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Treasury Legislation Amendment (Application of Criminal Code) Bill (No. 2) 2001

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1998-1999-2000-2001

 

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

SENATE

 

 

 

TREASURY LEGISLATION AMENDMENT (APPLICATION OF THE CRIMINAL CODE) BILL (No. 2) 2001

 

 

 

REVISED EXPLANATORY MEMORANDUM

 

 

 

 

(Circulated by authority of the Minister for Financial Services and Regulation,

the Hon. Joe Hockey, MP)

 

 

 

THIS MEMORANDUM TAKES ACCOUNT OF AMENDMENTS MADE BY THE

HOUSE OF REPRESENTATIVES TO THE BILL AS INTRODUCED

42721

Table of Contents

 

General Outline and Financial Impact

1

Chapter

 

1.   Amendments of Legislation other than Taxation Legislation

4

2.   Amendments of Taxation Legislation

14

 

 

                                                                                                                                 

 

 





General Outline and Financial Impact

 

General Outline

The purpose of this Bill is to make consequential amendments to certain offence provisions in legislation, for which the Treasurer has ministerial responsibility, to reflect the application of the Criminal Code Act 1995 .  Some consequential amendments are also proposed for provisions of the Trade Practices Act 1974 that are administered by the Minister for Communications, Information Technology and the Arts.

The Criminal Code Act 1995

The Criminal Code Act 1995 (the Code) is a Commonwealth Act which will alter the way in which criminal offence provisions are interpreted, including offences contained in legislation for which the Treasury portfolio is responsible.  While the Code was passed in 1995, it commenced to apply to new offences from 1 January 1997, and all new offences are now drafted according to the requirements of the Code.  Staggered implementation was considered necessary in relation to existing offences to provide Departments and agencies with sufficient time to assess the effect of the Code on their offence provisions, and to make any amendments necessary to their legislation.  The Code is scheduled to apply to pre-existing offences from 15 December 2001.

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

The Code contains subjective, fault-based principles of criminal responsibility. The defendant’s guilt will depend on what he or she thought or intended at the time of the offence, rather than what a “reasonable person” would have thought or intended in the defendant’s circumstances.  The changes to be brought about by the 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 Code is that it clarifies the traditional distinction between the actus reus (the physical act, now referred to as the “physical element”) and the mens rea (what the defendant thought or intended, now referred to as the “fault element”) and sets out this distinction in the Code.

The prosecution bears the onus of proving each of the physical elements.  The physical elements provided in the Code are the conduct, the circumstances 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 Code establishes four basic fault elements: intention, knowledge, recklessness and negligence.  The Code does not prevent an offence from specifying an alternative fault element, but the Code indicates that the default fault element will apply in the absence of another specified fault element.  The Code provides that for conduct, the default element is intention.  For circumstance or result, the default fault element is recklessness.    

Amendments arising from this Bill

This Bill makes amendments to the following Acts:

·                Superannuation (Resolution of Complaints) Act 1993 ;

·                Trade Practices Act 1974;

·                Taxation Administration Act 1953;

·                Development Allowance Authority Act 1992;

·                Diesel and Alternative Fuels Grants Scheme Act 1999;

·                Distillation Act 1901;

·                Excise Act 1902;

·                Fringe Benefits Tax Assessment Act 1986;

·                Income Tax Assessment Act 1936;

·                Income Tax Assessment Act 1997;

·                Petroleum Resource Rent Tax Assessment Act 1987;

·                Product Grants and Benefits Administration Act 2000;

·                Spirits Act 1906;

·                Superannuation Guarantee (Administration) Act 1992;

·                Taxation (Interest on Overpayments and Early Payments) Act 1983;

·                Tobacco Charges Assessment Act 1955; and

·                Wool Tax (Administration) Act 1964.

 

The amendments arise from the requirement to:

·                recognise the application of the Code;

·                specify that an offence is one of strict or absolute liability;

·                clarify the fault elements of an offence (especially where these fault elements vary from those specified by the Code);

·                separate defences from offences and identify the evidential burden in relation to a defence;

·                replace references to provisions of the Crimes Act 1914 with references to corresponding provisions in the Code; and

·                convert penalties expressed in dollar amounts into penalty units.

The Treasury Legislation (Application of Criminal Code) Bill (No. 1) 2001 has previously been introduced and amends the Financial Sector Shareholdings Act 1998 , Foreign Acquisitions and Takeovers Act 1975 , Insurance Act 1973 , Life Insurance Act 1995 , Prices Surveillance Act 1983, Productivity Commission Act 1998 , Retirement Savings Accounts Act 1997 , Superannuation Industry (Supervision) Act 1993 and aspects of the Trade Practices Act 1974 which do not require consultation with the States.

It is proposed to introduce a third Bill to make consequential amendments to the Corporations Law and the Australian Securities and Investments Commission Act 1989 .

 

Financial impact statement

As the Bill merely makes consequential amendments to the criminal law, there is no financial impact.



 



 

Chapter 1 - Amendments of Legislation other than Taxation Legislation

 

Outline of chapter

1.1         This chapter explains the amendments that are being made to Treasury legislation, other than that administered by the Commissioner of Taxation, consequential on the Criminal Code (‘the Code’) applying generally to offences under Commonwealth laws from 15 December 2001. The amendments are necessary to ensure that the provisions being amended will operate in the same manner after the application of the Code as before.

1.2         This chapter discusses Schedule 1 and Schedule 2 of the Bill. Schedule 1 contains amendments of the Superannuation (Resolution of Complaints) Act 1993 .  Schedule 2 contains amendments of the Trade Practices Act 1974 .

 

Commencement

1.3         The amendments in Schedule 1 and Schedule 2 will commence on the day mentioned in subsection 2.2(2) of the Code (ie 15 December 2001).  There is an exception for item 3 of Schedule 2 which will commence immediately after the commencement of the Treasury Legislation Amendment (Application of the Criminal Code) Act (No. 1) 2001 if that date is after 15 December 2001.  This is because item 3 of Schedule 2 would repeal a measure provided for by that Act - see paragraph 1.28 below. [Clause 2]

1.4         The Bill makes it clear that the amendments in Schedule 1and Schedule 2 will only apply to acts or omissions after the commencement. The amendments will not apply to continuous acts or omissions that began before the commencement. Nor will the amendments apply where the exact date of an act or omission is unknown, but it happened between 2 dates (eg 12 and 19 December) that straddle the commencement date. [Clause 4]

 



Explanation of Amendments

Schedule 1 - Amendments of the Superannuation (Resolution of Complaints) Act 1993

1.5         Schedule 1 to the Bill would amend the Superannuation (Resolution of Complaints) Act 1993 (“the SRC Act”).
Application of Code

1.6         Chapter 2 of the Code sets out the general principles of criminal responsibility and, except for Part 2.5 in that Chapter, it will apply to the SRC Act .  Part 2.5 of the Code deals with general principles of corporate criminal responsibility.  However t he existing provisions of section 66 the SRC Act, dealing with the acts of directors, servants or agents of a corporation, differ from those that would apply under the Code, and it is not the purpose of this Bill to change the effect of the existing provisions [Schedule 1, item 1, s4AA]

Strict Liability

1.7         An offence of strict liability is an offence where no fault elements apply to the physical elements of the offence.  For an offence of strict liability the defence of reasonable mistake of fact under section 9.2 of the Code is available. Strict liability is described in section 6.1 of the Code.

1.8         The Code requires that provisions that create an offence of strict liability must expressly state that they are strict liability offences. If the provision does not specifically state this, the offence is not a strict liability offence.

1.9         The amendments insert a provision for each strict liability offence in the SRC Act to expressly state that the offence is a strict liability offence. These amendments do not create new offences of strict liability. They are simply identifying the current strict liability offences and ensuring that they will continue to operate as strict liability offences following the application of the Code. [Schedule 1,item 3, subsection 25(7)); item 6, subsection63(2A)]

1.10       The provisions are identified as strict liability provisions by the language of the provision. 

1.11       Section 25 of the SRC Act provides that the Tribunal may require a person to provide information or documents relevant to a complaint made under the Act.  Subsection 25(5) provides for a penalty if a person, without reasonable excuse, refuses or fails to comply with a requirement made by the Tribunal.  The offence of ‘failure to comply’ does not require proof of intention.  Also, the use of the term ‘without reasonable excuse’ indicates that it is likely to be considered an offence of strict liability.  Consequently, the Bill proposes that the offence of ‘failure to comply’ be expressly indicated to be an offence of strict liability.  The amendments separate the conduct elements of ‘refusal to comply’ and ‘failure to comply’ in subsection 25(5) into two limbs and makes the offence of ‘failure to comply’ expressly one of strict liability.

1.12       Subsection 63(2) of the SRC Act provides that a person must not make a record of or disclose any information acquired in connection with a complaint.  The Explanatory Memorandum to the Bill for SRC Act stated that an offence against subsection 63(2) was intended to be one of strict liability.  Consequently, the Bill will now expressly state that subsection 63(2) is an offence of strict liability.

Clarification of Fault Elements

1.13       Section 24AA requires superannuation providers to provide documents to the Tribunal that are in their possession and that are considered by the superannuation provider to be relevant to the complaint.  Subsection 24AA(5) provides that the superannuation provider must not ‘intentionally’ refuse or fail to comply with the section.  The term ‘intentionally’ is not required as intention is the fault element that will apply by virtue of the Code. [Schedule 1, item 2, subsection 24AA(5)]

1.14   The amendments to section s25 of the SRC Act also separate the conduct elements of ‘refusal to comply’ and ‘failure to comply’ in the present subsection 25(5) into two limbs.  The default fault element under the Code for a refusal to comply will be intention.  As noted the offence of ‘failure to comply’ will be expressly stated to be one of strict liability . [Schedule 1, item 3, subsections 25(5) and (6)]

1.15       Some other offences under the SRC Act use the inappropriate fault element of ‘recklessness’ when the offences involve the physical element of ‘conduct’. 

1.16       Section 38 specifies certain matters in relation to the conduct of review meetings, including that the Tribunal may give directions as to the persons who may be present at a review meeting and prohibiting or restricting the disclosure of documents or information relating to a review meeting. Subsection 38(6) provides that a person must not intentionally or recklessly refuse or fail to comply with a direction of the Tribunal.

1.17       Section 63 provides for the protection of any information or documents acquired under or for the purposes of this Act.  Subsection 63(3B) provides that a member of the Tribunal or ASIC staff must not intentionally or recklessly disclose information that reveals personal information relating to an individual unless the person has consented in writing. This offence requires a positive act of disclosure and therefore the application of the default element of intention would be appropriate.

1.18       In the above cases ‘recklessly’ is used as an alternative to the fault element of ‘intentionally’, which is the appropriate fault element for conduct.  Therefore the Bill will delete references to “intentionally or recklessly from these provisions and the fault element of intention will apply by virtue of the operation of the Code. [Schedule 1, item 4, subsection 38(6); item 7, subsection 63(3B)]

Defence separated from offence and evidential burden identified.

