House of Representatives

Explanatory Memorandum

(Circulated by authority of the Treasurer, the Hon Peter Costello, MP)

Schedules 21 to 30

Schedule 21 - Customs Act 1901

Item 1 - Replacing references to certain Crimes Act 1914 provisions

594. Certain Crimes Act 1914 provisions, including sections 7, 7A and 86, are scheduled for progressive disapplication in relation to offence provisions to which the Criminal Code applies, and ultimately for repeal on 15 December 2001. 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 subparagraphs (b)(i) and (ii) of the definition of records offence in subsection 4(1) to sections 7, 7A and 86 of the Crimes Act 1914 , which concern attempting to commit primary offences, incitement to commit primary offences, and conspiring to commit primary offences, be replaced by references to the Criminal Code provisions which deal with these matters (sections 11.1, 11.4 and 11.5). These Criminal Code provisions will apply to this Act by virtue of this Bill: see Schedule 1.

Item 2 - Application of the Criminal Code

595. Proposed section 5AA differs from equivalent provisions in other Acts because of the unusual nature of most offences in the Customs Act 1901 . While there are some offences that are purely criminal in nature, such as the narcotic drug import and export offences under Part XIV of the Act, the offences that have monetary penalties are, with the exception of Queensland, dealt with as criminal matters in the lower courts (standard of proof - beyond reasonable doubt) and as civil matters in the superior courts. This is because the provisions that deal with the procedure for these offences diverge (see sections 247 and 248). While this anomaly is not logical, and the status of these offences is currently being reviewed by the Australian Law Reform Commission (which will report in March 2002), the purpose of this Bill is to harmonise offences with the Criminal Code . It is therefore considered that the least complex solution is to apply critical aspects of the general principles in Chapter 2 of the Criminal Code to all Customs prosecutions so that the same principles apply to basic concepts such as intention and the defences regardless of where the offence is heard. At the same time the provision will not apply Parts 2.4, 2.5 and 2.6 of Chapter 2 of the Criminal Code in recognition that those aspects may not translate easily to Customs prosecutions. For example, the fundamental difference between criminal and civil matters - the burden and standard of proof - will be left to the existing law rather than applying the codified provisions in Part 2.6. As is the case now, the standard of proof will depend on the court in which the matter is heard. If it is dealt with as a criminal matter, the standard of proof will remain beyond reasonable doubt.

596. Proposed subsection 5AA(1) applies Chapter 2 of the Criminal Code to all offences in the Customs Act 1901 , but this is subject to proposed subsection 5AA(2).

597. Proposed paragraph 5AA(2)(a) applies Parts 2.1, 2.2 and 2.3 of the Criminal Code to Customs prosecutions. These Parts concern general codification of criminal responsibility principles, physical and fault elements in offences, and circumstances in which there is no criminal responsibility.

598. Proposed paragraph 5AA(2)(b) provides that Parts 2.4 (which deals with criminal ancillary offences such as attempt and complicity and is not designed for use in the civil context - reliance can be had on existing sections 236 and 237 of the Act); Part 2.5 (which deals with corporate criminal responsibility and is consistent with what was said when the Criminal Code was introduced, is disapplied where the Act already has a separate provision (in this case section 257)); and Part 2.6 (which deals with the burden and standard of proof) do not apply to Customs prosecutions.

599. Proposed paragraph 5AA(2)(c) provides that where the Criminal Code general principles apply to a 'Customs prosecutions' they shall be taken to refer to 'responsibility' rather than 'criminal responsibility'. This is because in some situations they will be used to determine responsibility in the civil context. The term responsibility is preferred in that it is suitable for both criminal and civil matters.

600. Proposed subsections 5AA(3) and (4) make it clear the application of the Criminal Code is in no way meant to change the way in which Customs prosecutions are dealt with in the courts (including the standard and burden of proof).

601. Proposed subsection 5AA(5) defines Customs prosecution in relation to the existing definition.

Items 3 and 4 - Clarification of exception to the offence

602. These items propose to remove the exception of without the permission of the CEO given under subsection (2) from subsection 5A(1) and recreate it as subsection 5A(1A). The rationale for this amendment is to prevent future interpretation that the exception 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 an exception to the offence.

Items 5 and 6 - Clarification of exception to the offence

603. These items propose to remove the exception of without the permission of the CEO given under subsection (2) from subsection 5B(1) and recreate it as subsection 5B(1A). The rationale for this amendment is to prevent future interpretation that the exception 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 an exception to the offence.

Items 7 and 8 - Clarifying reasonable excuse defence

604. These items propose to remove the defence of reasonable excuse from subsection 20(7) and recreate it in a new subsection 20(7A). 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 9 - Removal of exception to the offence

605. This item proposes to remove the exception of Except with permission in force under subsection (2) from subsection 33A(1) and remove it to a separate subsection. The rationale for this amendment is to prevent future interpretation that the exception 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 an exception to the offence.

Item 10 - Strict liability applied: recreation of exception to the offence

606. This item proposes to insert two subsections. First, proposed subsection 33A(1A) applies strict liability to the offence in subsection 33A(1) of the Act. Subsection 33A(1) provides that a person shall not use an Australian resources installation that is subject to the control of the Customs in, or in any operations or activities associated with, or incidental to, exploring or exploiting the Australian seabed. This obligation is 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 2.

607. The standard note referring to section 6.1 of the Criminal Code , which governs strict liability, is also added after this provision.

608. Second, proposed subsection 33A(1B) is consequent upon item 8. It proposes to recreate the exception to the offence in subsection 33A(1) that the offence in that provision does not apply if the person has permission in force under subsection (2).

Item 10 - Removal of exception to the offence

609. This item proposes to remove the exception of Except with permission in force under subsection (2) from subsection 33B(1) and remove it to a separate subsection. The rationale for this amendment is to prevent future interpretation that the exception 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 an exception to the offence.

Item 11 - Strict liability applied: recreation of exception to the offence

610. This item proposes to insert two subsections. First, proposed subsection 33B(1A) applies strict liability to the offence in subsection 33B(1) of the Act. Subsection 33B(1) provides that a person shall not use an Australian sea installation that is subject to the control of the Customs. This obligation is 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 2.

611. The standard note referring to section 6.1 of the Criminal Code , which governs strict liability, is also added after this provision.

612. Second, proposed subsection 33B(1B) is consequent upon item 10. It proposes to recreate the exception to the offence in subsection 33B(1) that the offence in that provision does not apply if the person has permission in force under subsection (2).

Item 12 - Provision reconstructed: strict liability applied: absolute liability applied: definition

613. This item proposes several amendments to subsection 50(4). First, it repeals subsection 50(4) and recreates it as two separate offence provisions, which respectively concern non-narcotic goods (subsection 50(4)) and narcotic goods (subsection 50(7)).

614. Second, this item inserts proposed subsection 50(5) which applies strict liability to the offence in new subsection 50(4) of the Act. Subsection 50(4) imposes an obligation to comply with a condition or requirement under which a licence or permission is granted. The offence carries a fine of $10000. This form of regulatory obligation is 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 2.

615. The standard note referring to section 6.1 of the Criminal Code , which governs strict liability, is also added after this provision.

616. Third, this item proposes to insert subsections 50(6) and (9) which provides that absolute liability is applied to the physical element of circumstance contained in the offence in new subsections 50(4) and (7) that a licence or permission has been granted, after the commencement of this subsection, under the regulations.

617. These physical elements are appropriate candidates for the application of absolute 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. The defence of mistake of fact should not be available to the defendant and accordingly absolute liability, and not strict liability, is the appropriate application. For more details on the operation of absolute liability see the explanation at item 31 of Schedule 10.

618. The standard note referring to section 6.2 of the Criminal Code , which governs absolute liability, is also added after this provision.

619. Finally, this item inserts as subsection 50(10) a definition of engage in conduct, which is defined to comprise doing an act and omitting to perform an act. The definition mirrors the same definition in the Criminal Code . The phrase engage in conduct is utilised in a number of provisions in this Act.

Items 13 and 14 - Clarification of exception to the offence

620. These items propose to remove the exception of without the permission of a Collector given under subsection (2) from subsection 58(1) and recreate it as subsection 58(1A). The rationale for this amendment is to prevent future interpretation that the exception 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 an exception to the offence.

Item 15 - Strict liability applied

621. This item inserts proposed subsection 58A(5A) which applies strict liability to the offence in subsections 58A(2), (3), (4) and (5) of the Act. Subsections (2), (3), (4) and (5) variously proscribe the passage of persons and goods between various sites, including sea installations, resources installations and external places via a ship or aircraft, where the persons have not been available for questioning in Australia and the goods have not been available for examination in Australia. Criminal liability attaches to several persons in relation to each of these infringements, including the person who travelled or sent the goods in question and the owners and permit holders for the installations and the owners and operators of the ship or aircraft. The offence carries a fine of $10,000. A defendant can rely upon appropriate defences and exceptions in subsection (6). These are regulatory obligations with a relatively 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 2.

622. The standard note referring to section 6.1 of the Criminal Code , which governs strict liability, is also added after this provision.

Item 16 - Strict liability applied

623. This item inserts proposed subsection 58B(5A) which applies strict liability to the offence in subsections 58A(2), (3), (4) and (5) of the Act. Subsections (2), (3), (4) and (5) variously proscribe the passage of persons and goods between sea and resources installations and external places via a ship or aircraft, where the persons have not entered Australia or East Timor. Criminal liability attaches to several persons in relation to each of these infringements, including the person who travelled or sent the goods in question and the owners and permit holders for the installations and the owners and operators of the ship or aircraft. The offence carries a fine of $10,000. A defendant can rely upon appropriate defences and exceptions in subsection (6). These are regulatory obligations with a relatively 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 2.

624. The standard note referring to section 6.1 of the Criminal Code , which governs strict liability, is also added after this provision.

Item 17 - Strict liability applied

625. This item inserts proposed subsection 60(1A) which applies strict liability to the offence in subsection 60(1) of the Act. Subsection 60(1) provides that the master of every ship from a place outside Australia bound to or calling at any port shall bring his ship to for boarding at a boarding station appointed for that port and shall permit his ship to be boarded. The offence carries a fine of $10,000. In addition, the ships master would be able to rely on the defence in subsection (4) that he was prevented from complying with the provision by stress of weather or other reasonable cause. This form of obligation with a relatively low penalty is 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 2.

626. The standard note referring to section 6.1 of the Criminal Code , which governs strict liability, is also added after this provision.

Item 18 - Strict liability applied

627. This item proposes to insert subsection 60(2A) which provides that strict liability is applied to the identified physical elements of circumstance, which are contained in the offence in subsection 60(2). Subsection 60(2) provides that the pilot of an aircraft from a place outside Australia arriving in Australia shall not suffer the aircraft to land at any other airport until the aircraft has first landed at an airport described in paragraphs 60(2)(a) or (b).

628. 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 and accordingly strict liability is the appropriate application. For more details on the operation of absolute liability see the explanation at item 6 of Schedule 2.

629. The standard note referring to section 6.2 of the Criminal Code , which governs absolute liability, is also added after this provision.

