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Agriculture, Fisheries and Forestry Legislation Amendment (Application of Criminal Code) Bill 2001

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1998-1999-2000-2001

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

 

HOUSE OF REPRESENTATIVES

 

 

 

 

AGRICULTURE, FISHERIES AND FORESTRY LEGISLATION AMENDMENT (APPLICATION OF CRIMINAL CODE) BILL 2001

 

 

 

 

EXPLANATORY MEMORANDUM

 

 

(Circulated by authority of the Minister for Agriculture, Fisheries and Forestry, the Hon Warren Truss, MP)

 



 

AGRICULTURE, FISHERIES AND FORESTRY LEGISLATION AMENDMENT (APPLICATION OF CRIMINAL CODE) BILL 2001

 

OUTLINE

 

The purpose of this Bill is to make consequential amendments to offence provisions in Agriculture, Fisheries and Forestry portfolio legislation to reflect the application of the Criminal Code Act 1995 .

 

The Criminal Code contains a standard approach to the formulation of criminal offences. The Code will alter the way in which criminal offence provisions (including offence provisions contained in Agriculture, Fisheries and Fisheries portfolio legislation) are interpreted. The Code will apply to all Commonwealth offences from 15 December 2001. The application of the Code to all offences will improve Commonwealth criminal law by clarifying important elements of offences, in particular, the fault elements.

 

This Bill amends Agriculture, Fisheries and Fisheries portfolio legislation to harmonise offence-creating and related provisions with the general principles of criminal responsibility as codified in Chapter 2 of the Criminal Code . The amendments will ensure that the relevant offences continue to have much the same meaning and operate in much the same way as they do at present. The Bill is consistent with a number of other Bills being prepared in relation to criminal offence provisions administered by other Ministers.

 

The major kinds of amendment made by the Bill are:

 

Ø   Applying the Criminal Code to all offence-creating and related provisions in the Agriculture, Fisheries and Forestry portfolio legislation;

Ø   Deleting references in Agriculture, Fisheries and Forestry portfolio legislation to some Crimes Act 1914 general offence provisions (sections 7, 7A and 86) which duplicate provisions of the Criminal Code and replacing them with references to equivalent Criminal Code provisions where appropriate;

Ø   Applying strict liability to individual offences or specified physical elements of offences where appropriate;

Ø   Reconstructing provisions in order to clarify physical elements of conduct, circumstance and result and to clarify defences;

Ø    Removing or replacing inappropriate fault elements; and

Ø   Repealing some offence-creating provisions, which duplicate general offence provisions in the Criminal Code .

 

Financial Impact Statement

 

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

 



NOTES ON CLAUSES

 

Clause 1: Short Title

 

This clause sets out the short title by which the Act may be cited.

 

Clause 2: Commencement

This clause provides that the Act commences on the 28th day after the day on which the Act receives Royal Assent.

Clause 3: Schedule of amendments

This clause has the effect that any Act that is specified in the Schedule is amended or repealed as provided in the Schedule.

Clause 4: Application of amendments

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

 

SCHEDULE 1

The proposed amendments are as follows:

 

Agricultural and Veterinary Chemical Products (Collection of Interim Levy) Act 1994

 

Item 1 - Replacing references to certain Crimes Act provisions

 

Certain Crimes Act 1914 provisions, including sections 7, 7A and 86, are scheduled for progressive disapplication in relation to offence provisions to which the Criminal Code applies, and ultimately for repeal on 15 December 2001. It is necessary to replace references to those Crimes Act provisions with references to relevant Criminal Code provisions. This item replaces the references in the definition of offence against this Act in section 3 to sections 7, 7A and 86 of the Crimes Act 1914 (which concern attempting to commit primary offences, incitement to commit primary offences, and conspiring to commit primary offences) with references to the Criminal Code provisions which deal with attempt, incitement and conspiracy (sections 11.1, 11.4 and 11.5).

 

Item 2 - Application of the Criminal Code

 

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

 

Items 3 and 4 - Clarifying defence of reasonable excuse and applying strict liability

 

These items remove the defence of reasonable excuse from subsection 12(2) and recreate it in a new subsection 12(2A).  The rationale for this amendment is to prevent the provision from being interpreted in such a way as to include the reasonable excuse element of the provision as an element of the offence, which would have to be disproved by the prosecution.  The amendment makes it clear that reasonable excuse is a defence to the offence.

 

A standard note is added after the new subsection referring to the fact that under subsection 13.3(3) of the Criminal Code a defendant seeking to rely on the reasonable excuse defence carries an evidential burden.

 

Item 4 also inserts a new subsection 12(2B), which specifies that the offence in subsection 12(2) is an offence of strict liability. Where strict liability applies to an offence the prosecution does not have to prove fault on the part of the defendant. The prosecution need only prove that the physical elements of the offence did occur. A defence of mistake of fact is open to the defendant under section 9.2 of the Criminal Code . This defence is available if a person is under a mistaken but reasonable belief about a fact and, had that fact existed, the conduct would not constitute an offence. Under the Criminal Code , any legislative provision that attracts strict liability must expressly state that it is an offence of strict liability (see Section 6.1 of the Code).

 

Subsection 12(2) provides that a person must not fail to comply with a requirement under subsection 12(1) to calculate the total leviable value in respect of a product for a year and the amount of levy payable, and to notify the NRA of the results and basis of the calculations. The maximum penalty is 30 penalty units.  The obligation the subject of the offence is of an administrative nature and the offence carries a relatively low penalty and permits a defence of reasonable excuse.  These factors indicate that the offence is one where strict liability would apply under the existing law.

 

Items 5 and 6 - Clarifying defence of reasonable excuse and applying strict liability

 

These items remove the defence of reasonable excuse from subsection 17(2) and recreate it in a new subsection 17(3).  The rationale for this amendment is to prevent the provision from being interpreted in such a way as to include the reasonable excuse element of the provision as an element of the offence, which would have to be disproved by the prosecution.  The amendment makes it clear that reasonable excuse is a defence to the offence.

 

A standard note is added after the new subsection referring to the fact that under subsection 13.3(3) of the Criminal Code a defendant seeking to rely on the reasonable excuse defence carries an evidential burden.

 

Item 6 also inserts a new subsection 17(4), which specifies that the offence in subsection 17(2) is an offence of strict liability. Where strict liability applies to an offence the prosecution does not have to prove fault on the part of the defendant. The prosecution need only prove that the physical elements of the offence did occur.  A defence of mistake of fact is open to the defendant under section 9.2 of the Criminal Code . This defence is available if a person is under a mistaken but reasonable belief about a fact and, had that fact existed, the conduct would not constitute an offence. Under the Criminal Code , any legislative provision that attracts strict liability must expressly state that it is an offence of strict liability (see Section 6.1 of the Code).

 

Subsection 17(2) provides a person must not fail to comply with a requirement under subsection 17(1) to provide information relating to the importation, manufacturer or disposal of a product that is necessary to work out the total leviable value in respect of the product for a calendar year. The maximum penalty is 30 penalty units. The obligation the subject of the offence is of an administrative nature and the offence carries a relatively low penalty and permits a defence of reasonable excuse.  These factors indicate that the offence is one where strict liability would apply under the existing law.

 

Items 7 and 8 - Clarifying defence of reasonable excuse and applying strict liability

 

These items remove the defence of reasonable excuse from subsection 18(4) and recreate it in a new subsection 18(5).  The rationale for this amendment is to prevent the provision from being interpreted in such a way as to include the reasonable excuse element of the provision as an element of the offence, which would have to be disproved by the prosecution.  The amendment makes it clear that reasonable excuse is a defence to the offence.

 

A standard note is added after the new subsection referring to the fact that under subsection 13.3(3) of the Criminal Code a defendant seeking to rely on the reasonable excuse defence carries an evidential burden.

 

Item 8 also inserts a new subsection 18(6), which specifies that the offence in subsection 18(4) of the Act is an offence of strict liability. Where strict liability applies to an offence the prosecution does not have to prove fault on the part of the defendant. The prosecution need only prove that the physical elements of the offence did occur. A defence of mistake of fact is open to the defendant under section 9.2 of the Criminal Code . This defence is available if a person is under a mistaken but reasonable belief about a fact and, had that fact existed, the conduct would not constitute an offence. Under the Criminal Code , any legislative provision that attracts strict liability must expressly state that it is an offence of strict liability (see Section 6.1 of the Code).

 

Subsection 18(4) provides that a person who has ceased to be an inspector must, as soon as practicable, return his or her identity card. The maximum penalty is 1 penalty unit. The obligation the subject of the offence is of an administrative nature and the offence carries a low penalty and permits a defence of reasonable excuse.  These factors indicate that the offence is one where strict liability would apply under the existing law.

 

Items 9 and 10 - Clarifying defence of reasonable excuse and applying strict liability

 

These items remove the defence of reasonable excuse from subsection 21(3) and recreate it in a new subsection 21(4).  The rationale for this amendment is to prevent the provision from being interpreted in such a way as to include the reasonable excuse element of the provision as an element of the offence, which would have to be disproved by the prosecution.  The amendment makes it clear that reasonable excuse is a defence to the offence.

 

A standard note is added after the new subsection referring to the fact that under subsection 13.3(3) of the Criminal Code a defendant seeking to rely on the reasonable excuse defence carries an evidential burden.

 

Item 10 also inserts a new subsection 21(5), which specifies that the offence in subsection 21(3) of the Act is an offence of strict liability. Where strict liability applies to an offence the prosecution does not have to prove fault on the part of the defendant. The prosecution need only prove that the physical elements of the offence did occur. A defence of mistake of fact is open to the defendant under section 9.2 of the Criminal Code . This defence is available if a person is under a mistaken but reasonable belief about a fact and, had that fact existed, the conduct would not constitute an offence. Under the Criminal Code , any legislative provision that attracts strict liability must expressly state that it is an offence of strict liability (see Section 6.1 of the Code).

 

Subsection 21(3) provides that a person must not  refuse or fail to comply with a requirement under subsection 21(1) to give information or produce documents requested by an inspector. The maximum penalty is 30 penalty units. This is a relatively low penalty and a defence of reasonable excuse is available.  These factors indicate that the offence is one where strict liability would apply under the existing law.

 

Item 11 - Applying strict liability

 

Item 11 inserts a new subsection 34(2), which specifies that the offence in subsection 34(1) of the Act is an offence of strict liability. Where strict liability applies to an offence the prosecution does not have to prove fault on the part of the defendant. The prosecution need only prove that the physical elements of the offence did occur. A defence of mistake of fact is open to the defendant under section 9.2 of the Criminal Code . This defence is available if a person is under a mistaken but reasonable belief about a fact and, had that fact existed, the conduct would not constitute an offence. Under the Criminal Code , any legislative provision that attracts strict liability must expressly state that it is an offence of strict liability (see Section 6.1 of the Code).

 

Subsection 34(1) provides that a person must keep certain records and retain them for 6 years. The maximum penalty is 30 penalty units.  The obligation the subject of the offence is of an administrative nature and the offence carries a relatively low penalty.  These factors indicate that the offence is one where strict liability would apply under the existing law.

 

Agricultural and Veterinary Chemical Products (Collection of Levy) Act 1994

 

Item 12 -Replacing references to certain Crimes Act provisions

 

Certain Crimes Act 1914 provisions, including sections 7, 7A and 86, are scheduled for progressive disapplication in relation to offence provisions to which the Criminal Code applies, and ultimately for repeal on 15 December 2001. It is necessary to replace references to those Crimes Act provisions with references to relevant Criminal Code provisions. This item replaces the references in the definition of offence against this Act in section 3 to sections 7, 7A and 86 of the Crimes Act 1914 (which concern attempting to commit primary offences, incitement to commit primary offences, and conspiring to commit primary offences) with references to the Criminal Code provisions which deal with attempt, incitement and conspiracy (sections 11.1, 11.4 and 11.5).

 

Item 13 -Application of the Criminal Code

 

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

 

Items 14 and 15 - Clarifying defence of reasonable excuse and applying strict liability

 

These items remove the defence of reasonable excuse from subsection 15(2) and recreate it in a new subsection 15(2A).  The rationale for this amendment is to prevent the provision from being interpreted in such a way as to include the reasonable excuse element of the provision as an element of the offence, which would have to be disproved by the prosecution.  The amendment makes it clear that reasonable excuse is a defence to the offence.

 

A standard note is added after the new subsection referring to the fact that under subsection 13.3(3) of the Criminal Code a defendant seeking to rely on the reasonable excuse defence carries an evidential burden.

 

Item 15 also inserts a new subsection 15(2B), which specifies that the offence in subsection 15(2) of the Act is an offence of strict liability. Where strict liability applies to an offence the prosecution does not have to prove fault on the part of the defendant. The prosecution need only prove that the physical elements of the offence did occur. A defence of mistake of fact is open to the defendant under section 9.2 of the Criminal Code . This defence is available if a person is under a mistaken but reasonable belief about a fact and, had that fact existed, the conduct would not constitute an offence. Under the Criminal Code , any legislative provision that attracts strict liability must expressly state that it is an offence of strict liability (see Section 6.1 of the Code).

 

Subsection 15(2) provides that a person must not fail to comply with a requirement under subsection 15(1) to calculate the total leviable value in respect of a product for a year and the amount of levy payable, and to notify the NRA of the results and basis of the calculations. The maximum penalty is 30 penalty units. The obligation the subject of the offence is of an administrative nature and the offence carries a relatively low penalty and permits a defence of reasonable excuse.  These factors indicate that the offence is one where strict liability would apply under the existing law.

 

Items 16 and 17 - Clarifying defence of reasonable excuse and applying strict liability

 

These items remove the defence of reasonable excuse from subsection 20(3) and recreate it in a new subsection 20(4).  The rationale for this amendment is to prevent the provision from being interpreted in such a way as to include the reasonable excuse element of the provision as an element of the offence, which would have to be disproved by the prosecution.  The amendment makes it clear that reasonable excuse is a defence to the offence.

 

A standard note is added after the new subsection referring to the fact that under subsection 13.3(3) of the Criminal Code a defendant seeking to rely on the reasonable excuse defence carries an evidential burden.

 

Item 17 also inserts a new subsection 20(5), which specifies that the offence in subsection 20(3) of the Act is an offence of strict liability. Where strict liability applies to an offence the prosecution does not have to prove fault on the part of the defendant. The prosecution need only prove that the physical elements of the offence did occur. A defence of mistake of fact is open to the defendant under section 9.2 of the Criminal Code . This defence is available if a person is under a mistaken but reasonable belief about a fact and, had that fact existed, the conduct would not constitute an offence. Under the Criminal Code , any legislative provision that attracts strict liability must expressly state that it is an offence of strict liability (see Section 6.1 of the Code).

 

Subsection 20(3) provides that a person must not fail to comply with a requirement under subsection 20(1) or 20(2) to provide information relating to the importation, manufacturer or disposal of a product that is necessary to work out the total leviable value in respect of the product. The maximum penalty is 30 penalty units. The obligation the subject of the offence is of an administrative nature and the offence carries a relatively low penalty and permits a defence of reasonable excuse.  These factors indicate that the offence is one where strict liability would apply under the existing law.

 

Items 18 and 19 - Clarifying defence of reasonable excuse and applying strict liability

 

These items remove the defence of reasonable excuse from subsection 23(3) and recreate it in a new subsection 23(4).  The rationale for this amendment is to prevent the provision from being interpreted in such a way as to include the reasonable excuse element of the provision as an element of the offence, which would have to be disproved by the prosecution.  The amendment makes it clear that reasonable excuse is a defence to the offence.

 

A standard note is added after the new subsection referring to the fact that under subsection 13.3(3) of the Criminal Code a defendant seeking to rely on the reasonable excuse defence carries an evidential burden.

 

Item 19 also inserts a new subsection 23(5), which specifies that the offence in subsection 23(3) of the Act is an offence of strict liability. Where strict liability applies to an offence the prosecution does not have to prove fault on the part of the defendant. The prosecution need only prove that the physical elements of the offence did occur. A defence of mistake of fact is open to the defendant under section 9.2 of the Criminal Code . This defence is available if a person is under a mistaken but reasonable belief about a fact and, had that fact existed, the conduct would not constitute an offence. Under the Criminal Code , any legislative provision that attracts strict liability must expressly state that it is an offence of strict liability (see Section 6.1 of the Code).

 

Subsection 23(3) provides that a person must not  refuse or fail to comply with a requirement under subsection 23(1) to give information or produce documents requested by an inspector. The maximum penalty is 30 penalty units. The obligation the subject of the offence is of an administrative nature and the offence carries a relatively low penalty and permits a defence of reasonable excuse.  These factors indicate that the offence is one where strict liability would apply under the existing law.

 

Item 20 - Applying strict liability

 

Item 20 inserts a new subsection 36(2), which specifies that the offence in subsection 36(1) of the Act is an offence of strict liability. Where strict liability applies to an offence the prosecution does not have to prove fault on the part of the defendant. The prosecution need only prove that the physical elements of the offence did occur. A defence of mistake of fact is open to the defendant under section 9.2 of the Criminal Code . This defence is available if a person is under a mistaken but reasonable belief about a fact and, had that fact existed, the conduct would not constitute an offence. Under the Criminal Code , any legislative provision that attracts strict liability must expressly state that it is an offence of strict liability (see Section 6.1 of the Code).

 

Subsection 36(1) provides that a person must keep certain records and retain them for 6 years. The maximum penalty is 30 penalty units. The obligation the subject of the offence is of an administrative nature and the offence carries a relatively low penalty.  These factors indicate that the offence is one where strict liability would apply under the existing law.

 

Agricultural and Veterinary Chemicals (Administration) Act 1992

 

Item 21 -Application of all Criminal Code principles except corporate criminal responsibility

 

This item inserts a new section 5A which applies Chapter 2 (other than Part 2.5) of the Criminal Code to all offences against the Act. Chapter 2 establishes the codified general principles of criminal responsibility . Part 2.5 contains general principles of corporate criminal responsibility. When the Criminal Code was introduced, it was recognised that the general principles of corporate criminal responsibility in Part 2.5 might need to be supplemented with more specific provisions in appropriate cases. This Act is one which contains specific provisions relating to corporate criminal responsibility (see section 69EU) . As the Bill is intended to ensure that agriculture, fisheries and forestry portfolio legislation continues to operate in the same way after the Criminal Code applies to it, the specific corporate criminal responsibility provisions in the Act are retained by excluding the application of Part 2.5 of the Criminal Code .

 

Items 22 and 23 -Clarifying defences and applying strict liability

 

These items remove the defences of reasonable excuse and "with the consent in writing of the NRA" from subsection 69B(1) and recreate them in new subsections 69B(1A) and 69B(1B).  The rationale for these amendments is to prevent the provision from being interpreted in such a way as to include the reasonable excuse and consent elements of the provision as elements of the offence, which would have to be disproved by the prosecution. The amendment makes it clear that they are defences to the offence.

 

A standard note is added after the new subsections referring to the fact that under subsection 13.3(3) of the Criminal Code a defendant seeking to rely on the defences in the new subsections carries an evidential burden.

 

Item 23 also inserts new subsections 69B(1C) and 69B(1D ) which provide that strict liability applies to the physical elements of circumstance in the offence in subsection 69B(1), that the active constituent is not approved or exempt and the chemical product is not registered or exempt. The result of specifying that strict liability applies to those physical elements of circumstance is that the prosecution does not have to prove fault on the part of the defendant in relation to those physical elements.  The prosecution need only prove that the physical elements of the offence did occur - in this case that the active constituent was not approved or exempt and the chemical product was not registered or exempt

 

Items 24 and 25 - Clarifying defence of reasonable excuse and applying strict liability

 

These items remove the defence of reasonable excuse from subsection 69C(5) and recreate it in a new subsection 69C(5A).  The rationale for this amendment is to prevent the provision from being interpreted in such a way as to include the reasonable excuse element of this provision as an element of the offence, which would have to be disproved by the prosecution.  The amendment makes it clear that reasonable excuse is a defence to the offence.

