House of Representatives

Law and Justice Legislation Amendment (Application of Criminal Code) Bill 2000

Explanatory Memorandum

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

Schedules 31 to 51

Schedule 31 - High Court of Australia Act 1979

Item 1 - Application of Criminal Code

887. 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.

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

Item 2 - Strict liability applied

889. This item inserts proposed subsection 19(6A) which applies strict liability to the offence in subsection 19(6) of the Act. Subsection 19(6) provides that a person who contravenes or fails to comply with a direction in force under subsection 19(2) is guilty of an offence. The offence attracts a fine of $100. Subsection 19(2) relevantly provides that the Clerk of the Court has power to give directions in writing for the purpose of regulating the conduct of persons on any land or in any building connected with the operation of the Court. This type of obligation is usually interpreted to mean that the legislature intended that strict liability should apply. Another factor in determining whether strict liability applies is the penalty, which in this case is very low. For more details on the operation of strict liability see the explanation at item 6 of Schedule 2.

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

Item 3 - Strict liability applied

891. This item inserts proposed subsection 43(8) which applies strict liability to the offence in subsection 43(7) of the Act. Subsection 43(7) provides that a person who contravenes subsection 43(6) is guilty of an offence. The offence attracts a fine of $200. Subsection 43(6) relevantly provides that the Auditor-General, or an authorised person, may require a person to furnish such information in the possession of the person or to which the person has access as the Auditor-General or authorised person considers necessary for the purposes of the functions of the Auditor-General under this Act. This type of administrative obligation is usually interpreted to mean that the legislature intended that strict liability should apply. Another factor in determining whether strict liability applies is the penalty, which in this case is very low. For more details on the operation of strict liability see the explanation at item 6 of Schedule 2.

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

Schedule 32 - Human Rights and Equal Opportunity Commission Act 1986

Item 1 - Application of Criminal Code

893. 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.

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

Item 2 - Strict liability applied

895. This item inserts proposed subsection 14(7A) which applies strict liability to the offence in subsection 14(7) of the Act. Subsection 14(7) provides that a person shall not contravene a direction given by the Commission under subsection 14(2) or (3). The offence attracts a fine of $1000 for a natural person or $5000 for a body corporate. Subsection 14(2) provides that in the circumstances prescribed by subsection 14(2) the Commission may give directions prohibiting the disclosure of the identity of the prescribed person. Subsection 14(3) states that the Commission may direct that any evidence or information given before or to the Commission and the contents of any document produced to the Commission shall not be published except in such manner as the Commission specifies. This is the type of directed obligation which is usually interpreted to mean that the legislature intended that strict liability should apply. Another factor in determining whether strict liability applies is the penalty, which in this case is very low. For more details on the operation of strict liability see the explanation at item 6 of Schedule 2.

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

Items 3 and 4 - Clarifying reasonable excuse defence

897. These items propose to remove the defence of reasonable excuse from subsections 23(1) and (2) and recreate it in a new subsection 23(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.

898. The standard note is added after proposed subsection 23(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 23(2A).

Items 5 and 6 - Clarifying reasonable excuse defence: strict liability applied

899. These items propose two amendments to section 46PL. First, they remove the defence of reasonable excuse from section 46PL and recreate it in a new subsection 46PL(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.

900. The standard note is added after proposed subsection 46PL(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 46PL(2).

901. Second, item 6 inserts proposed subsection 46PL(3) which applies strict liability to the offence in subsection 46PL(1) of the Act. Subsection 46PL(1) provides that a person who has been given a direction under section 46PJ to attend a conference must not fail to attend as directed or fail to attend and report from day to day unless excused or released from further attendance by the person presiding at the conference. The person can claim a defence if he or she has a reasonable excuse, and the offence carries a fine of 10 penalty units. This is the type of directed obligation which is usually interpreted to mean that the legislature intended that strict liability should apply. Another factor in determining whether strict liability applies is the presence of a reasonable excuse defence, and the penalty, which in this case is very low. For more details on the operation of strict liability see the explanation at item 6 of Schedule 2.

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

Items 7 and 8 - Clarifying reasonable excuse defence

903. These items propose to remove the defence of reasonable excuse from subsection 46PM(1) and recreate it in a new subsection 46PM(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.

904. The standard note is added after proposed subsection 46PM(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 46PM(1A).

Item 9

905. The amendment proposed by this item is consequential to the other amendments made by items 7 and 8.

Items 10 and 13 - Clarification of exception to the offence

906. These items propose to remove the exception of except in the performance of a duty under or in connection with this Act or in the course of acting on behalf of the Commission from subsection 49(1) and recreate it as subsection 49(4B). 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.

907. Items 12 and 13 propose the insertion of a notes after subsection 49(3) and (4A) which makes it clear that the defendant bears an evidential burden in relation to a defence raised under subsection 49(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).

Schedule 33 - International War Crimes Tribunals Act 1995

Item 1 - Application of Criminal Code

908. 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.

909. 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 elements

910. Paragraphs 43(a) and (b) apply the fault elements of knowledge and recklessness (knowingly or recklessly) in relation to the physical elements of conduct, namely contravening an order or hindering a Tribunal. 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 paragraphs 43(a) and (b) 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 default to each physical element of circumstance or result in paragraphs 43(a) and (b): see Criminal Code section 5.6. It is considered that paragraphs 43(a) and (b) will continue to operate in the same manner as at present following this amendment.

Schedule 34 - Marriage Act 1961

Item 1 - Application of Criminal Code

911. 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.

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

Item 2 - Strict liability applied

913. This item inserts proposed subsection 94(1A) which applies strict liability to the physical element of circumstance in subsection 94(1) that the person was married when the ceremony took place. Subsection 94(1) provides that a person who is married shall not go through a form of ceremony of marriage with any person. The offence carries a penalty of 5 years imprisonment. Whilst a penalty of this magnitude would ordinarily be indicative of a wholly fault-based offence, in this instance the defendant can rely upon the broad defences prescribed by subsection 94(2) in addition to the general mistake of fact defence in the Criminal Code (section 9.2). In any case the prosecution would be obliged to prove that the person possessed a relevant fault element, namely that he or she intended to go through a form or ceremony of marriage.

914. This physical element is an appropriate candidate for the application of strict liability because 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 a person who made a reasonable mistake as to whether he or she is married. 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.

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

Item 3 - Application of defence of mistake of fact

916. This item proposes to insert subsection 94(3A) which puts beyond doubt that the defence of mistake of fact applies to an offence against subsection 94(1). This amendment is made necessary by the operation of subsection 94(2), which raises specified defences that are of the character of mistakes of fact pertaining to the issue of whether the person was married. Subsection 94(3A) confirms that the operation of the Criminal Code general mistake of fact defence (section 9.2) also applies to subsection 94(1). It also specifies that section 9.2 does not apply in relation to the specified mistake of fact defences raised by operation of subsections 94(2) and (3), namely that there cannot be a mistake of fact defence pertaining to the operation of another defence.

Item 4 - Strict liability applied

917. This item inserts proposed subsection 95(1A) which applies strict liability to the physical element of circumstance in subsection 95(1) that the person was not of marriageable age. Subsection 95(1) provides that a person shall not go through a form or ceremony of marriage with a person who is not of marriageable age. The offence carries a penalty of 5 years imprisonment. Whilst a penalty of this magnitude would ordinarily be indicative of a wholly fault-based offence, in this instance the defendant can rely upon the broad defence prescribed by subsection 95(3) in addition to the general mistake of fact defence in the Criminal Code (section 9.2). In any case the prosecution would be obliged to prove that the person possessed a relevant fault element, namely that he or she intended to go through a form or ceremony of marriage.