Item 19

630. The amendment proposed by this item is consequential upon item 18.

Item 20 - Strict liability applied

631. This item inserts proposed subsection 61(2) which applies strict liability to the offence in subsection 61(1) of the Act. Subsection 61(1) provides that the master of any ship or the pilot of any aircraft permitting his ship or aircraft to be boarded, the master of a resources installation, or the owner of a sea installation, shall, by all reasonable means, facilitate the boarding of the ship, aircraft or installation by a person who is authorised under the Act to board that ship, aircraft or installation. The offence carries a fine of $5,000. This form of obligation with a relatively low penalty is 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 2.

632. The standard note referring to section 6.1 of the Criminal Code , which governs strict liability, is also added after this provision.

Item 21 - Strict liability applied

633. This item inserts proposed subsection 62(2) which applies strict liability to the offence in subsection 62(1) of the Act. Subsection 62(1) provides that when a ship has been brought to at a boarding station and boarded by an officer, the master of the ship shall, subject to any direction given under section 275A, bring the ship to the proper place of mooring or unlading, without touching at any other place, as quickly as it is practicable for him lawfully to do so. The offence carries a fine of $5,000. This form of obligation with a relatively low penalty is 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 2.

634. The standard note referring to section 6.1 of the Criminal Code , which governs strict liability, is also added after this provision.

Items 22 and 23 - Strict liability applied: clarification of exception to the offence

635. These items propose two amendments to section 63. First, they remove the exception of except by authority or by direction of the harbour or aerial authority from section 63 and recreate it as subsection 63(2). The rationale for this amendment is to prevent future interpretation that the exception 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 an exception to the offence.

636. Second, item 23 inserts proposed subsection 63(3) which applies strict liability to the offence in subsection 63(1) of the Act. Subsection 63(1) provides that no ship or aircraft after arrival at the proper place of mooring or unlading shall except by authority or by direction of the harbour or aerial authority be removed therefrom before the discharge of the cargo intended to be discharged at the port or airport. The offence carries a fine of $5,000. This form of obligation with a relatively low penalty is 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 2.

637. The standard note referring to section 6.1 of the Criminal Code , which governs strict liability, is also added after this provision.

Item 24 - Strict liability applied

638. This item inserts proposed subsection 64AE(1A) which applies strict liability to the offence in subsection 64AE(1) of the Act. Subsection 64AE(1) provides that the master and owner of a ship to which section 64, 64AA, 64AB or 64AC applies must each answer questions asked by a Collector relating to the ship or the ship's cargo, crew, passengers, stores or voyage and, at the request of a Collector, produce documents relating to the ship or the ship's cargo, crew, passengers, stores or voyage that are in his or her possession or control at the time of the request. The offence carries a fine of $500. This form of obligation with a relatively low penalty is 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 2.

639. The standard note referring to section 6.1 of the Criminal Code , which governs strict liability, is also added after this provision.

Item 25 - Strict liability applied

640. This item inserts proposed subsection 64AE(2A) which applies strict liability to the offence in subsection 64AE(2) of the Act. Subsection 64AE(2) provides that the pilot and owner of an aircraft to which section 64, 64AA, 64AB or 64AC applies must each answer questions asked by a Collector relating to the aircraft or the aircraft's cargo, crew, passengers, stores or flight and, at the request of a Collector, produce documents relating to the aircraft or the aircraft's cargo, crew, passengers, stores or flight that are in his or her possession or control at the time of the request. The offence carries a fine of $500. This form of obligation with a relatively low penalty is 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 2.

641. The standard note referring to section 6.1 of the Criminal Code , which governs strict liability, is also added after this provision.

Item 26 - Strict liability applied

642. This item inserts proposed subsection 64A(3A) which applies strict liability to the offence in subsections 64A(1), (2) and (3) of the Act. Subsections 64A(1), (2) and (3) provide that the master of a relevant ship or the pilot of a relevant aircraft shall, if required to do so by a Collector:

(a)

make a report within such time as is specified by the Collector and in such form as is specified by the Collector, of the ship or aircraft and of the cargo of the ship or aircraft;

(b)

answer questions relating to the ship or aircraft, to its cargo, crew, passengers or stores or to its voyage or flight; and

(c)

produce documents relating to the matters referred to in subsection (2).

643. The offences carry fines of $2,000 and $1,000. These forms of obligation with a relatively low penalty are 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 2.

644. The standard note referring to section 6.1 of the Criminal Code , which governs strict liability, is also added after this provision.

Item 27 - Strict liability applied

645. This item inserts proposed subsection 65(3) which applies strict liability to the offence in subsections 65(1) and (2) of the Act. Subsections 65(1) and (2) prescribe reporting obligations for the master and owners of lost or wrecked ships and the pilots and owners of aircraft that are lost or wrecked whilst flying to Australia. The offences carry fines of $5,000. These forms of obligation with a relatively low penalty are 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 2.

646. The standard note referring to section 6.1 of the Criminal Code , which governs strict liability, is also added after this provision.

Items 28 and 29 - Clarification of exception to the offence

647. These items propose to remove the exception of except by authority from section 67 and recreate it as subsection 67(2). The rationale for this amendment is to prevent future interpretation that the exception 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 an exception to the offence. A note is added to point to the definition of by authority in subsection 4(1).

Item 30 - Strict liability applied

648. This item inserts proposed subsection 70(7A) which applies strict liability to the offence in subsection 70(7) of the Act. Subsection 70(7) prescribes obligations concerning reports in relation to applicable goods, payment of duty and compliance with conditions to which a relevant permission is subject. The offence carries a fine of $5,000. These forms of obligation with a relatively low penalty are 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 2.

649. The standard note referring to section 6.1 of the Criminal Code , which governs strict liability, is also added after this provision.

Items 31 and 32 - Clarifying reasonable excuse defence: strict liability applied

650. These items propose two amendments to section 71E. First, they remove the defence of reasonable excuse from subsection 71E(3A) and recreate it in a new subsection 71E(3AB). 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.

651. Second, item 32 inserts proposed subsection 71E(3AA) which applies strict liability to the offence in subsection 71E(3A) of the Act. Subsection 71E(3A) provides that a person to whom a permission has been given under subsection (3) must not move the goods to which the permission relates otherwise than in accordance with the permission. The offence carries a fine of $5000, and the person can rely on the defence of reasonable excuse. This form of obligation with a relatively low penalty is 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 2.

652. The standard note referring to section 6.1 of the Criminal Code , which governs strict liability, is also added after this provision.

Items 33 and 34 - Clarifying of exception to the offence: strict liability applied

653. These items propose two amendments to section 73. First, they propose to remove the exception of except with the permission of a Collector from subsections 73(1) and (2) and recreate it as subsection 73(2B). The rationale for this amendment is to prevent future interpretation that the exception 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 an exception to the offence.

654. Second, item 34 inserts proposed subsection 73(2A) which applies strict liability to the offences in subsections 73(1) and (2) of the Act. Subsections 73(1) and (2) proscribe the breaking of bulk cargo of a ship or aircraft travelling to or from Australia. The offence carries a fine of $25000, and the person can rely on the exception to the offences where an authority has been given under section 71B. This form of obligation with a relatively low penalty is 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 2.

655. The standard note referring to section 6.1 of the Criminal Code , which governs strict liability, is also added after this provision.

Item 35 - Clarifying a fault element

656. This item proposes that the word for in subsection 86(6) be replaced by the phrase with the intention of. For details on the reasons for replacing the phrase for the purpose of (and equivalent words and phrases) see the explanation at item 21 of Schedule 5. In the case of subsection 86(6) the correct interpretation is that the defendant uses the warehouse with the intention of warehousing goods, and this item proposes the appropriate amendment accordingly.

Item 36 - Strict liability applied

657. This item inserts proposed subsection 87(8) which applies strict liability to the offence in subsection 87(7) of the Act. Subsection 87(7) provides that where a warehouse licence is cancelled under this section, the holder of the licence shall, if requested by the CEO to do so, surrender the licence to the CEO. The offence carries a fine of $100. This form of obligation with a low penalty is 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 2.

658. The standard note referring to section 6.1 of the Criminal Code , which governs strict liability, is also added after this provision.

Item 37 - Strict liability applied

659. This item inserts proposed subsection 90(1A) which applies strict liability to the offence in subsection 90(1) of the Act. Subsection 90(1) prescribes certain obligations on the holder of a warehouse licence to stack and arrange goods, and provide adequate space, facilities, labour and materials to Customs officers for the performance of duties under the Act. The offence carries a fine of $1,000. This form of obligation with a low penalty is 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 2.

660. The standard note referring to section 6.1 of the Criminal Code , which governs strict liability, is also added after this provision.

Item 38 - Strict liability applied

661. This item inserts proposed subsection 96A(11A) which applies strict liability to the offence in subsection 96A(11) of the Act. Subsection 96A(11) provides that a person is guilty of an offence if he or she, being a person who is required to comply with a condition imposed in respect of a permission under subsection (2), fails to comply with the condition. The offence carries a fine of $5,000. This form of obligation with a low penalty is 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 2.

662. The standard note referring to section 6.1 of the Criminal Code , which governs strict liability, is also added after this provision.

Item 39 - Strict liability applied

663. This item inserts proposed subsection 96B(11) which applies strict liability to the offence in subsection 96B(11) of the Act. Subsection 96B(11) provides that a person is guilty of an offence if he or she, being a person who is required to comply with a condition imposed in respect of a permission under subsection (3), fails to comply with the condition. The offence carries a fine of $5,000. This form of obligation with a low penalty is 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 2.

664. The standard note referring to section 6.1 of the Criminal Code , which governs strict liability, is also added after this provision.

Item 40 - Strict liability applied

665. This item inserts proposed subsection 100(3) which applies strict liability to the offence in subsection 100(2) of the Act. Subsection 100(2) provides that where a person makes a further entry in accordance with subsection (1) in respect of goods that have been entered for warehousing, he shall (a) at the time of lodging the further entry, give the Collector particulars of the entry for warehousing; and (b) as soon as practicable, give particulars of the further entry to the holder of the warehouse licence relating to the warehouse in which the goods were intended to be warehoused in accordance with the entry for warehousing. The offence carries a fine of $1,000. This form of obligation with a low penalty is 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 2.

666. The standard note referring to section 6.1 of the Criminal Code , which governs strict liability, is also added after this provision.

Item 41 - Strict liability applied

667. This item inserts proposed subsection 101(2) which applies strict liability to the offence in subsection 101(1) of the Act. Subsection 101(1) provides that where the owner of goods receives written authority for warehousing goods in pursuance of an entry for warehousing or written permission under this Act to warehouse the goods, he shall, as soon as practicable, before the goods are delivered to the warehouse nominated in the authority or permission, deliver the authority or permission to the holder of the warehouse licence by leaving it at the warehouse with a person apparently participating in the management or control of the warehouse. The offence carries a fine of $1,000. This form of obligation with a low penalty is 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 2.

668. The standard note referring to section 6.1 of the Criminal Code , which governs strict liability, is also added after this provision.

Item 41 - Strict liability applied

669. This item inserts proposed subsection 101(2) which applies strict liability to the offence in subsection 101(1) of the Act. Subsection 101(1) provides that where the owner of goods receives written authority for warehousing goods in pursuance of an entry for warehousing or written permission under this Act to warehouse the goods, he shall, as soon as practicable, before the goods are delivered to the warehouse nominated in the authority or permission, deliver the authority or permission to the holder of the warehouse licence by leaving it at the warehouse with a person apparently participating in the management or control of the warehouse. The offence carries a fine of $1,000. This form of obligation with a low penalty is 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 2.