1.19       Some provisions in the SRC Act are being amended to ensure that the defences and the applicable burden of proof imposed on the defendant are stated clearly. The provisions in question currently contain offences and defences in the same section, subsection or paragraph.  The amendments separate the defences from the offences and place them in a separate subsection to ensure the defence is stated clearly. The new provision includes a note explaining that the defendant bears an evidential burden for the matters in the subsection.

1.20       Section 13.3 of the Criminal Code explains when an evidential burden of proof is imposed on the defendant. An evidential burden of proof means that the onus is on the defendant to adduce or point to evidence that suggests a reasonable possibility that the matter exists or does not exist. A defendant who wishes to rely on a defence, being an exception, exemption, excuse, qualification or justification, bears an evidential burden of proof. This applies whether the exception, exemption, excuse, qualification or justification is within the offence provision itself or is separated from it.

1.21       The relevant provisions of the SRC Act are proposed subsection 25(8) which deals with a reasonable excuse for failure to comply with a requirement to provide information or documents and proposed subsection 63(2B) the making of records, disclosure of information or production of documents for the purposes of the SRC Act. [Schedule 1, item 3, subsection 25(8); item 5, subsection 63(2) and item 6 subsection 63(2B)]

The replacement of references to the Crimes Act 1914 with references to the Criminal Code Act 1995.

1.22       Following the application of the Code to all Commonwealth legislation, sections 4, 5, 7, 7A, 14, 15D and 86 of the Crimes Act 1914 will duplicate, or be inconsistent with, provisions of the Code. The Law and Justice Legislation Amendment (Application of Criminal Code) Bill 2000 Schedule 51, item 4 repeals these sections of the Crimes Act 1914 upon the general application of the Code to all Commonwealth offences.

1.23       Section 66 of the SRC Act contains references to some of these sections of the Crimes Act 1914 . These provisions are being amended to refer to the corresponding provisions in Division 11 of the Code. These sections relate to attempt, inciting or encouraging the commission of offences and conspiracy. [Schedule 1, item 8, subsection 66(8)]   The reference to section 6 of the Crimes Act 1914 , which deals with accessories after the fact, shall remain.

1.24       The table below sets out the Crimes Act 1914 provisions relevant to the SRC Act and their Code equivalents.



 

Crimes Act 1914

Criminal Code

Section 5 - aiding, abetting, counselling or procuring an offence

Section 11.2 - complicity and common purpose

Section 7 - attempt

Section 11.1 - attempt

Section 7A - inciting or urging offence

Section 11.4 - incitement

Section 86 - conspiracy

Section 11.5 - conspiracy

 

Schedule 2 - Amendments of the Trade Practices Act 1974

1.25       Schedule 2 to the Bill would amend the Trade Practices Act 1974 (“the TPA”).

Application of Code

1.26       Part 1 of the TPA contains a number of provisions that relate generally to the other provisions of that Act.  A new section 6AA in that Part would provide that Chapter 2 of the Code, which deals with the general principles of criminal responsibility, applies to offences against the Act.  New subsection (2) would provide that Part 2.5 of the Code, which deals with corporate criminal responsibility, does not apply in relation to an offence against a provision of Part IIIA, VC, Part XIC or Division 7 of Part XIB.  However the relevant provisions of the TPA, dealing with the conduct of directors, servants or agents of a corporation, differ from those that would apply under the Criminal Code and it is not the purpose of this Bill to change the effect of those existing provisions. [Schedule 2, item 1, s6AA] .

1.27       A number of provisions of the TPA will have explanatory notes included referring the reader firstly, to the general principles of criminal responsibility in Chapter 2 of the Code and, secondly, to the Crimes Act 1914 for details of the calculation of penalty units.  The following table lists the relevant amendments:

Item in Schedule 2

Provision of TPA affected

3

section 75AY

25

subsection 155(6A)

28

subsection 155B(3)(penalty)

32

subsection 160(2)

36

subsection 161(3)

37

subsection 162(2)

39

section 162A

 

1.28       A new subsection 84(6) would be inserted by the Treasury Legislation Amendment (Application of the Criminal Code) Bill (No.1) 2001.  However the inclusion in Item 1 of subsection 6AA(2) makes subsection 84(6) redundant, and this Bill repeals that subsection. [Schedule 2, item 4]

Strict Liability

1.29       An offence of strict liability is an offence where no fault elements apply to the physical elements of the offence. For an offence of strict liability the defence of reasonable mistake of fact under section 9.2 of the Code is available. Strict liability is described in section 6.1 of the Code.

1.30       The Code requires that provisions that create an offence of strict liability must expressly state that they are strict liability offences. If the provision does not specifically state this, the offence is not a strict liability offence.

1.31       An amendment will be therefore be made to section 87A of the TPA, which gives the Court broad powers to make orders to preserve the assets of a party who has alleged to have contravened the consumer protection provisions of the Act, pending a final determination in the case.  Subsection 87A(5) provides that a person who contravenes or fails to comply with an order of the Court under the section is guilty of an offence.  A new subsection 875A will be added to make it clear that the offence is one of strict liability; t he amendment does not create a new offence of strict liability. [Schedule 2, item 5, subsection 87A(5)]

 

Existing offences to be replaced by offences under the Code

1.32       Sections 151BI and 151BS of the TPA create offences relating to false or misleading information.  Section 151BI creates an offence of supplying false or misleading information in connection with an application for an exemption order.  Section 151BS of the TPA creates an offence of providing false or misleading information in purported compliance with a tariff filing direction.  Sections 151BI and 151BS will be repealed as these sections are no longer necessary as they will be replaced by the offence in section 137.1 of the Code (false or misleading information).  [Schedule 2, item 6, section 151BI and item 7, section 151BS]

1.33       Consequential amendments are required to related provisions of the TPA.  Subsection 151BTA(12), which relates to section 151BS, will also be repealed.  That subsection currently provides that section 151BS (which creates an offence of providing false or misleading information) applies to information given to the Australian Competition and Consumer Commission (ACCC) in purported compliance with section 151BTA.  The subsection is no longer necessary as section 151BS will be replaced by the by the offence in section 137.1 of the Code (false or misleading information). [Schedule 2, item 8, subsection 151BTA(12)]

1.34       A new subsection 151BZ(2) is also to be substituted which refers to Division 137 of the Code (which creates a general offence of providing false or misleading information) and replaces the present reference to section 151BS. [Schedule 2, item 16, subsection 151BZ(2)]

Clarification of Fault Elements

1.35       Sections 151BUA, 151BUB and 151BUC of the TPA give the ACCC the power to disclose, or require disclosure of, reports prepared in accordance with record-keeping rules to the public or specified people. Subsections 151BUA(7), 151BUB(9) and 151BUC(9) require a carrier or carriage service provider to comply with particular directions from the ACCC.  Subsection 151BUA(10), 151BUB(12) and 151BUC(12) establish offences of ‘intentionally or recklessly’ contravening these subsections.

1.36       Subsections 151BUA(9), 151BUB(11) and 151BUC(11) require a person to comply with certain terms and conditions (if any) when inspecting or purchasing a copy of a report or extract.  Subsections 151BUA(11), 151BUB(13) and 151BUC(13) establish offences of ‘intentionally or recklessly’ contravening these subsections.

1.37       Subsection 151BV(1) of the TPA provides that a person must not make an incorrect record in purported compliance with a requirement imposed by the record-keeping rules.  An offence of ‘intentionally or recklessly’ contravening subsection (1) is provided in subsection 151BV(2). 

1.38       The Bill will amend the TPA by omitting the references to the words ‘intentionally or recklessly’ in the above provisions.  These amendments are intended to provide clarity to the interpretation of the offences and to give consistency as to how criminal offences are to be interpreted by the courts.  The current wording of the offences appear to apply an alternative fault element of recklessly to the physical elements of conduct.  Repeal of a specific fault element of recklessly from an offence does not prevent the Code supplying the default fault element of recklessly to a physical element of circumstance or result in an offence.  It also ensures that the appropriate fault element of intention applies to the physical element of conduct in the offence and the fault element of recklessness applies to the physical element of circumstance or result in the offence.  The following table lists the relevant amendments:

Item in Schedule 2

Provision of TPA affected

2

subsection 75AY(4)

9

subsection 151BUA(10)

10

subsection 151BUA(11)

11

subsection 151BUB(12)

12

subsection 151BUB(13)

13

subsection 151BUC(12)

14

subsection 151BUC(13)

15

subsection 151BV(2)

 

1.39       Section 152DG of the TPA makes it an offence for a person appearing before the ACCC under section 152DD to give evidence knowing that the evidence is false or misleading in a material particular.  This offence will be amended by removing the reference to ‘knowingly’.  This is to make the provision consistent with the principles of the Code and is necessary because, following the application of the Code, it will not be possible to apply the fault element of ‘knowingly’ to a physical element consisting of conduct (see Division 5 of Part 2.2 of the Code generally).  The fault element of ‘knowingly’ can only be applied to physical elements of circumstance or result.  The default fault element of intention will apply to the conduct element of the offence.  The fault element of knowingly can still be applied to the circumstance element of the offence. [Schedule 2, item 22, section 152DG]

Defence separated from offence and evidential burden identified

1.40       Some provisions in the TPA are being amended to ensure that the defences and the applicable burden of proof imposed on the defendant are stated clearly. The provisions in question currently contain offences and defences in the same section, subsection or paragraph.  The amendments separate the defences from the offences and place them in a separate subsection to ensure the defence is stated clearly. The new provision includes a note explaining that the defendant bears an evidential burden for the matters in the subsection.

1.41       Section 13.3 of the Criminal Code explains when an evidential burden of proof is imposed on the defendant. An evidential burden of proof means that the onus is on the defendant to adduce or point to evidence that suggests a reasonable possibility that the matter exists or does not exist. A defendant who wishes to rely on a defence, being an exception, exemption, excuse, qualification or justification, bears an evidential burden of proof. This applies whether the exception, exemption, excuse, qualification or justification is within the offence provision itself or is separated from it.