918. 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 a person who made a reasonable mistake as to whether the other person was of marriageable age. 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.

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

Item 5 - Strict liability applied

920. This item inserts proposed subsection 95(2A) which applies strict liability to the to the physical element of circumstance in subsection 95(2) that the other party to the marriage was a minor. Subsection 95(2) provides that a person shall not go through a form or ceremony of marriage with a person who is a minor unless the minor has been previously married or the written consent of those person(s) whose consent is required by the Act has been given or dispensed with in accordance with the Act. The offence carries a penalty of $500 or six months imprisonment. The defendant can rely upon the broad defences prescribed by subsection 95(4) in addition to the general mistake of fact defence in the Criminal Code (section 9.2). In any case the prosecution would be obliged to prove that the person possessed a relevant fault element, namely that he or she intended to go through a form or ceremony of marriage.

921. 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 a person who made a reasonable mistake as to whether the other person was a minor. 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.

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

Item 6 - Limitation of defence of mistake of fact

923. This item proposes to insert subsection 95(3A) which puts beyond doubt that the defence of mistake of fact applies to an offence against subsection 95(1). This amendment is made necessary by the operation of subsection 95(3), which raises a specified defence that is of the character of a mistake of fact pertaining to the issue of whether the other person was of marriageable age. Subsection 95(3A) confirms that the operation of the Criminal Code general mistake of fact defence (section 9.2) also applies to subsection 95(1). It also specifies that section 9.2 does not apply in relation to the specified mistake of fact defences raised by operation of subsection 95(3), namely that there cannot be a mistake of fact defence pertaining to the operation of another defence.

Item 7 - Limitation of defence of mistake of fact

924. This item proposes to insert subsection 95(5) which puts beyond doubt that the defence of mistake of fact applies to an offence against subsection 95(2). This amendment is made necessary by the operation of subsection 95(4), which raise specified defences that are of the character of mistakes of fact pertaining to the issue of whether the other person had attained the age of 18 years or had previously been married, or that the written consent of those person(s) whose consent is required by the Act has been given or dispensed with in accordance with the Act. Subsection 95(5) confirms that the operation of the Criminal Code general mistake of fact defence (section 9.2) also applies to subsection 95(2). It also specifies that section 9.2 does not apply in relation to the specified mistake of fact defences raised by operation of subsection 95(4), namely that there cannot be a mistake of fact defence pertaining to the operation of another defence.

Items 8 and 9 - Clarifying reasonable excuse defence: strict liability applied

925. These items propose two amendments to section 105. First, they remove the defence of reasonable excuse from section 105 and recreate it in a new subsection 105(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.

926. The standard note is added after proposed subsection 105(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 105(2).

927. Second, item 9 inserts proposed subsection 105(3) which applies strict liability to the offence in subsection 105(1) of the Act. Subsection 105(1) provides that a person on whom a notice under section 51 has been duly served shall not fail to comply with the notice. Section 51 concerns the issue by an authorised officer of a notice for production or forwarding of certificates. The offence carries a fine of $100, and the person can rely on the defence of reasonable excuse. 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.

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

Item 10 - Amendment of inappropriate fault element

929. Paragraph 106(b) uses the non- Criminal Code fault element wilfully in relation to the physical element of conduct, namely making a false statement in a certificate under subsection 112(3). 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 106(b) by the appropriate and equivalent Criminal Code fault element, namely intention. It is considered that paragraph 106(b) will continue to operate in the same manner as at present following this amendment.

Schedule 35 - Mutual Assistance in Business Regulation Act 1992

Item 1 - Application of Criminal Code

930. 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.

931. 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

932. These items propose to remove the defence of reasonable excuse from subsection 13(1) and recreate it in a new subsection 13(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.

933. The standard note is added after proposed subsection 13(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 13(1A).

Item 4

934. The amendment proposed by this item is consequential upon the amendments made by items 2 and 3.

Schedule 36 - Mutual Assistance in Criminal Matters Act 1987

Item 1 - Application of Criminal Code

935. 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.

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

Schedule 37 - Native Title Act 1993

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

937. This item inserts proposed section 8A which applies Chapter 2 of the Criminal Code to the Act, subject to subsection 8A(2). Chapter 2 establishes the codified general principles of criminal responsibility. Subsection 8A(2) provides 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 203FH, which is limited in its application to Part 11 of the Act). 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. However the exclusion of Part 2.5 is limited to Part 11 of the Act in recognition of the limited scope of section 203FH.

938. 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

939. These items propose two amendments to section 171. First, they remove the defence of reasonable excuse from section 171 and recreate it in a new subsection 171(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.

940. The standard note is added after proposed subsection 171(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 171(2).

941. Second, item 3 inserts proposed subsection 171(3) which applies strict liability to the offence in subsection 171(1) of the Act. Subsection 171(1) provides that a person who has been served in the prescribed way with a summons to appear before the Tribunal to give evidence and has been paid reasonable expenses must 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 Tribunal. The offence carries a fine of 20 penalty units, and the person can rely on the defence of reasonable excuse. 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.

942. 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 - Clarifying reasonable excuse defence

943. These items propose to remove the defence of reasonable excuse from section 172 and recreate it in a new subsection 172(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.

944. The standard note is added after proposed subsection 172(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 172(2).

Item 6 - Amendment of inappropriate fault element: clarification of fault element

945. This item proposes two amendments to section 173. First, section 173 applies the fault element of knowledge (or knowingly) in relation to the proscribed physical element of conduct, namely giving evidence that is false or misleading in a material particular when appearing before the Tribunal to give evidence. 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 section 173 by the appropriate and equivalent fault element, namely intention. It is considered that section 173 will continue to operate in the same manner as at present following this amendment.

946. Second, this item proposes the amendment of section 173 to clarify that the fault element of knowledge applies to the following physical elements of circumstance that the evidence is false or misleading.

947. 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.

Items 7 and 8 - Clarifying reasonable excuse defence

948. These items propose to remove the defence of reasonable excuse from section 174 and recreate it in a new subsection 174(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.

949. The standard note is added after proposed subsection 174(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 174(2).

Item 9 - Repeal of provision which duplicates a general Criminal Code offence

950. This item proposes the repeal of section 175 which states that a person must not, in complying with a summons under section 156, produce a document which the person knows is false or misleading in a material particular. Section 156 prescribes the powers of a Tribunal and includes a power to summons a person to produce such documents as are referred to in the summons. Section 175 will duplicate the general Criminal Code offence provision of producing a false or misleading document in compliance or in purported compliance with a law of the Commonwealth (section 137.2). Section 137.2 is being inserted into the Criminal Code by the Criminal Code Amendment (Theft, Fraud, Bribery and Related Offences) Act 2000 (the Theft Fraud Act ). Section 137.2 will apply to all conduct under Commonwealth law where a person produces a false or misleading document in compliance or in purported compliance with a law of the Commonwealth.