 

A standard note is added after the new subsection referring to the fact that under subsection 13.3(3) of the Criminal Code a defendant seeking to rely on the reasonable excuse defence carries an evidential burden.

 

Item 25 also inserts a new subclause 69C(5B) which provides that strict liability applies to the physical element of circumstance in the offence in subclause 69C(5), that the condition or restriction that the conduct contravenes is a condition or restriction prescribed by a regulation made for the purposes of subsection (1). The result of specifying that strict liability applies to that physical element of circumstance is that the prosecution does not have to prove fault on the part of the defendant in relation to that physical element.  The prosecution need only prove that the physical element of the offence did occur - in this case that the condition or restriction that the conduct contravened is a condition or restriction prescribed by a regulation made for the purposes of subsection (1).

 

Item 26 - Applying strict liability

 

This item inserts a new subsection 69E(2A), which specifies that the offence in subsection 69E(1) of the Act is an offence of strict liability. Where strict liability applies to an offence the prosecution does not have to prove fault on the part of the defendant. The prosecution need only prove that the physical elements of the offence did occur. A defence of mistake of fact is open to the defendant under section 9.2 of the Criminal Code . This defence is available if a person is under a mistaken but reasonable belief about a fact and, had that fact existed, the conduct would not constitute an offence. Under the Criminal Code , any legislative provision that attracts strict liability must expressly state that it is an offence of strict liability (see Section 6.1 of the Code).

 

Subsection 69E(1) provides that an importer, exporter or manufacturer of chemical products or their active constituents must file an annual return setting out the quantities exported, imported or manufactured . The maximum penalty is 30 penalty units. The obligation the subject of the offence is of an administrative nature and the offence carries a relatively low penalty.  These factors indicate that the offence is one where strict liability would apply under the existing law.

 

Item 27 - Applying strict liability

 

This item inserts a new subsection 69EA(2), which specifies that the offence in subsection 69EA(1) of the Act is an offence of strict liability. Where strict liability applies to an offence the prosecution does not have to prove fault on the part of the defendant. The prosecution need only prove that the physical elements of the offence did occur. A defence of mistake of fact is open to the defendant under section 9.2 of the Criminal Code . This defence is available if a person is under a mistaken but reasonable belief about a fact and, had that fact existed, the conduct would not constitute an offence. Under the Criminal Code , any legislative provision that attracts strict liability must expressly state that it is an offence of strict liability (see Section 6.1 of the Code).

 

Subsection 69EA(1) provides that an importer, exporter or manufacturer of chemical products or their active constituents must keep records relating to the export, import or manufacture and retain the records for 6 years. The maximum penalty is 30 penalty units. The obligation the subject of the offence is of an administrative nature and the offence carries a relatively low penalty.  These factors indicate that the offence is one where strict liability would apply under the existing law.

 

Items 28 and 29 - Clarifying defence of reasonable excuse and applying strict liability

 

These items remove the defence of reasonable excuse from subsection 69EB(6) and recreate it in a new subsection 69EB(7).  The rationale for this amendment is to prevent the provision from being interpreted in such a way as to include the reasonable excuse element of this provision as an element of the offence, which would have to be disproved by the prosecution.  The amendment makes it clear that reasonable excuse is a defence to the offence.

 

A standard note is added after the new subsection referring to the fact that under subsection 13.3(3) of the Criminal Code a defendant seeking to rely on the reasonable excuse defence carries an evidential burden.

 

Item 29 also inserts a new subsection 69EB(8), which specifies that the offence in subsection 69EB(6) of the Act is an offence of strict liability. Where strict liability applies to an offence the prosecution does not have to prove fault on the part of the defendant. The prosecution need only prove that the physical elements of the offence did occur. A defence of mistake of fact is open to the defendant under section 9.2 of the Criminal Code . This defence is available if a person is under a mistaken but reasonable belief about a fact and, had that fact existed, the conduct would not constitute an offence. Under the Criminal Code , any legislative provision that attracts strict liability must expressly state that it is an offence of strict liability (see Section 6.1 of the Code).

 

Subsection 69EB(6) provides that person must not refuse or fail to comply with a direction given by an inspector under section 69EB. The maximum penalty is 30 penalty units. This is a relatively low penalty and a defence of reasonable excuse is available.  These factors indicate that the offence is one where strict liability would apply under the existing law.

 

Items 30 and 31 - Clarifying defence of reasonable excuse and applying strict liability

 

These items remove the defence of reasonable excuse from subsection 69EN(3) and recreate it in a new subsection 69EN(4).  The rationale for this amendment is to prevent the provision from being interpreted in such a way as to include the reasonable excuse element of the provision as an element of the offence, which would have to be disproved by the prosecution.  The amendment makes it clear that reasonable excuse is a defence to the offence.

 

A standard note is added after the new subsection referring to the fact that under subsection 13.3(3) of the Criminal Code a defendant seeking to rely on the reasonable excuse defence carries an evidential burden.

 

Item 31 also inserts a new subsection 69EN(5), which specifies that the offence in subsection 69EN(3) of the Act is an offence of strict liability. Where strict liability applies to an offence the prosecution does not have to prove fault on the part of the defendant. The prosecution need only prove that the physical elements of the offence did occur. A defence of mistake of fact is open to the defendant under section 9.2 of the Criminal Code . This defence is available if a person is under a mistaken but reasonable belief about a fact and, had that fact existed, the conduct would not constitute an offence. Under the Criminal Code , any legislative provision that attracts strict liability must expressly state that it is an offence of strict liability (see Section 6.1 of the Code).

 

Subsection 69EN(3) provides that person must not refuse or fail to comply with a requirement under subsection 69EN(1) to give information or produce documents. The maximum penalty is 30 penalty units. This is a relatively low penalty and a defence of reasonable excuse is available.  These factors indicate that the offence is one where strict liability would apply under the existing law.

 

Items 32 and 33 - Clarifying defence of reasonable excuse and applying strict liability

 

These items remove the defence of reasonable excuse from subsection 69EP(6) and recreate it in a new subsection 69EP(6A).  The rationale for this amendment is to prevent the provision from being interpreted in such a way as to include the reasonable excuse element of the provision as an element of the offence, which would have to be disproved by the prosecution.  The amendment makes it clear that reasonable excuse is a defence to the offence.

 

A standard note is added after the new subsection referring to the fact that under subsection 13.3(3) of the Criminal Code a defendant seeking to rely on the reasonable excuse defence carries an evidential burden.

 

Item 33 also inserts a new subsection 69EP(6B), which specifies that the offence in subsection 69EP(6) of the Act is an offence of strict liability. Where strict liability applies to an offence the prosecution does not have to prove fault on the part of the defendant. The prosecution need only prove that the physical elements of the offence did occur. A defence of mistake of fact is open to the defendant under section 9.2 of the Criminal Code . This defence is available if a person is under a mistaken but reasonable belief about a fact and, had that fact existed, the conduct would not constitute an offence. Under the Criminal Code , any legislative provision that attracts strict liability must expressly state that it is an offence of strict liability (see Section 6.1 of the Code).

 

Subsection 69EP(6) provides that person must not must not contravene a direction given under subsection (5) prohibiting or restricting the publication of submissions or evidence given at a hearing. The maximum penalty is 20 penalty units. This is a relatively low penalty and a defence of reasonable excuse is available.  These factors indicate that the offence is one where strict liability would apply under the existing law.

 

Items 34 and 35 - Clarifying defence of reasonable excuse

 

These items remove the defence of reasonable excuse from subsection 69EP(7) and recreate it in a new subsection 69EP(7A).  The rationale for this amendment is to prevent the provision from being interpreted in such a way as to include the reasonable excuse element of this provision as an element of the offence, which would have to be disproved by the prosecution.  The amendment makes it clear that reasonable excuse is a defence to the offence.

 

A standard note is added after the new subsection referring to the fact that under subsection 13.3(3) of the Criminal Code a defendant seeking to rely on the reasonable excuse defence carries an evidential burden.

 

Items 36 and 37 - Clarifying defence of reasonable excuse and applying strict liability

 

These items remove the defence of reasonable excuse from subsection 69F(5) and recreate it in a new subsection 69F(5A).  The rationale for this amendment is to prevent the provision from being interpreted in such a way as to include the reasonable excuse element of the provision as an element of the offence, which would have to be disproved by the prosecution.  The amendment makes it clear that reasonable excuse is a defence to the offence.

 

A standard note is added after the new subsection referring to the fact that under subsection 13.3(3) of the Criminal Code a defendant seeking to rely on the reasonable excuse defence carries an evidential burden.

 

Item 37 also inserts a new subsection 69F(5B), which specifies that the offence in subsection 69F(5) of the Act is an offence of strict liability. Where strict liability applies to an offence the prosecution does not have to prove fault on the part of the defendant. The prosecution need only prove that the physical elements of the offence did occur. A defence of mistake of fact is open to the defendant under section 9.2 of the Criminal Code . This defence is available if a person is under a mistaken but reasonable belief about a fact and, had that fact existed, the conduct would not constitute an offence. Under the Criminal Code , any legislative provision that attracts strict liability must expressly state that it is an offence of strict liability (see Section 6.1 of the Code).

 

Subsection 69F(5) provides that a person who has ceased to be an inspector must return the identity card as soon as practicable. The maximum penalty is 1 penalty unit. The obligation the subject of the offence is of an administrative nature and the offence carries a low penalty and permits a defence of reasonable excuse.  These factors indicate that the offence is one where strict liability would apply under the existing law.

 

 

Agricultural and Veterinary Chemicals Code Act 1994

 

Item 38 - Replacing references to certain Crimes Act provisions

 

Certain Crimes Act 1914 provisions, including sections 7, 7A and 86, are scheduled for progressive disapplication in relation to offence provisions to which the Criminal Code applies, and ultimately for repeal on 15 December 2001. It is necessary to replace references to those Crimes Act provisions with references to relevant Criminal Code provisions. This item replaces the references in paragraphs 5(4)(a) and (b) to sections 7, 7A and 86 of the Crimes Act 1914 (which concern attempting to commit primary offences, incitement to commit primary offences, and conspiring to commit primary offences) with references to the Criminal Code provisions which deal with attempt, incitement and conspiracy (sections 11.1, 11.4 and 11.5).

 

Item 39 - Application of all Criminal Code principles except corporate criminal responsibility

 

This item inserts a new section 8A which applies Chapter 2 (other than Part 2.5) of the Criminal Code to all offences against the Act. Chapter 2 establishes the codified general principles of criminal responsibility . Part 2.5 contains general principles of corporate criminal responsibility. When the Criminal Code was introduced, it was recognised that the general principles of corporate criminal responsibility in Part 2.5 might need to be supplemented with more specific provisions in appropriate cases. This Act is one which contains specific provisions relating to corporate criminal responsibility (see section 151 of the Schedule) . As the Bill is intended to ensure that agriculture, fisheries and forestry portfolio legislation continues to operate in the same way after the Criminal Code applies to it, the specific corporate criminal responsibility provisions in the Act are retained by excluding the application of Part 2.5 of the Criminal Code .

 

Item 40 - Applying strict liability

 

Item 40 inserts a new subsection 26(1A), which specifies that the offence in subsection 26(1) is an offence of strict liability. Where strict liability applies to an offence the prosecution does not have to prove fault on the part of the defendant. The prosecution need only prove that the physical elements of the offence did occur. A defence of mistake of fact is open to the defendant under section 9.2 of the Criminal Code . This defence is available if a person is under a mistaken but reasonable belief about a fact and, had that fact existed, the conduct would not constitute an offence. Under the Criminal Code , any legislative provision that attracts strict liability must expressly state that it is an offence of strict liability (see Section 6.1 of the Code).

 

Subsection 26(1) provides that certain persons must inform the NRA if they have reasonable cause to believe that a particular recorded in certain registers and files is  not correct in a material respect. The maximum penalty is 60 penalty units. The obligation the subject of the offence is of an administrative nature and the offence carries a relatively low penalty.  These factors indicate that the offence is one where strict liability would apply under the existing law.

 

Item 41 - Applying strict liability

 

Item 41 inserts a new subsection 32(3A), which specifies that the offence in subsection 32(3) is an offence of strict liability. Where strict liability applies to an offence the prosecution does not have to prove fault on the part of the defendant. The prosecution need only prove that the physical elements of the offence did occur. A defence of mistake of fact is open to the defendant under section 9.2 of the Criminal Code . This defence is available if a person is under a mistaken but reasonable belief about a fact and, had that fact existed, the conduct would not constitute an offence. Under the Criminal Code , any legislative provision that attracts strict liability must expressly state that it is an offence of strict liability (see Section 6.1 of the Code).

 

Subsection 32(3) provides that a person must comply with a requirement under paragraph (2)(b) to give information relevant to a reconsideration. The maximum penalty is 120 penalty units, which is reasonably low in the commercial context, and no fault elements are specified.  These factors indicate that the offence is one where strict liability would apply under the existing law.

 

Item 42 - Applying strict liability

 

Item 42 inserts a new subsection 33(2A), which specifies that the offence in subsection 33(2) is an offence of strict liability. Where strict liability applies to an offence the prosecution does not have to prove fault on the part of the defendant. The prosecution need only prove that the physical elements of the offence did occur. A defence of mistake of fact is open to the defendant under section 9.2 of the Criminal Code . This defence is available if a person is under a mistaken but reasonable belief about a fact and, had that fact existed, the conduct would not constitute an offence. Under the Criminal Code , any legislative provision that attracts strict liability must expressly state that it is an offence of strict liability (see Section 6.1 of the Code).

 

Subsection 33(2) provides that a person must comply with a requirement under subsection 33(1) to conduct necessary trials or laboratory experiments and give the results to the NRA within a reasonable period. The maximum penalty is 120 penalty units, which is reasonably low in the commercial context, and no fault elements are specified.  These factors indicate that the offence is one where strict liability would apply under the existing law.

 

Item 43 - Clarifying fault element

 

This item replaces the phrase "for the purpose" in paragraph 55(4)(b) with the phrase "with the intention". The phrase "for the purpose" is potentially confusing as to what the applicable fault element is. It could be interpreted as a reference to the intention of the person when performing the conduct (with the intention of supplying the product), or it could refer to the result of the conduct (with the result that the product is supplied).

 

To avoid this confusion the paragraph has been amended to reflect the appropriate interpretation of the current offence, namely, "with the intention" of supplying the product.

 

Item 44 - Applying strict liability

 

This item inserts a new subsection 55(6A) which provides that strict liability applies to the physical element of circumstance in the offence in subsection 55(6A), that the publishing of the notice was under section 55. The result of specifying that strict liability applies to that physical element of circumstance is that the prosecution does not have to prove fault on the part of the defendant in relation to that physical element.  The prosecution need only prove that the physical element of the offence did occur - in this case that the publishing of the notice was under section 55.

 

 

 

 

Item 45 - Applying strict liability

 

Item 45 inserts a new subsection 61(2), which specifies that the offence in subsection 61(1) is an offence of strict liability. Where strict liability applies to an offence the prosecution does not have to prove fault on the part of the defendant. The prosecution need only prove that the physical elements of the offence did occur. A defence of mistake of fact is open to the defendant under section 9.2 of the Criminal Code . This defence is available if a person is under a mistaken but reasonable belief about a fact and, had that fact existed, the conduct would not constitute an offence. Under the Criminal Code , any legislative provision that attracts strict liability must expressly state that it is an offence of strict liability (see Section 6.1 of the Code).

 

Subsection 61(1) provides that a primary applicant must give a notice containing certain information to a secondary applicant as soon as practicable after the primary applicant receives a notice under section 60. The maximum penalty is 300 penalty units. The obligation the subject of the offence is of an administrative nature and no fault elements are specified.  These factors indicate that the offence is one where strict liability would apply under the existing law.

 

Items 46 and 47 - Clarifying defence of reasonable excuse and applying strict liability

 

These items remove the defence of reasonable excuse from subsection 70(5) and recreate it in a new subsection 70(5A).  The rationale for this amendment is to prevent the provision from being interpreted in such a way as to include the reasonable excuse element of the provision as an element of the offence, which would have to be disproved by the prosecution.  The amendment makes it clear that reasonable excuse is a defence to the offence.

 

A standard note is added after the new subsection referring to the fact that under subsection 13.3(3) of the Criminal Code a defendant seeking to rely on the reasonable excuse defence carries an evidential burden.

 

Item 47 also inserts a new subsection 70(5B), which specifies that the offence in subsection 70(5) of the Act is an offence of strict liability. Where strict liability applies to an offence the prosecution does not have to prove fault on the part of the defendant. The prosecution need only prove that the physical elements of the offence did occur. A defence of mistake of fact is open to the defendant under section 9.2 of the Criminal Code . This defence is available if a person is under a mistaken but reasonable belief about a fact and, had that fact existed, the conduct would not constitute an offence. Under the Criminal Code , any legislative provision that attracts strict liability must expressly state that it is an offence of strict liability (see Section 6.1 of the Code).

 

Subsection 70(5) provides that, if a secondary applicant gives notice under subsection (3) or (4) to the primary applicant, that secondary applicant must give a copy of the notice to the NRA. The maximum penalty is 10 penalty units. The obligation the subject of the offence is of an administrative nature and the offence carries a relatively low penalty and permits a defence of reasonable excuse.  These factors indicate that the offence is one where strict liability would apply under the existing law.

 

Item 48 - Clarifying fault element

 

This item replaces the phrase "for the purpose" in subsection 74(1) with the phrase "with the intention". The phrase "for the purpose" is potentially confusing as to what the applicable fault element is. It could be interpreted as a reference to the intention of the person when performing the conduct (with the intention of supplying the substance), or it could refer to the result of the conduct (with the result that the substance is supplied).

 

To avoid this confusion the paragraph has been amended to reflect the appropriate interpretation of the current offence, namely, "with the intention" of supplying the substance.

 

 

 

 

Item 49 - Note as to evidential burden

 

This item adds a standard note after subsection 74(1) referring to the fact that under subsection 13.3(3) of the Criminal Code a defendant seeking to rely on the defences in the subsection 74(1) carries an evidential burden.

 

 

Item 50 - Note as to legal burden

 

This item adds a note after subsection 74(3) referring to the fact that under subsection 13.4 of the Criminal Code a defendant seeking to rely on the defence in subsection 74(3) carries a legal burden.

 

Item 51 - Clarifying fault element

 

This item replaces the phrase "for the purpose" in subsection 75(1) with the phrase "with the intention". The phrase "for the purpose" is potentially confusing as to what the applicable fault element is. It could be interpreted as a reference to the intention of the person when performing the conduct (with the intention of supplying the product), or it could refer to the result of the conduct (with the result that the product is supplied).

 

To avoid this confusion the paragraph has been amended to reflect the appropriate interpretation of the current offence, namely, "with the intention" of supplying the product.

 

Item 52 - Note as to evidential burden

 

This item adds a note after subsection 75(1) referring to the fact that under subsection 13.3(3) of the Criminal Code a defendant seeking to rely on the defences in subsection 75(1) carries an evidential burden.

 

 

 

Item 53 - Note as to legal burden

 

This item adds a note after subsection 75(3) referring to the fact that under subsection 13.4 of the Criminal Code a defendant seeking to rely on the defence in subsection 75(3) carries a legal burden.

 

Item 54 - Note as to evidential burden

 

This item adds a note after subsection 76(1) referring to the fact that under subsection 13.3(3) of the Criminal Code a defendant seeking to rely on the defences in subsection 76(1) carries an evidential burden.