670. The standard note referring to section 6.1 of the Criminal Code , which governs strict liability, is also added after this provision.

Items 42-43 - Penalty

671. Item 42 provides for 10 penalty units to replace the existing penalty of $1,000. Each penalty unit is worth $110. The penalty is placed immediately after the offence in subsection 102(1). This is intended to assist the correct interpretation that subsection 102(1) creates the offence. Item 43 does the same thing at the end of section 102.

Item 44 - Strict liability applied

672. This item inserts proposed subsection 102(3) which applies strict liability to the offence in subsections 102(1) and (2) of the Act. Subsections 101(1) and (2) impose obligations on the holder of a warehouse licence to advise a Collector of certain information. The offences carry a fine of $1,000. This form of obligation with a low penalty is 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 2.

673. The standard note referring to section 6.1 of the Criminal Code , which governs strict liability, is also added after this provision.

Item 45 - Provision reconstructed: strict liability applied: absolute liability applied: definition

674. This item proposes several amendments to subsection 112(2B). First, it repeals subsection 112(2B) and recreates it as two separate offence provisions, which respectively concern non-narcotic goods (subsection 112(2B)) and narcotic goods (subsection 112(2BC)).

675. Second, this item inserts proposed subsection 112(2BA) which applies strict liability to the offence in new subsection 112(2B) of the Act. Subsection 112(2B) imposes an obligation to comply with a condition or requirement under which a licence or permission is granted. The offence carries a fine of $10000. This form of regulatory obligation is 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 2.

676. The standard note referring to section 6.1 of the Criminal Code , which governs strict liability, is also added after this provision.

677. Third, this item proposes to insert subsections 112(2BB) and (2BE) which provides that absolute liability is applied to the physical element of circumstance contained in the offence in new subsections 112(2B) and (2BC) that a licence or permission has been granted, after the commencement of this subsection, under the regulations.

678. These physical elements are appropriate candidates for the application of absolute 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. The defence of mistake of fact should not be available to the defendant and accordingly absolute liability, and not strict liability, is the appropriate application. For more details on the operation of absolute liability see the explanation at item 31 of Schedule 10.

679. The standard note referring to section 6.2 of the Criminal Code , which governs absolute liability, is also added after this provision.

Item 46 - Definition

680. This item adds as subsection 112(4) a definition of engage in conduct, which is defined to comprise doing an act and omitting to perform an act. The definition mirrors the same definition in the Criminal Code . The phrase engage in conduct is utilised in a number of provisions in this Act.

Items 47 and 48 - Clarifying reasonable excuse defence: strict liability applied

681. These items propose to remove the defence of reasonable excuse from subsection 114B(7) and recreate it in a new subsection 114B(7A). 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.

682. Second, item 48 inserts proposed subsection 114B(7B) which applies strict liability to the offence in subsection 114B(7) of the Act. Subsection 114B(7) provides that where a person granted a confirming exporter status is respect of information and goods fails to comply with a condition to which the grant is subject, he or she is guilty of an offence. The offence carries a fine of $1000, and the person can rely on the defence of reasonable excuse. This form of obligation with a relatively low penalty is 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 2.

683. The standard note referring to section 6.1 of the Criminal Code , which governs strict liability, is also added after this provision.

Item 49 - Strict liability applied

684. This item inserts proposed subsection 123(3) which applies strict liability to the offence in subsections 123(1) and (2) of the Act. Subsections 101(1) and (2) provide that the master of every ship departing from any port, and the pilot of every aircraft departing from any airport, shall bring his ship or aircraft to a boarding station appointed for the port or airport and by all reasonable means facilitate boarding by the officer, and shall not depart with his ship or aircraft from any port or airport without the consent of the officer. The offences carry a fine of $500. This form of obligation with a low penalty is 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 2.

685. The standard note referring to section 6.1 of the Criminal Code , which governs strict liability, is also added after this provision.

Item 50 - Strict liability applied

686. This item inserts proposed subsection 124(2) which applies strict liability to the offence in subsection 124(1) of the Act. Subsection 124(1) provides that the master of every ship and the pilot of every aircraft after clearance shall on demand by an officer produce the Certificate of Clearance and account to the satisfaction of the Collector for any goods specified or referred to in the Outward Manifest and not on board his ship or aircraft. The offence carries a fine of $10,000. This form of obligation with a relatively low penalty is 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 2.

687. The standard note referring to section 6.1 of the Criminal Code , which governs strict liability, is also added after this provision.

Items 51 and 52 - Clarification of exception to the offence: strict liability applied

688. These items propose to remove the exception of without the permission of the Collector from section 125 and recreate it as subsection 125(2). The rationale for this amendment is to prevent future interpretation that the exception 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 an exception to the offence.

689. Second, item 52 inserts proposed subsection 125(3) which applies strict liability to the offence in subsection 125(1) of the Act. Subsection 125(1) provides that no goods shipped for export shall be unshipped or landed without the permission of the Collector except in parts beyond the seas. The offence carries a fine of $25,000. This form of obligation with a relatively low penalty is 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 2.

690. The standard note referring to section 6.1 of the Criminal Code , which governs strict liability, is also added after this provision.

Items 53 and SM54 - Clarifying of exception to the offence: strict liability applied

691. These items propose two amendments to section 126C. First, they propose to remove the exception of without the written permission of the CEO from section 126C and recreate it as subsection 126C(3). The rationale for this amendment is to prevent future interpretation that the exception 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 an exception to the offence.

692. Second, item 54 inserts proposed subsection 126C(2) which applies strict liability to the offence in subsection 126C(1) of the Act. Subsection 126C(1) provides that goods subject to the control of Customs must not be exported in a ship of less than 50 tons gross registered. The offence carries a fine of $1000, and the person can rely on the exception to the offence where he or she has the written permission of the CEO. This form of obligation with a low penalty is 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 2.

693. The standard note referring to section 6.1 of the Criminal Code , which governs strict liability, is also added after this provision.

Items 55 - 57 - Clarifying of exception to the offence: strict liability applied

694. These items propose amendments to section 127. First, they propose to remove the exceptions of without the consent of the Collector and except with the consent of the Collector from paragraphs 127(a) and (b) and recreate them as subsection 127(3). The rationale for this amendment is to prevent future interpretation that the exception 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 an exception to the offence.

695. Item 57 inserts proposed subsection 127(2) which applies strict liability to the offence in subsection 127(1) of the Act. Subsection 127(1) provides that ships' stores and aircraft's stores, whether shipped in a place outside Australia or in Australia, shall not be unshipped or unloaded and shall not be used before the departure of the ship or aircraft from its last port of departure in Australia otherwise than for the use of the passengers or crew, or for the service, of the ship or aircraft. The offence carries a fine of $2000, and the person can rely on the exception to the offence where the Collector has given consent. This form of obligation with a low penalty is 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 2.

696. The standard note referring to section 6.1 of the Criminal Code , which governs strict liability, is also added after this provision.

Item 58 - Strict liability applied

697. This item inserts proposed subsection 129(3A) which applies strict liability to the offence in subsection 129(3) of the Act. Subsection 129(3) provides that a person to whom an approval has been granted under subsection (1) in relation to any goods is guilty of an offence if he or she fails to comply with a requirement specified in the approval. The offence carries a fine of $2,000. This form of obligation with a low penalty is 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 2.

698. The standard note referring to section 6.1 of the Criminal Code , which governs strict liability, is also added after this provision.

Item 59 - Strict liability applied

699. This item inserts proposed subsection 130B(3A) which applies strict liability to the offence in subsection 130B(3) of the Act. Subsection 130B(3) provides that a person who fails to comply with a direction under subsection (2) or (2A) is guilty of an offence. The offence carries a fine of $2,000. This form of obligation with a low penalty is 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 2.

700. The standard note referring to section 6.1 of the Criminal Code , which governs strict liability, is also added after this provision.

Item 60 - Strict liability applied

701. This item inserts proposed subsection 164AC(14A) which applies strict liability to the offence in subsection 164AC(14) of the Act. Subsection 164AC(14) provides that the occupier or person in charge of premises entered, or the person in control of a vessel boarded, must provide the authorised officer with all reasonable facilities and assistance for the effective exercise of the officer's powers. The offence carries a fine of 10 penalty units. This form of obligation with a low penalty is 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 2.

702. The standard note referring to section 6.1 of the Criminal Code , which governs strict liability, is also added after this provision.

Items 61 - 66 - Clarification of exceptions to the offence: strict liability applied

703. These items propose amendments to section 175. First, they propose to remove the exception of except with the permission of a Collector or for the purpose of securing the safety of a ship or an aircraft or saving life and from subsections 175(2), (3), (3A) and (3B), and recreate it as subsection 175(3C) and (9). The rationale for this amendment is to prevent future interpretation that the exception 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 an exception to the offence.

704. Item 62 proposes to insert subsection 175(3BA) which provides that strict liability is applied to the physical elements of circumstance described in proposed paragraphs 175(3BA)(a) and (b) and which comprise elements of the offence in subsections 175(2), (3), (3A) and (3B). Subsections 175(2), (3), (3A) and (3B) proscribe the transfer of goods in certain circumstances.

705. 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 matters in proposed paragraphs 175(3BA)(a) and (b). 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 2.

706. The standard note referring to section 6.1 of the Criminal Code , which governs strict liability, is also added after this provision.

707. Item 66 also inserts proposed subsection 175(8) which applies strict liability to the offence in subsection 175(7) of the Act. Subsection 175(7) provides that if, in relation to the transfer of any goods, a person required to comply with a condition imposed in respect of a permission under subsection (4) fails to comply with the condition, he or she is guilty of an offence. The offence carries a fine of 100 penalty units, and the person can rely on the exception to the offence where the Collector has given consent. This form of obligation with a low penalty is 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 2.

708. The standard note referring to section 6.1 of the Criminal Code , which governs strict liability, is also added after this provision.

Item 67 - Strict liability applied

709. This item inserts proposed subsection 181(6) which applies strict liability to the offence in subsection 181(5) of the Act. Subsection 181(5) provides a person who contravenes subsection 181(4) is guilty of an offence. Subsection 181(4) provides that a person, other than the owner of goods or a person authorised to act in the stead of the owner, shall not perform the matters required of the owner. The offence carries a fine of $1,000. This form of obligation with a low penalty is 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 2.

710. The standard note referring to section 6.1 of the Criminal Code , which governs strict liability, is also added after this provision.

Items 68 - 70 - Clarifying reasonable excuse defence

711. These items propose to remove the defence of reasonable cause from paragraphs 183P(a) and (c) and recreate it in a new subsection 183P(2). Reasonable cause is akin to the defence of reasonable excuse. The rationale for this amendment is to prevent future interpretation that the reasonable cause 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.

Items 71 - 72 - Clarifying reasonable excuse defence

712. These items propose to remove the defence of reasonable excuse from subsection 184A(12) and recreate it in a new subsection 184A(13). 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.

713. The standard note is added after proposed subsection 184A(13) 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 184A(13).

Items 73 - 74 - Clarifying reasonable excuse defence

714. These items propose to remove the defence of reasonable excuse from subsection 184D(6) and recreate it in a new subsection 184D(6A). 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.

715. The standard note is added after proposed subsection 184D(6A) 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 184D(6A).

