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Veterans' Affairs Legislation Amendment (Application of Criminal Code) Bill 2001

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1998 - 1999 - 2000

 

 

 

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

 

 

 

HOUSE OF REPRESENTATIVES

 

 

 

 

 

 

 

 VETERANS’ AFFAIRS LEGISLATION AMENDMENT (APPLICATION OF CRIMINAL CODE) BILL 2000

 

 

 

 

 

 

 

EXPLANATORY MEMORANDUM

 

 

 

 

 

 

 

 

 

(Circulated by authority of the Minister for Veterans’ Affairs,

The Honourable Bruce Scott MP)

 



 

Table of Contents

 

 

Outline and Financial Impact ……………………………………………………. ii

           

            1          Short Title ………………………………………………………….. iii

            2          Commencement ……………………………………………………. iii

            3          Schedule(s) …………………………………………………………. iii

            4          Application of amendments  ……………………………………….. iii

 

Schedule 1 - Amendment of Acts  ……………………….. …………………..….  1

                        Defence Service Homes Act 1918 …………………………………..  3

                        Veterans’ Entitlements Act 1986   …………………………………...  4

 

 

 



 

OUTLINE

 

Outline and Financial Impact

These amendments to the Defence Service Homes Act 1918 and the Veterans’ Entitlements Act 1986 harmonise all offence-creating and related provisions with the general principles of criminal responsibility as codified in Chapter 2 of the Criminal Code .

 

 

Date of Effect

The Act will commence on the latest of the following days:

 

(a)     the 28 th day after the day on which this Act receives the Royal Assent;

 

(b)    the 28 th day after the day on which the Law and Justice Legislation Amendment (Application of Criminal Code) Act 2000 receives the Royal Assent;

 

(c)     the day on which item 15 of Schedule 1 to the C riminal Code Amendment (Theft, Fraud, Bribery and Related Offences) Act 2000 commences.

 

 

Financial Impact

There is no financial impact.

 



 

CLAUSES

 

 

Short Title

Clause 1 sets out how the Act is to be cited.

 

Commencement

Subclause 2 provides that the Act commences on the latest of the following days: 

 

(a)     the 28 th day after the day on which this Act receives the Royal Assent;

 

(b)    the 28 th day after the day on which the Law and Justice Legislation Amendment (Application of Criminal Code) Act 2000 receives the Royal Assent;

 

(c)     the day on which item 15 of Schedule 1 to the C riminal Code Amendment (Theft, Fraud, Bribery and Related Offences) Act 2000 commences.

 

 

Schedule(s)
 

Clause 3 provides that, subject to section 2, each Act specified in a Schedule to this Act is amended or repealed as set out in that Schedule and any other item in a Schedule to this Act has effect according to its terms.

 

Application of Amendments

Subclause 4(1) provides that each amendment made by this Act applies to acts and omissions that take place after the amendment commences.

 

Subclause 4(2)   provides that, for the purposes of this section, if an act or omission is alleged to have taken place between two dates, one before and one on or after the day on which a particular amendment commences, the act or omission is alleged to have taken place before the amendment commences.

 

 



 

 

 

SCHEDULE 1

 

 

Amendment of Acts

 

Overview

These amendments to Defence Service Homes 1918 and the Veterans’ Entitlements Act 1986 harmonise a number of offence-creating and related provisions with the general principles of criminal responsibility as codified in Chapter 2 of the Criminal Code .

  

Background

On 1 September 1993, the Government agreed to develop a National Uniform Criminal Code by 2001.  As part of the development of this nationwide Code, the Commonwealth has enacted the Criminal Code Act 1995 (the Criminal Code) which contains the general principles of criminal responsibility.

 

While the Criminal Code was passed in 1995, it only began to apply to new offences from 1 January 1997, and all new offences are now drafted according to the requirements of the Criminal Code.  Staggered implementation was considered necessary in relation to existing offences to provide departments with sufficient time to assess the effect of the Criminal Code on their offence provisions, and to make any amendments necessary to their legislation.  The Criminal Code is scheduled to apply to pre-existing offences from 15 December 2001.

 

If the legislation containing offence provisions is not amended to have regard to the Criminal Code, the Criminal Code may alter the interpretation of existing offence provisions. 

 

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.

 

 

 

 

 

 

 

Background (Cont.)

The Criminal Code contains subjective, fault based principles of criminal responsibility.  This means that a defendant’s guilt will depend on what he or she thought or intended at the time of the offence - not what a ‘reasonable person’ would have thought or intended in the defendant’s circumstances.  The changes to be brought about by the Criminal Code reflect the view that proof of a guilty mind is generally necessary before a person can be found guilty of an offence.

 

The most significant  effect of the codification of Commonwealth criminal law is that the tradition division of criminal offences into “actus reas” (the physical act) and the “mens rea” (what the defendant thought or intended) has been clarified and set out in the legislation. 