 

Item 55 - Note as to legal burden

 

This item adds a note after subsection 76(3) referring to the fact that under subsection 13.4 of the Criminal Code a defendant seeking to rely on the defence in subsection 76(3) carries a legal burden.

 

Item 56 - Note as to evidential burden

 

This item adds a note after subsection 77(1) referring to the fact that under subsection 13.3(3) of the Criminal Code a defendant seeking to rely on the defence that the supply is in accordance with the conditions or is authorised by a permit carries an evidential burden.

 

Item 57 - Note as to legal burden

 

This item adds a note after subsection 77(2) referring to the fact that under subsection 13.4 of the Criminal Code a defendant seeking to rely on the defence in subsection 77(2) carries a legal burden.

 

Item 58 - Note as to evidential burden

 

This item adds a note after subsection 78(1) referring to the fact that under subsection 13.3(3) of the Criminal Code a defendant seeking to rely on the defences in subsection 78(1) carries an evidential burden.

 

Item 59 - Note as to legal burden

 

This item adds a note after subsection 78(3) referring to the fact that under subsection 13.4 of the Criminal Code a defendant seeking to rely on the defence in subsection 78(3) carries a legal burden.

 

Item 60 - Note as to evidential burden

 

This item adds a note after subsection 79(1) referring to the fact that, under subsection 13.3(3) of the Criminal Code , a defendant seeking to rely on the defence that the supply is in accordance with the conditions or is authorised by a permit carries an evidential burden.

 

Item 61 - Note as to legal burden

 

This item adds a note after subsection 79(2) referring to the fact that under subsection 13.4 of the Criminal Code a defendant seeking to rely on the defence in subsection 79(2) carries a legal burden.

 

Item 62 - Note as to evidential burden

 

This item adds a note after subsection 80(1) referring to the fact that under subsection 13.3(3) of the Criminal Code a defendant seeking to rely on the defence that the supply is authorised by a permit carries an evidential burden.

 

Item 63 - Note as to legal burden

 

This item adds a note after subsection 80(2) referring to the fact that under subsection 13.4 of the Criminal Code a defendant seeking to rely on the defence in subsection 80(2) carries a legal burden.

 

Item 64 - Note as to evidential burden

 

This item adds a note after subsection 81(1) referring to the fact that under subsection 13.3(3) of the Criminal Code a defendant seeking to rely on the defence that the supply is authorised by a permit carries an evidential burden.

 

Item 65 - Note as to legal burden

 

This item adds a note after subsection 81(2) referring to the fact that under subsection 13.4 of the Criminal Code a defendant seeking to rely on the defence in subsection 81(2) carries a legal burden.

 

Items 66 and 67 - Clarifying defence

 

These items remove the defence of written consent of an inspector from subsection 82(1) and recreate it in a new subsection 82(1A).  The rationale for this amendment is to prevent the provision from being interpreted in such a way as to include the "without written consent" element of the provision as an element of the offence, which would have to be disproved by the prosecution.  The amendments make it clear that having written consent of an inspector is a defence to the offence.

 

A standard note is added after the new subsection 82(1A) referring to the fact that under subsection 13.3(3) of the Criminal Code a defendant seeking to rely on the defence established by subsection 82(1A) carries an evidential burden.

 

Item 68 - Note as to legal burden

 

This item adds a note after subsection 82(2) referring to the fact that under subsection 13.4 of the Criminal Code a defendant seeking to rely on the defence in subsection 82(2) carries a legal burden.

 

Item 69 - Applying strict liability

 

This item inserts a new subsection 82(3) which provides that strict liability applies to the physical element of circumstance in the offence in subsection 82(1) that, in opening the container, the inspector was acting under paragraph 131(1)(f) . The result of specifying that strict liability applies to that physical element of circumstance is that the prosecution does not have to prove fault on the part of the defendant in relation to that physical element.  The prosecution need only prove that the physical element of the offence did occur - in this case that, in the opening the container, the inspector was acting under paragraph 131(1)(f) .

 

Items 70 and 71 - Clarifying defence of reasonable excuse

 

These items remove the defence of reasonable excuse from subsection 83(1) and recreate it in a new subsection 83(2).  The rationale for this amendment is to prevent the provision from being interpreted in such a way as to include the reasonable excuse element of the provision as an element of the offence, which would have to be disproved by the prosecution.  The amendment makes it clear that reasonable excuse is a defence to the offence.

 

A standard note is added after the new subsection referring to the fact that under subsection 13.3(3) of the Criminal Code a defendant seeking to rely on the reasonable excuse defence carries an evidential burden.

 

Items 72 and 73 - Clarifying defences

 

These items remove the defences of authorised by a permit and reasonable excuse from subsection 84(1) and recreate them in new subsections 84(3) and 84(4).  The rationale for these amendments is to prevent the provision from being interpreted in such a way as to include the reasonable excuse and authorised by a permit elements of the provision as elements of the offence, which would have to be disproved by the prosecution.  The amendments make it clear that having authorisation under a permit or a reasonable excuse is a defence to the offence.

 

A standard note is added after the new subsections referring to the fact that under subsection 13.3(3) of the Criminal Code a defendant seeking to rely on the defences in the new subsections carries an evidential burden.

 

Items 74, 75 and 76 - Clarifying defences and applying strict liability

 

These items remove the defences of authorised by a permit and reasonable excuse from subsection 85(1) and recreate them in new subsections 85(3) and 85(4).  The rationale for these amendments is to prevent the provision from being interpreted in such a way as to include the reasonable excuse and authorised by a permit elements of the provision as elements of the offence, which would have to be disproved by the prosecution.  The amendments make it clear that having authorisation under a permit or a reasonable excuse is a defence to the offence.

 

A standard note is added after the new subsections referring to the fact that under subsection 13.3(3) of the Criminal Code a defendant seeking to rely on the defences in the new subsections carries an evidential burden.

 

Item 76 also inserts a new subsection 85(5) which provides that strict liability applies to the physical element of circumstance in the offence in subsection 85(1) that it is the regulations that require an expiry date to be contained on a label attached to a container of the product .  The result of specifying that strict liability applies to that physical element of circumstance is that the prosecution does not have to prove fault on the part of the defendant in relation to that physical element.  The prosecution need only prove that the physical element of the offence did occur - in this case that it is the regulations that require an expiry date to be contained on a label attached to a container of the product. 

 

Items 77 and 78 - Clarifying defence of reasonable excuse

 

These items remove the defence of reasonable excuse from subsection 86(1) and recreate it in a new subsection 86(3).  The rationale for this amendment is to prevent the provision from being interpreted in such a way as to include the reasonable excuse element of the provision as an element of the offence, which would have to be disproved by the prosecution.  The amendment makes it clear that reasonable excuse is a defence to the offence.

 

A standard note is added after the new subsection referring to the fact that under subsection 13.3(3) of the Criminal Code a defendant seeking to rely on the reasonable excuse defence carries an evidential burden.

 

Items 79 and 80 - Clarifying defences

 

These items remove the defences of "authorised by a permit" and reasonable excuse from subsection 87(2) and recreate them in new subsections 87(3) and (4). The rationale for these amendments is to prevent the provision from being interpreted in such a way as to include the reasonable excuse and authorised by a permit elements of the provision as elements of the offence, which would have to be disproved by the prosecution.  The amendments make it clear that having authorisation under a permit or a reasonable excuse is a defence to the offence.

 

A standard note is added after each of the new subsections referring to the fact that under subsection 13.3(3) of the Criminal Code a defendant seeking to rely on the defences in the new subsections carries an evidential burden.

 

Item 81 - Note as to evidential burden

 

This item adds a note after subsection 88(2) referring to the fact that under subsection 13.3(3) of the Criminal Code a defendant seeking to rely on the defences in subsection 88(2) carries an evidential burden.

 

Item 82 - Note as to legal burden

 

This item adds a note after subsection 88(3) referring to the fact that under subsection 13.4 of the Criminal Code a defendant seeking to rely on the defence in subsection 88(3) carries a legal burden.

 

Items 83 and 84 - Clarifying defence of reasonable excuse and applying strict liability

 

These items remove the defence of reasonable excuse from subsection 89(1) and recreate it in a new subsection 89(6). The rationale for this amendment is to prevent the provision from being interpreted in such a way as to include the reasonable excuse element of the provision as an element of the offence, which would have to be disproved by the prosecution.  The amendment makes it clear that reasonable excuse is a defence to the offence.

 

A standard note is added after the new subsection referring to the fact that under subsection 13.3(3) of the Criminal Code a defendant seeking to rely on the reasonable excuse defence carries an evidential burden.

 

Item 84 also inserts a new subsection 89(7) which provides that strict liability applies to the physical element of circumstance in the offence in paragraph 89(1)(f), that the particular quantities concerned were prescribed by the regulations for the purposes of that paragraph . The result of specifying that strict liability applies to that physical element of circumstance is that the prosecution does not have to prove fault on the part of the defendant in relation to that physical element.  The prosecution need only prove that the physical element of the offence did occur - in this case that the particular quantities concerned were prescribed by the regulations for the purposes of that paragraph.

 

Items 85 and 86 - Clarifying defence of reasonable excuse and applying strict liability

 

These items remove the defence of reasonable excuse from subsection 90(1) and recreate it in a new subsection 90(2). The rationale for this amendment is to prevent the provision from being interpreted in such a way as to include the reasonable excuse element of the provision as an element of the offence, which would have to be disproved by the prosecution.  The amendment makes it clear that reasonable excuse is a defence to the offence.

 

A standard note is added after the new subsection referring to the fact that under subsection 13.3(3) of the Criminal Code a defendant seeking to rely on the reasonable excuse defence carries an evidential burden.

 

Item 86 also inserts a new subsection 90(3) which provides that strict liability applies to the physical element of circumstance in the offence in subsection 90(1), that the relevant matter is prescribed by the regulations . The result of specifying that strict liability applies to that physical element of circumstance is that the prosecution does not have to prove fault on the part of the defendant in relation to that physical element.  The prosecution need only prove that the physical element of the offence did occur - in this case that the relevant matter was prescribed by the regulations.

 

Items 87 and 88 - Clarifying defences and applying strict liability

 

These items remove the defences of authorised by a permit and reasonable excuse from subsection 91(1) and recreate them in new subsections 91(1A) and 91(1B).  The rationale for these amendments is to prevent the provision from being interpreted in such a way as to include the reasonable excuse and authorised by a permit elements of this provision as elements of the offence, which would have to be disproved by the prosecution.  The amendments make it clear that having authorisation under a permit or a reasonable excuse is a defence to the offence.

 

A standard note is added after the new subsections referring to the fact that under subsection 13.3(3) of the Criminal Code a defendant seeking to rely on the defences in the new subsections carries an evidential burden.

 

Item 88 also inserts a new subsection 91(1C) which provides that strict liability applies to the physical element of circumstance in the offence in subsection 91(1) that the NRA has not approved the relevant matter and that an expiry date was required as a condition of registration. The result of specifying that strict liability applies to those physical elements of circumstance is that the prosecution does not have to prove fault on the part of the defendant in relation to those physical elements.  The prosecution need only prove that those physical elements of the offence did occur - in this case that the NRA had not approved the relevant matter and that an expiry date was required as a condition of registration. 

 

Items 89 and 90 - Clarifying defence of reasonable excuse

 

These items remove the defence of reasonable excuse from subsection 91(2) and recreate it in a new subsection 91(3).  The rationale for this amendment is to prevent the provision from being interpreted in such a way as to include the reasonable excuse element of the provision as an element of the offence, which would have to be disproved by the prosecution.  The amendment makes it clear that reasonable excuse is a defence to the offence.

 

A standard note is added after the new subsection referring to the fact that under subsection 13.3(3) of the Criminal Code a defendant seeking to rely on the reasonable excuse defence carries an evidential burden.

 

Items 91 and 92 - Clarifying defence of reasonable excuse

 

These items remove the defence of reasonable excuse from subsection 92(1) and recreate it in a new subsection 92(3).  The rationale for this amendment is to prevent the provision from being interpreted in such a way as to include the reasonable excuse element of the provision as an element of the offence, which would have to be disproved by the prosecution.  The amendment makes it clear that reasonable excuse is a defence to the offence.

 

A standard note is added after the new subsection referring to the fact that under subsection 13.3(3) of the Criminal Code a defendant seeking to rely on the reasonable excuse defence carries an evidential burden.

 

Items 93 and 94 - Clarifying defence of reasonable excuse

 

These items remove the defence of reasonable excuse from subsection 94(1) and recreate it in a new subsection 94(2).  The rationale for this amendment is to prevent the provision from being interpreted in such a way as to include the reasonable excuse element of the provision as an element of the offence, which would have to be disproved by the prosecution.  The amendment makes it clear that reasonable excuse is a defence to the offence.

 

A standard note is added after the new subsection referring to the fact that under subsection 13.3(3) of the Criminal Code a defendant seeking to rely on the reasonable excuse defence carries an evidential burden.

 

 

Items 95 and 96 - Clarifying defence of reasonable excuse

 

These items remove the defence of reasonable excuse from subsection 95(1) and recreate it in a new subsection 95(2).  The rationale for this amendment is to prevent the provision from being interpreted in such a way as to include the reasonable excuse element of the provision as an element of the offence, which would have to be disproved by the prosecution.  The amendment makes it clear that reasonable excuse is a defence to the offence.

 

A standard note is added after the new subsection referring to the fact that under subsection 13.3(3) of the Criminal Code a defendant seeking to rely on the reasonable excuse defence carries an evidential burden.

 

Item 97 - Applying strict liability

 

This item inserts a new subsection 97(2A), which specifies that the offence in subsection 97(2) is an offence of strict liability. Where strict liability applies to an offence the prosecution does not have to prove fault on the part of the defendant. The prosecution need only prove that the physical elements of the offence did occur. A defence of mistake of fact is open to the defendant under section 9.2 of the Criminal Code . This defence is available if a person is under a mistaken but reasonable belief about a fact and, had that fact existed, the conduct would not constitute an offence. Under the Criminal Code , any legislative provision that attracts strict liability must expressly state that it is an offence of strict liability (see Section 6.1 of the Code).

 

Subsection 97(2) provides that an analyst must give the NRA a certificate after an analysis. The penalty is 10 penalty units. The obligation the subject of the offence is of an administrative nature and the offence carries a relatively low penalty.  These factors indicate that the offence is one where strict liability would apply under the existing law.

 

Items 98 and 99 - Clarifying defence of reasonable excuse and applying strict liability

 

These items remove the defence of reasonable excuse from subsection 97(6) and recreate it in a new subsection 97(6A).  The rationale for this amendment is to prevent the provision from being interpreted in such a way as to include the reasonable excuse element of the provision as an element of the offence, which would have to be disproved by the prosecution.  The amendment makes it clear that reasonable excuse is a defence to the offence.

 

A standard note is added after the new subsection referring to the fact that under subsection 13.3(3) of the Criminal Code a defendant seeking to rely on the reasonable excuse defence carries an evidential burden.

 

Item 99 also inserts a new subsection 97(6B), which specifies that the offence in subsection 97(6) of the Act is an offence of strict liability. Where strict liability applies to an offence the prosecution does not have to prove fault on the part of the defendant. The prosecution need only prove that the physical elements of the offence did occur. A defence of mistake of fact is open to the defendant under section 9.2 of the Criminal Code . This defence is available if a person is under a mistaken but reasonable belief about a fact and, had that fact existed, the conduct would not constitute an offence. Under the Criminal Code , any legislative provision that attracts strict liability must expressly state that it is an offence of strict liability (see Section 6.1 of the Code).

 

Subsection 97(6) provides that a person must not, for trade purposes or for advertisement, use a certificate given under subsection (2) or any matter contained in it. The maximum penalty is 60 penalty units, which is relatively low, and a defence of reasonable excuse is available.  These factors indicate that the offence is one where strict liability would apply under the existing law.

 

Items 100 and 101 - Clarifying defence of reasonable excuse and applying strict liability

 

These items remove the defence of reasonable excuse from subsection 99(5) and recreate it in a new subsection 99(5A).  The rationale for this amendment is to prevent the provision from being interpreted in such a way as to include the reasonable excuse element of the provision as an element of the offence, which would have to be disproved by the prosecution.  The amendment makes it clear that reasonable excuse is a defence to the offence.

 

A standard note is added after the new subsection referring to the fact that under subsection 13.3(3) of the Criminal Code a defendant seeking to rely on the reasonable excuse defence carries an evidential burden.

 

Item 101 also inserts a new subsection 99(5B), which specifies that the offence in subsection 99(5) of the Act is an offence of strict liability. Where strict liability applies to an offence the prosecution does not have to prove fault on the part of the defendant. The prosecution need only prove that the physical elements of the offence did occur. A defence of mistake of fact is open to the defendant under section 9.2 of the Criminal Code . This defence is available if a person is under a mistaken but reasonable belief about a fact and, had that fact existed, the conduct would not constitute an offence. Under the Criminal Code , any legislative provision that attracts strict liability must expressly state that it is an offence of strict liability (see Section 6.1 of the Code).

 

Subsection 99(5) provides that a person must comply with a notice given under subsection (2) or (3) and must give the NRA the analyst's certificate within 5 days after the person receives it. The penalty is 120 penalty units. The obligation the subject of the offence is of an administrative nature and the defence of reasonable excuse is available.  These factors indicate that the offence is one where strict liability would apply under the existing law.

 

Items 102 and 103 - Clarifying defence of reasonable excuse and applying strict liability

 

These items remove the defence of reasonable excuse from subsection 105(1) and recreate it in a new subsection 105(2).  The rationale for this amendment is to prevent the provision from being interpreted in such a way as to include the reasonable excuse element of the provision as an element of the offence, which would have to be disproved by the prosecution.  The amendment makes it clear that reasonable excuse is a defence to the offence.

 

A standard note is added after the new subsection referring to the fact that under subsection 13.3(3) of the Criminal Code a defendant seeking to rely on the reasonable excuse defence carries an evidential burden.

 

Item 103 also inserts a new subsection 105(3), which specifies that the offence in subsection 105(1) of the Act is an offence of strict liability. Where strict liability applies to an offence the prosecution does not have to prove fault on the part of the defendant. The prosecution need only prove that the physical elements of the offence did occur. A defence of mistake of fact is open to the defendant under section 9.2 of the Criminal Code . This defence is available if a person is under a mistaken but reasonable belief about a fact and, had that fact existed, the conduct would not constitute an offence. Under the Criminal Code , any legislative provision that attracts strict liability must expressly state that it is an offence of strict liability (see Section 6.1 of the Code).

 

Subsection 105(1) provides that a person to whom a recall notice is given must comply with it. The penalty is 120 penalty units. The obligation the subject of the offence is of an administrative nature and the defence of reasonable excuse is available.  These factors indicate that the offence is one where strict liability would apply under the existing law.

 

Items 104 and 105 - Clarifying defence of reasonable excuse and applying strict liability

 

These items remove the defence of reasonable excuse from subsections 121(3), (4) and (5) and recreate it in a new subsection 121(6).  The rationale for this amendment is to prevent the provisions from being interpreted in such a way as to include the reasonable excuse element of the provisions as an element of the offences, which would have to be disproved by the prosecution.  The amendment makes it clear that reasonable excuse is a defence to the offences in subsections 121(3), (4) and (5).

 

A standard note is added after the new subsection referring to the fact that under subsection 13.3(3) of the Criminal Code a defendant seeking to rely on the reasonable excuse defence carries an evidential burden.