Items 75 and 76 - Clarifying reasonable excuse defence

716. These items propose to remove the defence of reasonable excuse from subsection 185(4) and recreate it in a new subsection 185(4AA). 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 77 - Strict liability applied

717. This item inserts proposed subsection 188(2) which applies strict liability to the offence in subsection 188(1) of the Act. Subsection 188(1) provides that the master or pilot of a ship, aircraft or installation shall provide sleeping accommodation in the cabin and suitable and sufficient food for an officer stationed on the ship, aircraft or installation. The offence carries a fine of $500. This form of obligation with a low penalty is 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 2.

718. The standard note referring to section 6.1 of the Criminal Code , which governs strict liability, is also added after this provision.

Items 78 and 79 - Clarifying of exception to the offence: strict liability applied

719. These items propose two amendments to section 191. First, they propose to remove the exception of except by authority from section 191 and recreate it as subsection 191(3). The rationale for this amendment is to prevent future interpretation that the exception 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 an exception to the offence. A note is added to point to the definition of by authority in subsection 4(1).

720. Second, item 79 inserts proposed subsection 191(2) which applies strict liability to the offence in subsection 191(1) of the Act. Subsection 191(1) relevantly provides that no fastening, lock, mark, or seal placed by an officer upon any goods or upon any door hatchway opening or place upon any ship, aircraft or installation shall be opened, altered, broken or erased. The offence carries a fine of $5000, and the person can rely on the exception to the offence where the conduct is authorised. This form of obligation with a low penalty is 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 2.

721. The standard note referring to section 6.1 of the Criminal Code , which governs strict liability, is also added after this provision.

Items 80 and 81 - Clarifying of exception to the offence: strict liability applied

722. These items propose two amendments to section 192. First, they propose to remove the exception of except by authority from section 192 and recreate it as subsection 192(3). The rationale for this amendment is to prevent future interpretation that the exception 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 an exception to the offence. A note is added to point to the definition of by authority in subsection 4(1).

723. Second, item 81 inserts proposed subsection 192(2) which applies strict liability to the offence in subsection 192(1) of the Act. Subsection 192(1) relevantly provides that if the prescribed fastening, lock, mark or seal on board a ship or aircraft is opened, altered, broken or erased, and the ship or aircraft enters any port or airport, the master or pilot is guilty of an offence. The offence carries a fine of $5000, and the person can rely on the exception to the offence where the conduct is authorised. This form of obligation with a low penalty is 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 2.

724. The standard note referring to section 6.1 of the Criminal Code , which governs strict liability, is also added after this provision.

Item 82 - Strict liability applied

725. This item inserts proposed subsection 195(3) which applies strict liability to the offence in subsection 195(2) of the Act. Subsection 195(2) provides that a person shall answer questions put to him or her by a Customs officer under subsection (1). The offence carries a fine of $1,000. This form of obligation with a low penalty is 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 2.

726. The standard note referring to section 6.1 of the Criminal Code , which governs strict liability, is also added after this provision.

Items 83 and 84 - Clarifying reasonable excuse defence

727. These items propose to remove the defence of reasonable excuse from subsection 196C(2) and recreate it in a new subsection 196C(2A). 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.

Items 85 and 86 - Clarification of exception to the offence

728. These items propose to remove the exception of unless that judicial officer issued the warrant from paragraph 203Q(a) and recreate it as subsection 203Q(2). The rationale for this amendment is to prevent future interpretation that the exception 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 an exception to the offence. The standard note concerning the imposition of an evidential burden on the defendant by subsection 13.3(3) of the Criminal Code is added.

Items 87 and 88 - Clarifying reasonable excuse defence

729. These items propose to remove the defence of reasonable excuse from subsection 214B(9) and recreate it in a new subsection 214B(10). 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.

Items 89 and 90 - Clarification of exception to the offence

730. These items propose to remove the exception of without written permission of an officer from subsection 227E(5) and recreate it as subsection 227E(7). The rationale for this amendment is to prevent future interpretation that the exception 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 an exception to the offence.

Item 91 - Clarifying a fault element

731. This item proposes that the phrase for the purpose in subsection 231(1) be replaced by the phrase with the intention. For details on the reasons for replacing the phrase for the purpose see the explanation at item 21 of Schedule 5. In the case of subsection 231(1) the correct interpretation is that the persons assemble with the intention of importing prohibited imports, or smuggling, or preventing the seizure, or rescuing after seizure, of any prohibited imports or smuggled goods, and this item proposes the appropriate amendment accordingly.

Item 92 - Strict liability applied

732. This item inserts proposed subsection 233(1AB) which applies strict liability to the offences in paragraphs 233(1)(b), (c) and (d) of the Act. These prohibit the import, export, possession or conveyance of certain goods. The offences carry monetary penalties and strict liability has been applied under the existing law. For more details on the operation of strict liability see the explanation at item 6 of Schedule 2.

733. The standard note referring to section 6.1 of the Criminal Code , which governs strict liability, is also added after this provision.

Item 93 - Clarifying a fault element

734. This item replaces to prevent in paragraph 232A(a) with the intention of preventing in order to clarify that the defendant acts in contravention of paragraph 232A(a) with the fault element of intending of preventing the seizure or securing of prescribed items or the proof of an offence.

Item 94 - Clarifying a fault element

735. This item proposes the repeal and substitution of paragraph 233(1)(d). The substituted paragraph repeats the wording of the existing paragraph but places the two physical elements of conduct in separate paragraphs. This amendment is necessary to assist in the interpretation of the appropriate fault elements that attach to the respective new paragraphs (d) and (e) by virtue of subsection (2) and (3). Subsection (3) differs from subsection (2) in that it supplies additional fault elements of intent to export them or knowing that they are intended to be unlawfully exported. The amendment effected by this item will make it clear that these additional fault elements do not apply to the physical element of conduct in new paragraph (1)(d).

Items 95 and 96 - Amendment of inappropriate fault element

736. Subsection 233A(1) applies the fault element of knowledge (knowingly) in relation to the physical element of conduct, namely smuggling, conveying, importing or exporting certain goods contrary to the Act. Following application of the Criminal Code, it will not be possible to apply fault elements of knowledge to a physical element consisting of conduct. Section 5.3 of the Criminal Code restricts the application of these fault elements to physical elements of circumstance or result, and the only fault element that may be applied to a physical element of conduct is intention (section 5.2 of the Criminal Code). Accordingly item 95 proposes the deletion of knowingly from subparagraph 233A(1) by the appropriate and equivalent fault element, namely intention. The fault element of intention is the direct Criminal Code equivalent of knowingly where the latter has been applied to physical elements of conduct. It is noted that the definition of 'smuggling' includes requirement of proof of intention (section 4). This was another tension within subsection 233A(1) which would be corrected by the proposed amendment. It is considered that subsection 233A(1) will continue to operate in the same manner as at present following this amendment.

737. Item 94 consequentially amends subsection 233A(1) to expressly provide the relevant fault element of intention in relation to the physical element of conduct of using a ship or aircraft.

Items 96 - 98 - exclusion of narcotic goods from the allow smuggling offence

738. These amendments separate the more serious offence of a master using or allowing the use of a ship for smuggling from the general offence. It is proposed that the general offence, subsection 233A(1), which currently only has a monetary penalty (which in many cases can be enforced as a civil matter) where the goods are not narcotics, should be restricted to that purpose. The more serious offence deals with the situation where narcotic goods are involved. It is proposed it be inserted after section 233A by item 99.

Item 99 - New allowing smuggling of narcotic goods offence

739. As mentioned above, it is proposed that this more serious offence, section 233AA be inserted after section 233A. This recognises the different and more serious nature of this offence. It is drafted in the same terms to section 233A as proposed by this Bill.

Items 100 - 106 - Removal of ancillary provisions

740. Section 233B contains the most significant offences in the Customs Act 1901 . These offences concern the illicit import and export of narcotic drugs and under section 235 of that Act carry maximum penalties of up to life imprisonment. These offences are regularly prosecuted and a high proportion of Federal offenders in prison are people who have been convicted of offences in this section. These offences have attracted notable litigation, including the landmark High Court cases of He Kaw Teh v The Queen (1985)
157 CLR 523 and Kingswell (1985)
159 CLR 264 . While these cases are critical of the provision, the aim of this Bill is to make the provision work as it does now once the Criminal Code principles apply. The complete redrafting of these offences is a key part of Criminal Code reform program, which now that the theft, fraud, bribery and related offences exercise has been completed with the passage of the Criminal Code Amendment (Theft, Fraud, Bribery and Related Offences) Act 2000 , together with computer offences, is the next major area of work. However, the Government cannot be confident that the replacement Criminal Code serious drug offences will be in place by the date that Chapter 2 of the Criminal Code will apply to all Commonwealth offences: 15 December 2001.

741. Notwithstanding their importance, and the litigation on these offences, harmonising them with the Criminal Code did not require as much change as many other offences. Item 100 is true of this. It proposed that paragraph 233B(1)(aa) be amended to remove references to attempt and the built in complicity provision 'causes to be brought' from the offence of without reasonable excuse bringing 'prohibited imports' (narcotic goods) into Australia. Attempt and complicity are dealt with in sections 11.1 and 11.2 of the Criminal Code . Once they apply to an offence it will be unnecessary to refer to those concepts in the body of offences.

742. Items 101 to 105remove references to attempt in the offences of importation or exportation of illicit narcotic goods (paragraph 233B(1)(b)); possession of illicit narcotic goods imported into Australia (paragraph 233B(1)(c)); conveying illicit narcotic goods which have been imported in Australia (paragraph 233B(1)(caa)); and possession of illicit narcotic goods which are reasonably suspected of having been imported into Australia (paragraph 233B(1)(ca)).

743. Item 106 proposes that paragraphs 233B(1)(cb) and (d) be removed because they provide for conspiracy and complicity ('aiding and abetting') in relation to the various illicit narcotic goods offences in subsection 233B(1). Conspiracy and complicity and incitement are dealt with in sections 11.5 and 11.2 of the Criminal Code . Once they apply to an offence it will be unnecessary to refer to those concepts in the body of provisions like section 233B.

Item 107 - Absolute liability applied

744. Subsection 233B(1A) provides that on a prosecution for the possession of illicit narcotic goods imported into Australia offence (paragraph 233B(1)(c) it is not necessary to prove that the person knew that the goods in his or her possession had been imported into Australia, but it is a defence if the person proves lack of knowledge. Item 107 modifies subsection 233B(1A) and inserts proposed subsections 233B(1AA), (1AB) and (1AC) to reflect the existing law that the prosecution is not required to prove the defendant knew jurisdictional elements and details of the law. This issue was considered by the Parliament in the context of the Criminal Code Amendment (Theft, Fraud, Bribery and Related Offences) Act 2000 where it was recognised under the Criminal Code it was necessary to specifically apply absolute liability to jurisdictional elements such as Commonwealth ownership of property in the offence of theft of Commonwealth property (see subsection 131.1(3)).

745. The jurisdictional physical elements of these offences are that possession of the narcotic goods is on board a ship or aircraft for the purposes of the legislation; that the narcotic goods has been imported into Australia in contravention of the Act; and that the narcotic goods are reasonably suspected of having been imported into Australia. Clearly these are matters that describe the limits on Commonwealth jurisdiction in the regulation of drug trafficking and are in now way concerned with the actual culpability of the defendant. Under the Criminal Code and as under the existing law, the prosecution still has to prove the defendant intended to possess or convey prohibited imports.