951. Section 175 therefore will duplicate section 137.1 and this item accordingly proposes the repeal of section 175.

Item 10 - Strict liability applied

952. This item inserts proposed subsection 176(2) which applies strict liability to the offences in subsection 176(1) of the Act. Subsection 176(1) provides that a person must not disclose any material in contravention of a direction made under section 92, 136F or 155. These sections concern directions prohibiting the disclosure of evidence and prescribed information. The offence attracts a fine of 40 penalty units. This is the type of directed obligation which is usually interpreted to mean that the legislature intended that strict liability should apply. Another factor in determining whether strict liability applies is the penalty, which in this case is relatively low. For more details on the operation of strict liability see the explanation at item 6 of Schedule 2.

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

Items 11 - 12 - Clarifying reasonable excuse defence

954. These items propose to remove the defence of reasonable excuse from subsection 203DG(4) and recreate it in a new subsection 203DG(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.

955. The standard note is added after proposed subsection 203DG(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 203DG(4A).

Item 13

956. The amendment proposed by this item is consequential upon the amendments made by items 11 and 12.

Marginal note

957. This item amends the heading of subsection 203DG(7) by replacing Knowingly with Intentionally to reflect the appropriate fault element.

Schedule 38 - Parliamentary Privileges Act 1987

Item 1 - Application of Criminal Code

958. This item inserts proposed section 3A. Subsection 3A(1) applies Chapter 2 of the Criminal Code to all offences against the Act. Chapter 2 establishes the codified general principles of criminal responsibility.

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

960. Subsection 3A(2) clarifies that the Criminal Code does not apply to an offence against a House of Federal Parliament, which is not a criminal offence for the purposes of the Criminal Code .

Schedule 39 - Passenger Movement Charge Collection Act 1978

Item 1 - Application of Criminal Code

961. 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.

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

Item 2 - Strict liability applied

963. This item inserts proposed subsection 6(2A) which applies strict liability to the offences in subsection 6(2) of the Act. Subsection 6(2) provides that where a charge in respect of the departure of a person from Australia is not paid before the departure, the person is guilty of an offence. The offence attracts a fine of 1 penalty unit. This is the type of administrative obligation which is usually interpreted to mean that the legislature intended that strict liability should apply. Another factor in determining whether strict liability applies is the penalty, which in this case is very low. For more details on the operation of strict liability see the explanation at item 6 of Schedule 2.

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

Items 3 and 4 - Clarifying reasonable excuse defence

965. These items propose three amendments to subsection 8(1). First, they remove the defence of reasonable excuse from subsection 8(1) and recreate it in a new subsection 8(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.

966. The standard note is added after proposed subsection 8(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 8(2).

967. Second, item 3 substitutes fail for refuse in subsection 8(1). This is necessary for the application of strict liability to subsection 8(1), as to fail to comply, unlike refusing to comply, does not necessarily imply fault.

968. Finally, item 4 inserts proposed subsection 8(1B) which applies strict liability to the offence in subsection 8(1) of the Act. Subsection 8(1), as amended by this Bill, provides that person shall not refuse to answer a question or produce a document when required to do so in pursuance of subsection 7(2). This is an obligation with a very low penalty and is therefore the type of offence where strict liability is applied under the existing law. In addition, a member would be able to rely on the defences of reasonable excuse and mistake of fact. For more details on the operation of strict liability see the explanation at item 6 of Schedule 2.

969. 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

970. These items propose to remove the defence of reasonable excuse from subsection 8(3) and recreate it in a new subsection 8(3A). 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.

971. The standard note is added after proposed subsection 8(3A) concerning the imposition of an evidential burden on a defendant by subsection 13.3(3) of the Criminal Code if a defendant relies on the reasonable excuse defence established by subsection 8(3A).

Item 7 - Strict liability applied

972. This item proposes to insert subsection 8(5) which provides that strict liability is applied to the physical elements of circumstance described in proposed paragraphs 8(5)(a) and (b) and which comprise elements of the offence in subsections 8(3) and (4). Subsections 8(3) and (4) respective provide that a person shall not obstruct or hinder, or assault or threaten, an authorised officer acting in the performance of his or her functions or the exercise of his or her powers under this Act.

973. 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 status of the obstructed etc person. Accordingly strict liability, and not absolute liability, is the appropriate application. For more details on the operation of strict liability see the explanation at item 6 of Schedule 2.

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

Item 8 - Clarification of fault element

975. This item proposes the repeal and substitution of paragraphs 9(3)(b) and (c) to clarify that the fault element of recklessness applies to the following physical elements of circumstance:

(a)
that the statement referred to in paragraph 9(3)(a) is false or misleading; and
(b)
that the document referred to in paragraph 9(3)(b) is false or misleading in a material particular.

976. 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.

Schedule 40 - Privacy Act 1988

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

977. 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 separate provisions in relation to corporate criminal responsibility in relation to offences under that Act (subsections 99A(1), (2), (6) and (7)). Part 2.5 of the Criminal Code contains general principles of corporate criminal responsibility which when it was introduced in 1995 was in appropriate cases recognised as requiring supplementation with specific provisions. This Bill, and those similar to it, reflects the status quo in relation to special provisions concerning corporate criminal responsibility. Therefore it has been decided to take the approach of retaining the existing special provisions in relation to corporate criminal responsibility by excluding the operation of Part 2.5.

978. 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 and amendment of inappropriate fault elements

979. Subsections 18C(4), 18D(4), 18K(4), 18L(2), 18N(2), 18Q(9), 18R(2) and 18S(3) apply the fault elements of knowledge and recklessness (knowingly or recklessly) in relation to their respective physical elements of conduct. 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 subsections 18C(4), 18D(4), 18K(4), 18L(2), 18N(2), 18Q(9), 18R(2) and 18S(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 by default to each physical element of circumstance or result in subsections 18C(4), 18D(4), 18K(4), 18L(2), 18N(2), 18Q(9), 18R(2) and 18S(3): see Criminal Code section 5.6. It is considered that subsections 18C(4), 18D(4), 18K(4), 18L(2), 18N(2), 18Q(9), 18R(2) and 18S(3) will continue to operate in the same manner as at present following this amendment.

Items 3 and 4 - Clarifying reasonable excuse defence

980. These items propose to remove the defence of reasonable excuse from subsection 46(2) and recreate it in a new subsection 46(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.

981. The standard note is added after proposed subsection 46(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 46(2A).

Item 5 - Replacing references to certain Crimes Act 1914 provisions

982. 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 paragraph (b) of the definition of credit reporting offence in subsection 49(4) 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.

Item 6 - Replacing references to certain Crimes Act 1914 provisions

983. 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 paragraph (b) of the definition of tax file number offence in subsection 49(4) 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.

Items 7 and 8 - Clarifying reasonable excuse defence: repeal of provision which duplicates a general Criminal Code offence

984. These items propose two amendments to section 65. First, they remove the defence of reasonable excuse from subsection 65(1) and recreate it in a new subsection 65(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.

985. The standard note is added after proposed subsection 65(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 65(2).

986. Second, this proposes the repeal of existing subsection 65(2) which states that a person shall not, without reasonable excuse, wilfully obstruct, hinder or resist the Commissioner in the performance of his or her functions under this Act. Subsection 65(2) will duplicate the general Criminal Code offence provision of obstructing, hindering or resisting a Commonwealth public official (section 149.1). Section 149.1 is being inserted into the Criminal Code by the Criminal Code Amendment (Theft, Fraud, Bribery and Related Offences) Act 2000 .

Items 9 and 10 - Clarifying reasonable excuse defence

987. These items propose to remove the defence of reasonable excuse from subsection 66(1) and recreate it in a new subsection 66(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.

988. The standard note is added after proposed subsection 66(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 66(1B).