 

The prosecution bears the onus of proving each of the physical elements.  The physical elements provided in the Criminal Code are the conduct, the circumstance in which it occurs, and the result of the conduct.  Each offence must contain at least one of these physical elements, but any combination of physical elements may be present in an offence provision.  For every physical element of an offence, the prosecution must also prove a corresponding fault element.  The Criminal Code does not prevent an offence from specifying an alternative fault element, but the Criminal Code indicates that the default fault element will apply in the absence of a specified fault element.  The Criminal Code establishes four default fault elements:  intention, knowledge, recklessness and negligence.  The Criminal Code provides that for conduct, the default fault element is intention.  For circumstance or result, the default fault element is recklessness.

 

Explanation of the Changes

These changes will ensure that the offence provisions in the VEA comply with the principles of the Criminal Code.  The amendments are intended to ensure that relevant offences continue to have much the same meaning and to operate in the same manner as they do at present.   The major forms of amendment effected by this Bill are:

 

·          removing references to certain sections of the Crimes Act 1914 (sections 7, 7A and 86) which are now provided for in the Criminal Code;

·          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; and

·          removing or replacing inappropriate fault elements.

 

      



 

Explanation of the Items

 

Defence Service Homes Act 1918

 

Item 1

Item 1 inserts a new section 4E and a note at the end of Part 1 of the Defence Service Homes Act 1918 (DSH Act).  New section 4E provides that Chapter 2 of the Criminal Code applies to all offences against the DSH Act.  A note after new section 4E informs the reader that Chapter 2 of the Code sets out the general principles of criminal responsibility.

    

Item 2

This item adds a new subsection (3) at the end of section 50A.  The new subsection provides that an offence under section 50A 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 have been interpreted when the Code is applied to current offences.

 

Briefly, the offence prohibits a person from using any words that would reasonably lead to the belief that his or her trade, business, calling or profession is being carried on under or for the purposes of the DSH Act or by or under the authority or control of the Defence Service Homes Corporation.

 

This prohibition includes, but is not limited to the use of the words, “War Service Homes” or “Defence Service Homes”, or words so nearly resembling them that it is likely to deceive.

 

Where strict liability applies to an offence the prosecution does not have to prove fault on the part of the defendant.   The prosecution need only prove that the physical element of the offence did occur.  However, there is a defence of mistake of fact under section 9.2 of the 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 the fact and, had that fact existed, the conduct would not constitute an offence.  If there is a mistake of fact, the evidential burden is on the defence.  This means that the defendant has to adduce or point to 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 a reasonable doubt that there was no such mistake.

 

This item also inserts a standard note referring to section 6.1 of the Code, which governs strict liability.

 

 

 

Veterans’ Entitlements Act 1986

 

 

Item 3

Item 3 inserts a new section 4A and a note after section 4 of Part 1 of the VEA. New section 4A provides that Chapter 2 of the Criminal Code applies to all offences against the VEA.  A note after new section 4A informs the reader that Chapter 2 of the Code sets out the general principles of criminal responsibility.

 

Item 4

Item 4 omits the words “without reasonable excuse, and” from subsection 32(6).  It removes the defence of reasonable excuse from subsection 32(6).  The defence is recreated in new subsection 32(11A), by item 7.  The rationale for this amendment is to prevent any 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.  The offence occurs if a person who has been summoned to appear as a witness before the Commission and who has been tendered reasonable expenses, fails to appear in answer to the summons.

 

Item 5

Item 5 inserts a new subsection 32(6A) after section 32(6) which provides that an offence under subsection 32(6) is an offence of strict liability.  The item also inserts the standard note referring to section 6.1 of the Code, which governs strict liability.

 

Where strict liability applies to an offence the prosecution does not have to prove fault on the part of the defendant. The prosecution need only prove that the physical element of the offence did occur.  However, there is a defence of mistake of fact under section 9.2 of the 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 the fact and, had that fact existed, the conduct would not constitute an offence.  If there is a mistake of fact, the evidential burden is on the defence.  This means that the defendant has to adduce or point to 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 a reasonable doubt that there was no such mistake.

 

 

 

 

 

 

 

Item 6

This item omits the words “without reasonable excuse” from subsections 32(7), (10) and (11). By omitting these words the defence of reasonable excuse is removed from subsections 32(7), (10) and (11).  The defence is recreated in new subsection 32(11A) by item 7.  The rationale for this amendment is to prevent any 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.

 

Respectively, the offences are,:

 

·          a person who appears before the Commission as a witness in answer to a summons, refusing to be sworn or make an affirmation;

 

·          a person who has been sworn, or made an affirmation, as a witness before the Commission, refusing to produce documents or to answer a question that the person is required to answer by the Commission; and

 

·          a person who has been sworn, or made an affirmation, as a witness before the Commission, giving evidence that is false or misleading in a material particular.