 

Item 105 also inserts a new subsection 121(7), which specifies that the offences in subsections 121(3),(4) and (5) of the Act are offences of strict liability. Where strict liability applies to an offence the prosecution does not have to prove fault on the part of the defendant. The prosecution need only prove that the physical element of the offence did occur. A defence of mistake of fact is open to the defendant under section 9.2 of the Criminal Code . This defence is available if a person is under a mistaken but reasonable belief about a fact and, had that fact existed, the conduct would not constitute an offence. Under the Criminal Code , any legislative provision that attracts strict liability must expressly state that it is an offence of strict liability (see Section 6.1 of the Code).

 

Subsection 121(3) provides that a person must not carry out a step in the manufacture of a prohibited chemical product at premises in this jurisdiction. Subsection 121(4) provides that a person must not carry out a step in the manufacture of other chemical products at premises in this jurisdiction unless certain of the exceptions listed in the subsection apply. Subsection 121(5) provides that the holder of a licence must not contravene a condition of the licence. The maximum penalty is 240 penalty units for subsections 121(3) and (4) and 120 penalty units for subsection 121(5). The offences permit a defence of reasonable excuse.  This suggests that the offences would have been interpreted under the existing law as strict liability offences.

 

Items 106 and 107 - Clarifying defence of reasonable excuse and applying strict liability

 

These items remove the defence of reasonable excuse from subsection 131(8) and recreate it in a new subsection 131(9).  The rationale for this amendment is to prevent the provision from being interpreted in such a way as to include the reasonable excuse element of the provision as an element of the offence, which would have to be disproved by the prosecution.  The amendment makes it clear that reasonable excuse is a defence to the offence.

 

A standard note is added after the new subsection referring to the fact that under subsection 13.3(3) of the Criminal Code a defendant seeking to rely on the reasonable excuse defence carries an evidential burden.

 

Item 107 also inserts a new subsection 131(10), which specifies that the offence in subsection 131(8) of the Act is an offence of strict liability. Where strict liability applies to an offence the prosecution does not have to prove fault on the part of the defendant. The prosecution need only prove that the physical elements of the offence did occur. A defence of mistake of fact is open to the defendant under section 9.2 of the Criminal Code . This defence is available if a person is under a mistaken but reasonable belief about a fact and, had that fact existed, the conduct would not constitute an offence. Under the Criminal Code , any legislative provision that attracts strict liability must expressly state that it is an offence of strict liability (see Section 6.1 of the Code).

 

Subsection 131(8) provides that a person must comply with a direction given by an inspector under section 131. The maximum penalty is 30 penalty units. The offence carries a relatively low penalty and permits a defence of reasonable excuse.  These factors indicate that the offence is one where strict liability would apply under the existing law.

 

Items 108 and 109 - Clarifying defence of reasonable excuse and applying strict liability

 

These items remove the defence of reasonable excuse from subsection 144(3) and recreate it in a new subsection 144(4).  The rationale for this amendment is to prevent the provision from being interpreted in such a way as to include the reasonable excuse element of the provision as an element of the offence, which would have to be disproved by the prosecution.  The amendment makes it clear that reasonable excuse is a defence to the offence.

 

A standard note is added after the new subsection referring to the fact that under subsection 13.3(3) of the Criminal Code a defendant seeking to rely on the reasonable excuse defence carries an evidential burden.

 

Item 109 also inserts a new subsection 144(5), which specifies that the offence in subsection 144(3) of the Act is an offence of strict liability. Where strict liability applies to an offence the prosecution does not have to prove fault on the part of the defendant. The prosecution need only prove that the physical elements of the offence did occur. A defence of mistake of fact is open to the defendant under section 9.2 of the Criminal Code . This defence is available if a person is under a mistaken but reasonable belief about a fact and, had that fact existed, the conduct would not constitute an offence. Under the Criminal Code , any legislative provision that attracts strict liability must expressly state that it is an offence of strict liability (see Section 6.1 of the Code).

 

Subsection 144(3) provides that a person must comply with a requirement given by an inspector under section 144(1) to give information or produce documents. The maximum penalty is 30 penalty units. The offence carries a relatively low penalty and permits a defence of reasonable excuse.  These factors indicate that the offence is one where strict liability would apply under the existing law.

 

Item 110 - Applying strict liability

 

This item inserts a new subsection 152(3), which specifies that where an offence arises because of subsection 152(2), strict liability applies to paragraphs 152(2)(a) and (b). Where strict liability applies to an offence the prosecution does not have to prove fault on the part of the defendant. The prosecution need only prove that the physical elements of the offence did occur. A defence of mistake of fact is open to the defendant under section 9.2 of the Criminal Code . This defence is available if a person is under a mistaken but reasonable belief about a fact and, had that fact existed, the conduct would not constitute an offence. Under the Criminal Code , any legislative provision that attracts strict liability must expressly state that it is an offence of strict liability (see Section 6.1 of the Code).

 

Paragraphs 152(2)(a) and (b) apply where a person who is not a resident of, and does not carry on business in, Australia fails to do a thing in relation to a chemical product for which the person is the interested person, and that failure is an offence against the Code. In that case the authorised person will be responsible for the breach. This section imposes criminal responsibility on a person for the omissions of another person, that is, it applies vicarious liability. Vicarious liability is a type of strict liability and, under the Criminal Code , any legislative provision that attracts strict liability must expressly state that (see Section 6.1). Therefore, this amendment is necessary to ensure that the provision will continue to operate in the same way.

 

Item 111  - Clarifying defence

 

Item 111 removes the defence that the conduct was "in the performance of functions or duties, or the exercise of powers under this Code" from subsection 162(1). Item 78  recreates it in a new subsection 162(1A).  The rationale for this amendment is to prevent the provision from being interpreted in such a way as to include this matter as an element of the offence, which would have to be disproved by the prosecution.  The amendment makes it clear that the conduct being in the performance of functions or duties, or the exercise of powers under the Code is a defence to the offence.

 

Item 112 -Deletion of inappropriate fault elements

 

Subsection 162(1) contains the offence of disclosing confidential commercial information about a chemical product or constituent that a person acquired when exercising powers or performing functions under the Code.  Subsection 162(1) applies the fault elements of intention and recklessness in relation to the physical element of conduct, namely disclosing the information to another person. 

 

Following application of the Criminal Code , it will not be possible to apply the fault element of recklessness to a physical element consisting of conduct.  Section 5.4 of the Criminal Code restricts the application of recklessness to the physical elements of circumstance or result, and the only fault element that may be applied to a physical element of conduct is intention (section 5.2 of the Criminal Code ).  Accordingly this item deletes “recklessly” from subsection 162(1).

 

"Intentionally" is also deleted. In the absence of any stated fault elements, the default fault elements will apply because of Section 5.6 of the Criminal Code . The result of this is that intention will be the applicable fault element for any physical elements of conduct, and recklessness will be the applicable fault element for any physical elements of result or circumstance. This will mean that the subsection will continue to operate in the same manner as at present.

 

Item 113  - Clarifying defence

 

Item 113 recreates in a new subsection 162(1A) the defence removed from subsection 162(1) by item 76, that is, that conduct was "in the performance of functions or duties, or the exercise of powers under this Code". The rationale for this amendment is to prevent the provision from being interpreted in such a way as to include this matter as an element of the offence, which would have to be disproved by the prosecution.  The amendment makes it clear that a disclosure of information being in the performance of functions or duties or in the exercise of powers under the Code is a defence to the offence.

 

A standard note is added after the new subsection referring to the fact that under subsection 13.3(3) of the Criminal Code a defendant seeking to rely on the defence in the new subsection carries an evidential burden.

 

Item 114 - Note as to evidential burden

 

This item adds a note after subsection 162(7) referring to the fact that under subsection 13.3(3) of the Criminal Code a defendant seeking to rely on the defence in subsection 162(7) carries an evidential burden.

 

Item 115  - Clarifying defence

 

Item 115 removes from subsection 162(8) the defence that the conduct was for the purpose of providing advice or making a recommendation to the NRA in accordance with certain legislative provisions. Item 117 recreates it in a new subsection 162(8A). The rationale for this amendment is to prevent the provision from being interpreted in such a way as to include this matter as an element of the offence, which would have to be disproved by the prosecution.  The amendment makes it clear that it is a defence to the offence that the conduct was for the purpose of providing advice or making a recommendation to the NRA.

 

Item 116 - Deletion of inappropriate fault elements

 

Subsection 162(8) contains the offence of disclosing confidential commercial information acquired because of a disclosure under subsection 162(7).  Subsection 162(8) applies the fault elements of intention and recklessness in relation to the physical element of conduct, namely disclosing the information to another person. 

 

Following application of the Criminal Code , it will not be possible to apply the fault element of recklessness to a physical element consisting of conduct.  Section 5.4 of the Criminal Code restricts the application of recklessness to the physical elements of circumstance or result, and the only fault element that may be applied to a physical element of conduct is intention (section 5.2 of the Criminal Code ).  Accordingly this item deletes “recklessly” from subsection 162(8).

 

"Intentionally" is also deleted. In the absence of any stated fault elements, the default fault elements will apply because of Section 5.6 of the Criminal Code . The result of this is that intention will be the applicable fault element for any physical elements of conduct, and recklessness will be the applicable fault element for any physical elements of result or circumstance. This will mean that the subsection will continue to operate in the same manner as at present.

 

Item 117  - Clarifying defence and applying strict liability

 

Item 117 recreates in a new subsection 162(8A) the defence removed from subsection 162(8) by item 115, that is, that the conduct was for the purpose of providing advice or making a recommendation to the NRA in accordance with certain legislative provisions. The rationale for this amendment is to prevent the provision from being interpreted in such a way as to include this matter as an element of the offence, which would have to be disproved by the prosecution.  The amendment makes it clear that it is a defence to the offence that the conduct was for the purpose of providing advice or making a recommendation to the NRA.

 

A standard note is added after the new subsection referring to the fact that under subsection 13.3(3) of the Criminal Code a defendant seeking to rely on the defence in the new subsection carries an evidential burden.

 

Item 117 also inserts a new subsection 162(8B) which provides that strict liability applies to the physical element of circumstance in the offence in subsection 162(8), that the disclosure was under subsection (7) . The result of specifying that strict liability applies to that physical element of circumstance is that the prosecution does not have to prove fault on the part of the defendant in relation to that physical element.  The prosecution need only prove that the physical element of the offence did occur - in this case that the disclosure was under subsection (7).

 

Item 118 - Deletion of inappropriate fault elements

 

Subsection 162(9) contains the offence of disclosing confidential commercial information acquired from a person carrying out a function under the Code.  Subsection 162(9) applies the fault elements of intention and recklessness in relation to the physical elements of conduct, namely disclosing the information to another person. 

 

Following application of the Criminal Code , it will not be possible to apply the fault element of recklessness to a physical element consisting of conduct.  Section 5.4 of the Criminal Code restricts the application of recklessness to the physical elements of circumstance or result, and the only fault element that may be applied to a physical element of conduct is intention (section 5.2 of the Criminal Code ).  Accordingly this item deletes “recklessly” from subsection 162(9).

 

"Intentionally" is also deleted. In the absence of any stated fault elements, the default fault elements will apply because of Section 5.6 of the Criminal Code . The result of this is that intention will be the applicable fault element for any physical elements of conduct, and recklessness will be the applicable fault element for any physical elements of result or circumstance. This will mean that the subsection will continue to operate in the same manner as at present.

 

Item 119  - Applying strict liability

 

This item inserts a new subsection 162(9A) which provides that strict liability applies to the physical elements of circumstance in the offence in subsection 162(9), that the acquisition of the information by the first-mentioned person was in the performance of functions or duties, or the exercise of powers, under the Code, and that the disclosure mentioned first in subsection 162(9) was made other than under subsection (3) or (7).

 

The result of specifying that strict liability applies to those physical elements of circumstance is that the prosecution does not have to prove fault on the part of the defendant in relation to those physical elements.  The prosecution need only prove that those physical elements of the offence did occur - in this case that the acquisition of the information by the first mentioned person was in the performance of functions or duties, or the exercise of powers, under the Code, and that the disclosure mentioned first in subsection 162(9) was made other than under subsection (3) or (7).

 

Australian Meat and Live-stock Industry Act 1997

 

Item 120 - Applying strict liability

 

This item inserts a new subsection 47(4), which specifies that the offence in subsection 47(3) of the Act is an offence of strict liability. Where strict liability applies to an offence the prosecution does not have to prove fault on the part of the defendant. The prosecution need only prove that the physical elements of the offence did occur. A defence of mistake of fact is open to the defendant under section 9.2 of the Criminal Code . This defence is available if a person is under a mistaken but reasonable belief about a fact and, had that fact existed, the conduct would not constitute an offence. Under the Criminal Code , any legislative provision that attracts strict liability must expressly state that it is an offence of strict liability (see Section 6.1 of the Code).

 

Subsection 47(3) provides a person must not fail to comply with a requirement to give information or produce any documents referred to by an authorised officer under subsection 47(1). The maximum penalty is 30 penalty units, which is relatively low, and no fault elements are specified.  These factors indicate that the offence is one where strict liability would apply under the existing law.

 

Item 121 - Applying strict liability

 

This item inserts a new subsection 49(4), which specifies that the offence in subsection 49(3) of the Act is an offence of strict liability. Where strict liability applies to an offence the prosecution does not have to prove fault on the part of the defendant. The prosecution need only prove that the physical elements of the offence did occur. A defence of mistake of fact is open to the defendant under section 9.2 of the Criminal Code . This defence is available if a person is under a mistaken but reasonable belief about a fact and, had that fact existed, the conduct would not constitute an offence. Under the Criminal Code , any legislative provision that attracts strict liability must expressly state that it is an offence of strict liability (see Section 6.1 of the Code).

 

Subsection 49(3) provides that as soon as practicable after a person ceases to be an authorised officer under the Act the person must return their identity card to the Secretary. The maximum penalty for this offence is 1 penalty unit. The obligation the subject of the offence is of an administrative nature and the offence carries a low penalty.  These factors indicate that the offence is one where strict liability would apply under the existing law.

 

Item 122 - Correction

 

This item replaces the word ‘nature’, which was mistakenly used, with the word ‘notice’.

 

Australian Wine and Brandy Corporation Act 1980

 

Item 123 - Application of all Criminal Code principles except corporate criminal responsibility

 

This item inserts a new section 4B which applies Chapter 2 (other than Part 2.5) of the Criminal Code to all offences against the Act. Chapter 2 establishes the codified general principles of criminal responsibility.   Part 2.5 contains general principles of corporate criminal responsibility. When the Criminal Code was introduced, it was recognised that the general principles of corporate criminal responsibility in Part 2.5 might need to be supplemented with more specific provisions in appropriate cases. The Australian Wine and Brandy Corporation Act is one which contains specific provisions relating to corporate criminal responsibility (section 44A) . As the Bill is intended to ensure that agriculture, fisheries and forestry portfolio legislation continues to operate in the same way after the Criminal Code applies to it, the specific corporate criminal responsibility provisions in the Act are retained by excluding the application of Part 2.5 of the Criminal Code .

 

Item 124 - Applying strict liability

 

This item inserts a new subsection 9(5A) which specifies that the offences in subsections 9(4) and 9(5) of the Act are offences of strict liability. Where strict liability applies to an offence the prosecution does not have to prove fault on the part of the defendant. The prosecution need only prove that the physical elements of the offence did occur. A defence of mistake of fact is open to the defendant under section 9.2 of the Criminal Code . This defence is available if a person is under a mistaken but reasonable belief about a fact and, had that fact existed, the conduct would not constitute an offence. Under the Criminal Code , any legislative provision that attracts strict liability must expressly state that it is an offence of strict liability (see Section 6.1 of the Code).

 

Subsection 9(4) provides that a person shall not enter a contract with another person for the carriage by that person of a grape product to a place outside Australia unless that other person is also approved as a carrier for that grape product and that place. The maximum penalty is $6,000. Subsection 9(5) provides a person shall not enter a contract with another person for the carriage by that person of a grape product except with approval and in accordance with any conditions of the approval. The maximum penalty is $6,000.  In the commercial setting, these penalties are not large and no fault elements are specified.  This suggests that the offences would have been interpreted under the existing law as strict liability offences.

 

Item 125 - Amendment of inappropriate fault elements

 

Subsection 39ZAAA(1) contains offences of failing to make or keep a record as required, or making or keeping a record that is false, misleading or incomplete in a material particular.  Paragraphs 39ZAAA(1)(a) and (b) apply the fault elements of knowledge and recklessness (“knowingly or recklessly”) in relation to the physical elements of conduct, namely the making or keeping, or failure to make or keep, a record.  Following application of the Criminal Code , it will not be possible to apply fault elements of knowledge or recklessness to a physical element consisting of conduct.  Section 5.3 of the Criminal Code restricts the application of these fault elements to physical elements of circumstance or result, and the only fault element that may be applied to a physical element of conduct is intention (section 5.2 of the Criminal Code ).  Accordingly these items delete “knowingly or recklessly” from paragraphs 39ZAAA(1)(a) and (b) and replace them with the appropriate fault element, namely intention.  The fault element of intention is the direct Criminal Code equivalent of “knowingly” where the latter has been applied to physical elements of conduct.

 

Item 126 and 127 - Clarifying defence of reasonable excuse

 

These items remove the defence of reasonable excuse from subsection 39ZAB(1) and recreate it in a new subsection 39ZAB(1A).  The rationale for this amendment is to prevent the provision from being interpreted in such a way as to include the reasonable excuse element of the provision as an element of the offence, which would have to be disproved by the prosecution.  The amendment makes it clear that reasonable excuse is a defence to the offence.

 

A standard note is added after the new subsection referring to the fact that under subsection 13.3(3) of the Criminal Code a defendant seeking to rely on the reasonable excuse defence carries an evidential burden.

 

Item 128 - Applying strict liability

 

This item inserts a new subsection 39ZAB(3) which provides that strict liability applies to the physical element of circumstance in the offence in subsection 39ZAB(1) that the notice is under section 39ZAA. The result of specifying that strict liability applies to that physical element of circumstance is that the prosecution does not have to prove fault on the part of the defendant in relation to that physical element.  The prosecution need only prove that the physical element of the offence did occur - in this case that the notice was under section 39ZAA. 

 

Item 129 - Applying strict liability

 

This item inserts subsection 39ZB(4) which specifies that the offence contained in subsection 39ZB(3) is an offence of strict liability. Where strict liability applies to an offence the prosecution does not have to prove fault on the part of the defendant. The prosecution need only prove that the physical elements of the offence did occur. A defence of mistake of fact is open to the defendant under section 9.2 of the Criminal Code . This defence is available if a person is under a mistaken but reasonable belief about a fact and, had that fact existed, the conduct would not constitute an offence. Under the Criminal Code , any legislative provision that attracts strict liability must expressly state that it is an offence of strict liability (see Section 6.1 of the Code).

 

Subsection 39ZB(3) provides that an inspector must return his or her identity card as soon as practicable after his or her appointment ceases.  The maximum penalty for this offence is $100. The obligation the subject of the offence is of an administrative nature and the offence carries a low penalty.  These factors indicate that the offence is one where strict liability would apply under the existing law.

 

Item 130 and 131 - Clarifying defence of reasonable excuse and applying strict liability

 

These items make two amendments to section 39ZH.  First, they remove the defence of reasonable excuse from subsection 39ZH(2) and recreate it in a new subsection 39ZH(2A).  The rationale for this amendment is to prevent the provision from being interpreted in such a way as to include the reasonable excuse element of the provision as an element of the offence, which would have to be disproved by the prosecution.  The amendment makes it clear that reasonable excuse is a defence to the offence.

 

A standard note is added after the new subsection referring to the fact that under subsection 13.3(3) of the Criminal Code a defendant seeking to rely on the reasonable excuse defence carries an evidential burden.