Item 11

989. The amendment proposed by this item is consequential upon the amendments made by items 9 and 10.

Item 12 - Replacing references to certain Crimes Act 1914 provisions

990. 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 99A(9) 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 conspiring 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 41 - Proceeds of Crime Act 1987

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

991. This item inserts proposed section 13A 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 85). 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.

992. 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

993. Subsection 52(1) applies the fault element of knowledge (or knowingly) in relation to the proscribed physical element of conduct, namely contravening a restraining order by disposing of, or otherwise dealing with, property. 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 52(1) by the appropriate and equivalent fault element, namely intention. It is considered that subsection 52(1) will continue to operate in the same manner as at present following this amendment.

Items 3 and 4 - Clarifying reasonable excuse defence

994. These items propose to remove the defence of reasonable excuse from paragraph 68(1)(a) and recreate it in a new 68(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.

995. The standard note is added after proposed subsection 68(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 68(1A).

Item 5 - Amendment of inappropriate fault element

996. Subsection 73(7) applies the fault element of knowledge (or knowingly) in relation to the proscribed physical element of conduct, namely contravening a monitoring order or providing false or misleading information. 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 73(7) by the appropriate and equivalent fault element, namely intention. It is considered that subsection 73(7) will continue to operate in the same manner as at present following this amendment.

Item 6 - Strict liability applied

997. This item inserts proposed subsection 77(6A) which applies strict liability to the offence in subsection 77(6) of the Act. Subsection 77(6) provides that a financial institution that contravenes subsection 77(1), (2), (3) or (5) is guilty of an offence. Subsections 77(1), (2), (3) and (5) require financial institutions to retain prescribed documents for certain periods and to store them in a way that makes retrieval of the documents reasonably practicable. The offence carries a fine of $10,000. This offence is a 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.

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

Item 7 - Strict liability applied

999. This item inserts proposed subsection 78(4) which applies strict liability to the offence in subsection 78(3) of the Act. Subsection 78(3) provides that a financial institution that contravenes subsection 78(1) or (2) is guilty of an offence. Subsections 78(1) and (2) require financial institutions to retain copies of prescribed documents and to maintain a register of such copies. The offence carries a fine of $10,000. This offence is a 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.

1000. The standard note referring to section 6.1 of the Criminal Code , which governs strict liability, is also added after this provision.

Item 8 - Amendment of inappropriate fault element

1001. Subsection 78A(3) applies the fault element of recklessness (or recklessly) in relation to the proscribed physical element of conduct, namely contravening subsection (2). Subsection (2) provides that transferor ADI must give the document to the transferee ADI within the 120-day period beginning 30 days before the transfer. 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 78A(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 78A(3). It is considered that subsection 78A(3) will continue to operate in the same manner as at present following this amendment.

Schedule 42 - Public Order (Protection of Persons and Property) Act 1971

Item 1 - Application of Criminal Code

1002. This item inserts proposed section 5A. Subsection 5A(1) provides that Chapter 2 of the Criminal Code applies to all offences against the Act. Chapter 2 establishes the codified general principles of criminal responsibility.

1003. The standard note concerning Chapter 2 of the Criminal Code setting out the principles of criminal responsibility is also added after this provision.

1004. Subsection 5A(2) provides that section 10.5 of the Criminal Code applies to an offence against section 13F as if it covered conduct that is justified or excused by a law of the Commonwealth, a State or a Territory. This is consequent upon the amendment proposed by item 23, which removes the defence of lawful excuse from section 13F and places reliance upon section 10.5 of the Criminal Code . Section 10.5, which is being inserted into the Criminal Code by the Criminal Code Amendment (Theft, Fraud, Bribery and Related Offences) Act 2000 , creates a general defence of lawful excuse which will be applicable to all offences against Commonwealth law. However the defence established by section 10.5 is limited to instances where the offence is justified or excused by a law. The Criminal Codes Dictionary defines law to be a law of the Commonwealth, and includes this Code. It follows that it is necessary to expand the scope of section 10.5 in relation to those offence provisions where a lawful excuse may arise under State or Territory law, and this is achieved by subsection 5A(2) in relation to sections 13F. An example of where this situation might arise is in relation to a State police officer carrying a firearm on court premises while in the course of apprehending an armed offender.

Item 2 - Absolute liability applied

1005. This item proposes to insert subsection 6(1A) which provides that absolute liability is applied to the physical elements of circumstance contained in the offence in subsection 6(1) that the assembly is in a Territory or is wholly or partly on Commonwealth premises and that the person conduct themselves in a Territory or on the Commonwealth premises (as the case may be). Subsections 6(1) proscribes an assembly of persons in a territory or on Commonwealth premises being conducted in a way that gives rise to a reasonable apprehension that the assembly will be carried on in a manner involving unlawful physical violence to persons or unlawful damage to property.

1006. 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..

1007. The standard note referring to section 6.2 of the Criminal Code , which governs absolute liability, is also added after this provision.

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

1008. This item proposes three amendments to subsection 6(2). First, subsection 6(2) uses the fault element wilfully in relation to the physical element of conduct, namely doing an act or thing to another person by way of physical violence or damaging property whilst taking part in an assembly in a Territory or on Commonwealth premises. 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 subsection 6(2) by the appropriate and equivalent Criminal Code fault element, namely intention. It is considered that subsection 6(2) will continue to operate in the same manner as at present following this amendment.

1009. The second amendment proposed by this item is to remove the specific defence of lawful excuse from subsection 6(2). 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.

1010. Thirdly, this item reconstructs subsection 6(2) in order to make clear the physical elements and fault elements that comprise this provision.

Item 4 - Absolute liability applied

1011. This item proposes to insert subsection 6(3) which provides that absolute liability is applied to the physical elements of circumstance contained in the offence in subsection 6(2) that the person is in a Territory or on Commonwealth premises. Subsections 6(1) provides that a person in a Territory or on Commonwealth premises, while taking part in an assembly, does an act or thing by way of physical violence to another person or damage to property is guilty of an offence.

1012. 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.

1013. The standard note referring to section 6.2 of the Criminal Code , which governs absolute liability, is also added after this provision.

Item 5 - Amendment of inappropriate fault element: lawful excuse defence

1014. This item proposes two amendments to section 7. First, section 7 uses the fault element wilfully in relation to the physical element of conduct, namely causing actual bodily harm to another person or causing damage to property of greater value than $200 whilst taking part in an assembly in a Territory or on Commonwealth premises. This is equivalent to applying the Criminal Code fault element of intention. The Criminal Code allows the use of new fault elements (subsection 5.1(2)) and the present offence would possibly still operate in the same manner following application of the Criminal Code . However it is also possible that future courts may attempt to distinguish wilfulness from intention on the basis that wilfulness appears to differ from the basic Criminal Code fault element. Accordingly this item proposes the replacement of wilfully in section 7 by the appropriate and equivalent Criminal Code fault element, namely intention. It is considered that section 7 will continue to operate in the same manner as at present following this amendment.

1015. The second amendment proposed by this item is to remove the specific defence of lawful excuse from section 7. 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.

Item 6 - Absolute liability applied

1016. This item proposes to insert subsection 7(2) which provides that, for the purposes of an offence against subsection 7(1), absolute liability is applied to the physical elements of circumstance that the person is in a Territory or on Commonwealth premises and that the damage to property is to an extent exceeding $1,500.

1017. 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.

1018. The standard note referring to section 6.2 of the Criminal Code , which governs absolute liability, is also added after this provision.