 

 

Item 7

Item 7 inserts a new subsection 32(11A) after subsection 32(11).  New subsection 32(11A) recreates the defence of reasonable excuse in relation to an offence under subsections 32(6), (7), (10) and (11).  This amendment is intended to prevent any 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.  It puts it beyond doubt that reasonable excuse is a defence to the offence.

 

The item also adds the standard note after new subsection 32(11A) concerning the imposition of an evidential burden on a defendant by subsection 13.3(3) of the Code if a defendant relies on the reasonable excuse defence established by new subsection 32(11A).

 

 

 

 

 

 

 

 

 

 

 

 

 

Item 8

This item repeals subsections 54(6) and inserts new subsections 54(6), (7) and (8).

 

New subsection 54(6) recreates the offence provision whilst removing the defence from the offence provision; the defence being the extent to which a person is not capable of complying with the notice.  The offence is that a person must not fail to comply with a notice under subsection 54(1).  The penalty is a $1,000 fine or imprisonment for 6 months, or both the fine and imprisonment.

 

The defence of a person being not capable of complying with the notice is recreated in new subsection 54(8).  The rationale for this amendment is to prevent any future interpretation that being not capable of complying is an element of the offence, which would have to be disproved in the negative by the prosecution.  The amendment puts it beyond doubt that being not capable of complying  is a defence to the offence.  The item also adds the standard note after new subsection 54(8) concerning the imposition of an evidential burden on a defendant by subsection 13.3(3) of the Code if a defendant relies on the defence established by new subsection 54(8).

 

New subsection 54(7) provides that an offence under subsection 54(6) is an offence of strict liability. The standard note is also inserted after new subsection 54(7) referring to section 6.1 of the Code, which governs strict liability.

 

Where strict liability applies to an offence the prosecution does not have to prove fault on the part of the defendant. The prosecution need only prove that the physical element of the offence did occur.  However, there is a defence of mistake of fact under section 9.2 of the 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 the fact and, had that fact existed, the conduct would not constitute an offence.  If there is a mistake of fact, the evidential burden is on the defence.  This means that the defendant has to adduce or point to 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 a reasonable doubt that there was no such mistake.

 

 

 

 

 

 

 

 

 

 

 

Item 9

This item repeals subsection 54A(6) and inserts new subsections 54A(6), (7) and (8).

 

New subsection 54A(6) recreates the offence provision whilst removing the defence from the offence provision; the defence being the extent to which a person is not capable of complying with the notice. The offence is that a person must not fail to comply with a notice under subsection 54A(1).  The penalty is a $1,000 fine or imprisonment for 6 months, or both a fine and imprisonment.

 

The defence of the extent to which a person being is not capable of complying with the notice is recreated in new subsection 54A(8).  The rationale for this amendment is to prevent any future interpretation that the extent to which a person is not capable of complying with the notice is an element of the offence, which would have to be disproved in the negative by the prosecution.  The amendment puts it beyond doubt that the extent to which a person is not capable of complying with the notice is a defence to the offence.  The item also adds the standard note after new subsection 54A(8) concerning the imposition of an evidential burden on a defendant by subsection 13.3(3) of the Code if a defendant relies on the defence established by new subsection 54A(8).

 

New subsection 54A(7) provides that an offence under subsection 54A(6) is an offence of strict liability. The standard note is also inserted after new subsection 54A(7) referring to section 6.1 of the Code, which governs strict liability.

 

Where strict liability applies to an offence the prosecution does not have to prove fault on the part of the defendant. The prosecution need only prove that the physical element of the offence did occur.  However, there is a defence of mistake of fact under section 9.2 of the 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 the fact and, had that fact existed, the conduct would not constitute an offence.  If there is a mistake of fact, the evidential burden is on the defence.  This means that the defendant has to adduce or point to 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 a reasonable doubt that there was no such mistake.

 

 

 

 

 

 

 

 

 

Item 10

This item repeals subsection 54AA(7) and inserts new subsections 54AA(7), (8) and (9).

 

New subsection 54AA(7) recreates the offence provision whilst removing the defence from the offence provision; the defence being the extent to which a person is not capable of complying with the notice. The offence is that a person must not fail to comply with a notice under subsection 54AA(1) or (3).  The penalty is imprisonment for 6 months.

 

The defence of the extent to which a person is not capable of complying with the notice is recreated in new subsection 54AA(9).  The rationale for this amendment is to prevent any future interpretation that the extent to which a person is not capable of complying with the notice is an element of the offence, which would have to be disproved in the negative by the prosecution.  The amendment puts it beyond doubt that the extent to which a person is not capable of complying with the notice is a defence to the offence.  The item also adds the standard note after new subsection 54AA(9) concerning the imposition of an evidential burden on a defendant by subsection 13.3(3) of the Code if a defendant relies on the defence established by new subsection 54AA(9).