1.42       Section 152DE of the TPA obliges a person to answer a summons and attend as a witness before the ACCC and establishes offences if a person fails to appear, or attend as required.  A new subsection (2) will provide that an offence does not occur if the person has a reasonable excuse for a failure to appear or attend.  Similarly section 152DF establishes offences if a person appearing as a witness before the ACCC refuses or fails to be sworn or to make an affirmation, or to answer a question or produce a document as required.  A new subsection (1A) will provide that an offence does not occur if the person has a reasonable excuse for their failure.  A consequential amendment is required to subsection 152DF(2) of the TPA to replace a reference to subsection (1) with subsection (1A).  [Schedule 2, items 17 and 18 section 152DE; items 19, 20 and 21, section 152DF]

1.43       Section 155 empowers the ACCC, in connection with its enforcement of the Act generally, to require - among other things - the production of information and documents and establishes offences where a person refuses or fails to comply with a notice given under the section.  A new subsection (5A) will provide that an offence does not occur to the extent that the person is not capable of complying with the requirement.  [Schedule 2, items 23 and 24 section 155]   Subsection 155(7A) presently provides a defence in relation to Cabinet documents of a State or Territory and a note is to be added that the defendant bears the evidential burden. [Schedule 2, item 26, section 155(7A)]

1.44       Section 155B of the TPA enables the ACCC to receive information and documents on behalf of the New Zealand Commerce Commission under reciprocal legislative arrangements which prohibit the misuse of market power in a trans Tasman market.  Subsection (3) establishes offences, including a prohibition against a person knowingly furnishing information to the Commerce Commission that is false or misleading.  A new subsection (3A) will provide that an offence does not occur if the person has a reasonable excuse. [Schedule 2, items 27 and 29, subsection 155B(3)]

1.45       Section 160 obliges a person to answer a summons to attend as a witness before the Australian Competition Tribunal (Tribunal) and establishes offences if a person fails to appear or attend, as required.  A new subsection (1A) will provide that an offence does not occur if the person has a reasonable excuse .  Section 161 complements section 160 by requiring a witness before the Tribunal to be sworn or affirmed and to answer questions.  A new subsection (1A) will provide that an offence does not occur if the person has a reasonable excuse. [Schedule 2, items 30 and 31, section 160; items 33 and 34, section 161]  Subsection 161(2) presently provides defence in relation to self-incrimination and a note is to be added that the defendant bears the evidential burden. [Schedule 2, item 35, subsection 161(2)]

Substitution of penalty units

1.46       A number of provisions in the TPA will be amended to standardise the form of the penalty provision and/or to replace the present reference to dollar amounts with references to penalty units.  The following table lists the relevant amendments:



 

Item in Schedule 2

Provision of TPA affected

28

subsection 155B(3)(penalty)

32

subsection 161(2)

36

subsection 161(3)

37

subsection 162(2)

38

section 162A

 





Chapter 2

Amendments of Taxation Legislation

 

Outline of chapter

2.1         This chapter explains the amendments that are being made to legislation administered by the Commissioner of Taxation consequential on the Criminal Code (‘the Code’) applying generally to offences under Commonwealth laws from 15 December 2001. The amendments are necessary to ensure that the provisions being amended will operate in the same manner after the application of the Code as before.

2.2         The chapter discusses Schedule 3 and Schedule 4 of the Bill. Schedule 3 contains amendments to the Taxation Administration Act 1953 . Schedule 4 contains the amendments required to other legislation administered by the Commissioner of Taxation.

Commencement

2.5                   The amendments in Schedule 3 and 4 of the Bill will apply from 15 December 2001, which is the date that the Code is due to apply to all Commonwealth legislation. [Clause 2]

2.6                   Each proposed amendment will apply to acts and omissions that happen on or after 15 December 2001. The amendments will not apply to continuous acts or omissions that began before the commencement. Nor will the amendments apply where the exact date of an act or omission is unknown, but it happened between 2 dates (eg 12 and 19 December 2001) that straddle the commencement date. [Clause 4]

Abbreviations

2.7                   The following abbreviations are used in this Chapter:

·       Taxation Administration Act 1953 - TAA 1953

·       Fringe Benefits Tax Assessment Act 1986 - FBTAA 1986

·       Income Tax Assessment Act 1936 - ITAA 1936

·       Income Tax Assessment Act 1997 - ITAA 1997

Detailed explanation of amendments

Schedule 3 - Taxation Administration Act 1953

2.8                   The following paragraphs explain key concepts in relation to the Criminal Code, and consequential amendments being made to the TAA 1953.

2.9                   Section references in the explanation of the amendments in Schedule 3 of the Bill are references to provisions in the TAA 1953 unless otherwise stated. A reference to Schedule 1 in describing an item of the Bill is a reference to Schedule 1 of the TAA 1953.

Definition of the term ‘engage in conduct’

2.10       A definition of the term ‘engage in conduct’ has been inserted into section 2. The definition is used in the interests of concise drafting. To engage in conduct means to do an act or to omit to do an act. Using the term engage in conduct avoids the need to describe the conduct in full. [Schedule 3, item 1, section 2]

2.11       For example, in paragraph 8T(c) the definition is used to clarify that the physical element of the offence is the result of conduct (alteration, defacing, mutilation, falsification, damage, removal, concealing or destruction of any accounts, accounting records or other records) rather than the conduct itself. The definition is used similarly in paragraph 8U(a) [Schedule 3, item 55, paragraph 8T(c); item 56, paragraph 8U(a)]

Strict Liability

2.12       An offence of strict liability is an offence where no fault elements apply to the physical elements of the offence. For an offence of strict liability the defence of reasonable mistake of fact under section 9.2 of the Code is available. Strict liability is described in section 6.1 of the Code.

2.13       The Code requires that provisions that create an offence of strict liability must expressly state that they are strict liability offences. If the provision does not specifically state this, the offence is not a strict liability offence.

2.14               The following table lists the amendments in Schedule 3 which insert a provision for each strict liability offence in the TAA 1953 to expressly state that the offence is a strict liability offence. These amendments do not create new offences of strict liability. They are simply identifying the current strict liability offences and ensuring that they will continue to operate as strict liability offences following the application of the Code.

 

Item in Schedule 3

Provision of TAA 1953 inserted

28

Subsection 8D(1A)

30

Subsection 8H(2)

51

Subsection 8Q (3)

94

Subsection 14ZA(1A)

102

Subsection 12-55(2A) of Schedule 1

104

Subsection 16-25(3) of Schedule 1 (which only inserts a note about strict liability)

105

Subsection 16-175(2) of Schedule 1

106

Subsection 18-100(1A) of Schedule 1

 

2.15       The New South Wales Court of Criminal Appeal decision in Griffin & Elliott v Marsh 94 ATC 4354, (1994) 28 ATR 355 established that the offence in section 8D is a strict liability offence. The remaining provisions are identified as strict liability provisions by the language of the provisions, the fact that the offences are summary offences and the monetary penalties are relatively small, and the fact that were they not strict liability offences they would be very difficult to enforce.

Absolute liability

2.16       An offence of absolute liability is an offence where no fault elements apply to the physical elements of the offence. Absolute liability differs from strict liability in that the defence of reasonable mistake of fact under section 9.2 of the Code (which places an evidential burden on the defendant), is not available. However, a law may provide for a defence of reasonable mistake of fact that places a legal burden on the defendant. Section 6.2 of the Code describes absolute liability.

2.17       The Code requires that provisions that create an offence of absolute liability must expressly state that they are absolute liability offences. If the provision does not specifically state this then the offence will be taken not to be an absolute liability offence. These amendments insert 3 provisions which state that absolute liability applies to an offence or some physical elements of an offence.

2.18       Section 8C is currently an offence of absolute liability. This was held by the Supreme Court of South Australia in the case of Ambrose v Edmonds-Wilson (1988) 19 ATR 1217, 88 ATC 4173. Subsection 8C(1A) is being inserted to expressly state that subsection 8C(1) creates an offence of absolute liability. [Schedule 3, item 26, section 8C(1) and (1A)]

2.19       The existing section 8K is the least serious of the false or misleading statement offences. Subsection 8K(2) contains a defence of reasonable mistake of fact about a statement being false or misleading, and the burden of proof is on the defendant. That burden indicates that there is no fault element for the circumstance that the statement is false or misleading. To maintain this position under the Code, absolute liability applies to the circumstance, and the defence in subsection 8K(2) is maintained. [Schedule 3, item 38, subsection 8K(1A)and (1B)]

2.20       Similarly, section 8L, the least serious of the record keeping offences, contains a defence of reasonable mistake of fact. The defendant must prove that defence, which indicates that there is no fault element for the offence. To maintain this position under the Code, the offence is made one of absolute liability, and the defence contained in the provision is unchanged. [Schedule 3, item 42, subsection 8L(1B)]

Defence separated from offence and evidential burden identified.

2.21       There are a number of provisions in the TAA 1953 which are being amended to ensure that the defences and the applicable burden of proof imposed on the defendant are stated clearly. The provisions in question currently contain offences and defences in the same section, subsection or paragraph. These defences describe circumstances or conduct that would satisfy all or some of the elements of the offence if they were not expressly excluded. The amendments referred to in the table below separate the defences from the offences and place them in a separate subsection to ensure the defence is stated clearly. The new provision includes a note explaining that the defendant bears an evidential burden for the matters in the subsection.

2.22       Section 13.3 of the Criminal Code explains when an evidential burden of proof is imposed on the defendant. An evidential burden of proof means that the onus is on the defendant to adduce or point to evidence that suggests a reasonable possibility that the matter exists or does not exist. A defendant who wishes to rely on a defence, being an exception, exemption, excuse, qualification or justification, bears an evidential burden of proof. This applies whether the exception, exemption, excuse, qualification or justification is within the offence provision itself or is separated from it.

2.23       The amendment to subsection 8C(1) is a typical example of a defence being separated from the subsection containing the offence and placed in its own subsection. Subsection (1) makes it an offence when a person fails to comply with various requirements under taxation law. The subsection is to be amended by omitting the phrase ‘to the extent that the person is capable of doing so’ from subsection 8C(1) and inserting subsection 8C(1B) which reads ‘Subsection (1) does not apply to the extent that the person is not capable of complying with the relevant paragraph.’ An explanatory note has also been added at the end of subsection 8C(1B) which states that the defendant bears an evidential burden of proof in relation to this defence. [Schedule 3, items 25 and 26, subsections 8C(1) and (1B)]

2.24               The following table lists amendments in Schedule 3 that separate a defence from the offence and identify that the defendant bears an evidential burden.

 

Item(s) of Schedule 3

Provision(s) of TAA 1953 amended or inserted

3 and 4

Subsection 3C(2) and (2A)

5

Subsections 3D(15), (15A) and (15B)

8

Subsections 3E(2), (2A), (2B) and (2C)

11 and 12

Subsections 3E(5) and (5A)

14 and 15

Paragraph 3E(6C)(a) and subsection (6CA)

25 and 26

Subsections 8C(1) and (1B)

27 and 28

Subsections 8D(1) and (1B)

29 and 30

Subsections 8H(1) and (3)

63

Subsection 8WA(1) and (1AA)

66

Subsection 8WB(1) and (1A)

69 and 70

Subsection 8XB(1) and (1A)

84 and 85

Subsection 13H(1) and (1A)

86 and 87

Subsection 13J(2) and (2A)

88 and 89

Section 14R

90 and 91

Subsection 14Z(2) and (2A)

 

Consequential Amendments

2.25               As a result of the above amendments to separate the defence from the offence in the relevant provisions, several consequential amendments are required to references to those relevant provisions elsewhere in the TAA 1953. For example, as subsection 3D(15) is being rewritten to become subsections 3D(15), 3D(15A) and 3D(15B), the reference to subsection 3D(15) in subsection 3D(19) is being amended to refer to subsections 3D(15A) and 3D(15B). [Schedule 3, item 7, subsection 3D(19)]

2.26       Similar consequential amendments, as listed in the table below, are being made where necessary, to references to provisions that are being rewritten.