Items 7 and 8 - Clarifying reasonable excuse defence: strict liability applied

1019. These items propose two amendments to section 8. First, they remove the defence of reasonable excuse from subsection 8(3) and recreate it in a new subsection 8(3B). 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.

1020. The standard note is added after proposed subsection 8(3B) 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 8(3B).

1021. Second, item 8 inserts proposed subsection 8(3A) which applies strict liability to paragraphs 8(3)(a) and (b) of the Act. Subsection 8(3) provides that where a direction is given under this section and the assembly, to the number of not less than twelve persons, continues after the expiration of fifteen minutes from the time of the direction, each of those persons who has failed to comply with the direction is guilty of an offence. Paragraphs (3)(a) and (b), to which strict liability is being applied, provide the following physical elements of circumstance:

(a)
a direction is given under this section; and
(b)
the assembly, to the number of not less than twelve persons, continues after the expiration of fifteen minutes from the time of the direction.

1022. 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, and the person can rely on the defence of reasonable excuse. However the defence of mistake of fact should also 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 paragraphs (3)(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.

1023. The standard note referring to section 6.1 of the Criminal Code , which governs strict liability, is also added after this provision.

Item 9 - Absolute liability applied

1024. This item proposes to insert subsection 9(2) which provides that, for the purposes of an offence against subsection 9(1), absolute liability is applied to the physical element of circumstance that the person is in a Territory or on Commonwealth premises.

1025. This physical element is an appropriate candidate 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. For more details on the operation of absolute liability see the explanation at item 31 of Schedule 10.

1026. The standard note referring to section 6.2 of the Criminal Code , which governs absolute liability, is also added after this provision.

Item 10 - Lawful excuse defence

1027. This item proposes to remove the specific defence of lawful excuse from subsection 10(1). 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.

Item 11 - Clarifying a fault element

1028. This item proposes to amend paragraph 10(1)(d) by replacing the phrase in a manner likely to with being reckless as to whether doing so will. The substituted phrase, which invokes the Criminal Codes equivalent fault element of recklessness, better applies recklessness to the physical elements of circumstance in paragraph 10(1)(d). It will also bring the terminology of paragraph 10(1)(d) into harmony with the Criminal Code and obviate the unnecessary need for future courts to examine whether there is a difference between the old phrase and recklessness.

Item 12 - Absolute liability applied: reasonable excuse defence

1029. This item proposes two amendments to section 10. First, it inserts subsection 10(1A) which provides that, for the purposes of an offence against subsection 10(1), absolute liability is applied to the physical element of circumstance that the person is in a Territory or on Commonwealth premises.

1030. This physical element is an appropriate candidate 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. For more details on the operation of absolute liability see the explanation at item 31 of Schedule 10.

1031. The standard note referring to section 6.2 of the Criminal Code , which governs absolute liability, is also added after this provision.

1032. Second, this item follows the amendment proposed by item 12, which removes the defence of lawful excuse from subsection 10(1) and places reliance on the general lawful excuse provision being inserted into the Criminal Code . Paragraph 10(1)(a) proscribes a person having in his or her possession a weapon, a missile or a destructive, noxious or repulsive object or substance while taking part in an assembly in a Territory or on Commonwealth premises. Subsection 10(1) presently offers a defence to a contravention of paragraph 10(1)(a) if the defendant has a lawful excuse. Under proposed section 10.5, which is included in the Criminal Code as part of the Criminal Code Amendment (Theft, Fraud, Bribery and Related Offences) Act 2000 , there is to be a defence which provides a person is not criminally responsible for an offence if the conduct constituting the offence is justified or excused by a law. The proposed defence will cover the situation where a person is for some reason authorised by law to possess something of the character described by paragraph 10(1)(a), but it does not cover the situation where someone might have some other reasonable excuse for such possession. For example, a member of the public who is peacefully taking part in an assembly for the purposes of section 10 might find a weapon that has been dropped in the course of the assembly. It would be undesirable in those circumstances for the person not to be exempted from the offence if the person merely picked up (and thus possessed) the weapon with the intention of giving it to a member of the Federal Police so that it could be appropriately dealt with. It is therefore appropriate to replace lawful excuse with a reasonable excuse exception. It is likely that those who originally drafted the offence expected it to apply to those circumstances.

1033. The standard note is added after proposed subsection 10(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 10(1B).

Items 13, 14 and 15 - Clarifying reasonable excuse defence: absolute liability applied

1034. These items propose amendments to section 11. First, they remove the defences of reasonable excuse from subsection 11(1) and paragraph 11(2)(c) and recreate it them a new subsection 11(2B). 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.

1035. The standard note is added after proposed subsection 11(2B) 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 11(2B).

1036. Item 15 inserts subsection 11(2A) which provides that, for the purposes of an offence against subsection 11(1) or (2), absolute liability is applied to the physical element of circumstance that the premises are in a Territory.

1037. This physical element is an appropriate candidate 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.

1038. The standard note referring to section 6.2 of the Criminal Code , which governs absolute liability, is also added after this provision.

Items 16, 17 and 18 - Clarifying reasonable excuse defence: absolute liability applied: strict liability applied

1039. These items propose three amendments to section 12. First, they remove the defences of reasonable excuse from subsection 12(1) and paragraph 12(2)(c) and recreate it them a new subsection 12(5). 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.

1040. The standard note is added after proposed subsection 12(5) 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 12(5).

1041. Second, item 18 inserts subsection 12(3) which provides that, for the purposes of an offence against subsection 12(1) or (2), absolute liability is applied to the physical element of circumstance that the premises are Commonwealth premises.

1042. This physical element is an appropriate candidate 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.

1043. The standard note referring to section 6.2 of the Criminal Code , which governs absolute liability, is also added after this provision.

1044. The third amendment made by item 18 inserts proposed subsection 8(3A) which applies strict liability to the physical elements of circumstance identified in proposed paragraphs 12(4)(a), (b) and (c). These paragraphs concern the status of a person who is authorised to direct a person to leave Commonwealth premises where the latter person is trespassing on those premises.

1045. 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, and the person can rely on the defence of reasonable excuse. However the defence of mistake of fact should also 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 paragraphs (12(4))(a), (b) and (c). 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.

1046. The standard note referring to section 6.1 of the Criminal Code , which governs strict liability, is also added after this provision.

Items 19 and 20 - Clarifying reasonable excuse defence

1047. These items propose to remove the defence of reasonable excuse from subsection 13C(2) and recreate it in a new subsection 13C(3). 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.

1048. The standard note is added after proposed subsection 13C(3) 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 13C(3).

Items 21 and 22 - Clarifying reasonable excuse defence

1049. These items propose to remove the defence of reasonable excuse from subsection 13D(2) and recreate it in a new subsection 13D(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.

1050. The standard note is added after proposed subsection 13D(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 13D(2A).

Item 23 - Lawful excuse defence

1051. This item proposes to remove the specific defence of lawful excuse from section 13F. 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.

Item 24 - Strict liability applied

1052. This item proposes to insert subsection 15(1A) which provides that strict liability is applied to the physical element of circumstance of the offence in subsection 15(1) that the way in which the persons conduct themselves gives rise to a reasonable apprehension that the assembly will be carried on in a manner involving unlawful physical violence to persons or unlawful damage to property.

1053. This physical element is an appropriate candidate for the application of strict liability because in most applicable instances the person concerned will not possess any fault element concerning 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 identified physical element. 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.