746. The proposed amendment to paragraph 233B(1A) reflects the inclusion of proposed subsection 233B(1AB) which removes the need to prove knowledge about the legislation because it applies absolute liability. However, because there is no equivalent defence where absolute liability is applied, the defence where the person can prove he or she did not know that the goods in his or her possession had been imported into Australia in contravention of the Act is preserved.

Item 108 - Amendment of inappropriate fault elements

747. Subparagraph 233BAA(4)(a) applies the fault elements of knowledge and recklessness (knowingly or recklessly) in relation to the physical elements of conduct, namely importing certain harmful goods, (such as certain performance enhancing drugs). Following application of the Criminal Code , it will not be possible to apply fault elements of knowledge or recklessness to a physical element consisting of conduct. Section 5.3 of the Criminal Code restricts the application of these fault elements to physical elements of circumstance or result, and the only fault element that may be applied to a physical element of conduct is intention (section 5.2 of the Criminal Code ). Accordingly this item proposes the deletion of knowingly or recklessly from subparagraph 233BAA(4)(a) and replaced it with the appropriate fault element, namely intention. The fault element of intention is the direct Criminal Code equivalent of knowingly where the latter has been applied to physical elements of conduct, and the fault element of recklessness will be expressed to apply appropriately to the physical element of the circumstance in which conduct occurs, namely paragraph 233BAA(4)(b) which is that the goods were tier 1 goods. It is considered that subsection 233BAA(4)) will continue to operate in the same manner as at present following this amendment.

Item 109 - Clarification of fault element

748. This item amends paragraph 233BAA(4)(b) to clarify that recklessness will apply to the physical element of circumstance that the goods were tier 1 goods.

Item 110 - Absolute and strict liability applied

749. Item 110 inserts new subsection 233BAA(4A) which applies absolute liability to the matters in paragraph 233BAA(4)(c). This is appropriate because knowledge that the harmful good is specifically prohibited under the Act is not currently required to be proved and mistake is not a defence (subsection 6.1(2) of the Criminal Code ). However, where the prohibition is focused on whether there had been approval, it is appropriate to apply strict liability. Strict liability provides for a defence where the person considered whether the importation was approved and was under a reasonable but mistaken belief that it was compliant (see sections 6.1 and 9.2 of the Criminal Code ).

Item 111- Amendment of inappropriate fault elements

750. This proposes subsection 233BAA(5) which prohibits the export of tier 1 goods be amended in the same way as provided for in item 109.

Item 112 - Clarification of fault element

751. This item amends paragraph 233BAA(5)(b) to clarify that recklessness will apply to the physical element of circumstance that the goods were tier 1 goods.

Items 113 - Absolute and strict liability applied

752. This proposes subsection 233BAA(5) which prohibits the export of tier 1 goods be amended in the same way as provided for in item 110.

Item 114 - Amendment of inappropriate fault elements

753. This proposes subsection 233BAB(5) which prohibits the import of tier 2 goods (for example child pornography and specified firearms) be amended in the same way as provided for in item 108.

Item 115 - Clarification of fault element

754. This item amends paragraph 233BAB(5)(b) to clarify that recklessness will apply to the physical element of circumstance that the goods were tier 2 goods.

Items 116 - Absolute and strict liability applied

755. This proposes subsection 233BAB(5) which prohibits the import of tier 2 goods be amended in the same way as provided for in item 110.

Item 117 - Amendment of inappropriate fault elements

756. This proposes subsection 233BAB(6) which prohibits the export of tier 2 goods be amended in the same way as provided for in item 108.

Item 118 - Clarification of fault element

757. This item amends paragraph 233BAB(6)(b) to clarify that recklessness will apply to the physical element of circumstance that the goods were tier 2 goods.

Items 119 - Absolute and strict liability applied

758. This proposes subsection 233BAB(6) which prohibits the export of tier 2 goods be amended in the same way as provided for in items 110.

Items 120 - 121 - Amendment of inappropriate fault elements: clarification of fault elements

759. Subsection 234(1) contains offences relevant to the evasion of the payment of duty. Paragraphs 234(1)(c) and (d) apply the fault elements of knowledge and recklessness (knowingly or recklessly) in relation to the physical elements of conduct, namely obtaining or retaining the diesel fuel rebate and making a statement. Following application of the Criminal Code , it will not be possible to apply fault elements of knowledge or recklessness to a physical element consisting of conduct. Section 5.3 of the Criminal Code restricts the application of these fault elements to physical elements of circumstance or result, and the only fault element that may be applied to a physical element of conduct is intention (section 5.2 of the Criminal Code ). Accordingly these items propose the deletion of knowingly or recklessly from paragraphs 234(1)(c) and (d) and replaced it with the appropriate fault element, namely intention. The fault element of intention is the direct Criminal Code equivalent of knowingly where the latter has been applied to physical elements of conduct.

760. The fault element of recklessness is expressed to apply appropriately to the physical element of the circumstance in which conduct occurs, namely subparagraph 234(1)(d)(i) which is that the statement was false and misleading in a material particular. It is considered that paragraphs 234(1)(c) and (d) will continue to operate in the same manner as at present following this amendment.

761. This item also proposes the amendment of paragraphs 234(1)(c) and (d) to clarify that the fault element of recklessness applies to the following physical elements of circumstance:

(a)

that the person is not entitled to the rebate under section 164 (paragraph 234(1)(c));

(b)

that the statement referred to in paragraph 234(1)(d) is false or misleading in a material particular; and

(c)

that the fact that without the matter or thing, the statement referred to in paragraph 234(1)(d) is misleading in a material particular.

762. If these amendments were not made, it is possible that the incorrect interpretation could be made that the relevant fault element is intention. The proposed amendments put it beyond doubt that recklessness is the appropriate fault element.

Item 122 - Absolute liability applied

763. This item proposes to insert subsection 234(2AA) which provides that absolute liability is applied to the physical element of circumstance contained in the offence in paragraph 234(1)(c) that the lack of entitlement is a lack of entitlement under section 164.

764. This physical element is an appropriate candidates for the application of absolute 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. The defence of mistake of fact should not be available to the defendant and accordingly absolute liability, and not strict liability, is the appropriate application.

765. The standard note referring to section 6.2 of the Criminal Code , which governs absolute liability, is also added after this provision.

Item 123 - Amendment of inappropriate fault elements

766. Subsection 234(4) (added in 1997) contains an offence which concerns entries in statements about the nature and purpose of certain fuel. It is relevant to the payment of a fuel rebate. Subsection 234(4) applies the fault elements of knowledge and recklessness (knowingly or recklessly) in relation to the physical elements of conduct, namely the entry in the statement. Following application of the Criminal Code , it will not be possible to apply fault elements of knowledge or recklessness to a physical element consisting of conduct. Section 5.3 of the Criminal Code restricts the application of these fault elements to physical elements of circumstance or result, and the only fault element that may be applied to a physical element of conduct is intention (section 5.2 of the Criminal Code ). Accordingly these items propose the deletion of knowingly or recklessly from subsection 234(1)(4) and replaced it with the appropriate fault element, namely intention. The fault element of intention is the direct Criminal Code equivalent of knowingly where the latter has been applied to physical elements of conduct. The fault element of recklessness will be expressed to apply appropriately to the physical element of the circumstance in which conduct occurs, namely recklessness as to whether the entry is correct. It is considered that subsection 234(4) will continue to operate in the same manner as at present following this amendment.

Item 124 - Amendment of inappropriate fault elements

767. Item 124 amends an offence concerning the entry of statements about fuel which is in the same terms as that amended by item 123. The amendment is the same and is made for the same reasons.

Item 125 - Repeal of note

768. This item repeals the note following subsection 234(6), which provides that the offence in subsection 234(6) is of strict liability. The Criminal Code provides that where an offence is of strict liability, this must be expressly provided.

Item 126 - Strict liability applied

769. This item reapplies strict liability to the offence in subsection 234(6).

770. The standard note referring to section 6.1 of the Criminal Code , which governs strict liability, is also added after this provision.

Item 127 - Repeal of note

771. This item repeals the note following subsection 234(7), which provides that the offence in subsection 234(7) is of strict liability. The Criminal Code provides that where an offence is of strict liability, this must be expressly provided.

Item 128 - Strict liability applied

772. This item reapplies strict liability to the offence in subsection 234(7).

773. The standard note referring to section 6.1 of the Criminal Code , which governs strict liability, is also added after this provision.

Item 129 - Drafting amendment

774. This simply brings the provision into line with existing drafting policy.

Items 130 - 131 - Clarifying an authorisation exception

775. Section 234A prohibits unauthorised entry to sensitive places near the Customs barrier, including on ships, aircraft and wharves. The exception to this is where such entry is authorised. Items 130 - 131 amends subsection 234A(1) and inserts subsection 234A(1A) to make it clear the exception is not an element of the offence but an exception to the offence.

Item 132 - Drafting amendment

776. This simply brings the provision into line with existing drafting policy.

Items 133 - 134 - Clarifying reasonable excuse defence and strict liability

777. Item 133 proposes to remove the defence of reasonable excuse from subsection 234AB(3). The defence is recreated in a new subsection 234AB(3A) by item 134. The rationale for this amendment is to prevent any misinterpretation 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. Currently reasonable excuse is treated as a defence under section 14 of the Crimes Act 1914 .

778. Item 134 also inserts proposed subsection 234AB(3B) which applies strict liability to the offence in subsection 234AB(3) of the Act. Subsection 234AB(3) prohibits failure to comply with a direction given by an officer in relation to the operation of cameras and other electronic devices. The defendant has a defence if he or she has a reasonable excuse, and the offence carries a maximum fine of $1,000). This is an administrative obligation with a relatively 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 2. Item 134 also inserts the standard note referring to section 6.1 of the Criminal Code , which governs strict liability.

Items 135 - 136

779. These items update cross-references.

Items 137 - 138 - limitation of ancillary provisions

780. These items propose that sections 236 (which provides an offence for aiding and abetting under the Act) and 237 (an offence for attempts under the Act) be limited in their application to 'Customs prosecutions.' Attempt and complicity are dealt with in sections 11.1 and 11.2 of the Criminal Code , but as explained at item 2, it is proposed these provisions should be retained in relation to offences which are dealt with by 'Customs prosecution' because of their unusual nature. It is proposed that sections 236 and 237 should not longer apply to other offences in the Act.

Item 139 - Amendment of inappropriate fault element

781. Subsection 243K(1) contains an offence which prohibits contraventions of restraining orders in relation to property which may be required to recover pecuniary penalties for dealings in narcotic drugs. Subsection 234(4) applies the fault element of knowledge (knowingly) in relation to the physical elements of conduct, namely the contravention of the restraining order. Following application of the Criminal Code , it will not be possible to apply fault elements of knowledge to a physical element consisting of conduct. Section 5.3 of the Criminal Code restricts the application of these fault elements to physical elements of circumstance or result, and the only fault element that may be applied to a physical element of conduct is intention (section 5.2 of the Criminal Code ). Accordingly these items propose the deletion of knowingly from subsection 243K(1) and replaced it with the appropriate fault element, namely intention. The fault element of intention is the direct Criminal Code equivalent of knowingly where the latter has been applied to physical elements of conduct.