Item(s) in Schedule 3

Provisions of TAA 1953 amended

9

Subsection 3E(3)

10

Subsection 3E(4)

13

Subsection 3E(6B)

35

Subsection 8J(6)

39

Subsection 8K(2)

41

Subsection 8K(3)

43

Subsection 8L(2)

44

Paragraph 8L(2)(c)

45

Paragraph 8L(2)(d)

47

Subsection 8M(1)

48

Paragraph 8M(2)(a)

58

Subparagraph 8W(1)(a)(ii)

61

Subparagraph 8W(2A)(a)(ii)

67

Subsection 8WB(2)

93

Subsection 14Z(5)

 

Evidential burden of proof

2.27       An explanatory note stating that the defendant bears an evidential burden of proving the defence available in the relevant subsection is being inserted where appropriate. This clarifies the burden of proof that applies. [Schedule 3, item 6, subsection 3D(16); item 64, subsection 8WA(1A); item 65, subsection 8WA(2); item 71, subsection 8XB(3); item 107, subsection 18-100(2) of Schedule 1]

Legal Burden of Proof

2.28       At the end of a number of subsections a note is to be added to clarify that the defendant bears a legal burden of proof in relation to the defences in these subsections. The defences to the offences currently place a legal burden on the defendant. This is clear by the use of the phrase ‘if the person proves …’ (emphasis added). [Schedule 3, item 40, subsection 8K(2); item 46, subsection 8L(2); item 72, subsection 8Y(2); item 96, subsection 50(4); item 97, subsection 51(3); item 98, subsection 52(3); item 99, subsection 52A(3); item 100, subsection 53(3); item 101, subsection 54(3)]

Repeal of section 8P and related consequential amendments

2.29       Section 8P of the TAA 1953 is being repealed because it is unnecessary as a result of the application of the Code to section 8N. Currently section 8P deals with recklessly making false or misleading statements and section 8N deals with knowingly making false or misleading statements.

2.30               Subsection 5.4(4) of the Code provides that if recklessness is a fault element of an offence, proof of intention, knowledge or recklessness will satisfy that fault element. Thus, proving the element of knowledge under section 8P would also prove the element of recklessness in section 8N. Furthermore, an offence under either of these sections attracts the same penalty. Therefore, it is not necessary to maintain the offence in section 8P. [Schedule 3, item 50, section 8P ]

2.31       As a result of repealing section 8P, the consequential amendments, listed in the table below, have been required to remove all references to section 8P in the TAA 1953.

Item of Schedule 3

Provision of TAA 1953 amended

17

Subsection 8A(1)

31

Subparagraph 8J(3)(a)(i)

34

Subsection 8J(4)

36

Subsection 8J(7)

52

Subsection 8R(1)

53

Paragraph 8R(2)(a)

54

Subsection 8S(1)

57

Subparagraph 8W(1)(a)(i)

60

Subparagraph 8W(2A)(a)(i)

 

References to Division 136 and Division 137 of the Code

2.32       As well as removing references to 8P, references have also been inserted to Division 136 and Division 137 of the Code, which create offences for false and misleading statements in applications (Division 136) and false and misleading information in documents (Division 137). Where appropriate, taxpayers may be prosecuted under these Divisions of the Code in relation to a taxation offence, rather than a specific provision in a taxation law. Inserting the relevant references to Division 136 and Division 137 of the Code allows prosecutions under these Divisions to be treated in the same manner as prosecutions taken under section 8N.

2.33               For example, inserting a reference to offences against Division 136 or Division 137 of the Code in relation to a taxation offence into subparagraph 8W(1)(a)(i) allows a court to order an additional penalty on conviction of a taxpayer for that offence [Schedule 3, item 57] . This allows similar treatment whether the taxpayer is prosecuted under section 8N of the TAA 1953 or Division 136 or Division 137 of the Code.

2.34       The following table lists the amendments that insert references to Divisions 136 and 137 of the Code.

Item of Schedule 3

Provisions of TAA 1953 amended

17

Subsection 8A(1)

54

Subsection 8S(1)

57

Subparagraph 8W(1)(a)(i)

59

Paragraph 8W(1)(c)

60

Subparagraph 8W(2A)(a)(i)

62

Paragraph 8W(2A)(d)

73

Paragraph 8Z(1)(a)

79

Paragraph 8Z(1)(f)

 

Physical elements and fault elements clarified

Section 8L - Incorrectly keeping records

2.35       Section 8L has been reworded to clarify the physical elements of the offences and the respective fault elements that attach to each of them. The elements of subsection 8L(1) are amended to become subsection 8L(1) and 8L(1A). As the offences are absolute liability (see paragraph 2.20) there are no fault elements for any of the physical elements. However, the provision has been reworded to keep it in line with section 8Q, which contains a more serious offence for reckless record keeping (see paragraph 2.39). [Schedule 3, item 42, subsection 8L(1)]

2.36       Subsection 8L(1) as it currently stands, applies not only where a person keeps incorrect records, but also where a person keeps no records at all. Subsections 8L(1) and 8L(1A), which are being inserted, are also intended to apply to situations where no records are kept at all. [Schedule 3, item 42]

Section 8N - Recklessly making false or misleading statements

2.37       Section 8N has also been amended to clarify the physical elements of the offence and the respective fault elements that attach to each of them. The current wording of section 8N is ambiguous, as it appears that the fault element of ‘recklessly’ applies to the physical element of conduct, that is, ‘makes a statement’. The Code does not recognise the fault element of recklessly applying to conduct. However, the physical element of circumstance, that the statement is false or misleading, can have recklessness as a fault element.

2.38       Therefore the offence has been reworded to clarify that the physical element of conduct is ‘makes a statement’ (and the Code would apply intention as the fault element), and the physical element of circumstance is that the statement is false or misleading in a material particular, which has recklessness as the fault element. [Schedule 3, item 49, section 8N]

Section 8Q - Recklessly keeping records incorrectly

2.39       Section 8Q has also been reworded to clarify the physical elements of the offences and the respective fault elements that attach to each of them. Section 8Q currently uses the phrase ‘recklessly or knowingly keeps them in such a way’. This implies that the fault elements of recklessly and knowingly apply to the physical element of conduct, that is, ‘keeps the records’. The Code does not recognise the fault elements of recklessly and knowingly in relation to conduct. Therefore the fault elements of recklessly and knowingly must apply to another element of the offence.

2.40       To avoid this confusion the physical elements of the offence have been divided into separate paragraphs. Paragraph 8Q(1)(a) contains the physical element of circumstance, that the person is required to keep accounts or records pursuant to a taxation law. This element is a strict liability element (as clearly stated in subsection 8Q(3)) because it is inappropriate to require proof of a fault element of whether a person is required to do something by a taxation law.

2.41       Paragraph 8Q(1)(b) contains the physical element of conduct - that the person keeps the records. The Code will require intention as the relevant fault element in relation to conduct. This would also be the case in relation to the current wording of the offence, as recklessly or knowingly cannot apply as fault elements for conduct.

2.42       Paragraphs 8Q(1)(ba) and 8Q(1)(c) include the physical element of result - that the accounts or records do not correctly record and explain the matters, transactions, acts or operations to which they relate. Paragraph 8Q(1)(ba) provides that an element of the offence is that the accounts or records do not correctly record and explain the matters, transactions acts or operations to which they relate, while paragraph 8Q(1)(c) confirms that the fault element of recklessness applies to this physical element of result. It is no longer necessary to specify knowledge as a fault element of this offence, as subsection 5.4(4) of the Code provides that where recklessness is a fault element of an offence, proof of intention, knowledge or recklessness will satisfy that fault element. Therefore, if knowledge can be proved, then the element of recklessness will also be satisfied.

2.43       Subsection 8Q(2), which covers making a record of transactions and other matters, works in the same way.

2.44       Section 8Q as it currently stands, extends to situations where no records are kept at all. There is no intention to alter the operation of the section in this respect; it is still intended to apply to situations where no records are kept at all. [Schedule 3, item 51, section 8Q]

Section 8XA

2.45       Section 8XA is being amended to remove the fault element of knowingly that currently appears to apply to the physical element of conduct, that is, ‘take action’. The appropriate fault element for conduct is intent, and as such, under the Code, intent would be interpreted to apply to this physical element of ‘take action’. Therefore, the element of knowingly has no application to the offence and is being removed in order to avoid confusion. [Schedule 3, item 68, section 8XA]

Subsection 12-330(1) in Schedule 1

2.46       Subsection 12-330(1) in Schedule 1 of the TAA 1953 (which requires the payer of a natural resource payment to ask the Commissioner how much to withhold), is being amended to clarify that the appropriate fault element for the physical element of conduct, in this case ‘make a payment’, is intention. Recklessly is removed from this offence, as under the Code it would have no application to a physical element of conduct. [Schedule 3, item 103, subsection 12-330(1) of Schedule 1]

Averments

2.47       Section 13.6 of the Code provides that averment provisions are taken not to allow the prosecution to aver any fault element of an offence, or to make an averment for any offence that is directly punishable by imprisonment.

2.48       Paragraph 8ZL(4)(a) is amended to clarify this. Previously the paragraph provided that the section did not apply to the averment of the intention of the defendant. This has been expanded to cover all fault elements, not only intention, and to ensure that the section does not apply in relation to an offence that is punishable by imprisonment. [Schedule 3, item 83, paragraphs 8ZL(4)(a) and 8ZL(4)(aa)]

2.49       Section 8ZC effectively allows the prosecution to treat the place at which an act was done, or omitted to be done, to be one of a specified list. This section is used to prevent jurisdictional problems about where an offence was committed. For example, the section allows a corporate taxpayer to be prosecuted in the same jurisdiction as their head office. At the end of the section a note is added to clarify that if a situation arose where the place where the offence is committed is an element of that offence, that section 8ZC cannot apply as an averment of that element. [Schedule 3, item 81, section 8ZC]

Defence does not apply in relation to offences under Part 2.4 of the Code

2.50       Part 2.4 of the Code provides extensions of criminal responsibility by creating offences of attempt, complicity and common purpose (aiding and abetting), innocent agency, incitement, and conspiracy which will apply to all Commonwealth Acts unless expressly or impliedly excluded. The prosecution will be required to prove these offences beyond reasonable doubt.

