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House of Representatives

Foreign Affairs and Trade Legislation Amendment (Application of Criminal Code) Bill 2000

Foreign Affairs and Trade Legislation Amendment (Application of Criminal Code) Act 2001

Explanatory Memorandum

(Circulated by authority of the Minister for Foreign Affairs, The Honourable Alexander Downer MP)

GENERAL OUTLINE

The Bill amends eleven Foreign Affairs and Trade portfolio statutes by inserting new provisions and amending existing provisions to harmonise various offences within those statutes with Chapter 2 of the Criminal Code Act 1995. The amendments are to ensure that the relevant offences continue to have much the same meaning and to operate in the same manner as they do at present.

The Criminal Code contains a standard approach to the formulation of criminal offences. Offences developed over many years by various pieces of legislation are by no means consistent and it is therefore necessary to make adjustment for when the Criminal Code applies to all Commonwealth offences on 15 December 2001 (as provided for in Criminal Code Amendment (Application) Act 2000). The Bill is one of a number being prepared for offences administered by other Ministers (for example: Treasury Legislation Amendment (Application of Criminal Code) Bill 2000 which was introduced in the House of Representatives on 29 June 2000).

The application of the Criminal Code to all offences will improve Commonwealth criminal law by clarifying important elements of offences, in particular, the fault elements. At present many hours of practitioners' and court time are wasted in litigation about the meaning of particular fault elements or the extent to which the prosecution should have the burden of proving those fault elements.

The effect of the Bill is to harmonise offence-creating and related provisions within the Foreign Affairs and Trade portfolio with the general principles of criminal responsibility as codified in Chapter 2 of the Criminal Code. The major forms of amendment effected by this Bill are:

•: applying the Criminal Code to all offence-creating and related provisions in Foreign Affairs and Trade portfolio legislation;
•: deleting references in Foreign Affairs and Trade portfolio legislation to some Crimes Act 1914 general offence provisions (sections 5, 7, 7A and 86) which duplicate provisions of the Criminal Code and replacing these with references to equivalent Criminal Code provisions where appropriate;
•: applying strict liability to individual offences or specified physical elements of offences where appropriate;
•: reconstructing provisions in order to clarify physical elements of conduct, circumstance and result;
•: removing or replacing inappropriate fault elements; and
•: repealing some offence-creating provisions which duplicate general offence provisions in the Criminal Code.

FINANCIAL IMPACT STATEMENT

It is not possible to assess what impact the Bill will have on Commonwealth expenditure or revenue except that it should be positive. This is because the Bill will contribute to a clarification of the law and therefore less lengthy court proceedings. There will, however, be no direct financial benefit or detriment to the Commonwealth through the Bill.

Notes on Clauses

Clause 1: Short Title

1.Clause 1 of the Bill deals with the short title.

Clause 2: Commencement

2.Clause 2 of the Bill deals with the commencement. The Bill will not commence at least until the 15 December 2001, which is (currently) the date on which the Criminal Code Amendment (Theft, Fraud, Bribery and Related Offences) Act 2000 commences, also being the date when the Chapter 2 of the Criminal Code will apply to all Commonwealth offences. However, the provisions of the Bill are also linked to other legislation, namely the Law and Justice Legislation Amendment (Application of Criminal Code) Act 2000 which has not yet received the Royal Assent. Clause 2 therefore provides that the Bill will commence on the latest of three dates, being (a) 28 days after the day on which the Bill receives the Royal Assent; (b) 28 days after the day on which the Law and Justice Legislation Amendment (Application of Criminal Code) Act 2000 receives the Royal Assent; and (c) the day on which item 15 of Schedule 1 to the Criminal Code Amendment (Theft, Fraud, Bribery and Related Offences) Act 2000 commences.

Clause 3: Schedule of amendments

2.Clause 3 of the Bill provides that each Act that is specified in a Schedule to the Bill shall be amended or repealed as provided in the Schedule.

Clause 4: Application of amendments

3.Clause 4(1) provides that amendments made by the Bill apply to acts and omissions that take place after the Bill commences. To provide further clarity, clause 4(2) provides that if an act or omission is alleged to have taken place between two dates - one before the Bill commences, and one on or after the day on which the Bill commences - the act or omission is alleged to have taken place before the Bill commences. Hence the amendments made by the Bill only apply to conduct occurring wholly after the Bill commences.

SCHEDULE 1

The proposed amendments are as follows:

Australian Trade Commission Act 1985

Item 1 - Application of Criminal Code

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.

Chemical Weapons (Prohibition) Act 1994

Item 2 - Application of Criminal Code

This item inserts proposed section 11A which applies Chapter 2 of the Criminal Code to all offences against the Act. Chapter 2 establishes the codified general principles of criminal responsibility.

Item 3 - Amendment of inappropriate fault element

Section 12 applies the fault element of "intentionally or recklessly" in relation to a number of proscribed physical elements of conduct, including developing, producing, otherwise acquiring, stockpiling or retaining chemical weapons; transferring, directly or indirectly, chemical weapons to another person; or using chemical weapons.