Item 140 - Strict liability applied

782. Item 140 also inserts proposed subsection 275A(2A) which applies strict liability to the offence in subsection 275A(2) of the Act. Subsection 275A(2) prohibits 'masters' from disobeying a direction given by an officer in relation to the movement of a ship or aircraft from a boarding station. The offence carries a maximum fine of $10,000). This is an administrative obligation with a penalty that is a monetary one and not very significant when viewed in the context of the particular industry. It 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 2. Item 140 also inserts the standard note referring to section 6.1 of the Criminal Code , which governs strict liability.

Schedule 22 - Customs Administration Act 1985

Item 1 - Application of all Criminal Code principles except corporate criminal responsibility

783. This item inserts proposed section 3A 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 a separate provision in relation to corporate criminal responsibility in relation to offences under that Act (sections 16AA). 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.

784. 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 - Replacing references to certain Crimes Act 1914 provisions

785. Certain Crimes Act 1914 provisions, including sections 5, 7, 7A and 86, are scheduled for progressive disapplication in relation to offence provisions to which the Criminal Code applies, and ultimately for repeal on 15 December 2001. 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 subsection 16AA(1) to sections 5, 7, 7A and 86 of the Crimes Act 1914 , which concern aiding, abetting, counselling and procuring the commission of primary offences, attempting to commit primary offences, incitement to commit primary offences, and conspiracy to commit primary offences, be replaced by references to the Criminal Code provisions which deal with these matters (sections 11.1, 11.2, 11.4 and 11.5). These Criminal Code provisions will apply to this Act by virtue of this Bill.

Schedule 23 - Defence Force Discipline Appeals Act 1955

Item 1 - Application of Criminal Code

786. This item inserts proposed section 5A which applies Chapter 2 of the Criminal Code to all offences against the Act. Chapter 2 establishes the codified general principles of criminal responsibility.

787. The standard note concerning Chapter 2 of the Criminal Code setting out the principles of criminal responsibility is also added after this provision.

Items 2 and 3 - Clarifying reasonable excuse defence: strict liability applied

788. These items propose two amendments to section 43. First, they remove the defence of reasonable excuse from section 43 and recreate it in a new subsection 43(2). 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.

789. The standard note is added after proposed subsection 43(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 43(2).

790. Second, item 3 inserts proposed subsection 43(3) which applies strict liability to the offence in subsection 43(1) of the Act. Subsection 43(1) provides that a person served with a summons under this Act to attend the Tribunal, or to attend a person appointed to receive evidence on behalf of the Tribunal, shall not (a) fail to attend the Tribunal or the person so appointed; or (b) fail to produce any document, book or writing in his custody or control which he was required by the summons to produce. The offence carries a penalty of $1000 or imprisonment for 6 months, and the person can rely on the defence of reasonable excuse. This is a procedural 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 2.

791. 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

792. This item inserts proposed subsection 44(2) which applies strict liability to the offence in subsection 44(1) of the Act. Subsection 44(1) provides that a person who has been summonsed under this Act to attend the Tribunal or to attend a person appointed to receive evidence on behalf of the Tribunal as a witness shall appear and report himself from day to day unless excused or until released from further attendance by a member of the Tribunal or the person so appointed. The offence carries a fine of $1000 or imprisonment for 6 months. This is a procedural obligation with a low penalty and is therefore the type of offence where strict liability is applied under the existing law.

793. The standard note referring to section 6.1 of the Criminal Code , which governs strict liability, is also added after this provision.

Items 5 and 6 - Clarifying reasonable excuse defence

794. These items propose to remove the defence of reasonable excuse from section 45 and recreate it in a new subsection 45(2). 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.

795. The standard note is added after proposed subsection 45(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 45(2).

Item 7 - Amendment of inappropriate fault element

796. Paragraph 46(a) uses the fault element wilfully in relation to the physical element of conduct, namely insulting or disturbing the Tribunal. 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 46(a) by the appropriate and equivalent Criminal Code fault element, namely intention. It is considered that paragraph 46(a) will continue to operate in the same manner as at present following this amendment.

Schedule 24 - Disability Discrimination Act 1992

Item 1 - Application of all Criminal Code principles except corporate criminal responsibility

797. This item inserts proposed section 12A 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 123(1) and (2)). 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.

798. 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 - Removal of ancillary provision duplicating the Criminal Code

799. This item proposes to amend section 43 by repealing paragraph 43(b), which will remove the reference to inciting another person to commit a primary offence created under a provision of Part 2, Division 4 of the Act. Reliance will instead be placed upon the relevant general ancillary provision in the Criminal Code , namely section 11.4 (inciting the commission of a primary offence). This ancillary provision is present in Chapter 2 of the Criminal Code , which is being applied to this Act by this Bill and thus will be made applicable to this Act simultaneous with the amendment proposed by this item.

Items 3 and 4 - Clarifying reasonable excuse defence: strict liability applied

800. These items propose two amendments to section 107. First, they remove the defence of reasonable excuse from subsection 107(1) and recreate it in a new subsection 107(1A). 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.

801. The standard note is added after proposed subsection 107(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 107(1A).

802. Second, item 4 inserts proposed subsection 107(1B) which applies strict liability to the offence in subsection 107(1) of the Act. Subsection 107(1) provides that a person who engages in an act of discrimination for the purposes of section 107 and who receives a notice requiring him or her to disclose to the Commissioner or the Commission the source of the actuarial or statistical data on which the act of discrimination was based must comply with that notice. The person can claim a defence if he or she has a reasonable excuse, and the offence carries a fine of $1000. 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 2.

803. The standard note referring to section 6.1 of the Criminal Code , which governs strict liability, is also added after this provision.

Items 5 - 7 - Clarification of exception to the offence

804. These items propose to remove the exception of except in the performance of a duty or in connection with this Act or in the performance or exercise of such a function or power from subsection 127(1) and recreate it as subsection 127(3A). The rationale for this amendment is to prevent future interpretation that the exception 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 an exception to the offence. The standard note concerning the imposition of an evidential burden on the defendant by subsection 13.3(3) of the Criminal Code is added.

Schedule 25 - Evidence Act 1995

Item 1 - Application of Criminal Code

805. This item inserts proposed section 8A which applies Chapter 2 of the Criminal Code to all offences against the Act. Chapter 2 establishes the codified general principles of criminal responsibility.

806. The standard note concerning Chapter 2 of the Criminal Code setting out the principles of criminal responsibility is also added after this provision. A further note is added stating that section 8A is not mirrored in the NSW Act because the Criminal Code only applies to the Commonwealth Act.

Item 2 - Strict liability applied

807. This item inserts proposed subsection 195(2) which applies strict liability to the offence in subsection 195(1) of the Act. Subsection 195(1) provides that a person who prints or publishes any of the matters listed in paragraphs 195(1)(a), (b) or (c) without the express permission of a court is guilty of an offence. The offence carries a fine of 60 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 2.

808. The standard note referring to section 6.1 of the Criminal Code , which governs strict liability, is also added after this provision. A further note is added stating that subsection 195(2) is not mirrored in the NSW Act because the Criminal Code only applies to the Commonwealth Act.

Schedule 26 - Evidence and Procedure (New Zealand) Act 1994

Item 1 - Application of Criminal Code

809. 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.

810. 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

811. Paragraphs 37(b) and (c) use the fault element wilfully in relation to the physical elements of conduct, namely threatening, intimidating or insulting any of the persons described by subparagraphs 37(b)(i)-(iii) who are taking part in relevant court proceedings or interrupting or obstructing such a court proceeding. 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 offences 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 that wilfully be deleted from paragraphs 37(b) and (c) and replaced with intentionally. It is considered that paragraphs 37(b) and (c) will continue to operate in the same manner as at present following this amendment.

Item 3 - Amendment of inappropriate fault element: lawful excuse defence

812. This item proposes two amendments to paragraph 37(d). First, paragraph 37(d) uses the fault element wilfully in relation to the physical element of conduct, namely disobeying an order or direction of a relevant New Zealand court. 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 that wilfully be deleted from paragraph 37(d) and replaced with intentionally. It is considered that paragraph 37(d) will continue to operate in the same manner as at present following this amendment.

813. The second amendment proposed by this item is to remove the specific defence of lawful excuse from paragraph 37(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 Schedule 2.

Schedule 27 - Family Law Act 1975

Item 1 - Application of Criminal Code

814. 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.

815. 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: removal of ancillary provision duplicating the Criminal Code

816. This item proposes two amendments to subsection 65Y(1). First, subsection 65Y(1) applies the fault elements of intention and recklessness (identified as intentionally or recklessly) to the physical element of conduct, namely taking or sending a child from Australia in contravention of this subsection. Following application of the Criminal Code , the fault element of recklessness 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 . Accordingly this item proposes the deletion of recklessness from this provision as its present form would not operate in the same manner following application of the Criminal Code . However the Criminal Codes default fault provision (section 5.6) will preserve the operation of the fault element of recklessness by applying it to all physical elements of circumstance in subsection 65Y(1). Similarly, the fault element of intention will still continue to apply to the physical element of conduct by virtue of section 5.6. It is considered that subsection 65Y(1) will continue to operate in the same manner as at present following this amendment.

817. The second amendment proposed by this item is to amend subsection 65Y(1) by removing the reference to attempting to commit a primary offence against this subsection, namely attempting to take or send a child from Australia if a Part VII order is in force in relation to the child and the person is a party to the proceedings in which the order was made or the person is acting on behalf of or at the request of a party. Reliance will instead be placed upon the relevant general ancillary provision in the Criminal Code , namely section 11.1 (attempting to commit a primary offence).

Item 3 - Note

818. This item adds a note after subsection 65Y(1) stating that the ancillary offence provisions of the Criminal Code , including section 11.1 (attempts), apply in relation to the offence created by subsection 65Y(1). This item is consequent upon the amendment proposed by item 2 which deletes the reference to attempting to take or send a child from Australia in contravention of subsection 65Y(1). It is felt that the nature of this provision warrants adding an explicit note to draw attention to the fact that the deletion of the reference to attempt does not limit the scope of criminal responsibility in relation to a person attempting to contravene subsection 65Y(1).

Item 4 - Removal of ancillary provision duplicating the Criminal Code

819. This item proposes to amend subsection 65Y(2) by removing the reference to attempting to commit the primary offence created by subsection 65Y(1). The amendment is consequent upon the amendment being made to subsection 65Y(1) by item 3 of this Bill.

Item 5 - Evidential burden note

820. This item proposes the insertion of a note after subsection 65Y(2) which makes it clear that the defendant bears an evidential burden in relation to a defence raised under subsection 65Y(2). 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 6 - Amendment of inappropriate fault element: removal of ancillary provision duplicating the Criminal Code

821. This item proposes two amendments to subsection 65Z(1). First, subsection 65Z(1) applies the fault elements of intention and recklessness (identified as intentionally or recklessly) to the physical element of conduct, namely taking or sending a child from Australia in contravention of this subsection. Following application of the Criminal Code , the fault element of recklessness 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 . Accordingly this item proposes the deletion of recklessness from this provision as its present form would not operate in the same manner following application of the Criminal Code . However the Criminal Codes default fault provision (section 5.6) will preserve the operation of the fault element of recklessness by applying it to all physical elements of circumstance in subsection 65Z(1). Similarly, the fault element of intention will still continue to apply to the physical element of conduct by virtue of section 5.6. It is considered that subsection 65Z(1) will continue to operate in the same manner as at present following this amendment.