1054. The standard note referring to section 6.1 of the Criminal Code , which governs strict liability, is also added after this provision.

Item 25 - Lawful excuse defence: clarification of physical element

1055. This item proposes two amendments to subsection 15(2). First, it removes the specific defence of lawful excuse from subsection 15(2). 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.

1056. Second, subsection 15(2) is amended to clarify that the property damage described in this provision is the result of the defendants conduct, and accordingly is a physical element of circumstance to which the fault element of recklessness will apply by default: Criminal Code section 5.6.

Item 26 - Absolute liability applied

1057. This item proposes to insert subsection 15(3) which provides that absolute liability is applied to the physical element of circumstance contained in the offence in subsections 15(1) and (2) that the assembly is in relation to protected premises or a protected person. Subsections 15(1) and (2) proscribe certain conduct arising in the course of assemblies that are being conducted in relation to protected premises or a protected person.

1058. This physical element is an appropriate candidate 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. For more details on the operation of absolute liability see the explanation at item 31 of Schedule 10.

1059. The standard note referring to section 6.2 of the Criminal Code , which governs absolute liability, is also added after this provision.

Item 27 - Amendment of inappropriate fault element: lawful excuse defence

1060. This item proposes two amendments to section 16. First, section 16 uses the fault element wilfully in relation to the physical element of conduct, namely causing actual bodily harm to another person or causing damage to property of greater value than $200 whilst taking part in an assembly that is in relation to protected premises or to a protected person. This is equivalent to applying the Criminal Code fault element of intention. The Criminal Code allows the use of new fault elements (subsection 5.1(2)) and the present offence would possibly still operate in the same manner following application of the Criminal Code . However it is also possible that future courts may attempt to distinguish wilfulness from intention on the basis that wilfulness appears to differ from the basic Criminal Code fault element. Accordingly this item proposes the replacement of wilfully in section 16 by the appropriate and equivalent Criminal Code fault element, namely intention. It is considered that section 16 will continue to operate in the same manner as at present following this amendment.

1061. The second amendment proposed by this item is to remove the specific defence of lawful excuse from section 16. 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.

Item 28 - Absolute liability applied

1062. This item proposes to insert subsection 16(2) which provides that, for the purposes of an offence against paragraph 16(1)(b), absolute liability is applied to the physical elements of circumstance that the damage to property is to an extent exceeding $1,500.

1063. his physical element is an appropriate candidate 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. For more details on the operation of absolute liability see the explanation at item 31 of Schedule 10.

1064. The standard note referring to section 6.2 of the Criminal Code , which governs absolute liability, is also added after this provision.

Items 29 and 30 - Clarifying reasonable excuse defence: strict liability applied

1065. These items propose two amendments to section 17. First, they remove the defence of reasonable excuse from subsection 17(3) and recreate it in a new subsection 17(3B). 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.

1066. The standard note is added after proposed subsection 17(3B) 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 17(3B).

1067. Second, item 30 inserts proposed subsection 17(3A) which applies strict liability to the physical elements of the offence stated in paragraphs 17(1)(a) and (b) of the Act.

1068. 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 identified physical elements. 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.

1069. The standard note referring to section 6.1 of the Criminal Code , which governs strict liability, is also added after this provision.

Item 31 - Absolute liability applied

1070. This item proposes to insert subsection 18(2) which provides that, for the purposes of an offence against paragraph 18(1)(a), (b), (c) or (d), absolute liability is applied to the physical elements of circumstance that the person to whom the paragraph applies is a protected person and that interference with the discharge of duties of such a person is interference with the free and safe discharge of those duties.

1071. 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.

1072. The standard note referring to section 6.2 of the Criminal Code , which governs absolute liability, is also added after this provision.

Item 32 - Lawful excuse defence

1073. This item proposes to remove the specific defence of lawful excuse from subsection 19(1). 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.

Item 33 - Clarifying a fault element

1074. This item proposes to amend paragraph 19(1)(d) by replacing the phrase in a manner likely to with being reckless as to whether doing so will. The substituted phrase, which invokes the Criminal Codes equivalent fault element of recklessness, better applies recklessness to the physical elements of circumstance in paragraph 10(1)(d). It will also bring the terminology of paragraph 19(1)(d) into harmony with the Criminal Code and obviate the unnecessary need for future courts to examine whether there is a difference between the old phrase and recklessness.

Item 34 - Reasonable excuse defence

1075. This item proposes to insert paragraph 19(1A) which provides a defence of reasonable excuse in relation to an offence against paragraph (1)(a). This will replace the present defence of lawful excuse, which is being deleted by item 32.

1076. The offence in paragraph 19(1)(a) proscribes a person who, while taking part in an assembly that is in relation to protected premises or to a protected person, possessing a weapon, a missile or a destructive, noxious or repulsive object or substance without a lawful excuse. Under proposed section 10.5, which is being inserted into the Criminal Code by the Criminal Code Amendment (Theft, Fraud, Bribery and Related Offences) Act 2000 , there is to be a defence which provides a person is not criminally responsible for an offence if the conduct constituting the offence is justified or excused by a law. The proposed defence will cover the situation where a person is for some reason authorised by law to possess the identified items, but it does not cover the situation where someone might have some other reasonable excuse for possessing such items. For example, a member of the public might, whilst taking part in an assembly, find a weapon that has been dropped. It would be undesirable in those circumstances for the person not to be exempted from the offence if the person merely picked up the weapon with the intention of returning it to the AFP so that it could be put in safe keeping. It is therefore appropriate to replace lawful excuse with a reasonable excuse exception. It is likely that those who originally drafted the offence expected it to apply to those circumstances.

1077. This item also adds the standard note after proposed subsection 19(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 19(1A).

Items 35, 36 and 37 - Clarifying reasonable excuse defence: absolute liability applied: strict liability applied

1078. These items propose three amendments to section 20. First, they remove the defences of reasonable excuse from subsection 20(1) and paragraph 20(2)(c) and recreate it them a new subsection 20(3). 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.

1079. The standard note is added after proposed subsection 20(3) 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 20(3).

1080. Second, item 37 inserts subsection 20(4) which provides that, for the purposes of an offence against subsection 20(1) or (2), absolute liability is applied to the physical element of circumstance that the relevant premises are protected premises.

1081. This physical element is an appropriate candidate 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. For more details on the operation of absolute liability see the explanation at item 31 of Schedule 10.

1082. The standard note referring to section 6.2 of the Criminal Code , which governs absolute liability, is also added after this provision.

1083. The third amendment made by item 37 inserts proposed subsection 20(5) which applies strict liability to the physical elements of circumstance identified in proposed paragraphs 20(5)(a), (b), (c) and (d). These paragraphs concern the status of a person who is authorised to direct a person to leave protected premises where the latter person is trespassing on those premises.

1084. 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, and the person can rely on the defence of reasonable excuse. However the defence of mistake of fact should also 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 paragraphs (12(4))(a), (b) and (c). 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.

1085. The standard note referring to section 6.1 of the Criminal Code , which governs strict liability, is also added after this provision.

Item 38

1086. The amendment proposed by this item is consequent upon changes made by this Bill to sections 7 and 16.

Schedule 43 - Racial Discrimination Act 1975

Item 1 - Application of Criminal Code

1087. This item inserts proposed section 6B which applies Chapter 2 of the Criminal Code to all offences against the Act. Chapter 2 establishes the codified general principles of criminal responsibility.