 

Item 131 also inserts a new subsection 39ZH(2B), which specifies that the offence in subsection 39ZH(2) of the Act is an offence of strict liability.  Subsection 39ZH(2) provides that a person must not refuse or fail to comply with a requirement under subsection (1) to answer questions or produce documents. The offence carries a maximum penalty of $3,000. This is a relatively low penalty and a defence of reasonable excuse is available.  These factors indicate that the offence is one where strict liability would apply under the existing law.

 

Item 132 - Amendment of inappropriate fault element

 

Subsections 40C(1), (2) and (3) contain the offences, respectively, of selling, exporting and importing wine with a false description and presentation.   Subsections 40C(1), (2) and (3) apply the fault element of knowledge (“knowingly”) in relation to the physical elements of conduct, namely, selling, exporting or importing the wine.   Following application of the Criminal Code , it will not be possible to apply the fault element of knowledge to a physical element consisting of conduct.  Section 5.3 of the Criminal Code restricts the application of these fault elements to physical elements of circumstance or result, and the only fault element that may be applied to a physical element of conduct is intention (section 5.2 of the Criminal Code ). Accordingly these items delete “knowingly” from subsections 40C(1), (2) and (3) and replace it with the appropriate fault element, namely intention.  The fault element of intention is the direct Criminal Code equivalent of “knowingly” where the latter is applied to physical elements of conduct.

 

Item 133 - Amendment of inappropriate fault element

 

Subsections 40E(1), (2) and (3) contain the offences, respectively, of selling, exporting and importing wine with a misleading description and presentation.  Subsections 40E(1), (2) and (3) apply the fault element of knowledge (“knowingly”) in relation to the physical elements of conduct, namely, selling, exporting or importing the wine.  Following application of the Criminal Code , it will not be possible to apply the fault element of knowledge to a physical element consisting of conduct.  Section 5.3 of the Criminal Code restricts the application of these fault elements to physical elements of circumstance or result, and the only fault element that may be applied to a physical element of conduct is intention (section 5.2 of the Criminal Code ). Accordingly these items delete “knowingly” from subsections 40E(1), (2) and (3) and replace it with the appropriate fault element, namely intention.  The fault element of intention is the direct Criminal Code equivalent of “knowingly” where the latter is applied to physical elements of conduct.

 

Item 134 - Amendment of inappropriate fault element

 

Subsection 40H(2) contains an offence of exporting wine which the person knows does not meet requirements specified in the regulations.  Subsection 40H(2) applies the fault element of knowledge (“knowingly”) in relation to the physical elements of conduct, namely, exporting the wine.  Following application of the Criminal Code , it will not be possible to apply the fault element of knowledge to a physical element consisting of conduct.  Section 5.3 of the Criminal Code restricts the application of these fault elements to physical elements of circumstance or result, and the only fault element that may be applied to a physical element of conduct is intention (section 5.2 of the Criminal Code ). Accordingly these items delete “knowingly” from subsection 40H(2) and replace it with the appropriate fault element, namely intention.  The fault element of intention is the direct Criminal Code equivalent of “knowingly” where the latter is applied to physical elements of conduct.

 

Item 135 and 136 - Clarifying defence of reasonable excuse and applying strict liability

 

These items make two amendments to section 42.  First, they remove the defence of reasonable excuse from subsection 42(2) and recreate it in a new subsection 42(2A).  The rationale for this amendment is to prevent the provision from being interpreted in such a way as to include the reasonable excuse element of the provision as an element of the offence, which would have to be disproved by the prosecution.  The amendment makes it clear that reasonable excuse is a defence to the offence.

 

A standard note is added after the new subsection referring to the fact that under subsection 13.3(3) of the Criminal Code a defendant seeking to rely on the reasonable excuse defence carries an evidential burden.

 

Item 136 also inserts a new subsection 42(2B), which specifies that the offence in subsection 42(2) is an offence of strict liability. Where strict liability applies to an offence the prosecution does not have to prove fault on the part of the defendant. The prosecution need only prove that the physical elements of the offence did occur. A defence of mistake of fact is open to the defendant under section 9.2 of the Criminal Code . This defence is available if a person is under a mistaken but reasonable belief about a fact and, had that fact existed, the conduct would not constitute an offence. Under the Criminal Code , any legislative provision that attracts strict liability must expressly state that it is an offence of strict liability (see Section 6.1 of the Code).

 

Subsection 42(2) provides that a person must not fail to furnish certain information that the Corporation has required by notice. The maximum penalty is imprisonment for six months (or $5,000 for a body corporate) and a person can rely on the defence of reasonable excuse. The availability of the defence of reasonable excuse implies that fault need not be proved.  This indicates that the offence would have been interpreted under the existing law as a strict liability offence.

 

Item 137 - Strict liability applies

 

This item inserts a new subsection 44(1A), which specifies that the offence in subsection 44(1) of the Act is an offence of strict liability. Where strict liability applies to an offence the prosecution does not have to prove fault on the part of the defendant. The prosecution need only prove that the physical elements of the offence did occur. A defence of mistake of fact is open to the defendant under section 9.2 of the Criminal Code . This defence is available if a person is under a mistaken but reasonable belief about a fact and, had that fact existed, the conduct would not constitute an offence. Under the Criminal Code , any legislative provision that attracts strict liability must expressly state that it is an offence of strict liability (see Section 6.1 of the Code).

 

Subsection 44(1) provides a person shall not export a grape product from Australia in contravention of the regulations. The maximum penalty is $6,000 for a natural person or $10,000 for a body corporate. The offence does not specify any fault elements and the penalty is relatively low in the commercial context. These factors indicate that the offence is one where strict liability would apply under the existing law.

 

Item 138 - Replacing references to certain Crimes Act 1914 provisions

 

Certain Crimes Act 1914 provisions, including sections 7, 7A and 86, are scheduled for progressive disapplication in relation to offence provisions to which the Criminal Code applies, and ultimately for repeal on 15 December 2001. It is necessary to replace references to those Crimes Act provisions with references to relevant Criminal Code provisions. This item replaces the references in paragraph 44A(9)(b) to sections 7, 7A and 86 of the Crimes Act 1914 (which concern attempting to commit primary offences, incitement to commit primary offences, and conspiring to commit primary offences) with references to the Criminal Code provisions which deal with attempt, incitement and conspiracy (sections 11.1, 11.4 and 11.5).

 

Biological Control Act 1984

 

Item 139 - Application of the Criminal Code

 

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

 

Item 140 and 141 - Clarifying defence of reasonable excuse and applying strict liability

 

These items make two amendments to section 43.  First, they remove the defence of reasonable excuse from section 43(1) and recreate it in a new subsection 43(2).  The rationale for this amendment is to prevent the provision from being interpreted in such a way as to include the reasonable excuse element of the provision as an element of the offence, which would have to be disproved by the prosecution.  The amendment makes it clear that reasonable excuse is a defence to the offence.

 

A standard note is added after the new subsection referring to the fact that under subsection 13.3(3) of the Criminal Code a defendant seeking to rely on the reasonable excuse defence carries an evidential burden.

 

Item 141 also inserts a new subsection 43(3), which specifies that the offence in subsection 43(1) of the Act is an offence of strict liability. Where strict liability applies to an offence the prosecution does not have to prove fault on the part of the defendant. The prosecution need only prove that the physical elements of the offence did occur. A defence of mistake of fact is open to the defendant under section 9.2 of the Criminal Code . This defence is available if a person is under a mistaken but reasonable belief about a fact and, had that fact existed, the conduct would not constitute an offence. Under the Criminal Code , any legislative provision that attracts strict liability must expressly state that it is an offence of strict liability (see Section 6.1 of the Code).

 

Subsection 43(1) provides that a person served with a summons to appear as a witness at an inquiry must not fail to attend, appear and to report from day to day as required.   The offence carries a maximum penalty of $1,000 or imprisonment for 6 months, or both, and the person can rely on the defence of reasonable excuse. The availability of the defence of reasonable excuse implies that fault need not be proved.  This indicates that the offence would have been interpreted under the existing law as a strict liability offence.

 

Item 142 and 143 - Clarifying defence of reasonable excuse and applying strict liability

 

These items make two amendments to section 45.  First, they remove the defence of reasonable excuse from section 45(1) and recreate it in a new subsection 45(2).  The rationale for this amendment is to prevent the provision from being interpreted in such a way as to include the reasonable excuse element of the provision as an element of the offence, which would have to be disproved by the prosecution.  The amendment makes it clear that reasonable excuse is a defence to the offence.

 

A standard note is added after the new subsection referring to the fact that under subsection 13.3(3) of the Criminal Code a defendant seeking to rely on the reasonable excuse defence carries an evidential burden.

 

Item 143 also inserts a new subsection 45(3), which specifies that the offence in subsection 45(1) of the Act is an offence of strict liability. Where strict liability applies to an offence the prosecution does not have to prove fault on the part of the defendant. The prosecution need only prove that the physical elements of the offence did occur. A defence of mistake of fact is open to the defendant under section 9.2 of the Criminal Code . This defence is available if a person is under a mistaken but reasonable belief about a fact and, had that fact existed, the conduct would not constitute an offence. Under the Criminal Code , any legislative provision that attracts strict liability must expressly state that it is an offence of strict liability (see Section 6.1 of the Code).

 

Subsection 45(1) provides that a person must not refuse or fail to be sworn or make an affirmation, answer a question, or produce a document as required. The offence carries a maximum penalty of $1,000 or imprisonment for 6 months, or both, and the person can rely on the defence of reasonable excuse. The availability of the defence of reasonable excuse implies that fault need not be proved.  This indicates that the offence would have been interpreted under the existing law as a strict liability offence.

 

Dairy Produce Act 1986

 

Item 144 - Application of the Criminal Code

 

This item inserts a new section 4A which applies Chapter 2 of the Criminal Code to all offences against the Act. Chapter 2 establishes the codified general principles of criminal responsibility.

 

Items 145 and 146 - Clarifying defence

 

These items remove the exception “unless the person is a licensee” from subsection 54(1) and recreate it as subsection 54(1A).  The rationale for this amendment is to prevent the provision from being interpreted in such a way as to include the 'unless the person is a licensee' element of this provision as an element of the offence, which would have to be disproved by the prosecution.  The amendment makes it clear that being a licensee is a defence to the offence.

 

A standard note is added after the new subsection referring to the fact that under subsection 13.3(3) of the Criminal Code a defendant seeking to rely on the defence in the new subsection carries an evidential burden.

 

Item 147 - Applying strict liability

 

This item inserts a new subsection 54(3) which provides that strict liability applies to the physical element of circumstance in the offence in subsection 54(2) that the regulations were made under subsection 52(1). The result of specifying that strict liability applies to that physical element of circumstance is that the prosecution does not have to prove fault on the part of the defendant in relation to that physical element.  The prosecution need only prove that the physical element of the offence did occur - in this case that the regulations were made under subsection 52(1).

 

Item 148 and 149 - Clarifying defence of reasonable excuse

 

These items remove the defence of reasonable excuse from subsection 55(3) and recreate it in a new subsection 55(4).  The rationale for this amendment is to prevent the provision from being interpreted in such a way as to include the reasonable excuse element of the provision as an element of the offence, which would have to be disproved by the prosecution.  The amendment makes it clear that reasonable excuse is a defence to the offence.

 

A standard note is added after the new subsection referring to the fact that under subsection 13.3(3) of the Criminal Code a defendant seeking to rely on the reasonable excuse defence carries an evidential burden.

 

Item 150 and 151 - Clarifying defence of reasonable excuse

 

These items remove the defence of reasonable excuse from subsection 113(1) and recreate it in a new subsection 113(1B).  The rationale for this amendment is to prevent the provision from being interpreted in such a way as to include the reasonable excuse element of the provision as an element of the offence, which would have to be disproved by the prosecution.  The amendment makes it clear that reasonable excuse is a defence to the offence.

 

A standard note is added after the new subsection referring to the fact that under subsection 13.3(3) of the Criminal Code a defendant seeking to rely on the reasonable excuse defence carries an evidential burden.

 

Items 152 and 153 -Amendment of inappropriate fault element

 

Subsection 113(3) makes it an offence to present a document, make a statement or submit a return that is false or misleading in a material particular to a person performing duties in relation to the Act. Subsection 113(3) applies the fault element of knowledge (“knowingly”) in relation to the physical elements of conduct, namely presenting a document, making a statement or submitting a return.  Following application of the Criminal Code , it will not be possible to apply the fault element of knowledge to a physical element consisting of conduct.  Section 5.3 of the Criminal Code restricts the application of these fault elements to physical elements of circumstance or result, and the only fault element that may be applied to a physical element of conduct is intention (section 5.2 of the Criminal Code ). Accordingly these items delete “knowingly” from subsection 113(3) and replace it with the appropriate fault element, namely intention.  The fault element of intention is the direct Criminal Code equivalent of “knowingly” where the latter is applied to physical elements of conduct.

 

Item 153 applies the fault element of knowledge to the physical element of circumstance, namely that the document statement or return is false or misleading in a material particular. Hence, the fault element of knowledge will continue to apply to the physical element of circumstance, as before.

 

Items 154 and 155 - Clarifying defence

 

These items remove the exception "for the purposes of this Act or as otherwise required by law" from subsection 119(2) and recreate it in a new subsection 119(4A).  The rationale for this amendment is to prevent the provision from being interpreted in such a way as to include the "except for the purposes of this Act or as otherwise required by law" element of the provision as an element of the offence, which would have to be disproved by the prosecution.  The amendment makes it clear that engaging in conduct for the purposes of the Act or as required by law is a defence to the offence.

 

A standard note is added after the new subsection referring to the fact that under subsection 13.3(3) of the Criminal Code a defendant seeking to rely on the defence in the new subsection (or the existing defences in subsections 119(2A), (2B), (3) and (4)) carries an evidential burden.

 

Items 156, 157, 158, 159, 160, 161 and 162 - Consequential amendments

 

The amendments made by these items are consequential to the amendments made by item 165 of the Bill. Item 165 repeals the clauses in Schedule 2 relating to false or misleading statements in claims, false or misleading information and false or misleading documents (clauses 134, 135 and 136). After the commencement of the Criminal Code Amendment (Theft, Fraud, Bribery and Related Offences) Act 2000 (which commenced on 24 May 2001), the Criminal Code contains equivalent provisions relating to false or misleading statements in claims and false or misleading information or documents. Reliance will now be placed on these Criminal Code provisions rather than the specific provisions in the Act.

 

These items replace references to clauses 134, 135 and 136 of Schedule 2 with references to the equivalent Criminal Code provisions - sections 136.1, 137.1 and 137.2

 

Item 163 - Applying strict liability

 

This item inserts new subclauses 116(2) and 116(3) which provide that strict liability applies to the physical elements of circumstance in the offence in subclause 116(1) that the authorised person's power is under clause 115 and that the warrant was issued under clause 118. The result of specifying that strict liability applies to those physical elements of circumstance is that the prosecution does not have to prove fault on the part of the defendant in relation to those physical elements.  The prosecution need only prove that those physical elements of the offence did occur - in this case that the authorised person's power was under clause 115 and that the warrant was issued under clause 118.

 

Item 164 - Applying strict liability

 

This item inserts a new subclause 117(1A) which provides that strict liability applies to the physical elements of circumstance in the offence in subclause 117(1), that the authorised person's power is under clause 115 and the warrant was issued under clause 118. The result of specifying that strict liability applies to those physical elements of circumstance is that the prosecution does not have to prove fault on the part of the defendant in relation to those physical elements.  The prosecution need only prove that those physical elements of the offence did occur - in this case that the authorised person's power was under clause 115 and the warrant was issued under clause 118.

 

Item 165 - Clauses 132, 134, 135 and 136 of Schedule 2

 

This item repeals the clauses in Schedule 2 relating to false or misleading statements in claims, false or misleading information and false or misleading documents. After the commencement of the Criminal Code Amendment (Theft, Fraud, Bribery and Related Offences) Act 2000 (which commenced on 24 May 2001), the Criminal Code contains equivalent provisions relating to false or misleading statements in claims and false or misleading information or documents. Reliance will now be placed on these Criminal Code provisions rather than the specific provisions in the Act.

 

It is expected that investigation of offences against the Criminal Code and involving Schedule 2 of the Act relating to the collection and declaration of levy liability may be carried out by authorised officers appointed under clause 127 of Schedule 2 of the Act.

 

The item also repeals clause 132 which specifies that Chapter 2 of the Criminal Code applies to offences against the Schedule. This clause is unnecessary because item 109 of this Bill inserts a new section 4A to the Act which provides that Chapter 2 of the Criminal Code applies to all offences against the Act.

 

 

Export Control Act 1982

 

Item 166 - Replacing references to certain Crimes Act provisions

 

Certain Crimes Act 1914 provisions, including sections 7, 7A and 86, are scheduled for progressive disapplication in relation to offence provisions to which the Criminal Code applies, and ultimately for repeal on 15 December 2001. It is necessary to replace references to those Crimes Act provisions with references to relevant Criminal Code provisions. This item replaces the references in the definition of offence against this Act in section 3 to sections 7, 7A and 86 of the Crimes Act 1914 (which concern attempting to commit primary offences, incitement to commit primary offences, and conspiring to commit primary offences) with references to the Criminal Code provisions that deal with attempt, incitement and conspiracy (sections 11.1, 11.4 and 11.5).

 

 

Item 167 - Application of the Criminal Code

 

This item inserts proposed section 4AA which applies Chapter 2 of the Criminal Code to all offences against the Act. Chapter 2 establishes the codified general principles of criminal responsibility.

 

Item 168 - Applying strict liability

 

This item inserts a new subsection 6(4) which provides that strict liability applies to the physical element of circumstance in the offence in subsection 6(1) that the requirement to give notice is under the regulations. The result of specifying that strict liability applies to that physical element of circumstance is that the prosecution does not have to prove fault on the part of the defendant in relation to that physical element.  The prosecution need only prove that the physical element of the offence did occur - in this case that the requirement to give notice was under the regulations.

 

Item 169 - Applying strict liability

 

This item inserts a new subsection 7A(3) which provides that strict liability applies to the physical element of circumstance in the offences in subsections 7A(1) and 7A(2) that the relevant prohibition is under the regulations. The result of specifying that strict liability applies to that physical element of circumstance is that the prosecution does not have to prove fault on the part of the defendant in relation to that physical element.  The prosecution need only prove that the physical element of the offence did occur - in this case that the relevant prohibition was under the regulations.

 

Item 170 - Applying strict liability

 

This item inserts a new subsection 8(7) which provides that strict liability applies to the physical element of circumstance in the offences in subsections 8(1),(2),(3) and (4) that the relevant prohibition is under the regulations. The result of specifying that strict liability applies to that physical element of circumstance is that the prosecution does not have to prove fault on the part of the defendant in relation to that physical element.  The prosecution need only prove that the physical element of the offence did occur - in this case that the relevant prohibition was under the regulations.

 

Item 171 -Applying strict liability

 

This item inserts a new subsection 9(2), which specifies that the offence in subsection 9(1) of the Act is an offence of strict liability. Where strict liability applies to an offence the prosecution does not have to prove fault on the part of the defendant. The prosecution need only prove that the physical elements of the offence did occur. A defence of mistake of fact is open to the defendant under section 9.2 of the Criminal Code . This defence is available if a person is under a mistaken but reasonable belief about a fact and, had that fact existed, the conduct would not constitute an offence. Under the Criminal Code , any legislative provision that attracts strict liability must expressly state that it is an offence of strict liability (see Section 6.1 of the Code).

 

Subsection 9(1) provides that a person must comply with any conditions or restrictions on a licence or permit issued under the regulations. The maximum penalty is $50,000. The obligation the subject of the offence is of an administrative nature and no fault elements are specified. Although the maximum penalty is relatively high, it is likely that this offence would have been interpreted under the existing law as a strict liability offence.