822. The second amendment proposed by this item is to amend subsection 65Z(1) by removing the reference to attempting to commit a primary offence against this subsection, namely attempting to take or send a child from Australia if proceedings for a Part VII order are pending in relation to the child and the person is a party to the proceedings or the person is acting on behalf of or at the request of a party. Reliance will instead be placed upon the relevant general ancillary provision in the Criminal Code , namely section 11.1 (attempting to commit a primary offence).

Item 7 - Note

823. This item adds a note after subsection 65Z(1) stating that the ancillary offence provisions of the Criminal Code , including section 11.1 (attempts), apply in relation to the offence created by subsection 65Z(1). This item is consequent upon the amendment proposed by item 6 which deletes the reference to attempting to take or send a child from Australia in contravention of subsection 65Z(1). It is felt that the nature of this provision warrants adding an explicit note to draw attention to the fact that the deletion of the reference to attempt does not limit the scope of criminal responsibility in relation to a person attempting to contravene subsection 65Z(1).

Item 8 - Removal of ancillary provision duplicating the Criminal Code

824. This item proposes to remove amend subsection 65Z(2) by removing the reference to attempting to commit the primary offence created by subsection 65Z(1). The amendment is consequent upon the amendment being made to subsection 65Z(1) by item 7 of this Bill.

Item 9 - Evidential burden note

825. This item proposes the insertion of a note after subsection 65Z(2) which makes it clear that the defendant bears an evidential burden in relation to a defence raised under subsection 65Z(2). 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).

Items 10 - 11 - Amendment of inappropriate fault element: clarifying reasonable excuse defence

826. These items propose two amendments to section 65ZA. First, subsection 65ZA(2) applies the fault elements of intention and recklessness (identified as intentionally or recklessly) to the physical element of conduct, namely permitting a prescribed child to leave Australia in contravention of this subsection. Following application of the Criminal Code , the fault element of recklessness 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 . Accordingly this item proposes the deletion of recklessness from this provision as its present form would not operate in the same manner following application of the Criminal Code . However the Criminal Codes default fault provision (section 5.6) will preserve the operation of the fault element of recklessness by applying it to all physical elements of circumstance in subsection 65ZA(2). Similarly, the fault element of intention will still continue to apply to the physical element of conduct by virtue of section 5.6. It is considered that subsection 65ZA(2) will continue to operate in the same manner as at present following this amendment.

827. Second, these items propose to remove the defence of reasonable excuse from subsection 65ZA(2) and recreate it in a new subsection 65ZA(2A). 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.

828. The standard note is added after proposed subsection 65ZA(2A) 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 65ZA(2A).

Item 12 - Evidential burden note

829. This item proposes the insertion of a note after subsection 65ZA(3) which makes it clear that the defendant bears an evidential burden in relation to a defence raised under subsection 65ZA(3). 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).

Items 13 - 14 - Amendment of inappropriate fault element: clarifying reasonable excuse defence

830. These items propose two amendments to section 65ZB. First, subsection 65ZB(2) applies the fault elements of intention and recklessness (described in the phrase intentionally or recklessly) to the physical element of conduct, namely permitting a prescribed child to leave Australia in contravention of this subsection. Following application of the Criminal Code , the fault element of recklessness 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 . Accordingly this item proposes the deletion of recklessness from this provision as its present form would not operate in the same manner following application of the Criminal Code . However the Criminal Codes default fault provision (section 5.6) will preserve the operation of the fault element of recklessness by applying it to all physical elements of circumstance in subsection 65ZB(2). Similarly, the fault element of intention will still continue to apply to the physical element of conduct by virtue of section 5.6. It is considered that subsection 65ZB(2) will continue to operate in the same manner as at present following this amendment.

831. Second, these items propose to remove the defence of reasonable excuse from subsection 65ZB(2) and recreate it in a new subsection 65ZB(2A). 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.

832. The standard note is added after proposed subsection 65ZB(2A) 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 65ZB(2A).

Item 15 - Evidential burden note

833. This item proposes the insertion of a note after subsection 65ZB(3) which makes it clear that the defendant bears an evidential burden in relation to a defence raised under subsection 65ZB(3). 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 16 - Amendment of inappropriate fault element

834. Subsection 67P(1) applies the fault elements of intention and recklessness (described in the phrase intentionally or recklessly) to the physical element of conduct, namely disclosure of prescribed information by the Registrar or by any other person who obtains the information because of the provision of the information to the Registrar in contravention of this subsection, except in the circumstances stated by paragraphs 67P(1)(a)-(e). Following application of the Criminal Code , the fault element of recklessness 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 . Accordingly this item proposes the deletion of recklessness from this provision as its present form would not operate in the same manner following application of the Criminal Code . However the Criminal Codes default fault provision (section 5.6) will preserve the operation of the fault element of recklessness by applying it to all physical elements of circumstance in subsection 67P(1). Similarly, the fault element of intention will still continue to apply to the physical element of conduct by virtue of section 5.6. It is considered that subsection 67P(1) will continue to operate in the same manner as at present following this amendment.

Schedule 28 - Federal Court of Australia Act 1976

Item 1 - Application of Criminal Code

835. 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.

836. 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

837. Paragraphs 32ZE(a) and (b) use the fault element wilfully in relation to the physical elements of conduct, namely threatening, intimidating or insulting any of the persons described by subparagraphs 32ZE(a)(i)-(iv) who are taking part in relevant court proceedings or interrupting or obstructing such a court proceeding. 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 paragraphs 32ZE(a) and (b) by the appropriate and equivalent Criminal Code fault element, namely intention. It is considered that paragraphs 32ZE(a) and (b) will continue to operate in the same manner as at present following this amendment.

Item 3 - Amendment of inappropriate fault element: lawful excuse defence

838. This item proposes two amendments to paragraph 32ZE(c). First, paragraph 32ZE(c) uses the fault element wilfully in relation to the physical element of conduct, namely disobeying an order or direction of the High Court of New Zealand sitting in Australia. 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 that wilfully be deleted from paragraph 32ZE(c) and replaced with intentionally. It is considered that paragraph 32ZE(c) will continue to operate in the same manner as at present following this amendment.

839. The second amendment proposed by this item is to remove the specific defence of lawful excuse from paragraph 32ZE(c). 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 Schedule 2.

Items 4 and 5 - Clarifying reasonable excuse defence: strict liability applied

840. These items propose two amendments to section 42. First, they remove the defence of reasonable excuse from subsection 42(1) and recreate it in a new subsection 42(1B). 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.

841. The standard note is added after proposed subsection 42(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 42(1B).

842. Second, item 5 inserts proposed subsection 42(1A) which applies strict liability to the offence in subsection 42(1) of the Act. Subsection 42(1) provides that a person who has been served with a summons to attend as a juror or otherwise lawfully appointed to serve as a juror shall not fail to attend in accordance with the summons or appointment, and having attended in accordance with the summons or appointment shall not withdraw himself or herself from the Court without the permission of the Sheriff before being discharged or excused by a Judge or the Sheriff. The offence carries a fine of $200 or 1 month imprisonment, and the person can rely on the defence of reasonable excuse. This form of obligation with a relatively low penalty is 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 2.

843. The standard note referring to section 6.1 of the Criminal Code , which governs strict liability, is also added after this provision.

Item 6 - Clarifying a fault element: removal of ancillary provision duplicating the Criminal Code

844. This item proposes two amendments to subsection 42(2). First, that the phrase for the purpose of in subsection 42(2) 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 Schedule 5. In the case of subsection 42(2) the correct interpretation is that the defendant personates a juror with the intention of sitting as that person on a jury, and this item proposes the appropriate amendment accordingly.

845. The second amendment proposed by this item is to amend subsection 42(2) by removing the reference to attempting to commit a primary offence against this subsection, namely personating a juror for the purpose of sitting as that person on a jury. Reliance will instead be placed upon the relevant general ancillary provision in the Criminal Code , namely section 11.1 (attempting to commit a primary offence). This ancillary provision is present in Chapter 2 of the Criminal Code , which is being applied to this Act by this Bill and thus will be made applicable to this Act simultaneous with the amendment proposed by this item.

Item 7 - Removal of ancillary provision duplicating the Criminal Code

846. This item proposes to amend subsection 42(3)(a) by removing the reference to attempting to commit a primary offence against this subsection, namely corrupting a juror. Reliance will instead be placed upon the relevant general ancillary provision in the Criminal Code , namely section 11.1 (attempting to commit a primary offence). This ancillary provision is present in Chapter 2 of the Criminal Code , which is being applied to this Act by this Bill and thus will be made applicable to this Act simultaneous with the amendment proposed by this item.

Items 8 - 11 - Clarifying reasonable excuse defence and strict liability

847. These items propose to remove the defence of reasonable excuse from subsections 58(1) and (2) and recreate it in a new subsection 58(2A). 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.

848. The standard note is added after proposed subsection 58(2A) 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 58(2A).

849. Item 9 inserts proposed subsection 58(1A) which applies strict liability to the offence in subsection 58(1) of the Act. Subsection 58(1) provides that a person who has been served with a summons to appear as a witness before the Court shall not fail to attend as required by the summons or fail to appear and report from day to day unless excused or released from further attendance by the Court. The person can claim a defence if he or she has a reasonable excuse, and the offence carries a fine of $1000 or imprisonment for 3 months. This form of obligation with a low penalty is 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 2.

850. The standard note referring to section 6.1 of the Criminal Code , which governs strict liability, is also added after this provision.

Schedule 29 - Financial Transaction Reports Act 1988

Item 1 - Application of all Criminal Code principles except corporate criminal responsibility

851. This item inserts proposed section 6A 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 a separate provision in relation to corporate criminal responsibility in relation to offences under that Act (section 34). 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.

852. 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 - Lawful authority defence

853. This item proposes to remove the specific defence of lawful authority from subsections 16(5A) and 16(5AA), which appears in these provisions as unless required to do so under this Act or any other Act. Reliance may instead be placed upon the general defence of lawful authority, 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 authority defence see the explanation at item 3 of Schedule 2.

Item 3 - Strict liability applied

854. This item inserts proposed subsection 18(9A) which applies strict liability to the offence in subsection 18(9) of the Act. Subsection 18(9) provides that a person, being a cash dealer, who contravenes subsection 18(8) or 18(8A) is guilty of an offence. Subsections 18(8) and 18(8A) require a cash dealer to give written notice to the Director in the event that an account other than an RSA account has been blocked for 12 months after the infringement day, or in the event that after such blockage the account ceases to be blocked as a result of the cash dealers actions. The offence created by subsection 18(9) attracts a fine of 10 penalty units. This is the type of administrative obligation offence where strict liability is applied under the existing law because it utilises the imperative must, it does not contain any express or necessarily implied fault elements, and the relevant penalty is of a very low order. For more details on the operation of strict liability see the explanation at item 6 of Schedule 2.

855. The standard note referring to section 6.1 of the Criminal Code , which governs strict liability, is also added after this provision.