 

New subsection 54AA(8) provides that an offence under subsection 54AA(7) is an offence of strict liability. The standard note is also inserted after new subsection 54AA(8) referring to section 6.1 of the Code, which governs strict liability.

 

Where strict liability applies to an offence the prosecution does not have to prove fault on the part of the defendant. The prosecution need only prove that the physical element of the offence did occur.  However, there is a defence of mistake of fact under section 9.2 of the 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 the fact and, had that fact existed, the conduct would not constitute an offence.  If there is a mistake of fact, the evidential burden is on the defence.  This means that the defendant has to adduce or point to 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 a reasonable doubt that there was no such mistake.

 

 

 

 

 

 

 

 

 

 

Item 11

This item repeals subsection 59ZD(1) and inserts new subsections 59ZD(1) and (1A).

 

New subsection 59ZD(1) recreates the offence provision whilst removing the defences from the offence provision; the defences being:

 

·          if the compensation payer has been given a preliminary notice, the Commission has given the compensation payer written notice that the preliminary notice is revoked; or

·          if the compensation payer has been given a recovery notice, the compensation payer has paid to the Commonwealth the amount specified in the notice; or

·          the Commission has given the compensation payer written permission to pay the compensation.

 

The offence is that a compensation payer, who has been given a preliminary notice or a recovery notice under sections 59Y or 59ZA respectively of the VEA, in relation to the payment of compensation to a person, must not make the compensation payment to the person.  The penalty is imprisonment for 12 months.

 

The defences to the offence in subsection 59ZD(1) are recreated in new subsection 59ZD(1A).  The rationale for this amendment is to prevent any future interpretation that the defences contained in new subsection 59ZD(1A) are an element of the offence, which would have to be disproved in the negative by the prosecution.  The amendment puts it beyond doubt that the defences contained in new subsection 59ZD(1A) are a defence to the offence.  The item also adds the standard note after new subsection 59ZD(1A) concerning the imposition of an evidential burden on a defendant by subsection 13.3(3) of the Code if a defendant relies on a defence established by new subsection 59ZD(1A).

 

Item 12

Item 12 repeals subsection 59ZJ(1) and inserts new subsections 59ZJ(1) and (1A).

 

New subsection 59ZJ(1) is recreates the offence provision whilst removing the defences from the offence provision; the defences being:

·          if the insurer has been given a preliminary notice, the Commission has given the insurer written notice that the preliminary notice is revoked; or

·          if the insurer has been given a recovery notice, the insurer has paid to the Commonwealth the amount specified in the notice; or

·          the Commission has given the insurer written permission to make the payment to the compensation payer.

 

 

 

Item 12 (Cont.)

The offence is that an insurer, who has been given a preliminary notice or a recovery notice under sections 59ZE or 59ZG of the VEA respectively, in relation to the insurer’s liability to make a payment indemnifying a compensation payer, the insurer must not make the payment to the compensation payer.  The penalty is imprisonment for 12 months.

 

The defences to the offence in subsection 59ZJ(1) are recreated in new subsection  59ZJ(1A).  The rationale for this amendment is to prevent any future interpretation that the defences contained in new subsection 59ZJ(1A) are an element of the offence, which would have to be disproved in the negative by the prosecution.  The amendment puts it beyond doubt that the defences contained in new subsection 59ZJ(1A) are a defence to the offence.  The item also adds the standard note after new subsection 59ZJ(1A) concerning the imposition of an evidential burden on a defendant by subsection 13.3(3) of the Code if a defendant relies on a defence established by new subsection 59ZJ(1A).

 

Item 13

Item 13 inserts a new subsection 93B(4A).   This new subsection provides that an offence under subsections 93B(1) or (2) is an offence of strict liability. The standard note is also inserted after new subsection 93B(4A) referring to section 6.1 of the Code, which governs strict liability. 

 

The offences in subsections 93B(1) and (2) concern the making of false or misleading statements capable of being used in connection with a claim for payment for treatment provided under Part V of the VEA.

 

Where strict liability applies to an offence the prosecution does not have to prove fault on the part of the defendant. The prosecution need only prove that the physical element of the offence did occur.  However, there is a defence of mistake of fact under section 9.2 of the 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 the fact and, had that fact existed, the conduct would not constitute an offence.  If there is a mistake of fact, the evidential burden is on the defence.  This means that the defendant has to adduce or point to 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 a reasonable doubt that there was no such mistake.

 

Item 14

This item inserts a new note at the end of subsection 93B(5).  The note is the standard note concerning the imposition of an evidential burden on a defendant by subsection 13.3(3) of the Code if a defendant relies on the defences established by subsection 93B(5).

 

 

 

 

Item 15

Item 15 amends paragraph 93D(2)(c) by omitting the words “without reasonable excuse” .  This amendment removes the defence of reasonable excuse from paragraph 93D(2)(c).  The defence is recreated in new subsection 93D(9A), inserted by item 18.