 

Item 172 - Applying strict liability

 

This item inserts a new subsection 11P(5), which specifies that the offence in subsection 11P(4) of the Act is an offence of strict liability. Where strict liability applies to an offence the prosecution does not have to prove fault on the part of the defendant. The prosecution need only prove that the physical elements of the offence did occur. A defence of mistake of fact is open to the defendant under section 9.2 of the Criminal Code . This defence is available if a person is under a mistaken but reasonable belief about a fact and, had that fact existed, the conduct would not constitute an offence. Under the Criminal Code , any legislative provision that attracts strict liability must expressly state that it is an offence of strict liability (see Section 6.1 of the Code).

 

Subsection 11P(4) provides that a person must comply with a requirement under section (1) to give information or produce documents. The maximum penalty is 30 penalty units. The obligation the subject of the offence is of an administrative nature and the offence carries a relatively low penalty.  These factors indicate that the offence is one where strict liability would apply under the existing law.

 

Item 173 - Applying strict liability

 

This item inserts a new subsection 14(2) which provides that strict liability applies to the physical element of circumstance in the offence in subsection 14(1), that the person's conduct in relation to the official mark or marking device contravenes the regulations. The result of specifying that strict liability applies to that physical element of circumstance is that the prosecution does not have to prove fault on the part of the defendant in relation to that physical element.  The prosecution need only prove that the physical element of the offence did occur - in this case that the person's conduct in relation to the official mark or marking device contravened the regulations.

 

Item 174 - Applying strict liability

 

This item inserts new subsections 15(1B) and 15(1C). Subsection 15(1B) provides that strict liability applies to the physical element of circumstance in the offences in subsections 15(1) and (1A) that the relevant goods are prescribed goods. Subsection 15(1C) provides that strict liability applies to the physical element of circumstance in the offence in subsection 15(1A) that the giving of the notice was under section 6(1). The result of specifying that strict liability applies to those physical elements of circumstance is that the prosecution does not have to prove fault on the part of the defendant in relation to those physical elements.  The prosecution need only prove that the physical elements of the offence did occur - in this case that the relevant goods were prescribed goods and that the giving of the notice was under section 6(1).

 

Item 175 - Applying strict liability

 

This item inserts a new subsection 21(3), which specifies that the offence in subsection 21(2) of the Act is an offence of strict liability. Where strict liability applies to an offence the prosecution does not have to prove fault on the part of the defendant. The prosecution need only prove that the physical elements of the offence did occur. A defence of mistake of fact is open to the defendant under section 9.2 of the Criminal Code . This defence is available if a person is under a mistaken but reasonable belief about a fact and, had that fact existed, the conduct would not constitute an offence. Under the Criminal Code , any legislative provision that attracts strict liability must expressly state that it is an offence of strict liability (see Section 6.1 of the Code).

 

Subsection 21(2) provides that a person who ceases to be an authorized officer must return his or her identity card to the Secretary. The penalty is $100. The obligation the subject of the offence is of an administrative nature and the offence carries a low penalty.  These factors indicate that the offence is one where strict liability would apply under the existing law.

 

Items 176 and 177 -Clarifying defence

 

These items remove the exception that the conduct is approved in writing by the Secretary from subsection 24(1) and recreate it in a new subsection 24(1AA).  The rationale for this amendment is to prevent the provision from being interpreted in such a way as to include the "except as approved in writing by the Secretary" element of the provision as an element of the offence, which would have to be disproved by the prosecution.  The amendment makes it clear that approval in writing by the Secretary is a defence to the offence.

 

A standard note is added after the new subsection referring to the fact that under subsection 13.3(3) of the Criminal Code a defendant seeking to rely on the defence in the new subsection carries an evidential burden.

 

Items 178 and 179 - Clarifying defence

 

These items remove the exception that the supply has been approved in writing by the Secretary from subsection 24(1A) and recreate it in a new subsection 24(1B). The rationale for this amendment is to prevent the provision from being interpreted in such a way as to include the "except as approved in writing by the Secretary" element of the provision as an element of the offence, which would have to be disproved by the prosecution.  The amendment makes it clear that approval in writing by the Secretary is a defence to the offence.

 

A standard note is added after the new subsection referring to the fact that under subsection 13.3(3) of the Criminal Code a defendant seeking to rely on the defence in the new subsection carries an evidential burden.

 

 

Export Inspection and Meat Charges Collection Act 1985

 

Item 180- Application of the Criminal Code

 

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

 

Item 181 - Clarifying penalty

 

This item makes it clear that the offences in each of subsections 9(1), (1A) and (2) attract a maximum penalty of $1,000 for a natural person and $5,000 for a body corporate.

 

Item 182 - Applying strict liability

 

This item inserts a new subsection 9(3), which specifies that the offences in section 9 are offences of strict liability. Where strict liability applies to an offence the prosecution does not have to prove fault on the part of the defendant. The prosecution need only prove that the physical elements of the offence did occur. A defence of mistake of fact is open to the defendant under section 9.2 of the Criminal Code . This defence is available if a person is under a mistaken but reasonable belief about a fact and, had that fact existed, the conduct would not constitute an offence. Under the Criminal Code , any legislative provision that attracts strict liability must expressly state that it is an offence of strict liability (see Section 6.1 of the Code).

 

The offences in section 9 are offences of failing to keep certain records and failing to retain them for 3 years. The maximum penalty is $1,000 (or $5,000 for a body corporate). The obligations the subject of the offences are of an administrative nature and the offences carry a relatively low penalty.  This suggests that the offences would have been interpreted under the existing law as strict liability offences.

 

Items 183 and 184 - Clarifying defence of reasonable excuse and applying strict liability

 

These items make two amendments to subsection 10(1).  First, they remove the defence of reasonable excuse from subsection 10(1) and recreate it in a new subsection 10(1A).  The rationale for this amendment is to prevent the provision from being interpreted in such a way as to include the reasonable excuse element of the provision as an element of the offence, which would have to be disproved by the prosecution.  The amendment makes it clear that reasonable excuse is a defence to the offence.

 

A standard note is added after the new subsection referring to the fact that under subsection 13.3(3) of the Criminal Code a defendant seeking to rely on the reasonable excuse defence carries an evidential burden.

 

Item 184 also inserts a new subsection 10(1B), which specifies that the offence in subsection 10(1) of the Act is an offence of strict liability. Where strict liability applies to an offence the prosecution does not have to prove fault on the part of the defendant. The prosecution need only prove that the physical elements of the offence did occur. A defence of mistake of fact is open to the defendant under section 9.2 of the Criminal Code . This defence is available if a person is under a mistaken but reasonable belief about a fact and, had that fact existed, the conduct would not constitute an offence. Under the Criminal Code , any legislative provision that attracts strict liability must expressly state that it is an offence of strict liability (see Section 6.1 of the Code).

 

Subsection 10(1) provides that a person must not fail to submit a return or provide information required under the Act or regulations. The offence carries a maximum penalty of $1,000 or imprisonment for 6 months, or both, for a natural person or $5,000 for a body corporate, and the defence of reasonable excuse is available. The availability of the defence of reasonable excuse implies that fault need not be proved.  This indicates that the offence would have been interpreted under the existing law as a strict liability offence.

 

Items 185 and 186 - Clarifying defence of reasonable excuse and applying strict liability

 

These items make two amendments to subsection 15(8).  First, they remove the defence of reasonable excuse from subsection 15(8) and recreate it in a new subsection 15(8A).  The rationale for this amendment is to prevent the provision from being interpreted in such a way as to include the reasonable excuse element of the provision as an element of the offence, which would have to be disproved by the prosecution.  The amendment makes it clear that reasonable excuse is a defence to the offence.

 

A standard note is added after the new subsection referring to the fact that under subsection 13.3(3) of the Criminal Code a defendant seeking to rely on the reasonable excuse defence carries an evidential burden.

 

Item 186 also inserts a new subsection 15(8B) which provides that strict liability applies to the physical element of circumstance in the offence in subsection 15(8), that the authorized person is acting pursuant to subsection (1) or (7) or to a warrant issued under subsection (3).  The result of specifying that strict liability applies to that physical element of circumstance is that the prosecution does not have to prove fault on the part of the defendant in relation to that physical element.  The prosecution need only prove that the physical element of the offence did occur - in this case that the authorised person was acting pursuant to subsection (1) or (7) or pursuant to a warrant issued under subsection (3).

 

 

 

 

 

 

 

Farm Household Support Act 1992

 

Item 187 - Application of the Criminal Code

 

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

 

Items 188 and 189 - Clarifying defences and applying strict liability

 

These items remove the defences of reasonable excuse and "not capable of complying with the notice" from subsection 41(5) and recreate them in new subsections 41(5A) and 41(5B).  The rationale for these amendments is to prevent subsection 41(5) from being interpreted in such a way as to include the reasonable excuse and capable of complying elements of the provision as elements of the offence, which would have to be disproved by the prosecution.  The amendments make it clear that reasonable excuse and an incapacity to comply with the notice are defences to the offence.

 

A standard note is added after the new subsections referring to the fact that under subsection 13.3(3) of the Criminal Code a defendant seeking to rely on the defences in the new subsections carries an evidential burden.

 

Item 189 also inserts a new subsection 41(5C), which specifies that the offence in subsection 41(5) is an offence of strict liability. Where strict liability applies to an offence the prosecution does not have to prove fault on the part of the defendant. The prosecution need only prove that the physical elements of the offence did occur. A defence of mistake of fact is open to the defendant under section 9.2 of the Criminal Code . This defence is available if a person is under a mistaken but reasonable belief about a fact and, had that fact existed, the conduct would not constitute an offence. Under the Criminal Code , any legislative provision that attracts strict liability must expressly state that it is an offence of strict liability (see Section 6.1 of the Code).

 

Subsection 41(5) provides that a person must comply with a notice under subsection (1) requiring the person to inform the Department if a specified event or change of circumstances occurs. The maximum penalty is 30 penalty units or imprisonment for 6 months, or both, and the defences of reasonable excuse and inability to comply with the notice are available. The availability of those defences implies that fault need not be proved as an element of the offence.  This indicates that the offence would have been interpreted under the existing law as a strict liability offence.

 

Items 190 and 191 - Clarifying defences and applying strict liability

 

These items remove the defences of reasonable excuse and "not capable of complying with the notice" from subsection 42(5) and recreate them in new subsections 42(5A) and 42(5B). The rationale for these amendments is to prevent subsection 42(5) from being interpreted in such a way as to include the reasonable excuse and capable of complying elements of the provision as elements of the offence, which would have to be disproved by the prosecution.  The amendments make it clear that reasonable excuse and an incapacity to comply with the notice are defences to the offence.

 

A standard note is added after the new subsections referring to the fact that under subsection 13.3(3) of the Criminal Code a defendant seeking to rely on the defences in the new subsections carries an evidential burden.

 

Item 191 also inserts a new subsection 42(5C), which specifies that the offence in subsection 42(5) is an offence of strict liability. Where strict liability applies to an offence the prosecution does not have to prove fault on the part of the defendant. The prosecution need only prove that the physical elements of the offence did occur. A defence of mistake of fact is open to the defendant under section 9.2 of the Criminal Code . This defence is available if a person is under a mistaken but reasonable belief about a fact and, had that fact existed, the conduct would not constitute an offence. Under the Criminal Code , any legislative provision that attracts strict liability must expressly state that it is an offence of strict liability (see Section 6.1 of the Code).

 

Subsection 42(5) provides that a person must comply with a notice under subsection (1) requiring the person to give the Department a statement about certain matters. The maximum penalty is 30 penalty units or imprisonment for 6 months, or both, and the defences of reasonable excuse and inability to comply with the notice are available. The availability of the defences implies that fault need not be proved as an element of the offence.  This indicates that the offence would have been interpreted under the existing law as a strict liability offence.

 

Items 192 and 193 - Clarifying defence of reasonable excuse and applying strict liability

 

These items make two amendments to subsection 54(7).  First, they remove the defence of reasonable excuse from subsection 54(7) and recreate it in a new subsection 54(7A).  The rationale for this amendment is to prevent the provision from being interpreted in such a way as to include the reasonable excuse element of the provision as an element of the offence, which would have to be disproved by the prosecution.  The amendment makes it clear that reasonable excuse is a defence to the offence.

 

A standard note is added after the new subsection referring to the fact that under subsection 13.3(3) of the Criminal Code a defendant seeking to rely on the reasonable excuse defence carries an evidential burden.

 

Item 193 also inserts a new subsection 54(7B), which specifies that the offence in subsection 54(7) is an offence of strict liability. Where strict liability applies to an offence the prosecution does not have to prove fault on the part of the defendant. The prosecution need only prove that the physical elements of the offence did occur. A defence of mistake of fact is open to the defendant under section 9.2 of the Criminal Code . This defence is available if a person is under a mistaken but reasonable belief about a fact and, had that fact existed, the conduct would not constitute an offence. Under the Criminal Code , any legislative provision that attracts strict liability must expressly state that it is an offence of strict liability (see Section 6.1 of the Code).

 

Subsection 54(7) provides that a person must not fail to comply with a notice under section 54 to give information or produce documents.  The penalty is 30 penalty units or imprisonment for 6 months, or both, and the defence of reasonable excuse is available. The availability of the defence of reasonable excuse implies that fault need not be proved.  This indicates that the offence would have been interpreted under the existing law as a strict liability offence.

 

 

Fisheries Management Act 1991

 

Item 194 - Application of all Criminal Code principles except corporate criminal responsibility

 

This item inserts a new section 6A which applies Chapter 2 (other than Part 2.5) of the Criminal Code to all offences against the Act. Chapter 2 establishes the codified general principles of criminal responsibility . Part 2.5 contains general principles of corporate criminal responsibility. When the Criminal Code was introduced, it was recognised that the general principles of corporate criminal responsibility in Part 2.5 might need to be supplemented with more specific provisions in appropriate cases. This Act is one which contains specific provisions relating to corporate criminal responsibility (see section 164) . As the Bill is intended to ensure that agriculture, fisheries and forestry portfolio legislation continues to operate in the same way after the Criminal Code applies to it, the specific corporate criminal responsibility provisions in the Act are retained by excluding the application of Part 2.5 of the Criminal Code .

 

Item 195 - Applying strict liability

 

This item inserts a new subsection 13(1A) which provides that strict liability applies to the physical element of circumstance in the offence in subsection 13(1), that the conduct is engaged in within the AFZ. The result of specifying that strict liability applies to that physical element of circumstance is that the prosecution does not have to prove fault on the part of the defendant in relation to that physical element.  The prosecution need only prove that the physical element of the offence did occur - in this case that the conduct was engaged in within the AFZ.

 

 

Item 196 - Applying strict liability

 

This item inserts a new subclause 13(4A) which provides that strict liability applies to the physical element of circumstance in the offence in subsections 13(2), (3) and (4), that the conduct is engaged in outside the AFZ. The result of specifying that strict liability applies to that physical element of circumstance is that the prosecution does not have to prove fault on the part of the defendant in relation to that physical element.  The prosecution need only prove that the physical element of the offence did occur - in this case that the conduct was engaged in outside the AFZ.

 

Item 197 - Applying strict liability

 

This item inserts a new subsection 15(4), which specifies that the offences under section 15 are offences of strict liability. Where strict liability applies to an offence the prosecution does not have to prove fault on the part of the defendant. The prosecution need only prove that the physical elements of the offence did occur. A defence of mistake of fact is open to the defendant under section 9.2 of the Criminal Code . This defence is available if a person is under a mistaken but reasonable belief about a fact and, had that fact existed, the conduct would not constitute an offence. Under the Criminal Code , any legislative provision that attracts strict liability must expressly state that it is an offence of strict liability (see Section 6.1 of the Code).

 

Subsection 15(1) provides that a person must not take black cod or prescribed fish in the AFZ. Subsection 15(2) provides that a person on an Australian boat outside the AFZ must not take prescribed fish. The maximum penalty under each subsection is 125 penalty units. There is a defence that the person took steps to return the fish to its environment on becoming aware of taking the fish. The application of strict liability to this offence reflects the most likely way in which the current offence would be interpreted. The offence does not specify any fault elements.  The availability of an express defence also implies that fault need not be proved. These factors indicate that the offence is one where strict liability would apply under the existing law.

 

 

Item 198 - Applying strict liability

 

This item inserts a new subsection 15A(3), which specifies that the offence in section 15A is an offence of strict liability. Where strict liability applies to an offence the prosecution does not have to prove fault on the part of the defendant. The prosecution need only prove that the physical elements of the offence did occur. A defence of mistake of fact is open to the defendant under section 9.2 of the Criminal Code . This defence is available if a person is under a mistaken but reasonable belief about a fact and, had that fact existed, the conduct would not constitute an offence. Under the Criminal Code , any legislative provision that attracts strict liability must expressly state that it is an offence of strict liability (see Section 6.1 of the Code).

 

Subsection 15(1) provides that a person must not take blue or black marlin in the AFZ unless the person has a permit or takes the marlin in the course of recreational or charter boat fishing. The penalty is 125 penalty units. There is a defence that the person took steps to return the fish to its environment on becoming aware of taking the fish. The offence does not specify any fault elements.  The availability of an express defence also implies that fault need not be proved. These factors indicate that the offence is one where strict liability would apply under the existing law.

 

Item 199 - Clarifying fault element

 

This item amends section 57 by replacing the word "wilfully" with the word "intentionally". Section 57 applies the fault element "wilfully" in relation to the physical elements of making a false entry in the Register or tendering in evidence a document falsely purporting to be an instrument lodged with AFMA or an extract from the Register. "Wilfully" is not a fault element that is used in the Criminal Code . The equivalent fault element in the Code is intention. This item replaces "wilfully" with "intentionally" to remove any doubt that the appropriate fault element for section 57 is intention, with its meaning as given by the Code.

 

Item 200 - Replacing references to certain Crimes Act provisions

 

Certain Crimes Act 1914 provisions, including sections 7, 7A and 86, are scheduled for progressive disapplication in relation to offence provisions to which the Criminal Code applies, and ultimately for repeal on 15 December 2001. It is necessary to replace references to those Crimes Act provisions with references to the equivalent Criminal Code provisions. This item replaces the references in subsection 84(7) to sections 7, 7A and 86 of the Crimes Act 1914 (which concern attempting to commit primary offences, incitement to commit primary offences, and conspiring to commit primary offences) with references to the Criminal Code provisions which deal with attempt, incitement and conspiracy (sections 11.1, 11.4 and 11.5).

 

Items 201 and 202 - Clarifying defence of reasonable excuse and applying strict liability

 

These items make two amendments to subsection 89(4).  First, they remove the defence of reasonable excuse from subsection 89(4) and recreate it in a new subsection 89(5).  The rationale for this amendment is to prevent the provision from being interpreted in such a way as to include the reasonable excuse element of the provision as an element of the offence, which would have to be disproved by the prosecution.  The amendment makes it clear that reasonable excuse is a defence to the offence.

 

A standard note is added after the new subsection referring to the fact that under subsection 13.3(3) of the Criminal Code a defendant seeking to rely on the reasonable excuse defence carries an evidential burden.

 

Item 202 also inserts a new subsection 89(6), which specifies that the offence in subsection 89(4) is an offence of strict liability. Where strict liability applies to an offence the prosecution does not have to prove fault on the part of the defendant. The prosecution need only prove that the physical elements of the offence did occur. A defence of mistake of fact is open to the defendant under section 9.2 of the Criminal Code . This defence is available if a person is under a mistaken but reasonable belief about a fact and, had that fact existed, the conduct would not constitute an offence. Under the Criminal Code , any legislative provision that attracts strict liability must expressly state that it is an offence of strict liability (see Section 6.1 of the Code).