2.51       Part VI of the TAA 1953 (which relates to the administration of indirect taxes), provides that offences committed by certain entities are taken to have been committed by certain other entities, for example, an offence committed by a partnership is taken to be committed by each partner. However, subsections 50(4), 51(3), 52(3), 52A(3), 53(3) and 54(3) provide defences if a person does not aid, abet, counsel or procure the commission of the offence. The defendant bears a legal burden in relation to these defences.

2.52       Part 2.4 of the Code takes a fundamentally different approach to these extensions of criminal responsibility than the provisions in Part VI of the TAA 1953. The amendments insert a note to provide that the defences contained in the above subsections of Part III of the TAA 1953 do not apply in relation to prosecutions of offences under Part 2.4 of the Code. [Schedule 3, item 96, subsection 50(4); item 97, subsection 51(3); item 98, subsection 52(3); item 99, subsection 52A(3), item 100, subsection 53(3); item 101, subsection 54(3)]

Corporate Criminal Responsibility

2.53       Section 8ZD provides for the vicarious liability of a corporation through their servants or agents. This conflicts with the general principles of corporate criminal responsibility in Part 2.5 of the Code, and therefore Part 2.5 of the Code is being excluded from applying to taxation offences. Consequently in prosecutions of corporations, section 8ZD will operate in relation to the acts of servants or agents. [Schedule 3, item 82, section 8ZD]

The replacement of references to the Crimes Act 1914 with references to the Criminal Code Act 1995.

2.54       References to sections 7 (attempt) and 7A (inciting or urging) of the Crimes Act 1914 are to be replaced with their corresponding provisions of the Code.

2.55             The Law and Justice Legislation Amendment (Application of Criminal Code) Bill 2000 repeals these sections (and others) of the Crimes Act 1914 inSchedule 51 item 4. These sections of the Crimes Act 1914 are being replaced by provisions in Division 11 of the Code covering the same issues. [Schedule 3, item 18, subsection 8A(1); item 19, subsection 8A(1); item 20, subsection 8A(1); item 21, subparagraph 8B(1)(b)(i); item 22, subparagraph 8B(1)(b)(ii); item 23, subsection 8B(3); item 32, subparagraph 8J(3)(b)(i); item 33, subparagraph 8J(3)(b)(ii); item 37,  subsection 8J(7); item 76, subparagraph 8Z(1)(c)(i); item 77, subparagraph 8Z(1)(c)(ii); item 80, subsection 8ZA(7)]

2.56       The table below sets out the Crimes Act 1914 provisions relevant to taxation legislation and their Code equivalents.

Table 1: Crimes Act 1914 provisions and Criminal Code equivalents

Crimes Act 1914

Criminal Code

Section 5 - aiding, abetting, counselling or procuring an offence

Section 11.2 - complicity and common purpose

Section 7 - attempt

Section 11.1 - attempt

Section 7A - inciting or urging offence

Section 11.4 - incitement

Section 86 - conspiracy

Section 11.5 - conspiracy

 

Repeal of provisions

Subsection 14Z(3)

2.57       Subsection 14Z(3) is being repealed. The offence for false and misleading statements under this provision will be covered by section 8N, and also by the offence under section 137.1 of the Code. [Schedule 3, item 92, subsection 14Z(3)]

Section 21 and section 265-70 of Schedule 1

2.58       Section 21 and section 265-70 (of Schedule 1) are also being repealed. These sections applied the Code to their respective Parts of the TAA 1953. This is no longer necessary, as the Code will apply to the entire TAA 1953. [Schedule 3, item 95, section 21; item 108, section 265-70 of Schedule 1]



Schedule 4 - Amendment of other taxation legislation

2.59       The following paragraphs explain the amendments contained in Parts 1 to 15 of Schedule 4 of the Bill. The following table lists the various Parts of Schedule 4:

Table 2: Parts in Schedule 4

Part

Act amended

Part 1

Development Allowance Authority Act 1992

Part 2

Diesel and Alternative Fuels Grants Scheme Act 1999

Part 3

Distillation Act 1901

Part 4

Excise Act 1901

Part 5

Fringe Benefits Tax Assessment Act 1986

Part 6

Income Tax Assessment Act 1936

Part 7

Income Tax Assessment Act 1997

Part 8

Petroleum Resource Rent Tax Assessment Act 1987

Part 9

Product Grants and Benefits Administration Act 2000

Part 10

Spirits Act 1906

Part 11

Superannuation Guarantee (Administration) Act 1992

Part 12

Taxation (Interest on Overpayments and Early Payments) Act 1983

Part 13

Tobacco Charges Assessment Act 1955

Part 14

Wool Tax (Administration) Act 1964

 

Part 1: Development Allowance Authority Act 1992

Defence separated from offence and evidential burden identified.

2.60       Subsection 114(1), a secrecy provision, is being amended to ensure that the defence and the applicable burden of proof imposed on the defendant are stated clearly. The provision currently contains an offence and defence in the same subsection. The amendment separates the defence from the offence and places it in separate subsection 114(1A), to ensure the defence is stated clearly. The new subsection includes a note explaining that the defendant bears an evidential burden for the matters in the subsection.

2.61       Section 13.3 of the Code explains when an evidential burden of proof is imposed on the defendant. An evidential burden of proof means that the onus is on the defendant to adduce or point to evidence that suggests a reasonable possibility that the matter exists or does not exist. A defendant who wishes to rely on a defence being an exception, exemption, excuse, qualification or justification bears an evidential burden of proof. This applies whether the exception, exemption, excuse, qualification or justification is within the offence provision itself or is separated from it. [Schedule 4, item 2, subsections 114(1) and (1A)]

Part 2: Diesel and Alternative Fuels Grants Scheme Act 1999

References to section 8P TAA 1953 and Divisions 136 and 137 of the Code

2.62       Section 8P of the TAA 1953 is repealed by Schedule 3, item 50 (see paragraphs 2.29 and 2.30). As a result, consequential amendments are required to remove references to section 8P of the TAA 1953.

2.63       As well as removing references to section 8P, references have also been inserted to Division 136 and Division 137 of the Code, which create offences for false and misleading statements in applications (Division 136) and false and misleading information in documents (Division 137). Where appropriate, taxpayers may be prosecuted under these Divisions of the Code in relation to a taxation offence, rather than a specific provision in a taxation law. Inserting the relevant references to Division 136 and Division 137 of the Code allow prosecutions taken under these Divisions to be treated in the same manner as prosecutions taken under section 8N of the TAA 1953. [Schedule 4, item 5, subsection 42(2); item 6, paragraph 52(2)(d)]

2.64       Two notes which currently refer the reader to sections 8N and 8P of the TAA 1953 are to be amended to refer only to section 8N and to reflect the new section heading of section 8N. [Schedule 4, item 3, section 21; item 4, section 22]

Part 3: Distillation Act 1901

Strict Liability

2.65       An offence of strict liability is an offence where no fault elements apply to the physical elements of the offence. For an offence of strict liability the defence of reasonable mistake of fact under section 9.2 of the Code is available. Strict liability is described in section 6.1 of the Code.

2.66       The Code requires that provisions that create an offence of strict liability must expressly state that they are strict liability offences. If the provision does not specifically state this, the offence is not a strict liability offence.

2.67       The amendment to section 11, which prohibits the use of a still for purposes other than the distillation of spirits, inserts a provision to expressly state that an offence under section 74 as a result of the operation of subsection 11(3) is a strict liability offence. This does not create a new offence of strict liability. It simply ensures that the offence will continue to operate as a strict liability offence following the application of the Code. [Schedule 4, item 9, subsection 11(4)]

2.68       The language of this provision, the fact that it is regulatory in nature and that the monetary penalty is small, all indicate that this is a strict liability offence.

2.69       A note is also inserted to clarify that as a result of the deeming action of this subsection, that a contravention of section 11 results in an offence being committed under section 74. [Schedule 4, item 8, subsection 11(3)]

Clarification of offences

2.70       Section 54 is amended to clarify the 2 offences (about vignerons distilling and using spirits) that it currently contains. Each offence is to be contained in a separate subsection. This confirms the fact that each offence can be prosecuted separately.

2.71       As well, the phrase ‘for the purpose of’ has been replaced by the phrase ‘to achieve the result of’ to clarify that this is a physical element of the offence, a ‘result’, rather than an additional fault element of the offence. [Schedule 4, item 10, section 54]

Without lawful excuse

2.72       The phrase ‘without lawful excuse’ is being removed from section 74. Section 10.5 of the Code provides a defence where conduct is justified or excused by or under a law. [Schedule 4, item 11, section 74]

Part 4: Excise Act 1901

Strict Liability

2.73       An offence of strict liability is an offence where no fault elements apply to the physical elements of the offence. For an offence of strict liability the defence of reasonable mistake of fact under section 9.2 of the Code is available. Strict liability is described in section 6.1 of the Code.

2.74       The Code requires that provisions that create an offence of strict liability must expressly state that they are strict liability offences. If the provision does not specifically state this, the offence is not a strict liability offence. A note stating that the offence is one of strict liability is not sufficient.

2.75       The amendments listed in the table below, insert a provision for each strict liability offence in the Excise Act 1901 to expressly state that the offence is a strict liability offence. These amendments do not create new offences of strict liability. They are simply identifying the current strict liability offences and ensuring that they will continue to operate as strict liability offences following the application of the Code. Where provisions in the Customs Act 1901 are being identified as strict liability offences by the Law and Justice Legislation Amendment (Application of Criminal Code) Bill 2000, the equivalent provisions in the Excise Act 1901 are being amended in the same way.

Items in Schedule 4

Provision of Excise Act 1901 inserted

13

Subsection 51(2)

14

Subsection 61D(11A)

15

Subsection 61E(10A)

16

Subsection 70(2)

17

Subsection 76(2)

18

Subsection 78AD(14A)

28, 29, 30

Subsections 120(6), (7) and (7A)

 

2.76       In the case of subsections 120(6) and (7) there is currently a note to each offence stating that it is a strict liability offence. However, in order to comply with the Code, the fact that the offence is a strict liability offence must be stated in the provision itself, not just in a note to the provision.

2.77       The following factors identify the other offences as strict liability offences:

·       the penalties are small,

·       none of the offences is punishable by imprisonment,

·       the language and wording of the offences, and

·       the fact that some of them are regulatory in nature.

Absolute liability

2.78       An offence of absolute liability is an offence where no fault elements apply to the physical elements of the offence. Absolute liability differs from strict liability in that the defence of reasonable mistake of fact under section 9.2 of the Code is not available. Section 6.2 of the Code describes absolute liability.

2.79       The Code requires that provisions that create an offence of absolute liability must expressly state that they are absolute liability offences. If the provision does not specifically state this then the offence will be taken not to be an absolute liability offence.