1088. The standard note concerning Chapter 2 of the Criminal Code setting out the principles of criminal responsibility is also added after this provision.

Item 2 - Strict liability applied

1089. This item inserts proposed subsection 27(1A) which applies strict liability to the physical element of circumstance in the offence in subsection 27(1) that a person is exercising or performing any of the powers or functions referred to in the Act. The offence in subsection 27(1) provides that a person shall not hinder, obstruct, molest or interfere with a person exercising or performing any of the powers or functions referred to in the Act. The offence carries a fine of $1000 in the case of a natural person or $5000 in the case of a body corporate. Strict liability, and not absolute liability, is appropriate in this instance because the prosecution should not be obliged to prove that the defendant had turned his or her mind towards the question whether the other person was exercising or performing any of the powers or functions referred to in the Act, and yet the defendant should be afforded the defence of mistake of fact (which is achieved by the application of strict liability). The basis for applying strict liability to the physical element of circumstance is reinforced by the low penalty applicable to a contravention of subsection 27(1). For more details on the operation of strict liability see the explanation at item 6 of Schedule 2.

1090. The standard note referring to section 6.1 of the Criminal Code , which governs strict liability, is also added after this provision.

Items 3 and 4 - Clarification of exception to the offence

1091. These items propose to remove the exception of except in the performance of a duty under or in connection with this Act or in the performance or exercise of such a function or power from subsection 27F(1) and recreate it as subsection 27F(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. Item 4 proposes the insertion of a note after subsection 27F(3) which makes it clear that the defendant bears an evidential burden in relation to a defence raised under subsection 27F(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 5 - Excuse defence

1092. This item amends subsection 27F(3) to preserve defences based on duty and the performance of functions.

Schedule 44 - Service and Execution of Process Act 1992

Item 1 - Application of Criminal Code

1093. 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.

1094. 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

1095. Paragraph 84(3)(b) applies the fault element of knowledge (or knowingly) in relation to the proscribed physical element of conduct, namely giving a false or misleading answer to any inquiry made by a magistrate under subsections 84(1) or (2). 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 paragraph 84(3)(b) by the appropriate and equivalent fault element, namely intention. It is considered that paragraph 84(3)(b) will continue to operate in the same manner as at present following this amendment.

Item 3

1096. The amendment proposed by this item is related to the amendment made by item 5. The word refuse, which is generally interpreted to be a fault-based physical element of conduct, is removed in order to facilitate the application of strict liability to the offence in subsection 103(1) which also encompasses failure (a term more consistent with the application of strict liability). This amendment will not change the scope of the offence in subsection 103(1) because to refuse to comply with a requirement is a subset of the broader concept of failing to comply.

Item 4 - Penalty

1097. This item proposes to amend the penalty applicable to the offence in subsection 103(1) from 12 to 6 months imprisonment. This amendment is necessary to facilitate the application of strict liability to the offence in subsection 103(1), as 6 months imprisonment is an appropriate upper benchmark for strict liability offences.

Item 5 - Strict liability applied

1098. This item inserts proposed subsection 103(1A) which applies strict liability to the offence in subsection 103(1) of the Act. Subsection 103(1), as amended by this Bill, provides that a person must not fail to comply with a suppression order. The offence carries an amended penalty of 6 months imprisonment, and the defendant can rely upon the broad defences available in subsection 103(2) as well as the general mistake of fact defence. This form of 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.

1099. The standard note referring to section 6.1 of the Criminal Code , which governs strict liability, is also added after this provision.

Schedule 45 - Sex Discrimination Act 1984

Item 1 - Application of Criminal Code

1100. This item inserts proposed section 13A which applies Chapter 2 of the Criminal Code to all offences against the Act. Chapter 2 establishes the codified general principles of criminal responsibility.

1101. 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

1102. This item proposes to amend subsection 86(1) by removing the reference to causing or permitting to be published or displayed an advertisement prescribed by this subsection. This conduct is ancillary to the primary physical element of conduct described in subsection 86(1). Reliance will instead be placed upon the relevant general ancillary provision in the Criminal Code , namely section 11.2 (complicity). 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

1103. These items propose two amendments to section 87. First, they remove the defence of reasonable excuse from section 87 and recreate it in a new subsection 87(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.

1104. The standard note is added after proposed subsection 87(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 87(2).

1105. Item 4 also inserts proposed subsection 87(3) which applies strict liability to the offence in subsection 87(1) of the Act. Subsection 87(1) imposes an obligation to disclose the source of certain actuarial or statistical data. The offence carries a fine of $1000 for a natural person and $5000 for a body corporate, and the person can claim a defence if he or she has a reasonable excuse. This is the type of directed obligation which is usually interpreted to mean that the legislature intended that strict liability should apply. Another factor in determining whether strict liability applies is the presence of a defence of reasonable excuse, and the penalty, which in this case is very low. For more details on the operation of strict liability see the explanation item 6 of Schedule 2.

1106. The standard note referring to section 6.1 of the Criminal Code , which governs strict liability, is also added after this provision.

Item 5 - Strict liability applied

1107. This item inserts proposed subsection 92(1A) which applies strict liability to the offences in subsection 92(1) of the Act. Subsection 92(1) provides that where a complaint alleging the commission of an unlawful act has been lodged, a person shall not make a record of, or communicate to any other person, any particulars of the complaint until one of alternative circumstances prescribed in paragraphs 92(1)(a), (ab) or (b) have come to pass. The offence carries a fine of $1000 for a natural person and $5000 for a body corporate. This is the type of administrative obligation which is usually interpreted to mean that the legislature intended that strict liability should apply. Another factor in determining whether strict liability applies is the penalty, which in this case is very low. For more details on the operation of strict liability see the explanation at item 6 of Schedule 2.

1108. The standard note referring to section 6.1 of the Criminal Code , which governs strict liability, is also added after this provision.

Item 6 - Strict liability applied

1109. This item inserts proposed subsection 95(2) which applies strict liability to the physical element of circumstance in the offence in subsection 95(1) that a person is exercising a power or performing a function under the Act. The offence in subsection 95(1) provides that a person shall not insult, hinder, obstruct, molest or interfere with a person exercising a power or performing a function under the Act. The offence carries a fine of $1000 in the case of a natural person or $5000 in the case of a body corporate.

1110. This physical element is an appropriate candidate for the application of strict liability because in most applicable instances the person concerned will not possess any fault element concerning this physical element, and accordingly the offence would become almost unenforceable if the prosecution were obliged to demonstrate fault. Further, the persons degree of culpability under this offence is not materially affected by absence of the subject fault. However the defence of mistake of fact should be available to the defendant, as this provision should not operate so as to criminalise the conduct of persons who made a reasonable mistake of fact in relation to the identified physical element of circumstance. 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.

1111. The standard note referring to section 6.1 of the Criminal Code , which governs strict liability, is also added after this provision.

Items 7 - 9 - Clarification of exception to the offence

1112. These items propose to remove the exception of except in the performance of a duty under or in connection with this Act or in the performance or exercise of such a function or power from subsection 112(1) and recreate it as subsection 112(3AA). 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.

1113. Item 8 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).

Schedule 46 - Statutory Declarations Act 1950

Item 1 - Application of Criminal Code

1114. 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.