 

The offence in subsection 89(4) is failing to return a an identity card as soon as practicable after a person ceases to be an officer. The maximum penalty is 2 penalty units and the defence of reasonable excuse is available. The obligation the subject of the offence is of an administrative nature and the offence carries a low penalty and permits a defence of reasonable excuse.  These factors indicate that the offence is one where strict liability would apply under the existing law.

 

Items 203 and 204 - Clarifying defence of reasonable excuse and applying strict liability

 

These items make two amendments to subsection 93(1).  First, they remove the defence of reasonable excuse from subsection 93(1) and recreate it in a new subsection 93(2).  The rationale for this amendment is to prevent the provision from being interpreted in such a way as to include the reasonable excuse element of the provision as an element of the offence, which would have to be disproved by the prosecution.  The amendment makes it clear that reasonable excuse is a defence to the offence.

 

A standard note is added after the new subsection referring to the fact that under subsection 13.3(3) of the Criminal Code a defendant seeking to rely on the reasonable excuse defence carries an evidential burden.

 

Item 204 also inserts a new subclause 93(3) which provides that strict liability applies to the physical element of circumstance in the offence in subclause 93(1), that the requirement is under section 92 or under regulations made for the purposes of section 92. The result of specifying that strict liability applies to that physical element of circumstance is that the prosecution does not have to prove fault on the part of the defendant in relation to that physical element.  The prosecution need only prove that the physical element of the offence did occur - in this case that the requirement was under section 92 or under regulations made for the purposes of section 92. 

 

Item 205 - Clarifying fault element

 

This item replaces the phrase "for the purposes" in subsection 98(1) with the phrase "with the intention". The phrase "for the purposes" is potentially confusing as to what the applicable fault element is. It could be interpreted as a reference to the intention of the person when performing the conduct (with the intention of engaging in commercial fishing), or it could refer to the result of the conduct (with the result that commercial fishing takes place).

 

To avoid this confusion the paragraph has been amended to reflect the appropriate interpretation of the current offence, namely, "with the intention" of engaging in commercial fishing.

 

Item 206 - Applying strict liability

 

This item inserts a new subsection 102(5A), which specifies that an offence under section 102 is an offence of strict liability. Where strict liability applies to an offence the prosecution does not have to prove fault on the part of the defendant. The prosecution need only prove that the physical elements of the offence did occur. A defence of mistake of fact is open to the defendant under section 9.2 of the Criminal Code . This defence is available if a person is under a mistaken but reasonable belief about a fact and, had that fact existed, the conduct would not constitute an offence. Under the Criminal Code , any legislative provision that attracts strict liability must expressly state that it is an offence of strict liability (see Section 6.1 of the Code).

 

Subsection 102(1) makes it an offence to bring a foreign fishing boat into an Australian port, except in accordance with a licence, a prescribed agreement, or the directions of an officer exercising powers under an Australian law. Subsection 102(2) makes it an offence to keep a foreign fishing boat in an Australian port in contravention of a licence condition limiting the period during which the boat may remain in that port. The maximum penalty for each offence is 500 penalty units (or 250 if dealt with by a court of summary jurisdiction). A number of defences are available, including unforeseen emergency for subsection (1) and reasonable excuse for subsection (2).  No fault elements are specified in the offences and the availability of express defences implies that fault need not be proved.  This suggests that the offences would have been interpreted under the existing law as strict liability offences.

 

Items 207 and 208 - Clarifying defence of reasonable excuse

 

These items remove the defence of reasonable excuse from subsection 103(1) and recreate it in a new subsection 103(1A).  The rationale for this amendment is to prevent the provision from being interpreted in such a way as to include the reasonable excuse element of the provision as an element of the offence, which would have to be disproved by the prosecution.  The amendment makes it clear that reasonable excuse is a defence to the offence.

 

A standard note is added after the new subsection referring to the fact that under subsection 13.3(3) of the Criminal Code a defendant seeking to rely on the reasonable excuse defence carries an evidential burden.

 

Item 209 -Applying strict liability

 

This item inserts a new subsection 103(4), which specifies that the offence in subsection 103(1) is an offence of strict liability. Where strict liability applies to an offence the prosecution does not have to prove fault on the part of the defendant. The prosecution need only prove that the physical elements of the offence did occur. A defence of mistake of fact is open to the defendant under section 9.2 of the Criminal Code . This defence is available if a person is under a mistaken but reasonable belief about a fact and, had that fact existed, the conduct would not constitute an offence. Under the Criminal Code , any legislative provision that attracts strict liability must expressly state that it is an offence of strict liability (see Section 6.1 of the Code).

 

The offence in subsection 103(1) is landing fish in Australia by a foreign fishing boat, except in accordance with a foreign fishing licence or under the Torres Strait Fisheries Act 1984 . The maximum penalty is 500 penalty units (or 250 if dealt with by a court of summary jurisdiction) and the defence of reasonable excuse is available.  No fault elements are specified and the availability of a defence of reasonable excuse implies that fault need not be proved.  These factors indicate that the offence is one where strict liability would apply under the existing law.

 

Item 210 - Applying strict liability

 

This item inserts a new subsection 104(4A), which specifies that the offence in subsection 104(1) is an offence of strict liability. Where strict liability applies to an offence the prosecution does not have to prove fault on the part of the defendant. The prosecution need only prove that the physical elements of the offence did occur. A defence of mistake of fact is open to the defendant under section 9.2 of the Criminal Code . This defence is available if a person is under a mistaken but reasonable belief about a fact and, had that fact existed, the conduct would not constitute an offence. Under the Criminal Code , any legislative provision that attracts strict liability must expressly state that it is an offence of strict liability (see Section 6.1 of the Code).

 

Subsection 104(1) provides that a person must not use a Treaty boat in contravention of a condition of a Treaty licence that is in force. The penalty is 500 penalty units (or 250 if dealt with by a court of summary jurisdiction).  No fault elements are specified.  These factors indicate that the offence is one where strict liability would apply under the existing law.

 

Item 211 - Clarifying fault element

 

This item replaces the phrase "for the purposes" in subsection 104(6) with the phrase "with the intention". The phrase "for the purposes" is potentially confusing as to what the applicable fault element is. It could be interpreted as a reference to the intention of the person when performing the conduct (with the intention of engaging in fishing), or it could refer to the result of the conduct (with the result that fishing takes place).

 

To avoid this confusion the paragraph has been amended to reflect the appropriate interpretation of the current offence, namely, "with the intention" of engaging in fishing.

 

Items 212 and 213 - Clarifying defence of reasonable excuse and applying strict liability

 

These items make two amendments to subsection 108(1).  First, they remove the defence of reasonable excuse from paragraphs 108(1)(b) and (c) and recreate it in a new subsection 108(2).  The rationale for this amendment is to prevent the provision from being interpreted in such a way as to include the reasonable excuse elements of the provision as elements of the offences, which would have to be disproved by the prosecution.  The amendment makes it clear that reasonable excuse is a defence to the offences.

 

A standard note is added after the new subsection referring to the fact that under subsection 13.3(3) of the Criminal Code a defendant seeking to rely on the reasonable excuse defence carries an evidential burden.

 

Item 213 also inserts a new subclause 108(3) which provides that strict liability applies to the physical element of circumstance in the offence in paragraph 108(1)(c), that the requirement is under section 84.  The result of specifying that strict liability applies to that physical element of circumstance is that the prosecution does not have to prove fault on the part of the defendant in relation to that physical element.  The prosecution need only prove that the physical element of the offence did occur - in this case that the requirement was under section 84. 

 

Items 214 and 215 - Clarifying defence of reasonable excuse and applying strict liability

 

These items make two amendments to subsection 153(1).  First, they remove the defence of reasonable excuse from subsection 153(1) and recreate it in a new subsection 153(1A).  The rationale for this amendment is to prevent the provision from being interpreted in such a way as to include the reasonable excuse element of the provision as an element of the offence, which would have to be disproved by the prosecution.  The amendment makes it clear that reasonable excuse is a defence to the offence.

 

A standard note is added after the new subsection referring to the fact that under subsection 13.3(3) of the Criminal Code a defendant seeking to rely on the reasonable excuse defence carries an evidential burden.

 

Item 215 also inserts a new subclause 153(1B) which provides that strict liability applies to the physical element of circumstance in the offence in paragraph 153(1)(a), that the requirement is under section 146. The result of specifying that strict liability applies to that physical element of circumstance is that the prosecution does not have to prove fault on the part of the defendant in relation to that physical element.  The prosecution need only prove that the physical element of the offence did occur - in this case that the requirement was under section 146. 

 

Items 216 and 217 - Clarifying defence of reasonable excuse and strict liability applies

 

These items make two amendments to subsection 153(2).  First, they remove the defence of reasonable excuse from subsection 153(2) and recreate it in a new subsection 153(2A).  The rationale for this amendment is to prevent the provision from being interpreted in such a way as to include the reasonable excuse element of the provision as an element of the offence, which would have to be disproved by the prosecution.  The amendment makes it clear that reasonable excuse is a defence to the offence.

 

A standard note is added after the new subsection referring to the fact that under subsection 13.3(3) of the Criminal Code a defendant seeking to rely on the reasonable excuse defence carries an evidential burden.

 

Item 217 also inserts a new subclause 153(2B) which provides that strict liability applies to the physical element of circumstance in the offence in subsection 153(2), that the requirement is under section 146. The result of specifying that strict liability applies to that physical element of circumstance is that the prosecution does not have to prove fault on the part of the defendant in relation to that physical element.  The prosecution need only prove that the physical element of the offence did occur - in this case that the requirement was under section 146. 

 

Item 218 - Amendment of inappropriate fault element

 

Subsection 153(3) provides that a person appearing before the Panel to give evidence must not knowingly give evidence that is false or misleading in a material particular. Subsection 153(3) applies the fault element of knowledge (“knowingly”) in relation to the physical element of conduct, namely giving evidence.  Following application of the Criminal Code , it will not be possible to apply the fault element of knowledge to a physical element consisting of conduct.  Section 5.3 of the Criminal Code restricts the application of this fault element to the physical elements of circumstance or result, and the only fault element that may be applied to a physical element of conduct is intention (section 5.2 of the Criminal Code ). Accordingly this item deletes “knowingly” from subsection 153(3) and replace it with the appropriate fault element, namely, intention.  The fault element of intention is the direct Criminal Code equivalent of “knowingly” where the latter is applied to the physical element of conduct.

 

The item restricts the application of  the fault element of knowledge to the physical element of circumstance, namely that the evidence is false or misleading in a material particular. Hence, the fault element of knowledge will continue to apply to the physical element of circumstance, as before.

 

Items 219 and 220 - Clarifying defence of reasonable excuse and applying strict liability

 

These items make two amendments to section 156.  First, they remove the defence of reasonable excuse from section 156(1) and recreate it in a new subsection 156(2).  The rationale for this amendment is to prevent the provision from being interpreted in such a way as to include the reasonable excuse element of the provision as an element of the offence, which would have to be disproved by the prosecution.  The amendment makes it clear that reasonable excuse is a defence to the offence.

 

A standard note is added after the new subsection referring to the fact that under subsection 13.3(3) of the Criminal Code a defendant seeking to rely on the reasonable excuse defence carries an evidential burden.

 

Item 220 also inserts a new subsection 156(3), which specifies that the offence in subsection 156(1) is an offence of strict liability. Where strict liability applies to an offence the prosecution does not have to prove fault on the part of the defendant. The prosecution need only prove that the physical elements of the offence did occur. A defence of mistake of fact is open to the defendant under section 9.2 of the Criminal Code . This defence is available if a person is under a mistaken but reasonable belief about a fact and, had that fact existed, the conduct would not constitute an offence. Under the Criminal Code , any legislative provision that attracts strict liability must expressly state that it is an offence of strict liability (see Section 6.1 of the Code).

 

Subsection 156(1) provides that a person served with a summons to appear as a witness at an inquiry must not fail to attend, appear and to report from day to day as required.  The penalty is 30 penalty units.  This is a relatively low penalty and a defence of reasonable excuse is available.  These factors indicate that the offence is one where strict liability would apply under the existing law.

 

Item 221 - Replacing references to certain Crimes Act provisions

 

Certain Crimes Act 1914 provisions, including sections 7, 7A and 86, are scheduled for progressive disapplication in relation to offence provisions to which the Criminal Code applies, and ultimately for repeal on 15 December 2001. It is necessary to replace references to those Crimes Act provisions with reference to the equivalent Criminal Code provisions. This item replaces the references in paragraph 164(9)(b) to sections 7, 7A and 86 of the Crimes Act 1914 (which concern attempting to commit primary offences, incitement to commit primary offences, and conspiring to commit primary offences) with references to the Criminal Code provisions which deal with attempt, incitement and conspiracy (sections 11.1, 11.4 and 11.5).

 

 

Horticulture Marketing and Research and Development Services (Repeals and Consequential Provisions) Act 2000

Item 222 - A pplication of all Criminal Code principles except corporate criminal responsibility, applying strict liability and imposing evidential burden on defendant

 

This item inserts a new subsection 45(4) which applies Chapter 2 (other than Part 2.5) of the Criminal Code to all offences against Part V of the Australian Horticultural Corporation Act (as continued in force by the Horticulture Marketing and Research and Development Services (Repeals and Consequential Provisions) Act 2000 ). Chapter 2 of the Criminal Code establishes the codified general principles of criminal responsibility. Part 2.5 contains general principles of corporate criminal responsibility. When the Criminal Code was introduced, it was recognised that the general principles of corporate criminal responsibility in Part 2.5 might need to be supplemented with more specific provisions in appropriate cases. This Act is one which contains specific provisions relating to corporate criminal responsibility (see section 120). As the Bill is intended to ensure that agriculture, fisheries and forestry portfolio legislation continues to operate in the same way after the Criminal Code applies to it, the specific corporate criminal responsibility provisions in the Act are retained by excluding the application of Part 2.5 of the Criminal Code .

 

The item also inserts a new subsection 45(5), which specifies that the offences in subsections 118(1) and (2) of the Australian Horticultural Corporation Act are offences of strict liability. Where strict liability applies to an offence the prosecution does not have to prove fault on the part of the defendant. The prosecution need only prove that the physical elements of the offence did occur. A defence of mistake of fact is open to the defendant under section 9.2 of the Criminal Code . This defence is available if a person is under a mistaken but reasonable belief about a fact and, had that fact existed, the conduct would not constitute an offence. Under the Criminal Code , any legislative provision that attracts strict liability must expressly state that it is an offence of strict liability (see Section 6.1 of the Code).

 

Subsection 118(1) makes it an offence to contravene a prohibition in the regulations with respect to exporting horticultural products without a licence, permission, consent or approval. Subsection 118(2) makes it an offence to contravene a condition in a licence, permission, consent or approval. The penalty for each offence is $10,000. The defence of reasonable excuse is available for subsection (2).  No fault elements are specified and the availability of a defence of reasonable excuse implies that fault need not be proved.  This suggests that the offences would have been interpreted under the existing law as strict liability offences.

 

The item also inserts a new subsection 45(6), which makes it clear that the defendant bears an evidential burden in relation to the matter of whether the defendant has a reasonable excuse.

 

 

Imported Food Control Act 1992

 

Item 223 - Application of all Criminal Code principles except corporate criminal responsibility

 

This item inserts a new section 6A which applies Chapter 2 (other than Part 2.5) of the Criminal Code to all offences against the Act. Chapter 2 establishes the codified general principles of criminal responsibility . Part 2.5 contains general principles of corporate criminal responsibility. When the Criminal Code was introduced, it was recognised that the general principles of corporate criminal responsibility in Part 2.5 might need to be supplemented with more specific provisions in appropriate cases. This Act is one which contains specific provisions relating to corporate criminal responsibility (see section 33) . As the Bill is intended to ensure that agriculture, fisheries and forestry portfolio legislation continues to operate in the same way after the Criminal Code applies to it, the specific corporate criminal responsibility provisions in the Act are retained by excluding the application of Part 2.5 of the Criminal Code .

 

 

 

 

Items 224 and 225 - Clarifying defence of reasonable excuse and amendment of inappropriate fault element

 

These items make two amendments to section 20.  First, they remove the defence of reasonable excuse from section 20(8) and recreate it in a new subsection 20(8A).  The rationale for this amendment is to prevent the provision from being interpreted in such a way as to include the reasonable excuse element of the provision as an element of the offence, which would have to be disproved by the prosecution.  The amendment makes it clear that reasonable excuse is a defence to the offence.

 

A standard note is added after the new subsection referring to the fact that under subsection 13.3(3) of the Criminal Code a defendant seeking to rely on the reasonable excuse defence carries an evidential burden.

 

Item 225 also replaces the fault element of knowledge in subsection 20(8) with the fault element of intention. Subsection 20(8) provides that the owner of food that is required in a notice under subsection (2), (3) or (4) to be destroyed or re-exported must not knowingly refuse or fail to comply with the requirement to destroy or re-export that food. Subsection 20(8) applies the fault element of knowledge (“knowingly”) in relation to the physical element of conduct, namely complying with the requirement.  Following application of the Criminal Code , it will not be possible to apply the fault element of knowledge to a physical element consisting of conduct.  Section 5.3 of the Criminal Code restricts the application of this fault element to the physical elements of circumstance or result, and the only fault element that may be applied to a physical element of conduct is intention (section 5.2 of the Criminal Code ). Accordingly this item deletes “knowingly” from subsection 20(8) and replaces it with the appropriate fault element, namely intention.  The fault element of intention is the direct Criminal Code equivalent of “knowingly” where the latter is applied to the physical element of conduct.

 

Items 226 and 227 - Clarifying defence of reasonable excuse and strict liability applies

 

These items make two amendments to section 22.  First, they remove the defence of reasonable excuse from section 22(4) and recreate it in a new subsection 22(5).  The rationale for this amendment is to prevent the provision from being interpreted in such a way as to include the reasonable excuse element of the provision as an element of the offence, which would have to be disproved by the prosecution.  The amendment makes it clear that reasonable excuse is a defence to the offence.

 

A standard note is added after the new subsection referring to the fact that under subsection 13.3(3) of the Criminal Code a defendant seeking to rely on the reasonable excuse defence carries an evidential burden.

 

Item 227 also inserts a new subsection 22(6), which specifies that the offence in subsection 22(4) is an offence of strict liability. Where strict liability applies to an offence the prosecution does not have to prove fault on the part of the defendant. The prosecution need only prove that the physical elements of the offence did occur. A defence of mistake of fact is open to the defendant under section 9.2 of the Criminal Code . This defence is available if a person is under a mistaken but reasonable belief about a fact and, had that fact existed, the conduct would not constitute an offence. Under the Criminal Code , any legislative provision that attracts strict liability must expressly state that it is an offence of strict liability (see Section 6.1 of the Code).

 

The offence in subsection 22(4) is failing to return an identity card as soon as practicable after ceasing to be an authorised officer The maximum penalty is $100 and the defence of reasonable excuse is available. The obligation the subject of the offence is of an administrative nature and the offence carries a low penalty and permits a defence of reasonable excuse.  These factors indicate that the offence is one where strict liability would apply under the existing law.

 

Items 228 and 229 - Clarifying defence of reasonable excuse

 

These items remove the defence of reasonable excuse from subsection 30(4) and recreate it in a new subsection 30(4A).  The rationale for this amendment is to prevent the provision from being interpreted in such a way as to include the reasonable excuse element of the provision as an element of the offence, which would have to be disproved by the prosecution.  The amendment makes it clear that reasonable excuse is a defence to the offence.  

 

A standard note is added after the new subsection referring to the fact that under subsection 13.3(3) of the Criminal Code a defendant seeking to rely on the reasonable excuse defence carries an evidential burden.

