interpreted. The offence concerns an obligation which could be difficult to establish if the prosecution was required to prove intention with respect to the failure to wear the identification number. This is the type of obligation which is usually interpreted to mean that the legislature intended that strict liability should apply. Another factor in determining whether strict liability applies is the penalty, which in this case is very low. In addition, a member would be able to rely on appropriate defences in subsection (2) if his or her conduct was the result of an act done by another person without the consent of the member, or resulted from an unintentional omission on the members part.
32. Strict liability is defined in section 6.1 of the Criminal Code and provides that where an offence is intended to be one of strict liability, then it should be identified as such in the statute. Where strict liability applies to an element of an offence or the complete offence, there is a defence of mistake of fact under section 9.2 of the Criminal Code . Section 9.2 provides that the person is not criminally responsible for an offence of this nature if at or before the time of the conduct the person considered whether or not a relevant fact existed and is under a mistaken but reasonable belief about that fact and, had that fact existed, the conduct would not constitute an offence. This would cover the situation where the defendant made a mistake about the status of the identification number, for example where he or she mistakenly wore an old identification badge rather than the current one. If there is a mistake of fact, the evidential burden of proof is on the defence. It means that the defendant has to adduce or point the evidence that suggests a reasonable possibility that the matter exists or does not exist. If the defendant is able to do this, the prosecution is required to prove beyond the reasonable doubt that there was no such mistake.
33. The standard note referring to section 6.1 of the Criminal Code , which governs strict liability, is also added after this provision.
Schedule 3 - Australian Protective Service Act 1987
Item 1 - Application of Criminal Code
34. This item inserts proposed section 4A which applies Chapter 2 of the Criminal Code to all offences against the Act. Chapter 2 establishes the codified general principles of criminal responsibility.
35. "of criminal responsibility" is also added after this provision.
Item 2 - Replacing references to certain Crimes Act 1914 provisions
36. Certain Crimes Act 1914 provisions, including sections 7 and 7A, are scheduled for progressive disapplication in relation to offence provisions to which the Criminal Code applies, and ultimately for repeal on 15 December 2001: see items 1 of Schedule 1 and 4 of Schedule 51. It will be necessary to replace references to these Crimes Act provisions with references to relevant Criminal Code provisions. This item proposes that the references in paragraph 13(2)(b) to sections 7 and 7A of the Crimes Act 1914 , which concern attempt and incitement to commit primary offences, be replaced by references to the Criminal Code provisions which deal with attempt and incitement (sections 11.1 and 11.4). These Criminal Code provisions will apply to this Act by virtue of this Bill: see item 1 of this Schedule.
Item 3 - Strict liability applied
37. This item inserts proposed subsection 19(3A) which applies strict liability to the offence in subsection 19(3) of the Act. Subsection 19(3) provides that protective service officer shall, at all times when in uniform, wear his or her identification number on, or attached to, the front of the uniform. The offence carries a fine of $500. This is an obligation with a low penalty and is therefore the type of offence where strict liability is applied under the existing law. In addition, a member would be able to rely on appropriate defences in subsection (4) if his or her conduct was the result of an act done by another person without the consent of the officer, or resulted from an unintentional omission on the officers part. For more details on the operation of strict liability see the explanation at item 6 of Schedule 1.
38. The standard note referring to section 6.1 of the Criminal Code , which governs strict liability, is also added after this provision.
Item 4 - Strict liability applied
39. This item proposes to insert subsection 19(7) which provides that the offence contained in subsection 19(6) is an offence of strict liability. The offence concerns the return of a uniform by an APS member to the Director of the Australian Protective Service in the event that the person ceases to be a protective service officer. The maximum penalty for this offence is $100. The application of strict liability to this offence reflects the most likely way in which the current offence would be interpreted. The offence concerns an administrative obligation which could be difficult to establish if the prosecution was required to prove intention with respect to the failure to return the card. This is the type of obligation which is usually interpreted to mean that the legislature intended that strict liability should apply. Another factor in determining whether strict liability applies is the penalty, which in this case is very low. For more details on the operation of strict liability see the explanation at item 6 of Schedule 1.
40. The standard note referring to section 6.1 of the Criminal Code , which governs strict liability, is also added after this provision.
Item 5 - Strict liability applied
41. This item inserts subsection 20(4A) which proposes that the offence contained in subsection 20(4) should be an offence of strict liability. The offence concerns the return of an identity card by an APS member to the Director of the Australian Protective Service in the event that the person ceases to be a protective service officer. The maximum penalty for this offence is $100. The application of strict liability to this offence reflects the most likely way in which the current offence would be interpreted. The offence concerns an administrative obligation which could be difficult to establish if the prosecution was required to prove intention with respect to the failure to return the card. This is the type of obligation which is usually interpreted to mean that the legislature intended that strict liability should apply. Another factor in determining whether strict liability applies is the penalty, which in this case is very low. For more details on the operation of strict liability see the explanation at item 6 of Schedule 1.
42. The standard note referring to section 6.1 of the Criminal Code , which governs strict liability, is also added after this provision.