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. The proscribed matters in section 12 are wholly "conduct" and hence the only fault element that can apply after the application of the Criminal Code is "intention".

Accordingly this item proposes the replacement of "intentionally or recklessly" in section 12 with the appropriate fault element, namely intention. It is considered that Section 12 will continue to operate, for all practical purposes, in the same manner as at present following this amendment.

Item 4 - Reasonable excuse defence and amendment of inappropriate fault element

This item proposes to repeal subsection 29(3) and replace it with a restructured offence that accords with the Criminal Code.

Subsections 29(1) and (2) require the operator (that is, the person having ultimate responsibility) of a facility (that is, a plant where particular chemicals will be produced, acquired, retained or used at, or transferred from) to notify the facility to the Minister in accordance with that section. Subsection 29(3) makes it an offence for the operator of a facility to, without reasonable excuse, refuse or fail to notify the facility to the Minister in accordance with the requirements of section 29.

The item breaks the existing offence up into the physical elements of conduct ("a person refuses or fails to do an act") and circumstance or result ("the refusal or failure causes a contravention of subsections (1) or (2)"). A new proposed subsection 3A is inserted by the item to provide a defence of "reasonable excuse".

This item also adds the standard note after the new proposed subsection 29(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 29(3A).

Item 5 - Reasonable excuse defence and amendment of physical elements

This item proposes to repeal subsection 30(3) and replace it with a restructured offence that accords with the Criminal Code.

Subsection 30(2) of the Act requires the operator (that is, the person having ultimate responsibility) of a facility (that is, a plant where particular chemicals will be produced, acquired, retained or used at, or transferred from) to keep records of, and to provide to the Director of the Chemical Weapons Convention Office, certain information. Subsection 30(3) makes it an offence for the operator of a facility to, without reasonable excuse, refuse or fail to comply with subsection (2).

A new proposed subsection 3A is inserted by the item to provide a defence of "reasonable excuse". This item also adds the standard note after the new proposed subsection 30(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 30(3A).

Item 6 - Reasonable excuse defence and amendment of physical elements

This item proposes to repeal subsection 31(4) and replace it with a restructured offence (in four subsections) that accords with the Criminal Code.

Currently, subsection 31(4) provides that a person must not, without reasonable excuse, intentionally or recklessly refuse or fail to comply with a notice issued under section 31 (which is a notice to produce certain information or documents to the Director of the Chemical Weapons Convention Office) to the extent that the person is capable of complying with it.

The item breaks the existing offence up into four new proposed subsections. The new proposed subsection 31(4) simply provides that a person must comply with a notice given to a person under section 31. The proposed subsection 31(4A) breaks the existing offence up into the physical elements of conduct ("a person refuses or fails to do an act") and circumstance or result ("the refusal or failure causes a contravention of subsection (4)").

A new proposed subsection 4B is inserted by the item to provide a defence of "reasonable excuse", and a new proposed subsection 4C provides that the offence provision (subsection 4A) does not apply to the extent that the person is not capable of complying with the notice.

This item also adds the standard note after each of the new proposed subsections 31(4B) and 31(4C) concerning the imposition of an evidential burden on a defendant by subsection 13.3(3) of the Criminal Code if a defendant relies on a defence established by, respectively, subsection 31(4B) or 31(4C).

Item 7 - Amendment of inappropriate fault element, reasonable excuse defence, amendment of physical elements and application of strict liability

This item proposes to repeal sections 77 and 78 and replace them with restructured offences that accord with the Criminal Code.

The new proposed section 77 reconstructs the offence provisions of the current section 77 in such a way that the fault element of recklessness attaches to the physical elements of circumstances or result, by removing the term "recklessness" from these provisions and allowing the fault element of recklessness to attach by operation of subsection 5.6(2) of the Criminal Code. The item also breaks the existing section 77 offences up into the physical elements of conduct and circumstance or result. A new proposed subsection 5 is inserted by the item to provide a defence of "reasonable excuse". This item also adds the standard note after the new proposed subsection 77(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 77(5).

Subsection 78(1) currently provides that a permit holder who, without reasonable excuse, contravenes a condition subject to which a permit is granted is guilty of an offence against subsection 78(1).

The item breaks the existing offence up into the physical elements of conduct ("a person engages in conduct") and circumstance or result ("the conduct contravenes a condition subject to which a permit is granted"). A new proposed subsection 2 is inserted by the item to provide a defence of "reasonable excuse".

This item adds the standard note after the new proposed subsection 78(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 78(2).

This item also proposes to insert subsection 78(3) which provides that the offence contained in subsection 78(1) is an offence of strict liability. The application of strict liability to this offence reflects the most likely way in which the current offence would be interpreted. The offence concerns an administrative obligation which could be difficult to establish if the prosecution was required to prove intention with respect to the failure to return the card. This is the type of obligation which is usually interpreted to mean that the legislature intended that strict liability should apply. Another factor in determining whether strict liability applies is the penalty, which in this case is quite low (the maximum penalty for this offence is one hundred penalty units ($11,000)) compared to the seriousness of the offence.