2.80       Subsection 120(1), which contains numerous offences, is to be amended to state that the physical element of circumstance in paragraphs 120(1)(vc) and 120(1)(vd) is an element of absolute liability. This clarifies that ignorance of the law is not a defence to the physical element of circumstance, that the person was not entitled to the rebate under the particular provisions. [Schedule 4, item 24, subsection 120(1A); item 25, subsection 120(1B)]

The replacement of references to the Crimes Act 1914 with references to the Criminal Code Act 1995.

2.81       References to sections 5 (aiders and abetters), 7 (attempt), and 86 (conspiracy) of the Crimes Act 1914 are to be replaced by references to the corresponding provisions of the Code.

2.82       The Law and Justice Legislation Amendment (Application of Criminal Code) Bill 2000 repeals these sections (and others) of the Crimes Act 1914 in Schedule 51, item 4. These sections of the Crimes Act are being replaced by provisions in Division 11 of the Code covering the same issues.

2.83       Paragraph 87AA(b) in the Excise Act 1901 , which deals with searches of conveyances without a warrant, contains references to sections 5, 7 and 86 of the Crimes Act 1914 . These provisions have been amended to refer to the corresponding provisions in Division 11 of the Code. [Schedule 4, item 19, paragraph 87AA(b)]

2.84       Table 1 at paragraph 2.56 compares the Crimes Act 1914 provisions to their equivalent provisions in the Code.

Fault elements clarified

2.85       Section 118, which deals with illegal prevention of seizures, is to be amended to replace the phrase ‘for the purpose’ with ‘with the intention’. This is done to clarify that this is an additional fault element of the offence, rather than an additional physical element. [Schedule 4, item 20, section 118]

2.86       Paragraph 124(1)(c) is to be amended for a similar reason. The phrase ‘to prevent’ is to be replaced with ‘with the intention of preventing’. This is also done in order to clarify that this is an additional fault element of the offence, rather than as additional physical element. [Schedule 4, item 3, paragraph 124(1)(c)]

2.87       Amendments have been made in some provisions of the Excise Act 1901 to clarify which fault elements apply to the relevant physical element. The fault element of intention applies to the physical element of conduct. The fault element of recklessness applies to the physical element of circumstance or result. [Schedule 4, item 21, paragraph 120(1)(vc); item 22, paragraph 120(1)(vd); item 23, paragraph 120(1)(vi); item 26, subsection 120(4A); item 27, subsection 120(5); item 31, paragraph 124(1)(c)]

Averments

2.88       Section 13.6 of the Code provides that averment provisions are taken not to allow the prosecution to aver any fault element of an offence, or to make an averment for any offence that is directly punishable by imprisonment.

2.89       Subsection 144(4) is amended to clarify this in relation to averments. Previously the subsection provided that the section did not apply to the averment of the intention of the defendant. This has been expanded to cover all fault elements, not only intention, and to ensure that the section does not apply in relation to an offence that is punishable by imprisonment. [Schedule 4, item 32, subsection 144(4)]

Part 5: Fringe Benefits Tax Assessment Act 1986

Strict Liability

2.90       An offence of strict liability is an offence where no fault elements apply to the physical elements of the offence. For an offence of strict liability the defence of reasonable mistake of fact under section 9.2 of the Code is available. Strict liability is described in section 6.1 of the Code.

2.91       The Code requires that provisions that create an offence of strict liability must expressly state that they are strict liability offences. If the provision does not specifically state this, the offence is not a strict liability offence.

2.92       The amendments insert a provision for each strict liability offence in the FBTAA 1986 to expressly state that the offence is a strict liability offence. These amendments do not create new offences of strict liability. They are simply identifying the current strict liability offences and ensuring that they will continue to operate as strict liability offences following the application of the Code. [Schedule 4, item 36, subsection 70D(2); item 39, subsection 122(1A)]

2.93       These offences are consumer protection provisions, they have low monetary penalties and neither is punishable by imprisonment. These factors indicate that the offences are currently strict liability offences.

Evidential burden of proof

2.94       Section 122 prohibits persons other than registered tax agents advertising about preparing fringe benefits tax returns and subsection (2) provides a defence. After subsection 122(2) an explanatory note stating that the defendant bears an evidential burden of proving the defence is inserted. This clarifies the burden of proof that applies. [Schedule 4, item 40, subsection 122(2)]

Defence separated from offence and evidential burden identified.

2.95       There are a number of provisions in FBTAA 1986 which are being amended to ensure that the defences and the applicable burden of proof imposed on the defendant are stated clearly. The provisions in question currently contain offences and defences in the same section, subsection or paragraph. These defences describe circumstances or conduct that would satisfy all or some of the elements of the offence if they were not expressly excluded. The amendments separate the defences from the offences and place them in a separate subsection to ensure the defence is stated clearly. The new subsections include a note explaining that the defendant bears an evidential burden for the matters in the subsection.

2.96       Section 13.3 of the Code explains when an evidential burden of proof is imposed on the defendant. An evidential burden of proof means that the onus is on the defendant to adduce or point to evidence that suggests a reasonable possibility that the matter exists or does not exist. A defendant who wishes to rely on a defence being an exception, exemption, excuse, qualification or justification bears an evidential burden of proof. This applies whether the exception, exemption, excuse, qualification or justification is within the offence provision itself or is separated from it. [Schedule 4, items 34 and 35, subsections 5(3) and (3A) ; items 37 and 38, subsections 121(2), (2A), (2B) and (2C)]

Part 6: Income Tax Assessment Act 1936

Strict Liability

2.97       An offence of strict liability is an offence where no fault elements apply to the physical elements of the offence. For an offence of strict liability the defence of reasonable mistake of fact under section 9.2 of the Code is available. Strict liability is described in section 6.1 of the Code.

2.98       The Code requires that provisions that create an offence of strict liability must expressly state that they are strict liability offences. If the provision does not specifically state this, the offence is not a strict liability offence.

2.99       The amendments listed in the table below, insert a provision for each strict liability offence in the ITAA 1936 to expressly state that the offence is a strict liability offence. These amendments do not create new offences of strict liability. They are simply identifying the current strict liability offences and ensuring that they will continue to operate as strict liability offences following the application of the Code.

Item(s) in Schedule 4

Provisions of ITAA 1936 inserted

60

Subsection 102AAZG(2A)

63

Subsection 124ZADA(3A)

64

Subsection 124ZADB(2)

72

Subsection 251KG(2)

73

Subsection 251KH(2)

74

Subsection 251KJ(1A)

76

Subsection 251KK(3)

79

Subsection 252(4A)

80

Subsection 252A(1A)

85

Subsection 262A(5A)

86

Subsection 264AA(1A)

87

Subsection 465(2)

88

Subsection 621(2)

 

2.100     These provisions all have small monetary penalties, none are punishable by imprisonment, many are regulatory in nature (especially those dealing with the actions of tax agents), and many would be difficult to enforce if fault elements applied. These factors indicate that the offences are strict liability offences.

Defence separated from offence and evidential burden identified.

2.101     There are a number of provisions in the ITAA 1936 which are being amended to ensure that the defences and the applicable burden of proof imposed on the defendant are stated clearly. The provisions in question currently contain offences and defences in the same section, subsection or paragraph. These defences describe circumstances or conduct that would satisfy all or some of the elements of the offence if they were not expressly excluded. The amendments separate the defences from the offences and place them in a separate subsection to ensure the defence is stated clearly. The new subsection includes a note explaining that the defendant bears an evidential burden for the matters in the subsection.

2.102     Section 13.3 of the Code explains when an evidential burden of proof is imposed on the defendant. An evidential burden of proof means that the onus is on the defendant to adduce or point to evidence that suggests a reasonable possibility that the matter exists or does not exist. A defendant who wishes to rely on a defence being an exception, exemption, excuse, qualification or justification bears an evidential burden of proof. This applies whether the exception, exemption, excuse, qualification or justification is within the offence provision itself or is separated from it.

Item(s) in Schedule 4

Provision(s) of ITAA 1936 amended or inserted

42 and 43
Subsections 16(2) and (2A)
44, 46 and 47
Paragraph 16(4A)(c), and subsections 16(4A) and 16(4AAA)
48
Subsections 16(4E), (4EA), (4EB), (4EC), (4ED) and (4EE)
49
Subsections 16(4F), (4FAA) and (4FAB)
50
Subsections 16(4FA), (4FAAA) and (4FAAB)
51
Subsections 16(4FB), (4FBA) and (4FBB)
56 and 57
Subsections 16(4JB) and (4JC)
58 and 59
Paragraph 16(5C)(a) and Subsection 16(5CA)
77 and 78
Subsections 251N(2), (2A), (2B) and (2C)
89 and 90
Subsection 245-265(8) and (8A) in Schedule 2C

 

Consequential Amendments

2.103     As a result of the above amendments to separate the defence from the offence in the relevant provisions, several consequential amendments are required to references to those relevant provisions elsewhere in the ITAA 1936. For example, as subsection 16(4E) (a secrecy provision), is being rewritten to become subsections 16(4E), (4EA), (4EB), (4EC), (4ED), and (4EE), the reference to subsection 16(4E) in subsection 16(4H) is being amended to refer to subsections 16(4EB), (4ED) and (4EE). [Schedule 4, item 53, subsection 16(4H)]

2.104     Similar consequential amendments are being made where necessary, to references to provisions that are being rewritten. [Schedule 4, item 45, paragraph 16(4A)(e); item 52, subsection 16(4G); item 53, subsection 16(4H); item 54, subsection 16(4J); item 55, subsection 16(4JA)]

Evidential burden of proof

2.105     In a number of provisions an explanatory note stating that the defendant bears an evidential burden of proving the defences available in the relevant subsections is inserted. This clarifies the burden of proof that applies. [Schedule 4, item 61, subsection 102AAZG(4); item 75, subsection 251KJ(2); item 81, subsection 262A(1AA); item 82, subsection 262A(4AAA); item 83, subsection 262A(4ACA); item 84, subsection 262A(5)]

Defence does not apply in relation to offences under Part 2.4 of the Code

2.106     Part 2.4 of the Code provides extensions of criminal responsibility by creating offences of attempt, complicity and common purpose (aiding and abetting), innocent agency, incitement, and conspiracy which will apply to all Commonwealth Acts unless expressly or impliedly excluded. The prosecution will be required to prove these offences beyond reasonable doubt.

2.107     In section 102AAZG (which requires taxpayers to keep certain records), an offence that is committed by a partnership is taken to have been committed by each partner. However subsection 102AAZG(7) provides a defence if a partner does not aid, abet, counsel or procure the commission of the offence. The defendant bears a legal burden in relation to this defence.