Schedule 4 - Australian Security Intelligence Organisation Act 1979
Item 1 - Application of all Criminal Code principles except corporate criminal responsibility
43. This item inserts proposed section 4A which applies Chapter 2 of the Criminal Code to the Act. Chapter 2 establishes the codified general principles of criminal responsibility. There is an exception in relation to Part 2.5 of the Criminal Code which concerns corporate criminal responsibility. The Act already has separate provisions in relation to corporate criminal responsibility in relation to offences under that Act (subsections 93(5), (6) and (7)). Part 2.5 of the Criminal Code contains general principles of corporate criminal responsibility which when it was introduced in 1995 was in appropriate cases recognised as requiring supplementation with specific provisions. This Bill, and those similar to it, reflects the status quo in relation to special provisions concerning corporate criminal responsibility. Therefore it has been decided to take the approach of retaining the existing special provisions in relation to corporate criminal responsibility by excluding the operation of Part 2.5.
44. The standard note concerning Chapter 2 of the Criminal Code setting out the principles of criminal responsibility is also added after this provision.
Item 2 - Deleting reasonable excuse defence
45. This item proposes to remove the defence of reasonable excuse from subsection 92M(1). The defence is recreated in a new subsection 92M(3A) (see item 5 of this Schedule). The rationale for this amendment is to prevent future interpretation that the reasonable excuse element of this provision is an element of the offence, which would have to be disproved in the negative by the prosecution, and puts it beyond doubt that it is a defence to the offence.
Item 3 - Deleting reasonable excuse defence
46. This item proposes to remove the defence of reasonable excuse from paragraph 92M(2)(b). The defence is recreated in a new subsection 92M(3A) (see item 5 of this Schedule). The rationale for this amendment is to prevent future interpretation that the reasonable excuse element of this provision is an element of the offence, which would have to be disproved in the negative by the prosecution, and puts it beyond doubt that it is a defence to the offence.
Item 4 - Deleting reasonable excuse defence
47. This item proposes to remove the defence of reasonable excuse from subsection 92M(3). The defence is recreated in a new subsection 92M(3A) (see item 5 of this Schedule). The rationale for this amendment is to prevent future interpretation that the reasonable excuse element of this provision is an element of the offence, which would have to be disproved in the negative by the prosecution, and puts it beyond doubt that it is a defence to the offence.
Item 5 - Recreating reasonable excuse defence
48. This item is consequent upon items 2, 3and 4 of this Schedule. It inserts proposed subsection 92M(3A) which recreates the defence of reasonable excuse in relation to an offence against subsections 92M(1), (2) and (3).
49. This item also adds the standard note after proposed subsection 92M(3A) concerning the imposition of an evidential burden on a defendant by subsection 13.3(3) of the Criminal Code if a defendant relies on the reasonable excuse defence established by subsection 92M(3A).
50. The amendment effected by this item is consequential upon the amendments made by items 2, 3, 4 and 5 of this Schedule.
Schedule 5 - Bankruptcy Act 1966
Item 1 - Application of Criminal Code
51. This item inserts proposed section 7A which applies Chapter 2 of the Criminal Code to all offences against the Act. Chapter 2 establishes the codified general principles of criminal responsibility.
52. The standard note concerning Chapter 2 of the Criminal Code setting out the principles of criminal responsibility is also added after this provision.
Item 2 - Strict liability applied
53. This item inserts proposed subsection 54(3) which applies strict liability to the offences in subsections 54(1) and (2) of the Act. Subsection 54(1) provides that where a sequestration order is made, the person against whose estate it is made is required, within 14 days, to state his or her bankruptcy and to furnish a copy of the statement to the trustee. The fine is 5 penalty units ($550). Subsection (2) provides for a similar notification requirement in relation to debtors and also involves a penalty of $550. These are administrative obligations with a low penalty and are therefore the type of offence where strict liability is applied under the existing law. For more details on the operation of strict liability see the explanation at item 6 of Schedule 1.
54. The standard note referring to section 6.1 of the Criminal Code , which governs strict liability, is also added after this provision.
Item 3 - Deleting reasonable excuse defence
55. This item proposes to remove the defence of reasonable excuse from subsection 56F(1). The defence is recreated in a new subsection 56F(1B) (see item 4 below). The rationale for this amendment is to prevent future interpretation that the reasonable excuse element of this provision is an element of the offence, which would have to be disproved in the negative by the prosecution, and puts it beyond doubt that it is a defence to the offence.
Item 4 - Strict liability applied: recreating reasonable excuse defence
56. This item proposes two amendments to section 56F. First, it inserts proposed subsection 56F(1A) which applies strict liability to the offence in subsection 56F(1) of the Act. Subsection 56F(1) provides that a member of a partnership who did not join in presenting a debtors petition against the partnership but who became a bankrupt as a result of the acceptance of the petition must, within 14 days after being notified of the bankruptcy, provide a statement of his or her affairs and of the partnership to the trustee. The person can claim a defence if he or she has a reasonable excuse, and the offence carries a fine of 5 penalty units ($550). This is an administrative obligation with a low penalty and is therefore the type of offence where strict liability is applied under the existing law. For more details on the operation of strict liability see the explanation at item 6 of Schedule 1.
57. The standard note referring to section 6.1 of the Criminal Code , which governs strict liability, is also added after this provision.
58. Second, consequent to item 3 (above) this item inserts proposed subsection 56F(1B) which recreates the defence of reasonable excuse in relation to an offence against subsection 56F(1).
59. This item also adds the standard note after proposed subsection 56F(1B) concerning the imposition of an evidential burden on a defendant by subsection 13.3(3) of the Criminal Code if a defendant relies on the reasonable excuse defence established by subsection 56F(1B).