Strict liability is defined in section 6.1 of the Criminal Code. The Criminal Code provides that where an offence is intended to be one of strict liability, then it should be identified as such in the statute. Where strict liability applies to an element of an offence or the complete offence, there is a defence of mistake of fact under section 9.2 of the Criminal Code. Section 9.2 provides that the person is not criminally responsible for an offence of this nature if at or before the time of the conduct the person considered whether or not a relevant fact existed and is under a mistaken but reasonable belief about that fact and, had that fact existed, the conduct would not constitute an offence. If there is a mistake of fact, the evidential burden of proof is on the defence. It means that the defendant has to adduce or point the evidence that suggests a reasonable possibility that the matter exists or does not exist. If the defendant is able to do this, the prosecution is required to prove beyond the reasonable doubt that there was no such mistake.

This item inserts the standard notes concerning Chapter 2 of the Criminal Code setting out the principles of criminal responsibility and referring to section 6.1 of the Criminal Code, which governs strict liability.

This item also adds a proposed subsection 78(4) which defines the term "engage in conduct" in the same terms as that expression is defined in the Criminal Code.

Item 8 - Omission of inappropriate fault element

This item omits the words "or recklessly" where they appear in Subsection 80(1) of the Act.

Subsection 80(1) currently provides that a person who intentionally or recklessly makes a statement, either orally or in writing, to the Minister, the Director, the Controller, a national inspector, an Organisation inspector, a foreign country inspector or another person exercising a power or performing a function or duty in relation to the Act that is false or misleading in a material particular, is guilty of an offence.

The fault element "recklessness" is inappropriately applied in this provision to the physical element of conduct (that is, making a statement). After the introduction of the Criminal Code, recklessness as a fault element will not be able to be applied to conduct, but will be the default fault element applied to physical elements of circumstance or result (in this case, the circumstance being that the statement is false or misleading in a material particular). Hence by removing the term "recklessly" from this provision, the application of the Criminal Code will operate to ensure that it is interpreted in the same manner as it is currently: the fault element of intention will apply to the conduct of making a statement, and, by operation of the Criminal Code, the fault element of recklessness will apply to the physical element of circumstance (that is, the statement being false or misleading in a material particular).

Item 9 - Strict liability applied

This item proposes to insert subsection 93(4) which provides that the offence contained in subsection 93(3) is an offence of strict liability. Subsection 93(3) provides that as soon as practicable after a person ceases to be a national inspector under the Act the person must return their identity card to the Director of the Chemical Weapons Convention Office. The maximum penalty for this offence is one penalty unit ($110). The application of strict liability to this offence reflects the most likely way in which the current offence would be interpreted. The offence concerns an administrative obligation which could be difficult to establish if the prosecution was required to prove intention with respect to the failure to return the card. This is the type of obligation which is usually interpreted to mean that the legislature intended that strict liability should apply. Another factor in determining whether strict liability applies is the penalty, which in this case is very low.

This item also inserts the standard notes concerning Chapter 2 of the Criminal Code setting out the principles of criminal responsibility and referring to section 6.1 of the Criminal Code, which governs strict liability.

Item 10 - Reconstruction of physical elements

This item proposes to repeal section 102(3E) and replace it with a restructured offence that accords with the Criminal Code.

The item breaks the existing offence up into the physical elements of conduct ("a person engages in conduct") and circumstance or result ("the conduct contravenes a subsection (2), (3A) or (3C)").

The item also defines, by a new proposed subsection (3F), the term "engage in conduct" to include an omission to perform an act. This definition is consistent with the definition of this term in the Criminal Code.

Item 11 - Replacing references to certain Crimes Act 1914 provisions

Certain Crimes Act 1914 provisions, including sections 5, 7 and 7A, are scheduled for progressive disapplication in relation to offence provisions to which the Criminal Code applies, and ultimately for repeal on 15 December. 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 102(4) to sections 5, 7 and 7A of the Crimes Act 1914, which concern aiding and abetting, attempt and incitement to commit primary offences, be replaced by references to the Criminal Code provisions which deal with attempt, incitement and conspiracy (sections 11.1, 11.4 and 11.5).

Comprehensive Nuclear Test-Ban Treaty Act 1998

Item 12 - Strict liability applied

This item proposes to insert subsection 67(4) which provides that the offence contained in subsection 67(3) is an offence of strict liability. Subsection 67(3) provides that as soon as practicable after a person ceases to be a national inspector under the Act the person must return their identity card to Director of the Australian Comprehensive Test Ban Office. The maximum penalty for a breach of this provision is one penalty unit ($110). The application of strict liability to this offence reflects the most likely way in which the current offence would be interpreted. The offence concerns an administrative obligation which could be difficult to establish if the prosecution was required to prove intention with respect to the failure to return the card. This is the type of obligation which is usually interpreted to mean that the legislature intended that strict liability should apply. Another factor in determining whether strict liability applies is the penalty, which in this case is very low.