Items 4 and 5 - Clarification of fault element: amendment of inappropriate fault elements

856. This item proposes the repeal and substitution of paragraphs 21(3A)(a) and (b) to clarify that the fault element of recklessness applies to the following physical elements of circumstance:

(a)

that the statement referred to in paragraph 21(3A)(a) is false or misleading in a material particular; and

(b)

that the reference referred to in paragraph 21(3A)(b) is misleading in a material particular.

857. If these amendments were not made, it is possible that the incorrect interpretation could be made that the relevant fault element in relation to these physical elements is intention. The proposed amendments put it beyond doubt that recklessness is the appropriate fault element.

858. Further, subsection 21(3A) applies the fault elements of knowledge and recklessness (knowingly or recklessly) in relation to the physical elements of conduct, namely making a statement in a change of name statement or omitting from a change of name statement any matter or thing. Following application of the Criminal Code , the fault elements of knowledge and recklessness 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 . Accordingly this item proposes the deletion of knowingly or recklessly from subsection 21(3A) and substitution of the appropriate fault element, namely intention. The fault element of intention is the direct Criminal Code equivalent of knowingly where the latter has been applied to physical elements of conduct, and the fault element of recklessness will apply by operation of this amendment to each physical element of circumstance in subsection 21(3A). It is considered that subsection 21(3A) will continue to operate in the same manner as at present following this amendment.

Items 6 and 7 - Clarification of fault element: amendment of inappropriate fault elements

859. This item proposes the repeal and substitution of paragraphs 21A(3)(a) and (b) to clarify that the fault element of recklessness applies to the following physical elements of circumstance:

(a)

that the statement referred to in paragraph 21A(3)(a) is false or misleading in a material particular; and

(b)

that the change of name statement referred to in paragraph 21A(3)(b) is misleading in a material particular.

860. If these amendments were not made, it is possible that the incorrect interpretation could be made that the relevant fault element is intention. The proposed amendments put it beyond doubt that recklessness is the appropriate fault element.

861. Further, subsection 21A(3) applies the fault elements of knowledge and recklessness (knowingly or recklessly) in relation to the physical elements of conduct, namely making a statement in a change of name statement or omitting from a change of name statement any matter or thing. Following application of the Criminal Code , the fault elements of knowledge and recklessness 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 . Accordingly this item proposes the deletion of knowingly or recklessly from subsection 21A(3) and substitution of the appropriate fault element, namely intention. The fault element of intention is the direct Criminal Code equivalent of knowingly where the latter has been applied to physical elements of conduct, and the fault element of recklessness will apply to each physical element of circumstance in subsection 21A(3) by operation of this amendment. It is considered that subsection 21A(3) will continue to operate in the same manner as at present following this amendment.

Item 8 - Amendment of inappropriate fault element

862. Subsection 23A(3) applies the fault element of recklessness (or recklessly) in relation to the proscribed physical element of conduct, contravening subsection (2). Subsection (2) imposes record transfer obligations on a transferor ADI. Following application of the Criminal Code , the fault element of recklessness 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 . Accordingly this item proposes the deletion of recklessly in subsection 23A(3). Upon application of the Criminal Code , its default fault provision (section 5.6) will apply the fault element of recklessness to each physical element of circumstance in subsection 23A(3). It is considered that subsection 23A(3) will continue to operate in the same manner as at present following this amendment.

Items 9 and 10 - Clarifying reasonable excuse defence: strict liability applied

863. These items propose two amendments to section 27B. First, they remove the defence of reasonable excuse from subsection 27B(3) and recreate it in a new subsection 27B(4A). 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.

864. The standard note is added after proposed subsection 27B(4A) 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 27B(4A).

865. Second, item 10 inserts proposed subsection 27B(4B) which applies strict liability to the offence in subsection 27B(4) of the Act. Subsection 27B(4) provides that a person who contravenes subsections 27B(2) or 27B(3) is guilty of an offence. Subsections 27B(2) and 27B(3) require a person who ceases to be an authorised officer to return his or her identity card to the Director as soon as practicable. The offence created by subsection 27B(4) attracts a fine of 1 penalty unit, and the person can rely upon the reasonable excuse defence. This is the type of administrative obligation offence where strict liability is applied under the existing law: it does not contain any express or necessarily implied fault elements, and the relevant penalty is of a very low order. For more details on the operation of strict liability see the explanation at item 6 of Schedule 2.

866. The standard note referring to section 6.1 of the Criminal Code , which governs strict liability, is also added after this provision.

Items 11 and 12 - Clarification of fault element: amendment of inappropriate fault element

867. This item proposes the repeal and substitution of paragraphs 29(1)(a) and (b) to clarify that the fault element of knowledge applies to the following physical elements of circumstance:

(a)

that the statement referred to in paragraph 29(1)(a) is false or misleading in a material particular; and

(b)

that the statement referred to in paragraph 29(1)(b) is misleading in a material particular.

868. If these amendments were not made, it is possible that the incorrect interpretation could be made that the relevant fault element is intention. The proposed amendments put it beyond doubt that knowledge is the appropriate fault element.

869. Further, subsection 29(1) applies the fault elements of knowledge (knowingly) in relation to the physical elements of conduct, namely making a statement in a change of name statement or omitting from a change of name statement any matter or thing. Following application of the Criminal Code , the fault elements of knowledge and recklessness 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 . Accordingly this item proposes the deletion of knowingly from subsection 29(1) and substitution of the appropriate fault element, namely intention. The fault element of intention is the direct Criminal Code equivalent of knowingly where the latter has been applied to physical elements of conduct. It is considered that subsection 29(1) will continue to operate in the same manner as at present following this amendment.

Items 13 and 14 - Clarification of fault element: amendment of inappropriate fault element

870. This item proposes the repeal and substitution of paragraphs 29(2)(a) and (b) to clarify that the fault element of knowledge applies to the following physical elements of circumstance:

(a)

that the statement referred to in paragraph 29(2)(a) is false or misleading in a material particular; and

(b)

that the statement referred to in paragraph 29(2)(b) is misleading in a material particular.

871. If these amendments were not made, it is possible that the incorrect interpretation could be made that the relevant fault element is intention. The proposed amendments put it beyond doubt that knowledge is the appropriate fault element.

872. Further, subsection 29(2) applies the fault element of knowledge (or knowingly) in relation to the proscribed physical elements of conduct, namely making a statement or omitting from a statement any matter or thing. 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 29(2) by the appropriate and equivalent fault element, namely intention. It is considered that subsection 29(2) will continue to operate in the same manner as at present following this amendment.

Items 15 and 16 - Clarification of fault element: amendment of inappropriate fault element

873. This item proposes the repeal and substitution of paragraphs 29(2A)(a) and (b) to clarify that the fault element of knowledge applies to the following physical elements of circumstance:

(a)

that the statement referred to in paragraph 29(2A)(a) is false or misleading in a material particular; and

(b)

that the statement referred to in paragraph 29(2A)(b) is misleading in a material particular.

874. If these amendments were not made, it is possible that the incorrect interpretation could be made that the relevant fault element is intention. The proposed amendments put it beyond doubt that knowledge is the appropriate fault element.

875. Further, subsection 29(2A) applies the fault element of knowledge (or knowingly) in relation to the proscribed physical elements of conduct, namely making a statement or omitting from a statement any matter or thing. 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 29(2A) by the appropriate and equivalent fault element, namely intention. It is considered that subsection 29(2A) will continue to operate in the same manner as at present following this amendment.

Item 17 - Clarification of fault element: amendment of inappropriate fault element

876. This item proposes the amendment of paragraphs 29(3)(a) and (b) to clarify that the fault element of knowledge applies to the physical element of circumstance that the report, statement or declaration is false or misleading in a material particular.

877. If this amendment were not made, it is possible that the incorrect interpretation could be made that the relevant fault element is intention. The proposed amendment puts it beyond doubt that knowledge is the appropriate fault element.

878. Further, subsection 29(3) applies the fault element of knowledge (or knowingly) in relation to the proscribed physical elements of conduct, namely making a report, statement or declaration or omitting from such a report, statement or declaration any matter or thing. 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 29(3) by the appropriate and equivalent fault element, namely intention. It is considered that subsection 29(3) will continue to operate in the same manner as at present following this amendment.

Item 18 - Amendment of inappropriate fault element

879. Subsections 30(1), 30(2) and 30(3) apply the fault element of knowledge (or knowingly) in relation to the proscribed physical elements of conduct, namely communicating information or maintaining an institutions exemption register. 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 deletion of knowingly from subsections 30(1), 30(2) and 30(3) and the appropriate fault element, namely intention, will apply automatically by virtue of the Criminal Codes default fault provision (section 5.6). The fault element of knowledge (here: knows) is inserted in relation to the physical elements of circumstance in subsections 30(1), 30(2) and 30(3) that the information or register (as the case may be) is incomplete. It is considered that subsections 30(1), 30(2) and 30(3) will continue to operate in the same manner as at present following this amendment.

Item 19 - Replacing references to certain Crimes Act 1914 provisions

880. Certain Crimes Act 1914 provisions, including sections 7, 7A and 86, are scheduled for progressive disapplication in relation to offence provisions to which the Criminal Code applies, and ultimately for repeal on 15 December 2001. 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 the definition of offence against section 15 in subsection 33(10) to sections 7, 7A and 86 of the Crimes Act 1914 , which concern attempting to commit primary offences, incitement to commit primary offences, and conspiring to commit primary offences, be replaced by references to the Criminal Code provisions which deal with these matters (sections 11.1, 11.4 and 11.5). These Criminal Code provisions will apply to this Act by virtue of this Bill.

Schedule 30 - Geneva Conventions Act 1957

Item 1 - Application of Criminal Code

881. 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.

882. 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 - Removal of ancillary provisions duplicating the Criminal Code

883. This item proposes to amend subsection 7(1) by removing the references to aiding, abetting or procuring another person to commit a primary offence against this subsection, namely a grave breach of any of the Geneva Conventions. Reliance will instead be placed upon the relevant general ancillary provision in the Criminal Code , namely section 11.2 (aiding, abetting, counselling or procuring the commission of a primary offence). These ancillary provisions are present in Chapter 2 of the Criminal Code , which is being applied to this Act by this Bill and thus will be made applicable to this Act simultaneous with the amendment proposed by this item.

Item 3 - Amendment of inappropriate fault element

884. Paragraph 7(4)(a) uses the fault element wilful in relation to the physical element of conduct, namely killing a person protected by the relevant Geneva Convention or by Protocol 1 to those Conventions. 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 wilful in paragraph 7(4)(a) by the appropriate and equivalent Criminal Code fault element, namely intention. It is considered that paragraph 7(4)(a) will continue to operate in the same manner as at present following this amendment.

Item 4 - Strict liability applied

885. This item inserts proposed subsection 15(1A) which applies strict liability to the offences in subsection 15(1) of the Act. Subsection 15(1) provides that a person shall not use for any purpose whatsoever any of the emblems specified in paragraphs 15(1)(a) to (d) or any design or wording resembling any such emblem without the consent in writing of the Minister or of a person authorised in writing by the Minister to give consent. The offences attract a fine of $100. This is the type of offence where strict liability is applied under the existing law because it utilises the imperative shall, does not contain any express or necessarily implied fault elements, and the penalty is of a very low order. For more details on the operation of strict liability see the explanation at item 6 of Schedule 2.

886. The standard note referring to section 6.1 of the Criminal Code , which governs strict liability, is also added after this provision.