Item 5 - Strict liability applied
60. This item inserts proposed subsection 80(1A) which applies strict liability to the offence in subsection 80(1) of the Act. Subsection 80(1) provides that if during a bankruptcy a change occurs in the bankrupt's name, or in any other particulars that the bankrupt was required to set out in the bankrupt's statement of affairs under subparagraph 6A(2)(b)(i), the bankrupt must immediately tell the trustee in writing of the change. The penalty is 6 months imprisonment. This is an administrative obligation and is therefore the type of offence where strict liability is applied under the existing law. For more details on the operation of strict liability see the explanation at item 6 of Schedule 1.
61. The standard note referring to section 6.1 of the Criminal Code , which governs strict liability, is also added after this provision.
Item 6 - Deleting reasonable excuse defence
62. This item proposes to remove the defence of reasonable excuse from subsection 155J(1). The defence is recreated in a new subsection 155J(1B) (see item 7 below). The rationale for this amendment is to prevent future interpretation that the reasonable excuse element of this provision is an element of the offence, which would have to be disproved in the negative by the prosecution, and puts it beyond doubt that it is a defence to the offence.
Item 7 - Strict liability applied: recreating reasonable excuse defence
63. This item proposes two amendments to section 155J. First, it inserts proposed subsection 155J(1A) which applies strict liability to the offence in subsection 155J(1) of the Act. Subsection 155J(1) provides that a person who ceases to be registered as a trustee must give his or her certificate of registration to the Inspector-General. The person can claim a defence if he or she has a reasonable excuse, and the offence carries a fine of 1 penalty unit ($110). This is an administrative obligation with a low penalty and is therefore the type of offence where strict liability is applied under the existing law. For more details on the operation of strict liability see the explanation at item 6 of Schedule 1.
64. The standard note referring to section 6.1 of the Criminal Code , which governs strict liability, is also added after this provision.
65. Second, consequent to item 6 (above) this item inserts proposed subsection 155J(1B) which recreates the defence of reasonable excuse in relation to an offence against subsection 155J(1).
66. This item also adds the standard note after proposed subsection 155J(1B) concerning the imposition of an evidential burden on a defendant by subsection 13.3(3) of the Criminal Code if a defendant relies on the reasonable excuse defence established by subsection 155J(1B).
Item 8 - Strict liability applied
67. This item inserts proposed subsection 168(2) which applies strict liability to the offence in subsection 168(1) of the Act. Subsection 168(1) provides that a trustee of the estate of a bankrupt shall not pay into a private banking account any moneys received by him or her as a trustee. The offence carries a fine of $500. This is an administrative obligation with a low penalty and is therefore the type of offence where strict liability is applied under the existing law. For more details on the operation of strict liability see the explanation at item 6 of Schedule 1.
68. The standard note referring to section 6.1 of the Criminal Code , which governs strict liability, is also added after this provision.
Item 9 - Strict liability applied
69. This item inserts proposed subsection 173(2) which applies strict liability to the offence in subsection 173(1) of the Act. Subsection 173(1) provides that a trustee of the estate of a bankrupt shall keep such accounts and records as are required by subsection 173(1) and shall permit a creditor of the bankrupt or agent to inspect the accounts and records as required by subsection 173(1). The offence carries a fine of 5 penalty units ($550). This is an administrative obligation with a low penalty and is therefore the type of offence where strict liability is applied under the existing law. For more details on the operation of strict liability see the explanation at item 6 of Schedule 1.
70. The standard note referring to section 6.1 of the Criminal Code , which governs strict liability, is also added after this provision.
Item 10 - Strict liability applied
71. This item inserts proposed subsection 175(5A) which applies strict liability to the offence in subsection 175(5) of the Act. Subsection 175(5) provides that for the purposes of an audit under section 175, a trustee shall produce to an auditor such books and information as the auditor requires. The offence carries a fine of 5 penalty units ($550). This is an administrative obligation with a low penalty and is therefore the type of offence where strict liability is applied under the existing law. For more details on the operation of strict liability see the explanation at item 6 of Schedule 1.
72. The standard note referring to section 6.1 of the Criminal Code , which governs strict liability, is also added after this provision.
Item 11 - Strict liability applied
73. This item inserts proposed subsection 182(5) which applies strict liability to the offence in subsection 182(4) of the Act. Subsection 182(4) provides that where a person registered as a trustee dies, the person administering the estate of the deceased person shall forthwith notify the Official Receiver. The offence carries a fine of $100. This is an administrative obligation with a low penalty and is therefore the type of offence where strict liability is applied under the existing law. For more details on the operation of strict liability see the explanation at item 6 of Schedule 1.
74. The standard note referring to section 6.1 of the Criminal Code , which governs strict liability, is also added after this provision.
Item 12 - Strict liability applied
75. This item inserts proposed subsection 246(1A) which applies strict liability to the offence in subsection 246(1) of the Act. Subsection 246(1) provides that where an order is made under section 244 or 245 for the administration of the estate of a deceased person, and there is a legal representative of the deceased person, the legal representative shall make a statement of the deceased persons affairs and of his or her administration of the estate, and give a copy of the statement to the Official Receiver within 28 days of being notified of the making of the order. The offence carries a fine of 5 penalty units ($550). This is an administrative obligation with a low penalty and is therefore the type of offence where strict liability is applied under the existing law. For more details on the operation of strict liability see the explanation at item 6 of Schedule 1.
76. The standard note referring to section 6.1 of the Criminal Code , which governs strict liability, is also added after this provision.