Diplomatic and Consular Missions Act 1978

Item 13 - Application of Criminal Code

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.

Export Expansion Grants Act 1978

Item 14 - Application of Criminal Code

This item inserts proposed section 10A, which applies Chapter 2 of the Criminal Code to all offences against the Act. Chapter 2 establishes the codified general principles of criminal responsibility.

Export Finance and Insurance Corporation Act 1991

Item 15 - Application of Criminal Code

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.

International Organisations (Privileges and Immunities) Act 1963

Item 16 - Application of Criminal Code

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.

Item 17 - Strict liability applied

This item proposes to insert subsection 12(2A) which provides that an offence under paragraphs 12(2) is an offence of strict liability. Subsection 12(2) provides that, where, without the consent in writing of the Minister, the name or an abbreviation of the name of an international organisation, or a seal, emblem or device of an organisation is used by an association, then (paragraph 12(2)(d)) if the association is a body corporate - the association; or (paragraph 12(2)(e)) if the association is not a body corporate - every member of the governing body of the association; is guilty of an offence against this section and is punishable upon conviction by a fine not exceeding $1,000.

This provision establishes vicarious criminal responsibility for incorporated associations, or the members of the governing body of unincorporated associations, as a result of the conduct of their directors, servants or agents. Vicarious liability is not a general principle of criminal responsibility recognised in the Criminal Code (although a form of it exists in relation to Part 2.5).

While these provisions can operate in the same way following the application of the Criminal Code, it is necessary to amend the substantive provisions. However, as vicarious liability is a variant of strict liability, it is necessary to define the offence in subsection 12(2) as an offence of strict liability. The application of strict liability to this offence reflects the most likely way in which the current offence would be interpreted. The offence concerns an administrative obligation which could be difficult to establish if the prosecution was required to prove intention with respect to persons in the association (other than the defendant) using the name (or abbreviation of a name), seal, emblem or device of an international organisation. This is the type of obligation which, as a form of vicarious liability, is usually interpreted to mean that the legislature intended that strict liability should apply.

Nuclear Non-Proliferation (Safeguards) Act 1987

Items 18 and 19 - Replacing references to certain Crimes Act 1914 provisions

Certain Crimes Act 1914 provisions, including sections 7 and 7A and subsection 86(1), are scheduled for progressive disapplication in relation to offence provisions to which the Criminal Code applies, and ultimately for repeal on 15 December 2000. It will be necessary to replace references to these Crimes Act provisions with references to relevant Criminal Code provisions. Item 17 proposes that the references in section 4 (the definition of "offence against this Act") to sections 7 and 7A and subsection 86(1) of the Crimes Act 1914, which concern attempt, incitement and conspiracy to commit primary offences, be omitted. Item 19 would replace these references with references to the Criminal Code provisions which deal with attempt, incitement and conspiracy (sections 11.1, 11.4 and 11.5).

Item 20 - Application of Criminal Code

This item inserts proposed section 8A, which applies Chapter 2 (other than part 2.5) of the Criminal Code to all offences against the Act. Chapter 2 establishes the codified general principles of criminal responsibility. Part 2.5 of the Criminal Code deals with corporate criminal responsibility, however, this matter is already dealt with in the Act under section 5. Part 2.5 of the Criminal Code is therefore stated not to apply to the Act because it would affect the interpretation of section 5 of the Act.

Item 21 - Reasonable excuse defence and amendment of physical elements

This item would repeal subsection 25(1) of the Act and replace it with a reformulated offence that accords with the Criminal Code.

Subsection 25(1) currently provides that a person who, without reasonable excuse: (a) contravenes a condition, or fails to observe a restriction, subject to which a permit or authority (for example, a permit or authority to possess nuclear material) is granted; or (b) contravenes a direction given or an order made under section 73; is guilty of an offence against the subsection.

The item breaks the existing offence up into the physical elements of conduct ("a person engages in conduct") and circumstance or result ("the conduct contravenes a condition, or fails to observe a restriction, subject to which a permit or authority is granted; or contravenes a direction given or an order made under section 73").

The statement of penalties is in exactly the same terms as in the current wording of this provision.

A new proposed subsection (1A) is inserted by the item to provide a defence of "reasonable excuse", and the item also adds the standard note after this new proposed subsection 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 25(1A).

Item 22 - Strict liability applied

This item proposes to insert subsection 58(3) which provides that the offence contained in subsection 58(2) is an offence of strict liability. Subsection 58(2) provides after a person ceases to be a national inspector under the Act the person must forthwith return their identity card to Director of Safeguards. The maximum penalty for a breach of this provision is one hundred dollars ($100). The application of strict liability to this offence reflects the most likely way in which the current offence would be interpreted. The offence concerns an administrative obligation which could be difficult to establish if the prosecution was required to prove intention with respect to the failure to return the card. This is the type of obligation which is usually interpreted to mean that the legislature intended that strict liability should apply. Another factor in determining whether strict liability applies is the penalty, which in this case is very low.