2.108      Part 2.4 of the Code takes a fundamentally different approach to these extensions of criminal responsibility than the above defence. The amendments insert a note to provide that the defence contained in subsection 102AAZG(7) does not apply in relation to prosecutions of offences under Part 2.4 of the Code. A note is also inserted to clarify that the defendant bears a legal burden in relation to this defence. [Schedule 4, item 62, subsection 102AAZG(7)]

The replacement of references to the Crimes Act 1914 with references to the Criminal Code Act 1995.

2.109     References to sections 7 (attempt) and 7A (inciting or urging), of the Crimes Act 1914 are to be replaced with their corresponding provisions of the Code. The Law and Justice Legislation Amendment (Application of Criminal Code) Bill 2000 repeals these sections (and others) of the Crimes Act 1914  in Schedule 51 item 4. These sections of the Crimes Act 1914 are being replaced by provisions in Division 11 of the Code covering the same issues.

2.110     In the Income Tax Assessment Act 1936 sections 251A and 251K contain references to sections 7 (Attempt) and 7A (inciting or urging) of the Crimes Act 1914 . These provisions have been amended to refer to the corresponding provisions in Division 11 of the Code. [Schedule 4, items 67 and 68, section 251A; items 70 and 71, subparagraphs 251K(1)(b)(i) and 251K(1)(b)(ii)]

2.111     Table 1 at paragraph 2.56 compares the Crimes Act 1914 provisions to their equivalent provisions in the Code.

References to section 8P TAA 1953 and Divisions 136 and 137 of the Code

2.112     Section 8P of the TAA 1953 is repealed by Schedule 3, item 50 (see paragraphs 2.29 and 2.30). As a result, consequential amendments are required to remove references to section 8P of the TAA 1953. [Schedule 4, item 66, paragraph 214A(2)(e); item 91, subsection 393-30(3) in Schedule 2G (note)]

2.113     As well as removing references to 8P, references have also been inserted to Division 136 and Division 137 of the Code, which create offences for false and misleading statements in applications (Division 136) and false and misleading information in documents (Division 137). Where appropriate, taxpayers may be prosecuted under these Divisions of the Code in relation to a taxation offence, rather than a specific provision in a taxation law. Inserting the relevant references to Division 136 and Division 137 of the Code allow prosecutions taken under these Divisions to be treated in the same manner as prosecutions taken under section 8N. [Schedule 4, item 65, paragraph 128AE(2A)(a); item 69, paragraph 251K(1)(a)]

Part 7: Income Tax Assessment Act 1997

Strict Liability

2.114     An offence of strict liability is an offence where no fault elements apply to the physical elements of the offence. For an offence of strict liability the defence of reasonable mistake of fact under section 9.2 of the Code is available. Strict liability is described in section 6.1 of the Code.

2.115     The Code requires that provisions that create an offence of strict liability must expressly state that they are strict liability offences. If the provision does not specifically state this, the offence is not a strict liability offence.

2.116     The amendments listed in the table below, insert a provision for each strict liability offence in the ITAA 1997 to expressly state that the offence is a strict liability offence. These amendments do not create new offences of strict liability. They are simply identifying the current strict liability offences and ensuring that they will continue to operate as strict liability offences following the application of the Code.

Item(s) in Schedule 4

Provision of ITAA 1997 inserted

92

Subsection 41-50(5)

93

Subsection 41-55(6)  

94

Subsection 121-20(6)

95

Subsection 121-25(2A)

96

Subsection 165-115ZC(5A)

 

2.117     The following factors indicate that these offences are strict liability offences:

·       they are not punishable by imprisonment,

·       the monetary penalties are small,

·       the subject matter of the offence (most are about giving or retaining notices),

·       the fact that they would be difficult to enforce if fault elements applied.

 

Defence separated from offence and evidential burden identified.

2.118     Section 387-205 provides for an offence where the previous owner of horticultural plant fails to comply with a notice to provide certain information to the current owner. There is a defence of ‘reasonable excuse’.

2.119     Subsection 387-205(2) and paragraph 387-205(3)(c) are being amended to ensure that the defence and the applicable burden of proof imposed on the defendant are stated clearly. The provisions currently contain an offence and defence in the same subsection or paragraph. Each amendment separates the defence from the offence and places it in a separate subsection to ensure the defence is stated clearly. Each new subsection includes a note explaining that the defendant bears an evidential burden for the matters in the subsection. [Schedule 4, items 97 and 98, subsections 387-205(2) and (2A); items 99 and 100, paragraph 387-205(3)(c) and subsection 387-205 (3A)]

2.120     Section 13.3 of the Code explains when an evidential burden of proof is imposed on the defendant. An evidential burden of proof means that the onus is on the defendant to adduce or point to evidence that suggests a reasonable possibility that the matter exists or does not exist. A defendant who wishes to rely on a defence being an exception, exemption, excuse, qualification or justification bears an evidential burden of proof. This applies whether the exception, exemption, excuse, qualification or justification is within the offence provision itself or is separated from it.

Part 8: Petroleum Resource Rent Tax Assessment Act 1987

Strict Liability

2.121     An offence of strict liability is an offence where no fault elements apply to the physical elements of the offence. For an offence of strict liability the defence of reasonable mistake of fact under section 9.2 of the Code is available. Strict liability is described in section 6.1 of the Code.

2.122     The Code requires that provisions that create an offence of strict liability must expressly state that they are strict liability offences. If the provision does not specifically state this, the offence is not a strict liability offence.

2.123     The amendments listed in the table below insert a provision for each strict liability offence in the Petroleum Resource Rent Tax Assessment Act 1987 (PRRTAA 1987) to expressly state that the offence is a strict liability offence. These amendments do not create new offences of strict liability. They are simply identifying the current strict liability offences and ensuring that they will continue to operate as strict liability offences following the application of the Code.

Item in Schedule 4

Provision in PRRTAA 1987 inserted

108

Subsection 45A(5B)

111

Subsection 45B(5B)

112

Subsection 61(1A)

113

Subsection 112(2A)

2.124     These offences are strict liability offences as indicated by the fact that the monetary penalties are all small, the nature of the offences (regarding lodging notices and certificates, and record keeping), and the fact that they would be difficult to enforce if fault elements applied.

Defence separated from offence and evidential burden identified.

2.125     There are a number of provisions in the PRRTAA 1987 which are being amended to ensure that the defences and the applicable burden of proof imposed on the defendant are stated clearly. The provisions in question currently contain offences and defences in the same subsection. These defences describe circumstances or conduct that would satisfy all or some of the elements of the offence if they were not expressly excluded. The amendments separate the defences from the offences and place them in a separate subsection to ensure the defence is stated clearly. The new subsections include a note explaining that the defendant bears an evidential burden for the matters in the subsection.

2.126     Section 13.3 of the Criminal Code explains when an evidential burden of proof is imposed on the defendant. An evidential burden of proof means that the onus is on the defendant to adduce or point to evidence that suggests a reasonable possibility that the matter exists or does not exist. A defendant who wishes to rely on a defence being an exception, exemption, excuse, qualification or justification bears an evidential burden of proof. This applies whether the exception, exemption, excuse, qualification or justification is within the offence provision itself or is separated from it. [Schedule 4, items 103 and 104, subsections 17(3) and (3A); items 106 and 107, subsections 45A(5) and (5A); items 109 and 110, subsections 45B(5) and (5A)]

Evidential burden of proof

2.127     In a number of provisions an explanatory note is inserted stating that the defendant bears an evidential burden of proving the defences available in the relevant subsections. This clarifies the burden of proof that applies. [Schedule 4, item 105, subsection 17(5); item 114, subsection 112(3); item 115, subsection 112(4)]

Part 9: Product Grants and Benefits Administration Act 2000

References to section 8P TAA 1953 and Divisions 136 and 137 of the Code

2.128     Section 8P of the TAA 1953 is repealed by Schedule 3, item 50 (see paragraphs 2.29 and 2.30). As a result, a consequential amendment is required to subsection 43(2), to remove the reference to section 8P of the TAA 1953.

2.129     As well as removing the reference to 8P of the TAA 1953, references have also been inserted to Division 136 and Division 137 of the Code, which create offences for false and misleading statements in applications (Division 136) and false and misleading information in documents (Division 137). Where appropriate, taxpayers may be prosecuted under these Divisions of the Code in relation to a taxation offence, rather than a specific provision in a taxation law. Inserting the relevant references to Division 136 and Division 137 of the Code allow prosecutions taken under these Divisions to be treated in the same manner as prosecutions taken under section 8N of the TAA 1953. [Schedule 4, item 118, subsection 43(2)]

2.130     Two notes which refer the reader to section 8N and section 8P of the TAA 1953 are to be amended to refer to section 8N and to reflect the new section heading of section 8N. [Schedule 4, item 116, section 29; item 117, section 30]

Part 10: Spirits Act 1906

Defence separated from offence and evidential burden identified

2.131     Section 15, which creates offences in relation to the production, distillation, refining or use of methylated spirits, is being amended to ensure that the defence and the applicable burden of proof imposed on the defendant are stated clearly. The provision currently contains an offence and defence in the same subsection. The amendment separates the defence from the offence and places it in a separate subsection to ensure the defence is stated clearly. The new subsection includes a note explaining that the defendant bears an evidential burden for the matters in the subsection.

2.132     An explanatory note has also been added at the end of subsection 15(2) which states that the defendant bears an evidential burden of proof in relation to this defence.

2.133     Section 13.3 of the Code explains when an evidential burden of proof  will be imposed on the defendant. An evidential burden of proof means that the onus is on the defendant to adduce or point to evidence that suggests a reasonable possibility that the matter exists or does not exist. A defendant who wishes to rely on a defence being an exception, exemption, excuse, qualification or justification bears an evidential burden of proof. This applies whether the exception, exemption, excuse, qualification or justification is within the offence provision itself or is separated from it. [Schedule 4, items 120 and 121, section 15]

Evidential burden of proof

2.133     Section 16 provides offences for selling or possessing illicit methylated spirits. Subsection 16(2) provides a defence. After subsection 16(2) an explanatory note stating that the defendant bears an evidential burden of proving the defence is inserted. This clarifies the burden of proof that applies. [Schedule 4, item 122, subsection 16(2)]

Part 11: Superannuation Guarantee (Administration) Act 1992

Strict Liability

2.135     An offence of strict liability is an offence where no fault elements apply to the physical elements of the offence. For an offence of strict liability the defence of reasonable mistake of fact under section 9.2 of the Code is available. Strict liability is described in section 6.1 of the Code.

2.136     The Code requires that provisions that create an offence of strict liability must expressly state that they are strict liability offences. If the provision does not specifically state this, the offence is not a strict liability offence.

2.137     The amendment to section 79 (which is about keeping and retaining records), inserts a provision to expressly state that an offence under section 79 is a strict liability offence. This does not create a new offence of strict liability. It simply ensures that the offence will continue to operate as a strict liability offence following the application of the Code. [Schedule 4, item 128, subsection 79(7)]

2.138     The language of this provision, the fact that it is regulatory in nature and that the monetary penalty is small, all indicate that this is a strict liability offence.