Item 13 - Amendment of inappropriate fault element
77. Section 263A uses the non- Criminal Code fault element wilfully in relation to the physical element of conduct, namely making a false statement in an affidavit to be used for the purposes of the Act. This is equivalent to applying the Criminal Code fault element of intention. The Criminal Code allows the use of new fault elements (subsection 5.1(2)) and the present offence would possibly still operate in the same manner following application of the Criminal Code . However it is also possible that future courts may attempt to distinguish wilfulness from intention on the basis that wilfulness appears to differ from the basic Criminal Code fault element. Accordingly this item proposes the replacement of wilfully in section 263A by the appropriate and equivalent Criminal Code fault element, namely intention. It is considered that section 263A will continue to operate in the same manner as at present following this amendment.
Item 14 - Deleting reasonable excuse defence
78. This item proposes to remove the defence of reasonable excuse from subsection 264A(1A). The defence is recreated in a new subsection 264A(1B) (see item 15 below). The rationale for this amendment is to prevent future interpretation that the reasonable excuse element of this provision is an element of the offence, which would have to be disproved in the negative by the prosecution, and puts it beyond doubt that it is a defence to the offence.
Item 15 - Recreating reasonable excuse defence
79. This item is consequent upon item 14 (above). It inserts proposed subsection 264A(1B) which recreates the defence of reasonable excuse in relation to an offence against subsection 264A(1A).
80. This item also adds the standard note after proposed subsection 264A(1B) concerning the imposition of an evidential burden on a defendant by subsection 13.3(3) of the Criminal Code if a defendant relies on the reasonable excuse defence established by subsection 264A(1B).
Item 16 - Deleting reasonable excuse defence
81. This item proposes to remove the defence of reasonable excuse from subsection 264C(1). The defence is recreated in a new subsection 264C(1A) (see item 17 below). The rationale for this amendment is to prevent future interpretation that the reasonable excuse element of this provision is an element of the offence, which would have to be disproved in the negative by the prosecution, and puts it beyond doubt that it is a defence to the offence.
Item 17 - Recreating reasonable excuse defence
82. This item is consequent upon item 16 (above). It inserts proposed subsection 264C(1A) which recreates the defence of reasonable excuse in relation to an offence against subsection 264C(1).
83. This item also adds the standard note after proposed subsection 264C(1A) concerning the imposition of an evidential burden on a defendant by subsection 13.3(3) of the Criminal Code if a defendant relies on the reasonable excuse defence established by subsection 264C(1A).
Item 18 - Strict liability applied
84. This item proposes to insert subsection 264E(2) which provides that strict liability is applied to the physical elements of circumstance described in proposed subsection 264E(2) and which comprise elements of the offence in subsection 264E(1). Subsection 264E(1) proscribes various forms of conduct in relation to Registrars or magistrates who are performing an examination under this Act, namely insulting, disturbing, interrupting, using insulting or threatening language, or using words calculated to improperly influence or bring into disrepute such persons.
85. These physical elements are appropriate candidates for the application of strict liability because in most applicable instances the person concerned will not possess any fault element concerning these physical elements, and accordingly the offence would become almost unenforceable if the prosecution were obliged to demonstrate fault. Further, the persons degree of culpability under this offence is not materially affected by absence of the subject fault. However the defence of mistake of fact should be available to the defendant, as this provision should not operate so as to criminalise the conduct of persons who made a reasonable mistake of fact in relation to the identity of the affected person. Accordingly strict liability, and not absolute liability, is the appropriate application. For more details on the operation of strict liability see the explanation at item 6 of Schedule 1.
86. The standard note referring to section 6.1 of the Criminal Code , which governs strict liability, is also added after this provision.
Item 19 - Identification of defence
87. This item proposes to remove the defence of to the best of his or her knowledge and belief from paragraphs 265(1)(a), (b) and (ca) and remove it to a separate subsection (see item 20 below). This defence is of a particular character which makes this amendment desirable, namely it is peculiarly within the knowledge of the defendant whether he or she has complied with the requirements of paragraphs 265(1)(a), (b) or (ca) to the best of his or her knowledge and belief. Because of the nature of this defence, and particularly in the circumstance of the application of the Criminal Code which sets a goal of enhancing clarity concerning the principles of criminal responsibility, it is desirable to clearly identify this provision as a defence to which an evidential burden is imposed on the defendant by the Criminal Code (subsection 13.3(3)). This is best effected by removing the defence to a separate subsection and adding the standard note which provides that subsection 13.3(3) of the Criminal Code imposes an evidential burden on the defendant. An evidential burden is defined by subsection 13.3(6) as one in which the defendant is required to adduce or point to evidence that suggests a reasonable possibility that the matter exists or does not exist (as the case may be).
Item 20 - Recreation of defence
88. This item is consequent upon item 19 above. It proposes to create a new subsection 265(1A) which provides that a bankrupt is taken to have complied with paragraphs 265(1)(a), (b) or (ca) if he or she has complied with that paragraph to the best of his or her knowledge and belief. The standard note concerning the imposition of an evidential burden on the defendant by subsection 13.3(3) of the Criminal Code is also added.
Item 21 - Clarifying a fault element
89. This item proposes that the phrase for the purpose of in subsection 265(3) be replaced by the phrase with the intention of. The phrase for the purpose of should no longer be used in offence-creating provisions because of the potential confusion which could arise as to the applicable fault element. This confusion could arise because most offences do not specify the fault element and because the phrase for the purpose of could be interpreted to refer to an additional fault element of intention attaching to the physical element of conduct or denote a physical element of result which would thereby attract the default fault element of recklessness.