Item 23 - Strict liability applied

This item proposes to insert subsection 66(5), which provides that the offence contained in subsection 66(4) is an offence of strict liability. Subsection 66(4) provides that, subject to the inspector producing his or her identity card for inspection by the person, a person who, without reasonable excuse, fails to comply with a request made of the person by an inspector under subsection (1) or (2) (that is, a request to provide certain information) is guilty of an offence against this section punishable, on conviction, by a fine not exceeding $1,000.

The application of strict liability to this offence reflects the most likely way in which the current offence would be interpreted. The offence concerns an obligation which could be difficult to establish if the prosecution was required to prove intention with respect to the failure to provide information to the inspector. This is the type of obligation which is usually interpreted to mean that the legislature intended that strict liability should apply. Another factor in determining whether strict liability applies is the penalty, which in this case is quite low.

Passports Act 1938

Item 24 - Application of Criminal Code

Item 25 - Replacement of the term "for the purposes of"

This item restructures the offences in Paragraphs 9A(a) and (b) of the Act by replacing the term "for the purposes of" with the phrase "in connection with travel or identification". The phrase "for the purpose/s of" should no longer be used in offence provisions because of the potential confusion which could arise as to the applicable fault element. This confusion could arise because most offences do not specify the fault element and because the phrase "for the purpose/s of" could be interpreted to refer to be either an additional fault element for the physical element of conduct or part of a physical element of result which would thereby attract the default fault element of recklessness.

The phrase can be construed to be a reference to a motive or intention of the person when performing the proscribed conduct or it could refer to the result which the person may wish the conduct to lead to. In most cases it is intended to describe a state of mind or motive and means "with the intention of".

One provision employing the phrase "for the purposes of" is subsection 9A(a) of the Passports Act 1938. There are two possible interpretations in relation to this subsection:

(a): a result - that is, the accused's use of the cancelled passports is to achieve the result of travel or identification; or
(b): a motive - the use of the cancelled passport is done with the intention of travelling or for identification purposes.

In the first instance, the phrase would be part of a physical element of result and the default fault element as to that physical element would be recklessness. On this interpretation the prosecution would merely have to prove that the defendant used the cancelled passport being reckless as to whether he or she would be able to travel or be identified. In the second instance the phrase would be an additional fault element for the physical element of conduct - that is, additional to the default fault element of intention for the conduct of using the cancelled passport. The prosecution would be required to prove a higher degree of culpability, namely that the defendant used the cancelled passport with intention of travelling or being identified.

It follows that the phrase "for the purposes of" is quite confusing and should be avoided. In paragraph 9A(a) the term has been replaced with the term "in connection with ... " which specifies that the physical element of the offence is one of circumstance or result, that is, it is enough to show that the defendant was reckless as to whether he or she was travelling on or being identified by the passport.

The phrase "for the purposes of" is also employed in paragraph 9A(b) of the Act and this item replaces that phrase in that provision with the phrase "in connection with ... " for the same reasons.

Item 26 - Removal of reasonable excuse defence

This item proposes to remove the defence of reasonable excuse from paragraph 9A(c). The defence is recreated in a new subsection 9A(2) (see item 30). The rationale for this amendment is to prevent future interpretation that the reasonable excuse element of this provision is an element of the offence, which would have to be disproved in the negative by the prosecution, and puts it beyond doubt that it is a defence to the offence.

Item 27 - Replacement of the term "for the purposes of"

Paragraph 9A(c) provides that a person who, being a person to whom an Australian passport has been issued, permits, without reasonable excuse, another person to use that passport for purposes of travel or identification; is guilty of an offence.

This item restructures the offences in paragraphs 9A(c) of the Act by replacing the term "for the purposes of [travel or identification]" with the phrase "in connection with [travel or identification]". The phrase "for the purpose/s of" should no longer be used in offence provisions because of the potential confusion which could arise as to the applicable fault element. This confusion could arise because most offences do not specify the fault element and because the phrase "for the purpose/s of" could be interpreted to refer to be either an additional fault element for the physical element of conduct or part of a physical element of result which would thereby attract the default fault element of recklessness.

There are two possible interpretations of the phrase "for the purposes of" in relation to this paragraph 9A(c):

(a): a result - that is, the accused's use of the passports is to achieve the result of travel or identification; or
(b): a motive - the use of the passport is done with the intention of (another) travelling or for identification purposes.

In the first instance, the phrase would be part of a physical element of result and the default fault element as to that physical element would be recklessness. On this interpretation the prosecution would merely have to prove that the defendant used the cancelled passport being reckless as to whether he or she would be able to travel or be identified. In the second instance the phrase would be an additional fault element for the physical element of conduct - that is, additional to the default fault element of intention for the conduct of permitting the use of the persons' passport by another. The prosecution would be required to prove a higher degree of culpability, namely that the defendant permitted the use of his or her passport with intention of another person travelling or being identified.

It follows that the phrase "for the purposes of" is quite confusing and should be avoided. In paragraph 9A(c) the term has been replaced with the term "in connection with" which specifies that the physical element of the offence is one of circumstance or result, that is, it is enough to show that the defendant was reckless as to whether the other person was travelling on or being identified by the defendant's passport.