Defence separated from offence and evidential burden identified

2.139     Subsection 45(2) and subsection 79(6) are being amended to ensure that the defence and the applicable burden of proof imposed on the defendant are stated clearly. Section 45 is a secrecy provision and section 79 imposes obligations to keep records. The provisions currently contain offences and defences in the same subsection. Each amendment separates the defence from the offence and places it in a separate subsection to ensure the defence is stated clearly. Each new subsection includes a note explaining that the defendant bears an evidential burden for the matters in the subsection.

2.140     An explanatory note has also been added at the end of the new subsections which states that the defendant bears an evidential burden of proof in relation to the defence.

2.141     Section 13.3 of the Code explains when an evidential burden of proof will be imposed on the defendant. An evidential burden of proof means that the onus is on the defendant to adduce or point to evidence that suggests a reasonable possibility that the matter exists or does not exist. A defendant who wishes to rely on a defence being an exception, exemption, excuse, qualification or justification bears an evidential burden of proof. This applies whether the exception, exemption, excuse, qualification or justification is within the offence provision itself or is separated from it. [Schedule 4, item 124, subsections 45(2) and (2A); items 126 and 127, subsections 79(6) and (6A)]

Evidential burden of proof

2.142     After subsection 79(5) an explanatory note stating that the defendant bears an evidential burden of proving the defence is inserted. This clarifies the burden of proof that applies. [Schedule 4, item 125, subsection 79(5)]

Part 12: Taxation (Interest on Overpayments and Early Payments) Act 1983

Defence separated from offence and evidential burden identified

2.143     Subsection 8(2) (an exception in a secrecy provision), is being amended to ensure that the defence and the applicable burden of proof imposed on the defendant are stated clearly. The provision currently contains an offence and defence in the same subsection. The amendment separates the defence from the offence and places it in a separate subsection to ensure the defence is stated clearly. The new subsection includes a note explaining that the defendant bears an evidential burden for the matters in the subsection.

2.144     An explanatory note has also been added at the end of subsection 8(2) which states that the defendant bears an evidential burden of proof in relation to this defence.

2.145     Section 13.3 of the Code explains when an evidential burden of proof will be imposed on the defendant. An evidential burden of proof means that the onus is on the defendant to adduce or point to evidence that suggests a reasonable possibility that the matter exists or does not exist. A defendant who wishes to rely on a defence being an exception, exemption, excuse, qualification or justification bears an evidential burden of proof. This applies whether the exception, exemption, excuse, qualification or justification is within the offence provision itself or is separated from it. [Schedule 4, items 130 and 131, subsections 8(2) and (2A)]

Part 13: Tobacco Charges Assessment Act 1955

Strict Liability

2.146     An offence of strict liability is an offence where no fault elements apply to the physical elements of the offence. For an offence of strict liability the defence of reasonable mistake of fact under section 9.2 of the Code is available. Strict liability is described in section 6.1 of the Code.

2.147     The Code requires that provisions that create an offence of strict liability must expressly state that they are strict liability offences. If the provision does not specifically state this, the offence is not a strict liability offence.

2.148     The amendment inserts subsection 40(2B) in the Tobacco Charges Assessment Act 1955 to expressly state that the offence of failing to appoint a public officer within a certain period under subsection 40(2A), is a strict liability offence. This amendment does not create a new offence of strict liability. It is simply identifying the current strict liability offence and ensuring that it will continue to operate as a strict liability offence following the application of the Code. The penalty is small and the nature of the offence and the fact that it would be difficult to enforce if a fault element applied, indicate that the offence is a strict liability offence. [Schedule 4, item 136, subsection 40(2B)]

Defence separated from offence and evidential burden identified

2.149     Subsection 10(2) (an exception to a secrecy provision), is being amended to ensure that the defence and the applicable burden of proof imposed on the defendant are stated clearly. The provision currently contains an offence and defence in the same subsection. The amendment separates the defence from the offence and places it in a separate subsection, 10(2A), to ensure the defence is stated clearly.

2.150     An explanatory note has also been added at the end of subsection 10(2A) which states that the defendant bears an evidential burden of proof in relation to this defence.

2.151     Section 13.3 of the Code explains when an evidential burden of proof will be imposed on the defendant. An evidential burden of proof means that the onus is on the defendant to adduce or point to evidence that suggests a reasonable possibility that the matter exists or does not exist. A defendant who wishes to rely on a defence being an exception, exemption, excuse, qualification or justification bears an evidential burden of proof. This applies whether the exception, exemption, excuse, qualification or justification is within the offence provision itself or is separated from it. [Schedule 4, items 133 and 134, subsections 10(2) and (2A)]

Evidential burden of proof

2.152     After subsection 10(4) (another exception to a secrecy provision), an explanatory note stating that the defendant bears an evidential burden of proving the defence is inserted. This clarifies the burden of proof that applies. [Schedule 4, item 135, subsection 10(4)]

Part 14: Wool Tax (Administration) Act 1964

Strict Liability

2.153     An offence of strict liability is an offence where no fault elements apply to the physical elements of the offence. For an offence of strict liability the defence of reasonable mistake of fact under section 9.2 of the Code is available. Strict liability is described in section 6.1 of the Code.

2.154     The Code requires that provisions that create an offence of strict liability must expressly state that they are strict liability offences. If the provision does not specifically state this, the offence is not a strict liability offence.

2.155     The amendments listed in the table below, insert a provision for each strict liability offence in the Wool Tax (Administration) Act 1964 (WTAA 1964) to expressly state that the offence is a strict liability offence. These amendments do not create new offences of strict liability. They are simply identifying the current strict liability offences and ensuring that they will continue to operate as strict liability offences following the application of the Code.

Item in Schedule 4

Provision in WTAA 1964 inserted

141

Subsection 13(1A)

142

Subsection 14(1A)

143

Subsection 15(1A)

144

Subsection 16(1A)

145

Subsection 21(4)

146

Subsection 22(4)

147

Subsection 22A(4)

148

Subsection 22B(3)

149

Subsection 23(6)

156

Subsection 26(2)

159

Subsection 27(3)

161

Subsection 86(6A)

162

Subsection 89(1A)

 

2.156     These offences all have small penalties, none is punishable by imprisonment, many of them deal with the regulation of the wool tax scheme, and many would be difficult to enforce if fault elements applied. These factors all indicate that these are strict liability offences.

Defence separated from offence and evidential burden identified.

2.157     There are a number of provisions in the WTAA 1964 which are being amended to ensure that the defences and the applicable burden of proof imposed on the defendant are stated clearly. The provisions in question currently contain offences and defences in the same section, subsection or paragraph. These defences describe circumstances or conduct that would satisfy all or some of the elements of the offence if they were not expressly excluded. The amendments separate the defences from the offences and place them in a separate subsection to ensure the defence is stated clearly. The new subsection includes a note explaining that the defendant bears an evidential burden for the matters in the subsection.

2.158     Section 13.3 of the Code explains when an evidential burden of proof is imposed on the defendant. An evidential burden of proof means that the onus is on the defendant to adduce or point to evidence that suggests a reasonable possibility that the matter exists or does not exist. A defendant who wishes to rely on a defence being an exception, exemption, excuse, qualification or justification bears an evidential burden of proof. This applies whether the exception, exemption, excuse, qualification or justification is within the offence provision itself or is separated from it. [Schedule 4, items 138 and 139, subsections 8(2) and (2A); items 150, 151, 152 and 153, section 24; items 154 and 155, subsections 25(1) and (3); items 157 and 158, subsections 27(1) and (1A)]

Evidential burden of Proof

2.159     After subsections 8(4) and 89(2) (which contain exceptions to secrecy and record-keeping provisions), an explanatory note stating that the defendant bears an evidential burden of proving the defences available to these subsections is inserted. This clarifies the burden of proof that applies. [Schedule 4, item 140, subsection 8(4); item 163 subsection 89(2)]

Fault element clarified

2.160     Paragraph 27A(1)(d) is being amended to remove ‘knowingly’ to avoid confusion about the interpretation of this provision. The fault element of 'knowingly' cannot apply to conduct under the Code. The Code will interpret 'intention' as applying to conduct, therefore the element of 'knowingly' has no application. [Schedule 4, item 160, paragraph 27A(1)(d)]

Application and transitional provisions

2.161     An application provision is being inserted into the Acts being amended to state that the Criminal Code applies to offences under the Act. This will apply from 15 December 2001, which is the date on which the Code will apply to all Commonwealth legislation.

Item and Schedule

Provisions inserted

Schedule 3, item 2

Section 2A TAA 1953

Schedule 4, Part 1, item 1

Section 2A Development Allowance Authority Act 1992

Schedule 4, Part 3, item 7

Section 9A Distillation Act 1901

Schedule 4, Part 5, item 33

Section 2A FBTAA 1986

Schedule 4, Part 6, item 41

Section 7B ITAA 1936

Schedule 4, Part 7, item 101

Section 905-5 ITAA 1997

Schedule 4, Part 8, item 102

Section 1A Petroleum Resource Rent Tax Assessment Act 1987

Schedule 4, Part 10, item 119

Section 5 Spirits Act 1906

Schedule 4, Part 11, item 123

Section 5C Superannuation Guarantee (Administration) Act 1992

Schedule 4, Part 12, item 129

Section 3B Taxation (Interest on Overpayments and Early Payments) Act 1983

Schedule 4, Part 13, item 132

Section 7A Tobacco Charges Assessment Act 1955

Schedule 4, Part 14, item 137

Section 4A Wool Tax (Administration) Act 1964

 

2.163     However, the Code already applies to the Diesel and Alternative Fuel Grants Scheme Act 1999, and the Product Grants and Benefits Administration Act 2000 , and therefore it is not necessary to insert another application provision into these Acts. The amendments that are made to these Acts are only consequential to other amendments being made by this Bill.

2.164     Section 6B is inserted into the Excise Act 1901 to apply the Code to the Excise Act. However, for the purposes of an excise prosecution (which is defined in the Act) Parts 2.5 (Corporate criminal responsibility) and 2.6 (Proof of criminal responsibility) of the Code do not apply. This is necessary as excise prosecutions are able to be treated as criminal matters in lower courts and civil matters in superior courts. For this reason some aspects of the Code will not translate easily to excise prosecutions, especially the provisions on the burden and standard of proof. In the interests of making minimal changes required for harmonisation with the Code, the critical aspects of the general principles in the Code will apply to excise prosecutions, but Part 2.5 and 2.6 of the Code will not apply. The issues of the burden and standard of proof will be left to the existing law, and will depend on the court in which the matter is heard. [Schedule 4, item 12, section 6B Excise Act 1901]