90. There are two possible interpretations in relation to the phrase for the purpose of in subsection 265(3). First, the phrase could denote a physical element of result, namely that the defendant obtained the consent of his or her creditors, or any of them, to any matter relating to any of the bankrupts examinable affairs as a result of making a false representation or committing any fraud. On this interpretation the fault element of recklessness would attach to this physical element of result by virtue of the Criminal Codes default fault provision (section 5.6), and the prosecution would merely have to prove that the defendant made a false representation or committed fraud being reckless as to whether a creditors consent was obtained as a result of his or her actions.
91. In the alternative the phrase would be interpreted to identify an additional fault element of intention attaching to the physical element of conduct. Under this second interpretation the prosecution would be required to prove a higher degree of culpability, namely that the defendant made the false representation or committed fraud with intention of obtaining a creditors consent.
92. It follows that the phrase for the purposes of has the potential to create significant confusion in interpreting offence-creating provisions to which the Criminal Code has been applied. If a physical element of result is intended to be part of the offence, then that should be described clearly: for example, the words to achieve the result of could be used in place of for the purposes of. Conversely, if the phrase for the purposes of are meant to denote an additional fault element of intention attaching to the physical element of conduct then the phrase with the intention of would be better used in its stead.
93. In the instance of subsection 265(3) the correct interpretation is that the defendant makes the false representation or commits fraud with the intention of obtaining a creditors consent, and this item proposes the appropriate amendment accordingly.
Item 22 - Deleting reasonable excuse defence
94. This item proposes to remove the defence of reasonable excuse from subsection 265A(1). The defence is recreated in a new subsection 265A(1A) (see item 23 below). The rationale for this amendment is to prevent future interpretation that the reasonable excuse element of this provision is an element of the offence, which would have to be disproved in the negative by the prosecution, and puts it beyond doubt that it is a defence to the offence.
Item 23 - Recreating reasonable excuse defence
95. This item is consequent upon item 22 above. It inserts proposed subsection 265A(1A) which recreates the defence of reasonable excuse in relation to an offence against subsection 265A(1).
96. This item also adds the standard note after proposed subsection 265A(1A) concerning the imposition of an evidential burden on a defendant by subsection 13.3(3) of the Criminal Code if a defendant relies on the reasonable excuse defence established by subsection 265A(1A).
Item 24 - Deleting reasonable excuse defence
97. This item proposes to remove the defence of reasonable excuse from subsection 265A(3). The defence is recreated in a new subsection 265A(3A) (see item 25 below). The rationale for this amendment is to prevent future interpretation that the reasonable excuse element of this provision is an element of the offence, which would have to be disproved in the negative by the prosecution, and puts it beyond doubt that it is a defence to the offence.
Item 25 - Recreating reasonable excuse defence
98. This item is consequent upon item 24 above. It inserts proposed subsection 265A(3A) which recreates the defence of reasonable excuse in relation to an offence against subsection 265A(3).
99. This item also adds the standard note after proposed subsection 265A(3A) concerning the imposition of an evidential burden on a defendant by subsection 13.3(3) of the Criminal Code if a defendant relies on the reasonable excuse defence established by subsection 265A(3A).
Item 26 - Deleting reasonable excuse defence
100. This item proposes to remove the defence of reasonable excuse from section 267B. The defence is recreated in a new subsection 267B(2) (see item 27 below). The rationale for this amendment is to prevent future interpretation that the reasonable excuse element of this provision is an element of the offence, which would have to be disproved in the negative by the prosecution, and puts it beyond doubt that it is a defence to the offence.
Item 27 - Recreating reasonable excuse defence
101. This item is consequent upon item 26 above. It inserts proposed subsection 267B(2) which recreates the defence of reasonable excuse in relation to an offence against section 267B.
102. This item also adds the standard note after proposed subsection 267B(2) concerning the imposition of an evidential burden on a defendant by subsection 13.3(3) of the Criminal Code if a defendant relies on the reasonable excuse defence established by subsection 267B(2).
Item 28 - Deleting reasonable excuse defence
103. This item proposes to remove the defence of reasonable excuse from section 267D. The defence is recreated in a new subsection 267D(2) (see item 29 below). The rationale for this amendment is to prevent future interpretation that the reasonable excuse element of this provision is an element of the offence, which would have to be disproved in the negative by the prosecution, and puts it beyond doubt that it is a defence to the offence.
Item 29 - Recreating reasonable excuse defence
104. This item is consequent upon item 28 above. It inserts proposed subsection 267D(2) which recreates the defence of reasonable excuse in relation to an offence against section 267D.
105. This item also adds the standard note after proposed subsection 267D(2) concerning the imposition of an evidential burden on a defendant by subsection 13.3(3) of the Criminal Code if a defendant relies on the reasonable excuse defence established by subsection 267D(2).
Item 30 - Deleting reasonable excuse defence
106. This item proposes to remove the defence of reasonable excuse from section 267F. The defence is recreated in a new subsection 267F(2) (see item 31 below). The rationale for this amendment is to prevent future interpretation that the reasonable excuse element of this provision is an element of the offence, which would have to be disproved in the negative by the prosecution, and puts it beyond doubt that it is a defence to the offence.
Item 31 - Recreating reasonable excuse defence
107. This item is consequent upon item 30 above. It inserts proposed subsection 267F(2) which recreates the defence of reasonable excuse in relation to an offence against section 267F.
108. This item also adds the standard note after proposed subsection 267F(2) concerning the imposition of an evidential burden on a defendant by subsection 13.3(3) of the Criminal Code if a defendant relies on the reasonable excuse defence established by subsection 267F(2).