Item 28 - Removal of reasonable excuse defence

This item proposes to remove the defence of reasonable excuse from paragraphs 9A(d), (e) and (f). The defence is recreated in a new subsection 9A(2) (see item 30). The rationale for this amendment is to prevent future interpretation that the reasonable excuse element of this provision is an element of the offence, which would have to be disproved in the negative by the prosecution, and puts it beyond doubt that it is a defence to the offence.

Item 29 - Replacement of phrase "wilfully defaces or destroys"

This item replaces the phrase "wilfully defaces or destroys [an Australian passport]" where it occurs in paragraph 9A(g) of the Act and replaces it with the phrase "intentionally does an act that causes the defacing or destruction of [an Australian passport]".

Subsection 9A(g) of the Act uses the fault element "wilfully" in relation to the physical element of conduct, which is akin to "intentionally". The fault element of "intention" is the equivalent used in the Criminal Code. The Criminal Code allows the use of new fault elements and the offence will still operate in the same manner following application of the Criminal Code (see subsection 5.1(2)). However it is possible that future courts may attempt to distinguish "wilfulness" from "intention" on the basis that it appears to differ from the basic Criminal Code fault element. It is therefore necessary to amended paragraph 9A(g) by deleting "wilfully", in which instance the default fault element of recklessness will apply (see section 5.6 of the Criminal Code) to the physical element of circumstance or result, namely "causing the defacing or destruction of [an Australian passport]"

Item 30 - Recreating reasonable excuse defence

This item is consequent upon items 26 (paragraph 9A(c)) and 28 (paragraphs 9A(d), (e) and (f)). It inserts proposed subsection 9A(2) which recreates the defence of reasonable excuse in relation to an offence against paragraphs 9A(1)(a) to (f) (inclusive).

This item also adds the standard note after proposed subsection 9A(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 9A(2).

Item 31 - Replacement of inappropriate fault element

This item omits the term "knowingly" from paragraph 9C(2)(a) of the Act and replaces it with the term "intentionally".

Paragraph 9C(2)(a) of the Act currently provides that an authorised officer shall not knowingly issue an Australian passport in contravention of section 7A, 7B, 7C, 7D, or 7E.

Following application of the Criminal Code, it will not be possible to apply a fault element of "knowledge" (i.e. "knowingly") to a physical element consisting of conduct: see Part 2.2, Division 5 of the Criminal Code generally. The fault element of knowledge can only be applied to physical elements of circumstance or result.

Item 32 - Replacement of inappropriate fault elements

This item would remove the words "knowingly or recklessly" from subsection 10(1) of the Act. Subsection 10(1) currently provides that a person shall not knowingly or recklessly make any false or misleading statement, whether orally or in writing: (a) for the purpose of obtaining an Australian Passport or a renewal or endorsement of an Australian Passport; or (b) in support of an application by another person for an Australian Passport or for a renewal or endorsement of an Australian Passport.

The fault elements "knowingly or recklessly" are inappropriately applied in this provision to the physical element of conduct (that is, making a statement).

Following application of the Criminal Code, it will not be possible to apply a fault elements of knowledge or recklessness to a physical element consisting of conduct: see Part 2.2, Division 5 of the Criminal Code generally. These fault elements will only be able to be applied to physical elements of circumstance or result.Recklessness will be the default fault element applied to physical elements of circumstance or result (in this case, the circumstance being that the statement is false or misleading). Hence by removing the term "knowingly or recklessly" from this provision, the application of the Criminal Code will operate to ensure that it is interpreted in the same manner as it is currently: the fault element of intention will apply to the conduct of making a statement, and, by operation of the Criminal Code, the fault element of recklessness will apply to the physical element of circumstance (that is, the statement being false or misleading).

Item 33 - Replacement of the term "for the purposes of"

Paragraph 10(1)(a) currently provides that a person shall not knowingly or recklessly make any false or misleading statement, whether orally or in writing: (a) for the purpose of obtaining an Australian Passport or a renewal or endorsement of an Australian Passport.

This item restructures the offence in paragraph 10(1)(a) of the Act by replacing the term "for the purpose of obtaining [an Australian passport etc]" with the phrase "in the course of obtaining or attempting to obtain [an Australian passport etc]". The phrase "for the purpose/s of" should no longer be used in offence provisions because of the potential confusion which could arise as to the applicable fault element. This confusion could arise because most offences do not specify the fault element and because the phrase "for the purpose/s of" could be interpreted to refer to be either an additional fault element for the physical element of conduct or part of a physical element of result which would thereby attract the default fault element of recklessness.

In the case of paragraph 10(1)(a) of the Act, the phrase could have one of two meanings, either:

(a): a result - that is, the accused's false or misleading statement is to achieve the result of obtaining an Australian passport (etc); or
(b): a motive - the accused's false or misleading statement is done with the intention of obtaining an Australian passport (etc).