 

This amendment is intended to prevent any 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.

 

The offence concerns a medical or dental practitioner asking, receiving or obtaining any property, benefit or advantage of any kind from a person, or a person acting on behalf of a person, carrying on the business of rendering pathology services.

 

Item 16

Item 16 amends subsections 93D(4) and (5) by omitting the words “without reasonable excuse” .  This amendment removes the defence of reasonable excuse from the offence provisions at subsections 93D(4) and (5).  The defence is recreated in new subsection 93D(9A) inserted by item 18.

 

This amendment is intended to prevent any 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.

 

The offences concern:

 

·          a medical or dental practitioner asking, receiving or obtaining any property, benefit or advantage of any kind from a proprietor, or a person acting on behalf of a proprietor, carrying on the business of rendering pathology services; and 

 

·          a proprietor, or a person acting on behalf of a proprietor, of a private hospital, giving or conferring to any medical or dental practitioner or any other person any property, benefit or advantage of any kind to influence or affect a medical or dental practitioner to enable an eligible person to be admitted to the hospital.

 

 

 

 

 

 

 

 

 

 

 

 

 

Item 17

This item amends subsection 93D(7) by omitting the word “wilfully” and replacing it with the word “intentionally”.  Subsection 93D(7) uses the non-Criminal Code fault element “wilfully” in relation to the physical element of authorising or permitting the commission of an offence.  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 93D(7) with the appropriate and equivalent Criminal Code fault element, namely intention.  It is considered that subsection 93D(7) will continue to operate in the same manner as at present following this amendment.

 

Item 18

Item 18 inserts a new subsection 93D(9A) after subsection 93D(9).  New subsection 93D(9A) recreates the defence of reasonable excuse in relation to an offence under paragraph 93D(2)(c) or subsections 93D(4) and (5). 

 

This amendment is intended to prevent any future interpretation that the reasonable excuse element is an element of the offence, which would have to be disproved in the negative by the prosecution  It is intended to put beyond doubt that reasonable excuse is a defence to the offence.

 

The item also adds the standard note after new subsection 93D(9A) concerning the imposition of an evidential burden on a defendant by subsection 13.3(3) of the Code if a defendant relies on the reasonable excuse defence established by new subsection 93D(9A).

 

Item 19

Subsection 93E(1) is amended by item 19 by omitting the words “for the purpose” and replacing them with the words “to achieve the result”.  The phrase “for the purpose of” should no longer be used in any offence-creating provision because of the potential confusion which could arise as to the applicable fault element.  This confusion could arise because most of the offences do not specify the fault element and because the phrase “for the purpose of” could be interpreted to refer to an additional fault element of intention attaching to the physical element or denote a physical element of result which would therefore attract the default element of recklessness.

 

 

 

 

 

 

 

 

 

 

Item 19 (Cont.)

The phrase could 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 to which the person may wish the conduct to lead.

 

In this instance, the result is intended to be part of the offence and to clearly describe this within the provision, the words “to achieve the result of” are substituted.

 

Item 20

This item amends subsection 93E(7) by omitting the word “wilfully” and replacing it with the word “intentionally”.  Subsection 93E(7) uses the non-Criminal Code fault element “wilfully” in relation to the physical element of authorising or permitting the commission of an offence.  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 93E(7) with the appropriate and equivalent Criminal Code fault element, namely intention.  It is considered that subsection 93E(7) will continue to operate in the same manner as at present following this amendment.

 

Item 21

Item 21 repeals subsection 93F(2) and substitutes a new subsection 93F(2).  New subsection 93F(2) recreates the current subsection but replaces references to certain Crimes Act 1914 provisions with references to the relevant Criminal Code 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 is necessary to replace references to these Crimes Act 1914 provisions with references to relevant Criminal Code provisions.  This item proposes that the references in subsection 93F(2) to sections 7, 7A and 86 of the Crimes Act 1914 , which concern attempting to commit primary offences, incitement to commit primary offences and conspiracy to commit primary offences, be deleted.   They will be replaced with references to the Criminal Code provisions which deal with these matters (sections 11.1, 11.4 and 11.5).

 

 

 

 

 

 



Item 22

This item achieves the same amendment for paragraph 93G(2)(b) as item 21 does for subsection 93F(2).

 

Item 23

This item amends section 118ZI by repealing subsection (5) and inserting new subsections (5) , (5A), (5B) and (5C).

 

New subsection 118ZI(5) is recreates the offence provision whilst removing the defences from the offence provision; the defences being without reasonable excuse and the extent to which a person is not capable of complying with the notice.  The offence is that a person must not fail to comply with a notice under subsection 118ZI(1).  The penalty is imprisonment for 6 months.

 

The defence of a person having a reasonable excuse is recreated in new subsection 118ZI(5B).  The defence of a person being not capable of complying with the notice is recreated in new subsection 118ZI(5C).