Item 32 - Identification of defence
109. This item proposes to remove the defence of to the best of his or her knowledge and belief from paragraphs 268(2)(a) and (ba) and remove it to a separate subsection (see item 33 below). This defence is of a particular character which makes this amendment desirable, namely it is peculiarly within the knowledge of the defendant whether he or she has complied with the requirements of paragraphs 268(2)(a) or (ba) to the best of his or her knowledge and belief. Because of the nature of this defence, and particularly in the circumstance of the application of the Criminal Code which sets a goal of enhancing clarity concerning the principles of criminal responsibility, it is desirable to clearly identify this provision as a defence to which an evidential burden is imposed on the defendant by the Criminal Code (subsection 13.3(3)). This is best effected by removing the defence to a separate subsection and adding the standard note which provides that subsection 13.3(3) of the Criminal Code imposes an evidential burden on the defendant. An evidential burden is defined by subsection 13.3(6) as one in which the defendant is required to adduce or point to evidence that suggests a reasonable possibility that the matter exists or does not exist (as the case may be).
Item 33 - Recreation of defence
110. This item is consequent upon item 32 above. It proposes to create a new subsection 268(2A) which provides that a bankrupt is taken to have complied with paragraphs 268(2)(a) or (ba) if he or she has complied with that paragraph to the best of his or her knowledge and belief. The standard note concerning the imposition of an evidential burden on the defendant by subsection 13.3(3) of the Criminal Code is also added.
Item 34 - Clarifying a fault element
111. This item proposes that the phrase for the purpose of in subsection 268(3) be replaced by the phrase with the intention of. For details on the reasons for replacing the phrase for the purpose of see the explanation at item 21 of this Schedule. In the case of subsection 268(3) the correct interpretation is that the defendant makes the false representation or commits fraud with the intention of obtaining a creditors consent, and this item proposes the appropriate amendment accordingly.
Item 35 - Evidential burden note
112. The offences in sections 268(2) and (3) provide that a debtor who has executed a deed of assignment or arrangement shall make all the disclosures prescribed by subsection 268(2) and shall not make a false representation or commit any fraud for the purpose of obtaining the consent of any of his or her creditors to any matter relating to a debtors examinable affairs, except as permitted by subsection 268(4). Subsection 268(4) permits a defence to a contravention of subsection 268(2) and (3) where, the final dividend has been paid under the deed or after the deed has been declared to be void (in the case of a deed of assignment) or after the terms of the deed have been carried out or after the deed has been declared to be void or has been terminated (in the case of a deed of arrangement). This item proposes the insertion of a note after subsection 268(4) which makes it clear that the defendant bears an evidential burden in relation to a defence raised under subsection 268(4). Subsection 13.3(6) of the Criminal Code provides that an evidential burden, in relation to a matter, means the burden of adducing or pointing to evidence that suggests a reasonable possibility that the matters exists or does not exist (as the case may be).
Item 36 - Identification of defence
113. This item proposes to remove the defence of to the best of his or her knowledge and belief from subsection 268(5) and remove it to a separate subsection (see item 37 below). This defence is of a particular character which makes this amendment desirable, namely it is peculiarly within the knowledge of the defendant whether he or she has complied with the requirements of subsection 268(5) to the best of his or her knowledge and belief. Because of the nature of this defence, and particularly in the circumstance of the application of the Criminal Code which sets a goal of enhancing clarity concerning the principles of criminal responsibility, it is desirable to clearly identify this provision as a defence to which an evidential burden is imposed on the defendant by the Criminal Code (subsection 13.3(3)). This is best effected by removing the defence to a separate subsection and adding the standard note which provides that subsection 13.3(3) of the Criminal Code imposes an evidential burden on the defendant. An evidential burden is defined by subsection 13.3(6) as one in which the defendant is required to adduce or point to evidence that suggests a reasonable possibility that the matter exists or does not exist (as the case may be).
Item 37 - Recreation of defence
114. This item is consequent upon item 36 above. It proposes to create a new subsection 268(5A) which provides that a bankrupt is taken to have complied with subsection 268(5) if he or she has complied with that subsection to the best of his or her knowledge and belief. The standard note concerning the imposition of an evidential burden on the defendant by subsection 13.3(3) of the Criminal Code is also added.
Schedule 6 - Classification (Publications, Films and Computer Games) Act 1995
Item 1 - Application of Criminal Code
115. This item inserts proposed section 6A which applies Chapter 2 of the Criminal Code to all offences against the Act. Chapter 2 establishes the codified general principles of criminal responsibility.
116. The standard note concerning Chapter 2 of the Criminal Code setting out the principles of criminal responsibility is also added after this provision.
Item 2 - Insertion of notes related to strict liability
117. This item inserts a note after subsection 23(4), which provides that an offence against subsection 23(3) is a strict liability offence. The note refers to the Criminal Code provision governing the principles concerning strict liability (section 6.1).
Item 3 - Insertion of notes related to strict liability
118. This item inserts a note after subsection 24(4), which provides that an offence against subsection 24(3) is a strict liability offence. The note refers to the Criminal Code provision governing the principles concerning strict liability (section 6.1).
Item 4 - Insertion of notes related to strict liability
119. This item inserts a note after subsection 23(4), which provides that an offence against subsection 23(3) is a strict liability offence. The note refers to the Criminal Code provision governing the principles concerning strict liability (section 6.1).