In the first instance, the phrase would be part of a physical element of result and the default fault element as to that physical element would be recklessness. On this interpretation the prosecution would merely have to prove that the defendant used the cancelled passport being reckless as to whether the false or misleading statement would help him or her obtain a passport. In the second instance the phrase would be an additional fault element for the physical element of conduct - that is, additional to the default fault element of intention for the conduct of making the statement. The prosecution would be required to prove a higher degree of culpability, namely that the defendant made the statement with intention of obtaining a passport.

It follows that the phrase "for the purpose of obtaining ... " is quite confusing and should be avoided. In paragraph 10(1)(a) the term has been replaced with the term "in the course of obtaining or attempting to obtain ... " which specifies that the physical element of the offence is one of circumstance or result, that is, it is enough to show that the defendant was reckless as to whether he or she was making the statement to obtain a passport.

Item 34 - Replacement of term "in support of"

Paragraph 10(1)(b) currently provides that a person shall not knowingly or recklessly make any false or misleading statement, whether orally or in writing in support of an application by another person for an Australian Passport or for a renewal or endorsement of an Australian Passport.

This item restructures the offences in paragraphs 10(1)(a) of the Act by replacing the term "in support of [another person obtaining an Australian passport etc]" with the phrase "in the course of supporting [another person obtaining an Australian passport etc]". The phrase "in support of" should no longer be used in offence provisions because of the potential confusion that could arise as to the applicable fault element. This confusion could arise because most offences do not specify the fault element and because the phrase "in support of" could be interpreted to refer to be either an additional fault element for the physical element of conduct or part of a physical element of result which would thereby attract the default fault element of recklessness.

In the case of paragraph 10(1)(b) of the Act, the phrase could have one of two meanings, either:

(a): a result - that is, the accused's false or misleading statement is to achieve the result of another person obtaining an Australian passport (etc); or
(b): a motive - the accused's false or misleading statement is done with the intention of another person obtaining an Australian passport (etc).

In the first instance, the phrase would be part of a physical element of result and the default fault element as to that physical element would be recklessness. On this interpretation the prosecution would merely have to prove that the defendant used the cancelled passport being reckless as to whether the false or misleading statement would help him or her obtain a passport. In the second instance the phrase would be an additional fault element for the physical element of conduct - that is, additional to the default fault element of intention for the conduct of making the statement. The prosecution would be required to prove a higher degree of culpability, namely that the defendant made the statement with intention of obtaining a passport.

It follows that the phrase "in support of ... " is quite confusing and should be avoided. In paragraph 10(1)(a) the term has been replaced with the term "in the course of supporting ... " which specifies that the physical element of the offence is one of circumstance or result, that is, it is enough to show that the defendant was reckless as to whether he or she was making the statement to obtain a passport.

Item 35 - Replacement of term "for the purpose of"

Paragraph 10(2)(a) currently provides that a person shall not, with intent to defeat the provisions of a law of the Commonwealth or of a Territory, make, within Australia, a false or misleading statement, whether orally or in writing: (a) for the purpose of obtaining a passport other than an Australian passport or renewal or endorsement of a passport other than an Australian passport.

This item restructures the offence in paragraph 10(2)(a) of the Act by replacing the term "for the purpose of obtaining [a non-Australian passport etc]" with the phrase "in the course of obtaining, or attempting to obtain [a non-Australian passport etc]". The phrase "for the purpose/s of" should no longer be used in offence provisions because of the potential confusion that could arise as to the applicable fault element. This confusion could arise because most offences do not specify the fault element and because the phrase "for the purpose/s of" could be interpreted to refer to be either an additional fault element for the physical element of conduct or part of a physical element of result which would thereby attract the default fault element of recklessness.

In the case of paragraph 10(2)(a) of the Act, the phrase could have one of two meanings, either:

(a): a result - that is, the accused's false or misleading statement is to achieve the result of obtaining a non-Australian passport (etc); or
(b): a motive - the accused's false or misleading statement is done with the intention of obtaining a non- Australian passport (etc).

In the first instance, the phrase would be part of a physical element of result and the default fault element as to that physical element would be recklessness. On this interpretation the prosecution would merely have to prove that the defendant used the cancelled passport being reckless as to whether the false or misleading statement would help him or her obtain a passport. In the second instance the phrase would be an additional fault element for the physical element of conduct - that is, additional to the default fault element of intention for the conduct of making the statement. The prosecution would be required to prove a higher degree of culpability, namely that the defendant made the statement with intention of obtaining a passport.

It follows that the phrase "for the purpose of obtaining ... " is quite confusing and should be avoided. In paragraph 10(2)(a) the term has been replaced with the term "in the course of obtaining, or attempting to obtain ... " which specifies that the physical element of the offence is one of circumstance or result, that is, it is enough to show that the defendant was reckless as to whether he or she was making the statement to obtain a passport.