 

The rationale for these amendments is to prevent any future interpretation that ‘without reasonable excuse’ and ‘being not capable of complying’ are elements of the offence, which would have to be disproved in the negative by the prosecution.  The amendments put it beyond doubt that having a reasonable excuse or being not capable of complying with the notice is a defence to the offence.  The item also adds the standard note after new subsections 118ZI(5B) and 118ZI(5C) concerning the imposition of an evidential burden on a defendant by subsection 13.3(3) of the Code if a defendant relies on a defence established by new subsections (5B) or (5C).

 

New subsection 118ZI(5A) provides that an offence under subsection 118ZI(5) is an offence of strict liability. The standard note is also inserted after new subsection 118ZI(5A) referring to section 6.1 of the Code, which governs strict liability.

 

Where strict liability applies to an offence the prosecution does not have to prove fault on the part of the defendant. The prosecution need only prove that the physical element of the offence did occur.  However, there is a defence of mistake of fact under section 9.2 of the 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 the fact and, had that fact existed, the conduct would not constitute an offence.  If there is a mistake of fact, the evidential burden is on the defence.  This means that the defendant has to adduce or point to 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 a reasonable doubt that there was no such mistake.

 

 

 

 

Item 24

Item 24 amends section 118ZJ by repealing subsection (5) and inserting new subsections (5) , (5A), (5B) and (5C).

 

New subsection 118ZJ(5) recreates the offence provision whilst removing the defences from the offence provision; the defences being without reasonable excuse and the extent to which a person is not capable of complying with the notice.  The offence is that a person must not fail to comply with a notice under subsection 118ZJ(1).  The penalty is imprisonment for 6 months.

 

The defence of a person of a person having a reasonable excuse is recreated in new subsection 118ZJ(5B).  The defence of a person being not capable of complying with the notice is recreated in new subsection 118ZJ(5C).

 

The rationale for these amendments is to prevent any future interpretation that ‘without reasonable excuse’ and ‘being not capable of complying’ are elements of the offence, which would have to be disproved in the negative by the prosecution.  The amendments put it beyond doubt that having a reasonable excuse or being not capable of complying with the notice is a defence to the offence.  The item also adds the standard note after new subsections 118ZJ(5B) and 118ZJ(5C) concerning the imposition of an evidential burden on a defendant by subsection 13.3(3) of the Code if a defendant relies on a defence established by new subsections (5B) or (5C).

 

New subsection 118ZJ(5A) provides that an offence under subsection 118ZJ(5) is an offence of strict liability. The standard note is also inserted after new subsection 118ZJ(5A) referring to section 6.1 of the Code, which governs strict liability.

 

Where strict liability applies to an offence the prosecution does not have to prove fault on the part of the defendant. The prosecution need only prove that the physical element of the offence did occur.  However, there is a defence of mistake of fact under section 9.2 of the 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 the fact and, had that fact existed, the conduct would not constitute an offence.  If there is a mistake of fact, the evidential burden is on the defence.  This means that the defendant has to adduce or point to 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 a reasonable doubt that there was no such mistake.

 

 

 

 

 

 

 

 

Item 25

This item amends section 127 by repealing subsection (4) and inserting new subsections (4), (5) and (6).

 

New subsection 127(4) recreates the offence provision whilst removing the defence from the offence provision; the defence being the extent to which a person is not capable of complying with the notice.  The offence is that a person must not fail to comply with a notice under subsection 127(1).  The penalty is a $1,000 fine or imprisonment for 6 months, or both a fine and imprisonment.

 

The defence of a person being not capable of complying with the notice is recreated in new subsection 127(6).  The rationale for this amendment is to prevent any future interpretation that being not capable of complying is an element of the offence, which would have to be disproved in the negative by the prosecution.  The amendment puts it beyond doubt that being not capable of complying  is a defence to the offence. The item also adds the standard note after new subsection 127(6) concerning the imposition of an evidential burden on a defendant by subsection 13.3(3) of the Code if a defendant relies on the defence established by new subsection 127(6).

 

New subsection 127(5) provides that an offence under subsection 127(4) is an offence of strict liability. The standard note is also inserted after new subsection 127(5) referring to section 6.1 of the Code, which governs strict liability.

 

Where strict liability applies to an offence the prosecution does not have to prove fault on the part of the defendant. The prosecution need only prove that the physical element of the offence did occur.  However, there is a defence of mistake of fact under section 9.2 of the 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 the fact and, had that fact existed, the conduct would not constitute an offence.  If there is a mistake of fact, the evidential burden is on the defence.  This means that the defendant has to adduce or point to 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 a reasonable doubt that there was no such mistake.

 

 

 

 

 

 

 

 

 

 

 

Item 26

This item amends section 128 by repealing subsection 128(4) and inserting new subsections 128(4), (4A) and (4B).