Item 5 - Deleting reasonable excuse defence
120. This item proposes to remove the defence of reasonable excuse from subsection 70(4). The defence is recreated in a new subsection 70(6) (see item 6 below). The rationale for this amendment is to prevent future interpretation that the reasonable excuse element of this provision is an element of the offence, which would have to be disproved in the negative by the prosecution, and puts it beyond doubt that it is a defence to the offence.
Item 6 - Strict liability applied: recreating reasonable excuse defence
121. This item proposes two amendments to section 56F. First, it inserts proposed subsection 70(5) which applies strict liability to the offence in subsection 70(4) of the Act. Subsection 70(4) provides that a person who, without reasonable excuse, contravenes subsection 70(3) is guilty of an offence. Subsection 70(3) empowers the Auditor-General to require any person to give to him or her information in the persons possession or to which the person has access, and provides that the person must comply with such a requirement. The offence carries a fine of 10 penalty units. This is an administrative obligation with a low penalty and is therefore the type of offence where strict liability is applied under the existing law. For more details on the operation of strict liability see the explanation at item 6 of Schedule 1.
122. The standard note referring to section 6.1 of the Criminal Code , which governs strict liability, is also added after this provision.
123. Second, consequent to item 5 above, this item inserts proposed subsection 70(6) which recreates the defence of reasonable excuse in relation to an offence against subsection 70(4).
124. This item also adds the standard note after proposed subsection 70(6) concerning the imposition of an evidential burden on a defendant by subsection 13.3(3) of the Criminal Code if a defendant relies on the reasonable excuse defence established by subsection 70(6).
Schedule 7 - Commerce (Trade Descriptions) Act 1905
Item 1 - Application of Criminal Code
125. This item inserts a note referring to the application of Chapter 2 of the Criminal Code to this Act via application to the Customs Act 1901 . The Criminal Code is applied to this Act in this manner because of section 2, which provides that this Act shall be incorporated and read as one with the Customs Act . Accordingly the application of the specified components of the Criminal Code to the Customs Acts criminal offences and offences dealt with by way of a Customs prosecution (see item 2 of Schedule 21) will also apply those components to each such offence in this Act on the same basis.
Item 2 - Strict liability applied
126. This item proposes to insert subsection 6(2) which provides that strict liability is applied to the physical element of circumstance in the offence in subsection 6(1) that the notice to be given is notice in accordance with the regulations. Subsection 6(1) imposes an obligation upon a person who intends to export goods to give notice to Customs in accordance with the regulations.
127. This physical element is an appropriate candidate for the application of strict liability because in most applicable instances the person concerned will not possess any fault element concerning this physical element, and accordingly the offence would become almost unenforceable if the prosecution were obliged to demonstrate fault. Further, the persons degree of culpability under this offence is not materially affected by absence of the subject fault. However the defence of mistake of fact should be available to the defendant, as this provision should not operate so as to criminalise the conduct of persons who made a reasonable mistake of fact in relation to the identity of the affected person. Accordingly strict liability, and not absolute liability, is the appropriate application. For more details on the operation of strict liability see the explanation at item 6 of Schedule 1.
128. The standard note referring to section 6.1 of the Criminal Code , which governs strict liability, is also added after this provision.
Item 3 - Amendment of inappropriate fault element
129. Subsection 9(2) applies the fault element of knowledge (or knowingly) in relation to the proscribed physical element of conduct, namely importing goods. Following application of the Criminal Code , the fault element of knowledge will be restricted to physical elements of circumstance or result, and intention will be the sole Criminal Code fault element that can be applied to a physical element of conduct: see sections 5.2 and 5.3 of the Criminal Code . Applying knowingly to a physical element of conduct in the pre- Criminal Code environment is equivalent to applying the Criminal Code fault element of intention. Accordingly this item proposes the replacement of knowingly in subsection 9(2) by the appropriate and equivalent fault element, namely intention. It is considered that subsection 9(2) will continue to operate in the same manner as at present following this amendment.
Item 4 - Amendment of inappropriate fault element
130. Paragraphs 12(1)(a) and (b) apply the fault element of knowledge (or knowingly) in relation to the proscribed physical element of conduct, namely applying any false trade description to any goods, or export or enter for export or put on any ship or boat for export any goods. Following application of the Criminal Code , the fault element of knowledge will be restricted to physical elements of circumstance or result, and intention will be the sole Criminal Code fault element that can be applied to a physical element of conduct: see sections 5.2 and 5.3 of the Criminal Code . Applying knowingly to a physical element of conduct in the pre- Criminal Code environment is equivalent to applying the Criminal Code fault element of intention. Accordingly this item proposes the replacement of knowingly in paragraphs 12(1)(a) and (b) by the appropriate and equivalent fault element, namely intention. It is considered that paragraphs 12(1)(a) and (b) will continue to operate in the same manner as at present following this amendment.
Schedule 8 - Complaints (Australian Federal Police) Act 1981
Item 1 - Application of Criminal Code
131. This item inserts proposed section 5B which applies Chapter 2 of the Criminal Code to all offences against the Act. Chapter 2 establishes the codified general principles of criminal responsibility.
132. The standard note concerning Chapter 2 of the Criminal Code setting out the principles of criminal responsibility is also added after this provision.
Item 2 - Deleting reasonable excuse defence
133. This item proposes to remove the defence of reasonable excuse from paragraph 7(8)(a). The defence is recreated in a new subsection 7(8A) (see item 3 below). The rationale for this amendment is to prevent future interpretation that the reasonable excuse element of this provision is an element of the offence, which would have to be disproved in the negative by the prosecution, and puts it beyond doubt that it is a defence to the offence.