Item 36 - Replacement of term "in support of"

Paragraph 10(2)(b) currently provides that a person shall not, with intent to defeat the provisions of a law of the Commonwealth or of a Territory, make, within Australia, a false or misleading statement, whether orally or in writing, in support of an application by another person for a passport other than an Australian passport or for renewal or endorsement of a passport other than an Australian passport

This item restructures the offences in paragraphs 10(1)(a) of the Act by replacing the term "in support of [of another person obtaining a non-Australian passport etc]" with the phrase "in the course of supporting [another person obtaining a non-Australian passport etc]". The phrase "in support of" should no longer be used in offence provisions because of the potential confusion that could arise as to the applicable fault element. This confusion could arise because most offences do not specify the fault element and because the phrase "in support of" could be interpreted to refer to be either an additional fault element for the physical element of conduct or part of a physical element of result which would thereby attract the default fault element of recklessness.

In the case of paragraph 10(2)(b) of the Act, the phrase could have one of two meanings, either:

(a): a result - that is, the accused's false or misleading statement is to achieve the result of another person obtaining a non-Australian passport (etc); or
(b): a motive - the accused's false or misleading statement is done with the intention of another person obtaining a non-Australian passport (etc).

In the first instance, the phrase would be part of a physical element of result and the default fault element as to that physical element would be recklessness. On this interpretation the prosecution would merely have to prove that the defendant used the cancelled passport being reckless as to whether the false or misleading statement would help him or her obtain a passport. In the second instance the phrase would be an additional fault element for the physical element of conduct - that is, additional to the default fault element of intention for the conduct of making the statement. The prosecution would be required to prove a higher degree of culpability, namely that the defendant made the statement with intention of obtaining a passport.

It follows that the phrase "in support of ... " is quite confusing and should be avoided. In paragraph 10(2)(a) the term has been replaced with the term "in the course of supporting ... " which specifies that the physical element of the offence is one of circumstance or result, that is, it is enough to show that the defendant was reckless as to whether he or she was making the statement to obtain a passport.

Registration of Deaths Abroad Act 1984

Item 37 - Application of Criminal Code

Item 38 - Repeal of duplicating provision

This item repeals subsections 24(1) and (2). The offences contained in these subsections, relating to making false or misleading statements, are equivalent to the proposed general offences at 136.1, 137.1 and 137.2 of Schedule 1 of the Criminal Code Amendment (Theft, Fraud, Bribery and Related Offences) Bill 1999 which was introduced into the House of Representatives on 24 November 1999, and hence can be repealed on enactment of that Bill.

Item 39 - Replacement of phrase "wilfully mutilate"

This item replaces the phrase "wilfully mutilate" [a Certificate of Death Abroad, a copy of a Certificate of Death Abroad, the Register of Deaths Abroad, or a copy of, or extract from, an entry in the Register of Deaths Abroad]" where it occurs in subsection 24(4) of the Act and replaces it with the phrase "intentionally does an act that causes the mutilation of [a Certificate of Death Abroad, a copy of a Certificate of Death Abroad, the Register of Deaths Abroad, or a copy of, or extract from, an entry in the Register of Deaths Abroad]". The provision makes it an offence to mutilate the specified documents or register.

Subsection 24(4) of the Act uses the fault element "wilfully" in relation to the physical element of conduct, which is akin to "intentionally". The fault element of "intention" is the equivalent used in the Criminal Code. The Criminal Code allows the use of new fault elements and the offence will still operate in the same manner following application of the Criminal Code (see subsection 5.1(2)). However it is possible that future courts may attempt to distinguish "wilfulness" from "intention" on the basis that it appears to differ from the basic Criminal Code fault element. It is therefore necessary to amended subsection 24(4) by deleting "wilfully", in which instance the default fault element of recklessness will apply (see section 5.6 of the Criminal Code) to the physical element of circumstance or result, namely causing the mutilation of a specified document or register.

South Pacific Nuclear Free Zone Treaty Act 1986

Item 40 - Application of Criminal Code

This item inserts proposed section 7A, which applies Chapter 2 (other than part 2.5) of the Criminal Code to all offences against the Act. Chapter 2 establishes the codified general principles of criminal responsibility. Part 2.5 of the Criminal Code deals with corporate criminal responsibility, however, this matter is already dealt with in the Act under section 5. Part 2.5 of the Criminal Code is therefore stated not to apply to the Act because it would affect the interpretation of section 5 of the Act.

Item 41 - Strict liability applied

This item proposes to insert subsection 20(3), which provides that the offence contained in subsection 20(2) is an offence of strict liability. Subsection 20(2) provides that, a person who does not return his or her identity card to the Minister forthwith on ceasing to be an "authorised officer" under the Act, is guilty of an offence against this section punishable, on conviction, by a fine not exceeding $100.

Item 42 - Strict liability applied

This item proposes to insert subsection 24(4), which provides that the offence contained in subsection 24(3) is an offence of strict liability. Subsection 24(3) provides that, subject to the inspector producing his or her identity card for inspection by the person, a person who, without reasonable excuse, fails to comply with a request made of the person by an inspector under subsection (1) (that is, a request to provide the person's full name and usual place of residence) is guilty of an offence against this section punishable, on conviction, by a fine not exceeding $1,000.

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