1115. 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

1116. Section 11 uses the fault element wilfully in relation to the physical element of conduct, namely making a false statement in a statutory declaration. This is equivalent to applying the Criminal Code fault element of intention. The Criminal Code allows the use of new fault elements (subsection 5.1(2)) and the present offence would possibly still operate in the same manner following application of the Criminal Code . However it is also possible that future courts may attempt to distinguish wilfulness from intention on the basis that wilfulness appears to differ from the basic Criminal Code fault element. Accordingly this item proposes the replacement of wilfully in section 11 by the appropriate and equivalent Criminal Code fault element, namely intention. It is considered that section 11 will continue to operate in the same manner as at present following this amendment.

Schedule 47 - Telecommunications (Interception) Act 1979

Item 1 - Application of Criminal Code

1117. 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.

1118. 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

1119. These items propose to remove the defence of reasonable excuse from section 106 and recreate it in a new subsection 106(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.

1120. The standard note is added after proposed subsection 106(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 106(2).

Items 4 to 7 - Clarifying reasonable excuse defence: penalty: amendment of inappropriate fault element

1121. These items propose three amendments to section 107. First, they remove the defences of reasonable excuse from subsection 107(1) and paragraph 107(2)(a) and recreate them in a new subsection 107(3). 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.

1122. The standard note is added after proposed subsection 107(3) 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(3).

1123. Secondly, paragraph 107(2)(a) uses the non- Criminal Code fault element wilfully in relation to the physical element of conduct, namely obstruct, hinder or resist a person in connection with the performance or exercise of the Ombudsman's functions or powers under Part VIII. 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 107(2)(a) by the appropriate and equivalent Criminal Code fault element, namely intention. It is considered that paragraph 107(2)(a) will continue to operate in the same manner as at present following this amendment.

1124. The third amendment proposed by this item is consequent upon the amendment being effected by items 4 - 6. It proposes to insert the penalty presently applicable to an offence against subsection 107(1), namely 6 months imprisonment, after subsection 107(1). This is intended to assist the correct interpretation that subsection 107(1) creates a criminal offence and that the penalty applicable to an offence against this subsection is the penalty described.

Schedule 48 - Transfer of Prisoners Act 1983

Items 1 and 2 - Replacing references to Crimes Act 1914 ancillary provisions

1125. These items modify paragraph 27(b) and insert paragraph 27(c), which introduces the Criminal Code ancillary provisions for the purposes of this provision. Paragraph 27(c) is designed to replace paragraph 27(b) on 15 December 2001.

Schedule 49 - War Crimes Act 1945

Item 1 - Application of Criminal Code

1126. This item inserts proposed section 3A which applies Chapter 2 of the Criminal Code to all offences against the Act. Chapter 2 establishes the codified general principles of criminal responsibility.

1127. 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

1128. Certain Crimes Act 1914 provisions, including sections 5, 7 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 9(2) to sections 5, 7 and 86 of the Crimes Act 1914 , which concern aiding, abetting, counselling and procuring the commission of primary offences, attempting 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, 11.2 and 11.5). These Criminal Code provisions will apply to this Act by virtue of this Bill.

Item 3 - Absolute liability applied

1129. This item proposes to insert subsection 9(3) which provides that absolute liability is applied to the physical elements of circumstance contained in the offence in subsections 9(1) that are identified in proposed paragraphs 9(3)(a) and (b).

1130. 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.

1131. The standard note referring to section 6.2 of the Criminal Code , which governs absolute liability, is also added after this provision.

Schedule 50 - Witness Protection Act 1994

Item 1 - Application of Criminal Code

1132. This item inserts proposed section 3A which applies Chapter 2 of the Criminal Code to all offences against the Act. Chapter 2 establishes the codified general principles of criminal responsibility.

1133. 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

1134. These items propose to remove the defence of reasonable excuse from subsection 19(5) and recreate it in a new subsection 19(6). 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.

1135. The standard note is added after proposed subsection 19(63) 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 19(6).

Item 4 - Penalty

1136. This amendment in consequential upon the amendment made by item 210A, and amends the wording that applies the relevant penalty to this provision in order to clarify its meaning.

Item 5 - Lawful authority defence

1137. This item proposes to remove the specific defence of lawful authority from subsection 22(1). 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.

Schedule 51 - Amendments commencing on the date mentioned in subsection 2.2(2) of the Criminal Code

Commonwealth Places (Application of Laws) Act 1970

Item 1 - removal of reference to section 4 of the Crimes Act 1914

1138. Section 4 of the Crimes Act 1914 applies the common law general principles of criminal responsibility to all Commonwealth offences. It will be replaced by Chapter 2 of the Criminal Code. The reference to section 4 will no longer be appropriate.

Item 2 - Replacing references to certain Crimes Act 1914 provisions

1139. 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. These provisions concern aiding, abetting, counselling and procuring the commission of primary offences, attempting to commit primary offences, inciting another person to commit primary offences and conspiring to commit primary offences. Replacement references to relevant Criminal Code provisions are to be inserted by the Criminal Code Amendment (Theft, Fraud, Bribery and Related Offences) Act 2000 (item 143 of Schedule 2). The references ensure that applied State offences operate under their own principles of criminal responsibility. This is appropriate because the State offences are not designed to operate under those principles.

Item 3 - Replacing references to certain Crimes Act 1914 provisions

1140. Certain Crimes Act 1914 provisions, including sections 14 and 15D, are scheduled for progressive disapplication in relation to offence provisions to which the Criminal Code applies, and ultimately for repeal on 15 December 2001. Sections 14 and 15D concern the burden of proof placed on a defendant who relies on an exception to an offence or a defence of lawful authority. These matters are dealt with in Division 13 of the Criminal Code , which will apply to this Act on the date specified in subsection 2.2(2) of the Criminal Code , namely15 December 2001, simultaneous with the commencement of this item: see clause 2(3). Accordingly this item proposes the deletion of references to sections 14 and 15D in clause 1 of the Schedule to this Act.

Crimes Act 1914

Item 4 - Repeal

1141. This item repeals sections 4, 5, 7, 7A, 14 and 15D of the Act, which concern the application of the common law to principles of criminal responsibility, the ancillary offences of aiding and abetting, attempt and incitement of the commission of primary offences, and the burden of proof placed on a defendant who relies on an exception to an offence or a defence of lawful authority. These sections are being progressively disapplied in relation to offences against Commonwealth law (see item 1 of Schedule 1) but are required to continue in operation until 15 December 2001 in relation to offences to which the Criminal Code has not yet been applied. Chapter 2 of the Criminal Code will be applied to all offences against Commonwealth law on 15 December 2001 (see subsection 2.2(2) of the Criminal Code ) and consequently the need for sections 5, 7, 7A, 14, 15D and 86 will disappear on that date.

1142. Further, this item proposes the repeal of section 3BB which is being inserted into the Act by item 1 of Schedule 1 above. Section 3BB disapplies sections 4, 5, 7, 7A, 14, 15D and 86 of the Crimes Act 1914 in relation to each offence to which Chapter 2 of the Criminal Code has been applied. As stated above, sections 4, 5, 7, 7A, 14, 15D and 86 are scheduled for repeal on 15 December 2001 and consequently section 3BB will not be required beyond that date.

Transfer of Prisoners Act 1983

Item 5 - Replacing references to certain Crimes Act 1914 provisions

1143. This item proposes the repeal of paragraph 27(b), which contains references to some Crimes Act provisions. 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, which is achieved by the amendment in item 2 of Schedule 48 . This item does not come into force until the date specified in subsection 2.2(2) of the Criminal Code , namely 15 December 2001, because these Crimes Act provisions will be required to continue in operation until that date in relation to this Act.


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