Item 3 - Recreating reasonable excuse defence
134. This item is consequent upon item 2 above. It inserts proposed subsection 7(8A) which recreates the defence of reasonable excuse in relation to an offence against paragraph 7(8)(a).
135. This item also adds the standard note after proposed subsection 7(8A) concerning the imposition of an evidential burden on a defendant by subsection 13.3(3) of the Criminal Code if a defendant relies on the reasonable excuse defence established by subsection 7(8A).
Item 4 - Deleting reasonable excuse defence
136. This item proposes to remove the defence of reasonable excuse from subsection 44(1). The defence is recreated in a new subsection 44(1B) (see item 5 below). The rationale for this amendment is to prevent future interpretation that the reasonable excuse element of this provision is an element of the offence, which would have to be disproved in the negative by the prosecution, and puts it beyond doubt that it is a defence to the offence.
Item 5 - Recreating reasonable excuse defence
137. This item is consequent upon item 4 above. It inserts proposed subsection 44(1A) which recreates the defence of reasonable excuse in relation to an offence against subsection 44(1).
138. This item also adds the standard note after proposed subsection 44(1B) concerning the imposition of an evidential burden on a defendant by subsection 13.3(3) of the Criminal Code if a defendant relies on the reasonable excuse defence established by subsection 44(1B).
Item 6 - Deleting reasonable excuse defence
139. This item proposes the repeal and substitution of paragraph 50(8)(a), the net effect of which is to remove the defence of reasonable excuse from paragraph 50(8)(a). The defence is recreated in a new subsection 50(8A) (see item 8 below). The rationale for this amendment is to prevent future interpretation that the reasonable excuse element of this provision is an element of the offence, which would have to be disproved in the negative by the prosecution, and puts it beyond doubt that it is a defence.
Item 7 - Amendment of inappropriate fault element: deleting reasonable excuse defence
140. This item proposes two amendments to paragraph 50(8)(b). First, paragraph 50(8)(b) uses the non- Criminal Code fault element wilfully in relation to the physical element of conduct, namely obstructing, hindering or resisting a person, or any of the persons, holding an inquiry under subsection (1). This is equivalent to applying the Criminal Code fault element of intention. The Criminal Code allows the use of new fault elements (subsection 5.1(2)) and the present offence would possibly still operate in the same manner following application of the Criminal Code . However it is also possible that future courts may attempt to distinguish wilfulness from intention on the basis that wilfulness appears to differ from the basic Criminal Code fault element. Accordingly this item proposes the replacement of wilfully in paragraph 50(8)(b) by the appropriate and equivalent Criminal Code fault element, namely intention. It is considered that paragraph 50(8)(b) will continue to operate in the same manner as at present following this amendment.
141. Second, this item proposes to remove the defence of reasonable excuse from paragraph 50(8)(b). The defence is recreated in a new subsection 50(8A) (see item 8 below). The rationale for this amendment is to prevent future interpretation that the reasonable excuse element of this provision is an element of the offence, which would have to be disproved in the negative by the prosecution, and puts it beyond doubt that it is a defence to the offence.
Item 8- Recreating reasonable excuse defence
142. This item is consequent upon items 6 and 7 above. It inserts proposed subsection 50(8A) which recreates the defence of reasonable excuse in relation to an offence against existing paragraphs 50(8)(a) or (b). Paragraph 8(a) has been reconstructed as paragraphs 8(a), (aa) and (ab): see item 6.
143. This item also adds the standard note after proposed subsection 50(8A) concerning the imposition of an evidential burden on a defendant by subsection 13.3(3) of the Criminal Code if a defendant relies on the reasonable excuse defence established by subsection 50(8A).
Item 9 - Deleting reasonable excuse defence
144. This item proposes to remove the defence of reasonable excuse from section 82. The defence is recreated in a new subsection 82(2) (see item 10 below). The rationale for this amendment is to prevent future interpretation that the reasonable excuse element of this provision is an element of the offence, which would have to be disproved in the negative by the prosecution, and puts it beyond doubt that it is a defence to the offence.
Item 10 - Recreating reasonable excuse defence
145. This item is consequent upon item 9 above. It inserts proposed subsection 82(2) which recreates the defence of reasonable excuse in relation to an offence against subsection 82(1).
146. This item also adds the standard note after proposed subsection 82(2) concerning the imposition of an evidential burden on a defendant by subsection 13.3(3) of the Criminal Code if a defendant relies on the reasonable excuse defence established by subsection 82(2).
Item 11 - Deleting reasonable excuse defence
147. This item proposes to remove the defence of reasonable excuse from subsection 83(1). The defence is recreated in a new subsection 83(1A) (see item 12 below). The rationale for this amendment is to prevent future interpretation that the reasonable excuse element of this provision is an element of the offence, which would have to be disproved in the negative by the prosecution, and puts it beyond doubt that it is a defence to the offence.
Item 12 - Recreating reasonable excuse defence
148. This item is consequent upon item 11 above. It inserts proposed subsection 83(1A) which recreates the defence of reasonable excuse in relation to an offence against subsection 83(1).
149. This item also adds the standard note after proposed subsection 83(1A) concerning the imposition of an evidential burden on a defendant by subsection 13.3(3) of the Criminal Code if a defendant relies on the reasonable excuse defence established by subsection 83(1A).