 

New subsection 128(4) recreates the offence provision whilst removing the defence from the offence provision; the defence being the extent to which a person is not capable of complying with the notice.  The offence is that a person must not fail to comply with a notice under subsection 128(1).  The penalty is a $1,000 fine or imprisonment for 6 months, or both the fine and imprisonment.

 

The defence of a person being not capable of complying with the notice is recreated in new subsection 128(4B).  The rationale for this amendment is to prevent any future interpretation that being not capable of complying is an element of the offence, which would have to be disproved in the negative by the prosecution.  The amendment puts it beyond doubt that being not capable of complying  is a defence to the offence. The item also adds the standard note after new subsection 128(4B) concerning the imposition of an evidential burden on a defendant by subsection 13.3(3) of the Code if a defendant relies on the defence established by new subsection 128(4B).

 

New subsection 128(4A) provides that an offence under subsection 128(4) is an offence of strict liability. The standard note is also inserted after new subsection 128(4A) referring to section 6.1 of the Code, which governs strict liability.

 

Where strict liability applies to an offence the prosecution does not have to prove fault on the part of the defendant. The prosecution need only prove that the physical element of the offence did occur.  However, there is a defence of mistake of fact under section 9.2 of the 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 the fact and, had that fact existed, the conduct would not constitute an offence.  If there is a mistake of fact, the evidential burden is on the defence.  This means that the defendant has to adduce or point to 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 a reasonable doubt that there was no such mistake.

 

 

 

 

 

 

 

 

 

 

 

Item 27

Subsection 128(5) is amended by item 27 by omitting the word “knowingly” and replacing it with the word “intentionally”. 

 

Subsection 128(5) currently applies the fault element of knowledge or knowingly in relation to the proscribed physical element of conduct, namely furnishing information or giving evidence that is false or misleading in a material particular.

 

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 section 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 128(5) with the appropriate and equivalent Criminal Code fault element, namely “intention”.  It is considered that subsection 128(5) will continue to operate following this amendment, in the same manner as at present .

 

Item 28

Item 28 amends section 168 by omitting the words “without reasonable excuse”.  This amendment achieves the removal of the defence of  “without reasonable excuse” from the offence-creating provision in subsection 168(1).   The defence is recreated in new subsection 168(3), inserted by Item 29.

 

This amendment is intended to prevent any 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. 

 

The offence occurs if a person, who has been summoned to appear as a witness before the Board and who has been tendered reasonable expenses, fails to appear as required by the summons, or fails to appear and report from day to day unless excused, or released from further attendance, by a member of the Board.

 

 

 

 

 

 

 

 

 

 

 

 

 

Item 29

This item inserts two new subsections 168(2) and (3) at the end of section 168. 

 

New subsection 168(2) provides that an offence under subsection 168(1) is an offence of strict liability. The item also inserts the standard note referring to section 6.1 of the Code, which governs strict liability.

 

Where strict liability applies to an offence the prosecution does not have to prove fault on the part of the defendant. The prosecution need only prove that the physical element of the offence did occur.  However, there is a defence of mistake of fact under section 9.2 of the 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 the fact and, had that fact existed, the conduct would not constitute an offence.  If there is a mistake of fact, the evidential burden is on the defence.  This means that the defendant has to adduce or point to 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 a reasonable doubt that there was no such mistake.

 

New subsection 168(3) recreates the defence of reasonable excuse in relation to an offence under subsection 168(1). This amendment is intended to prevent any 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.  It puts it beyond doubt that a reasonable excuse is a defence to the offence in subsection 168(1).

 

Item 30

This item amends subsection 169(1) by omitting the words “without reasonable excuse”. This amendment achieves the removal of the defence of  “without reasonable excuse” from the offence-creating provision in subsection 169(1).   The defence is recreated in new subsection 169(1B), inserted by Item 32.

 

This amendment is intended to prevent any future interpretation that the reasonable excuse element of this provision is an element of the offence, which would have to be disproved in the negative by the prosecution, and puts it beyond doubt that it is a defence to the offence. 

 

Item 31

Item 31 amends paragraphs 169(1)(a), (b) and (c) by omitting the words “refuse or” from the paragraphs.   Refusing to perform required conduct is a subset, or an example, of failing to perform the required conduct and thus refuse can be omitted from the provisions.

 

 

 

 

Item 32

This item inserts two new subsections, 169(1A) and (1B) after subsection 169(1).

 

New subsection 169(1A)  provides that an offence under subsection 169(1) is an offence of strict liability. The item also inserts the standard note referring to section 6.1 of the Code, which governs strict liability.

 

Where strict liability applies to an offence the prosecution does not have to prove fault on the part of the defendant. The prosecution need only prove that the physical element of the offence did occur.  However, there is a defence of mistake of fact under section 9.2 of the 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 the fact and, had that fact existed, the conduct would not constitute an offence.  If there is a mistake of fact, the evidential burden is on the defence.  This means that the defendant has to adduce or point to 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 a reasonable doubt that there was no such mistake.

 

New subsection 169(1B) recreates the defence of reasonable excuse in relation to an offence under subsection 169(1). This amendment is intended to prevent any 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.  It puts it beyond doubt that a reasonable excuse is a defence to the offence in subsection 169(1). 

 

The item also adds the standard note after new subsection 169(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 new subsection 169(1B).

 

Item 33

Item 33 amends subsection 169(2) by omitting the word “knowingly” and replacing it with the word “intentionally”.

 

Subsection 169(2) currently 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.

 

 

 

 

 

 

 

 

 

Item  33 (Cont.)

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 section 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 1698(2) with the appropriate and equivalent Criminal Code fault element, namely “intention”.  It is considered that subsection 169(2) will continue to operate following this amendment, in the same manner as at present .

 

Item 34

This item amends subsection 205A(3) by omitting the words “to the extent that the person is capable of doing so”.

 

This amendment removes the defence from the offence provision; the defence being the extent to which a person is not capable of complying with the notice.  The offence is that a person must not fail to comply with a notice under subsection 205A(1). 

 

The defence of a person being not capable of complying with the notice is recreated in new subsection 205A(3A), inserted by item 35.

 

Item 35

Item 35 inserts a new subsection 205A(3A) after subsection 205A(3).

 

New subsection 205A(3A) recreates the defence of the extent to which a person is not capable of complying with the notice, in relation to an offence under subsection 205A(3).

 

This amendment is intended to prevent any future interpretation that being not capable of complying with a notice is an element of the offence, which would have to be disproved in the negative by the prosecution.  The amendment puts it beyond doubt that being not capable of complying  is a defence to the offence. The item also adds the standard note after new subsection 205A(3A) concerning the imposition of an evidential burden on a defendant by subsection 13.3(3) of the Code if a defendant relies on the defence established by new subsection 205A(3A).

 

 

 

 

 

 

 

 

 

 

Items 36 and 39

Items 36 and 39 amend paragraphs 208(1)(a)  to (e) by omitting the word “knowingly” and replacing it with the word “intentionally”. 

 

Subsection 208(1) currently applies the fault element of knowledge or knowingly in relation to the proscribed physical element of conduct.

 

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 section 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 208(1) with the appropriate and equivalent Criminal Code fault element, namely “intention”. 

 

Item 37

Subparagraph 208(1)(a)(ii) is amended by item 37 by omitting the words “to deceive” and replacing them with the words “with the intention of deceiving”.

 

Currently, subparagraph 208(1)(a)(ii) uses the expression “to deceive”.  The expression is potentially confusing under the Criminal Code as to which is the applicable fault element.  For instance, it could be construed to be a reference to the intention of the person when performing the conduct (with the intention of deceiving), or it could refer to the result of the conduct (with the result of deceiving).  To avoid this confusion the subparagraph has been  amended to reflect the most appropriate way in which the current offence should be interpreted  following the application of the Criminal Code, namely “with the intention of deceiving”.

 

Item 38

Subparagraph 208(1)(a)(iii) is amended by item 38 by omitting the words “to affect” and replacing them with the words “with the intention of affecting”.

 

Currently, subparagraph 208(1)(a)(iii) uses the expression “to affect”.  The expression is potentially confusing under the Criminal Code as to which is the applicable fault element.  For instance, it could be construed to be a reference to the intention of the person when performing the conduct (with the intention of affecting), or it could refer to the result of the conduct (with the result of affecting).  To avoid this confusion the subparagraph has been  amended to reflect the most appropriate way in which the current offence should be interpreted  following the application of the Criminal Code, namely with “the intention of affecting”.

 

 

 

 

 

 

Item 40

This item inserts a new subsection 208(4A) after subsection 208(4). 

 

New subsection 208(4A) provides that an offence under subsection 208(3) or (4) is an offence of strict liability.  The item also inserts the standard note referring to section 6.1 of the Criminal Code, which governs strict liability.

 

Where strict liability applies to an offence the prosecution does not have to prove fault on the part of the defendant. The prosecution need only prove that the physical element of the offence did occur.  However, there is a defence of mistake of fact under section 9.2 of the 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 the fact and, had that fact existed, the conduct would not constitute an offence.  If there is a mistake of fact, the evidential burden is on the defence.  This means that the defendant has to adduce or point to 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 a reasonable doubt that there was no such mistake.

 

Commencement

The amendments contained in Schedule 1 commence on the latest of the following days:

 

(a)     the 28 th day after the day on which this Act receives the Royal Assent;

 

(b)    the 28 th day after the day on which the Law and Justice Legislation Amendment (Application of Criminal Code) Act 2000 receives the Royal Assent;

 

(c)     the day on which item 15 of Schedule 1 to the C riminal Code Amendment (Theft, Fraud, Bribery and Related Offences) Act 2000 commences.