 

Item 230 - Applying strict liability

 

This item inserts a new subsection 30(5A), which specifies that the offence in subsection 30(4) is an offence of strict liability. Where strict liability applies to an offence the prosecution does not have to prove fault on the part of the defendant. The prosecution need only prove that the physical elements of the offence did occur. A defence of mistake of fact is open to the defendant under section 9.2 of the Criminal Code . This defence is available if a person is under a mistaken but reasonable belief about a fact and, had that fact existed, the conduct would not constitute an offence. Under the Criminal Code , any legislative provision that attracts strict liability must expressly state that it is an offence of strict liability (see Section 6.1 of the Code).

 

Subsection 30(4) provides that a person must not fail to comply with a requirement under subsection (2) or (3) to answer questions or produce documents The maximum penalty is imprisonment for 6 months and the defence of reasonable excuse is available. The availability of the defence of reasonable excuse implies that fault need not be proved.  This indicates that the offence would have been interpreted under the existing law as a strict liability offence.

 

Items 231 and 232 - Clarifying defence of reasonable excuse

 

These items remove the defence of reasonable excuse from subsection 32(2) and recreate it in a new subsection 32(2A).  The rationale for this amendment is to prevent the provision from being interpreted in such a way as to include the reasonable excuse element of the provision as an element of the offence, which would have to be disproved by the prosecution.  The amendment makes it clear that reasonable excuse is a defence to the offence.

 

A standard note is added after the new subsection referring to the fact that under subsection 13.3(3) of the Criminal Code a defendant seeking to rely on the reasonable excuse defence carries an evidential burden.

 

Item 233 - Applying strict liability

 

This item inserts a new subsection 32(4), which specifies that the offence in subsection 32(2) is an offence of strict liability. Where strict liability applies to an offence the prosecution does not have to prove fault on the part of the defendant. The prosecution need only prove that the physical elements of the offence did occur. A defence of mistake of fact is open to the defendant under section 9.2 of the Criminal Code . This defence is available if a person is under a mistaken but reasonable belief about a fact and, had that fact existed, the conduct would not constitute an offence. Under the Criminal Code , any legislative provision that attracts strict liability must expressly state that it is an offence of strict liability (see Section 6.1 of the Code).

 

Subsection 32(2) provides that a person must not fail to comply with an authorised officer's request under subsection (1) to provide reasonable assistance to the officer The maximum penalty is $3,000.  This is a relatively low penalty and the defence of reasonable excuse is available.  These factors indicate that the offence is one where strict liability would apply under the existing law.

 

 

Loan (Income Equalisation Deposits) Act 1976

 

Item 234 - Application of the Criminal Code

 

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

 

 

Meat Inspection Act 1983

 

Item 235 - Replacing references to certain Crimes Act provisions

 

Certain Crimes Act 1914 provisions, including sections 7, 7A and 86, are scheduled for progressive disapplication in relation to offence provisions to which the Criminal Code applies, and ultimately for repeal on 15 December 2001. It is necessary to replace references to those Crimes Act provisions with references to the equivalent Criminal Code provisions. This item replaces the references in the definition of offence against this Act in subsection 3(1) to sections 7, 7A and 86 of the Crimes Act 1914 (which concern attempting to commit primary offences, incitement to commit primary offences, and conspiring to commit primary offences) with references to the Criminal Code provisions which deal with attempt, incitement and conspiracy (sections 11.1, 11.4 and 11.5).

 

Item 236 - Application of the Criminal Code

 

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

 

Item 237 - Applying strict liability

 

This item inserts a new subsection 28( 1A) which specifies that strict liability applies to the physical elements of circumstance in the offence in subclause 28(1), that the boarding or entry takes place under section 25 and that the powers exercised by the authorized officer are under section 25 or 26 (or both). The result of specifying that strict liability applies to those physical elements of circumstance is that the prosecution does not have to prove fault on the part of the defendant in relation to those physical elements.  The prosecution need only prove that those physical elements of the offence did occur - in this case that the boarding or entry took place under section 25 and that the powers exercised by the authorised officer were under section 25 or 26 (or both).

 

Item 238 - Applying strict liability

 

This item inserts a new subsection 29(5), which specifies that the offences referred to in subsection 29(1) (other than offences under sections 22, 23 and 24) are offences of strict liability. Where strict liability applies to an offence the prosecution does not have to prove fault on the part of the defendant. The prosecution need only prove that the physical elements of the offence did occur. A defence of mistake of fact is open to the defendant under section 9.2 of the Criminal Code . This defence is available if a person is under a mistaken but reasonable belief about a fact and, had that fact existed, the conduct would not constitute an offence. Under the Criminal Code , any legislative provision that attracts strict liability must expressly state that it is an offence of strict liability (see Section 6.1 of the Code).

 

The offences referred to in subsection 29(1) include bringing prohibited meat into, or removing it from, abattoirs; slaughtering prohibited animals; and processing prohibited meat. The maximum penalty is $20,000 (or $5,000 if dealt with by a court of summary jurisdiction).  In the commercial context, the level of the penalties is not high and no fault elements are specified.  These factors indicate that the offence is one where strict liability would apply under the existing law.

 

Item 239 - Applying strict liability

 

This item inserts a new subsection 33(2A), which specifies that the offence in subsection 33(2) is an offence of strict liability. Where strict liability applies to an offence the prosecution does not have to prove fault on the part of the defendant. The prosecution need only prove that the physical elements of the offence did occur. A defence of mistake of fact is open to the defendant under section 9.2 of the Criminal Code . This defence is available if a person is under a mistaken but reasonable belief about a fact and, had that fact existed, the conduct would not constitute an offence. Under the Criminal Code , any legislative provision that attracts strict liability must expressly state that it is an offence of strict liability (see Section 6.1 of the Code).

 

Subsection 33(2) provides that a person who ceases to be an authorized officer must return his or her identity card to the Secretary The maximum penalty is $100. The obligation the subject of the offence is of an administrative nature and the offence carries a low penalty.  These factors indicate that the offence is one where strict liability would apply under the existing law.

 

 

Items 240 and 241 - Clarifying defence

 

These items remove the exception that the conduct is approved in writing by the Secretary from subsection 35(1) and recreate it in a new subsection 35(1AA).  The rationale for this amendment is to prevent the provision from being interpreted in such a way as to include the "except as approved in writing by the Secretary" element of the provision as an element of the offence, which would have to be disproved by the prosecution.  The amendment makes it clear that having written approval by the Secretary is a defence to the offence.

 

A standard note is added after the new subsection referring to the fact that under subsection 13.3(3) of the Criminal Code a defendant seeking to rely on the defence in the new subsection carries an evidential burden.

 

Items 242 and 243 - Clarifying defence

 

These items remove the exception that the supply has been approved in writing by the Secretary from subsection 35(1A) and recreate it in a new subsection 35(1B).  The rationale for this amendment is to prevent the provision from being interpreted in such a way as to include the "except as approved in writing by the Secretary" element of the provision as an element of the offence, which would have to be disproved by the prosecution. The amendment makes it clear that having written approval by the Secretary is a defence to the offence.

 

A standard note is added after the new subsection referring to the fact that under subsection 13.3(3) of the Criminal Code a defendant seeking to rely on the defence in the new subsection carries an evidential burden.

 

 

Plant Breeder’s Rights Act 1994

 

Item 244 - A pplication of all Criminal Code principles except corporate criminal responsibility

 

This item inserts a new section 9A which applies Chapter 2 (other than Part 2.5) of the Criminal Code to all offences against the Act. Chapter 2 establishes the codified general principles of criminal responsibility. Part 2.5 contains general principles of corporate criminal responsibility. When the Criminal Code was introduced, it was recognised that the general principles of corporate criminal responsibility in Part 2.5 might need to be supplemented with more specific provisions in appropriate cases. This Act is one which contains specific provisions relating to corporate criminal responsibility (see section 76) . As the Bill is intended to ensure that agriculture, fisheries and forestry portfolio legislation continues to operate in the same way after the Criminal Code applies to it, the specific corporate criminal responsibility provisions in the Act are retained by excluding the application of Part 2.5 of the Criminal Code .

 

Item 245 - Deletion of inappropriate fault elements

 

Subsection 74(1) provides that a person must not, in relation to propagating material of a plant variety in which PBR has been granted, intentionally or recklessly do any of the acts referred to in section 11 if such an act would, under section 53, infringe the PBR in the variety. The acts in section 11 include producing or reproducing the material, conditioning the material for the purpose of propagation, selling the material or offering it for sale, and importing or exporting the material.  Subsection 74(1) applies the fault elements of intention and recklessness in relation to the physical elements of conduct, namely doing any of those acts. 

 

Following application of the Criminal Code , it will not be possible to apply the fault element of recklessness to a physical element consisting of conduct.  Section 5.4 of the Criminal Code restricts the application of recklessness to the physical elements of circumstance or result, and the only fault element that may be applied to a physical element of conduct is intention (section 5.2 of the Criminal Code ).  Accordingly this item deletes “recklessly” from subsection 162(1).

 

"Intentionally" is also deleted. In the absence of any stated fault elements, the default fault elements will apply because of Section 5.6 of the Criminal Code . The result of this is that intention will be the applicable fault element for any physical elements of conduct, and recklessness will be the applicable fault element for any physical elements of result or circumstance (except the physical element of circumstance that the infringement of the PBR would be under section 53. Strict liability will apply to this element because of item 205). This will mean that the subsection will continue to operate in the same manner as at present.

 

Item 246 - Applying strict liability

 

This item inserts a new subsection 74(1A) which provides that strict liability applies to the physical element of circumstance in the offence in subsection 74(1), that the infringement of the PBR would be under section 53 . The result of specifying that strict liability applies to that physical element of circumstance is that the prosecution does not have to prove fault on the part of the defendant in relation to that physical element.  The prosecution need only prove that the physical element of the offence did occur - in this case that the infringement of the PBR would have been under section 53. 

 

 

 

Item 247 - Deletion of inappropriate fault elements

 

Subsection 75(1) provides that a person must not intentionally or recklessly make a false statement in an application or other document for the purposes of the Act Subsections 75(2), (3) and (4) provide that a person must not intentionally or recklessly make certain false representations about PBR in a plant variety.  Subsections 75(1), (2), (3) and (4) apply the fault elements of intention and recklessness in relation to the physical elements of conduct, namely making the relevant statement or representation. 

 

Following application of the Criminal Code , it will not be possible to apply the fault element of recklessness to a physical element consisting of conduct.  Section 5.4 of the Criminal Code restricts the application of recklessness to the physical elements of circumstance or result, and the only fault element that may be applied to a physical element of conduct is intention (section 5.2 of the Criminal Code ).  Accordingly this item deletes “recklessly” from subsections 75(1), (2), (3) and (4).

 

"Intentionally" is also deleted. In the absence of any stated fault elements, the default fault elements will apply because of Section 5.6 of the Criminal Code . The result of this is that intention will be the applicable fault element for any physical elements of conduct, and recklessness will be the applicable fault element for any physical elements of result or circumstance. This will mean that the subsection will continue to operate in the same manner as at present.

 

 

Primary Industries Levies and Charges Collection Act 1991

 

Item 248 - Replacing references to certain Crimes Act provisions

 

Certain Crimes Act 1914 provisions, including sections 7, 7A and 86, are scheduled for progressive disapplication in relation to offence provisions to which the Criminal Code applies, and ultimately for repeal on 15 December 2001. It will be necessary to replace references to those Crimes Act provisions with reference to the equivalent Criminal Code provisions. This item replaces the references in subsection 4(3) to sections 7, 7A and 86 of the Crimes Act 1914 (which concern attempting to commit primary offences, incitement to commit primary offences, and conspiring to commit primary offences) with references to the Criminal Code provisions which deal with attempt, incitement and conspiracy (sections 11.1, 11.4 and 11.5).

 

Item 249 - A pplication of all Criminal Code principles except corporate criminal responsibility

 

This item inserts proposed section 5A which applies Chapter 2 (except Part 2.5) of the Criminal Code to all offences against the Act. Chapter 2 establishes the codified general principles of criminal responsibility. Part 2.5 contains general principles of corporate criminal responsibility. When the Criminal Code was introduced, it was recognised that the general principles of corporate criminal responsibility in Part 2.5 might need to be supplemented with more specific provisions in appropriate cases. This Act is one which contains specific provisions relating to corporate criminal responsibility (see section 25) . As the Bill is intended to ensure that agriculture, fisheries and forestry portfolio legislation continues to operate in the same way after the Criminal Code applies to it, the specific corporate criminal responsibility provisions in the  Act are retained by excluding the application of Part 2.5 of the Criminal Code .

 

Item 250 - Applying strict liability

 

This item inserts a new subsection 19A(2) which provides that strict liability applies to the physical element of circumstance in the offence in subsection 19A(1), that the power is exercised under section 19 in accordance with a warrant issued under section 20 . The result of specifying that strict liability applies to that physical element of circumstance is that the prosecution does not have to prove fault on the part of the defendant in relation to that physical element.  The prosecution need only prove that the physical element of the offence did occur - in this case that the power was exercised under section 19 in accordance with a warrant issued under section 20. 

 

 

Item 251 - Applying strict liability

 

This item inserts a new subsection 19B(2), which specifies that the offence in subsection 19B(1) is an offence of strict liability. Where strict liability applies to an offence the prosecution does not have to prove fault on the part of the defendant. The prosecution need only prove that the physical elements of the offence did occur. A defence of mistake of fact is open to the defendant under section 9.2 of the Criminal Code . This defence is available if a person is under a mistaken but reasonable belief about a fact and, had that fact existed, the conduct would not constitute an offence. Under the Criminal Code , any legislative provision that attracts strict liability must expressly state that it is an offence of strict liability (see Section 6.1 of the Code).

 

Subsection 19B(1) provides that an occupier of premises must provide reasonable assistance to an authorized officer who enters the premises in accordance with a warrant under section 19 The maximum penalty is 30 penalty units, which is relatively low, and no fault elements are specified.  These factors indicate that the offence is one where strict liability would apply under the existing law.

 

Items 252 and 253 - Clarifying defence of reasonable excuse and applying strict liability

 

These items make two amendments to section 22.  First, they remove the defence of reasonable excuse from section 22(4) and recreate it in a new subsection 22(4A).  The rationale for this amendment is to prevent the provision from being interpreted in such a way as to include the reasonable excuse element of the provision as an element of the offence, which would have to be disproved by the prosecution.  The amendment makes it clear that reasonable excuse is a defence to the offence.

 

A standard note is added after the new subsection referring to the fact that under subsection 13.3(3) of the Criminal Code a defendant seeking to rely on the reasonable excuse defence carries an evidential burden.

 

Item 253 also inserts a new subsection 22(4B), which specifies that the offence in subsection 22(4) is an offence of strict liability. Where strict liability applies to an offence the prosecution does not have to prove fault on the part of the defendant. The prosecution need only prove that the physical elements of the offence did occur. A defence of mistake of fact is open to the defendant under section 9.2 of the Criminal Code . This defence is available if a person is under a mistaken but reasonable belief about a fact and, had that fact existed, the conduct would not constitute an offence. Under the Criminal Code , any legislative provision that attracts strict liability must expressly state that it is an offence of strict liability (see Section 6.1 of the Code).

 

The offence in subsection 22(4) is failing to return an identity card immediately after ceasing to be an authorised officer The maximum penalty is $100 and the defence of reasonable excuse is available. The obligation the subject of the offence is of an administrative nature and the offence carries a low penalty and permits a defence of reasonable excuse.  These factors indicate that the offence is one where strict liability would apply under the existing law.

 

Items 254 and 255 - Clarifying defence of reasonable excuse and applying strict liability

 

These items make two amendments to section 24.  First, they remove the defence of reasonable excuse from section 24(1) and recreate it in a new subsection 24(1A).  The rationale for this amendment is to prevent the provision from being interpreted in such a way as to include the reasonable excuse element of the provision as an element of the offence,  which would have to be disproved by the prosecution.  The amendment makes it clear that reasonable excuse is a defence to the offence. 

 

A standard note is added after the new subsection referring to the fact that under subsection 13.3(3) of the Criminal Code a defendant seeking to rely on the reasonable excuse defence carries an evidential burden.

 

Item 255 also inserts a new subsection 24(1B), which specifies that the offence in subsection 24(1) is an offence of strict liability. Where strict liability applies to an offence the prosecution does not have to prove fault on the part of the defendant. The prosecution need only prove that the physical elements of the offence did occur. A defence of mistake of fact is open to the defendant under section 9.2 of the Criminal Code . This defence is available if a person is under a mistaken but reasonable belief about a fact and, had that fact existed, the conduct would not constitute an offence. Under the Criminal Code , any legislative provision that attracts strict liability must expressly state that it is an offence of strict liability (see Section 6.1 of the Code).

 

The offence in subsection 24(1) is failing to give a return or information that the person is required to give under the Act The maximum penalty is 60 penalty units and the defence of reasonable excuse is available.  These factors indicate that the offence is one where strict liability would apply under the existing law.

 

Item 256 - Deletion of inappropriate fault elements

 

Subsections 24A(3) and (4) provide that the proprietor of an abattoir is guilty of an offence if the abattoir fails to determine the hot or cold carcase weight of a carcase because the proprietor intentionally or recklessly failed to take reasonable steps to ensure that the relevant carcase weight was determined. Subsections 24A(3) and (4) apply the fault elements of intention and recklessness in relation to the physical element of conduct, namely failing to take reasonable steps to ensure that the relevant carcase weight is determined. 

 

Following application of the Criminal Code , it will not be possible to apply the fault element of recklessness to a physical element consisting of conduct.  Section 5.4 of the Criminal Code restricts the application of recklessness to the physical elements of circumstance or result, and the only fault element that may be applied to a physical element of conduct is intention (section 5.2 of the Criminal Code ).  Accordingly this item deletes “recklessly” from subsections 24A(3) and (4).

 

"Intentionally" is also deleted. In the absence of any stated fault elements, the default fault elements will apply because of Section 5.6 of the Criminal Code . The result of this is that intention will be the applicable fault element for any physical elements of conduct, and recklessness will be the applicable fault element for any physical elements of result or circumstance. This will mean that the subsection will continue to operate in the same manner as at present.

 

 

Torres Strait Fisheries Act 1984

 

Item 257 - Application of the Criminal Code

 

This item inserts a new section 4A which applies Chapter 2 (other than Part 2.5) of the Criminal Code to all offences against the Act. Chapter 2 establishes the codified general principles of criminal responsibility . Part 2.5 contains general principles of corporate criminal responsibility. When the Criminal Code was introduced, it was recognised that the general principles of corporate criminal responsibility in Part 2.5 might need to be supplemented with more specific provisions in appropriate cases. This Act is one which contains specific provisions relating to corporate criminal responsibility (see section 53A) . As the Bill is intended to ensure that agriculture, fisheries and forestry portfolio legislation continues to operate in the same way after the Criminal Code applies to it, the specific corporate criminal responsibility provisions in the Act are retained by excluding the application of Part 2.5 of the Criminal Code .

 

Item 258 - Applying strict liability

 

This item inserts a new subsection 14(12A), which specifies that the offence in subsection 14(12) is an offence of strict liability. Where strict liability applies to an offence the prosecution does not have to prove fault on the part of the defendant. The prosecution need only prove that the physical elements of the offence did occur. A defence of mistake of fact is open to the defendant under section 9.2 of the Criminal Code . This defence is available if a person is under a mistaken but reasonable belief about a fact and, had that fact existed, the conduct would not constitute an offence. Under the Criminal Code , any legislative provision that attracts strict liability must expressly state that it is an offence of strict liability (see Section 6.1 of the Code).

 

Subsection 14(12) provides that a person who fails to provide information required by a notice under subsection (1), (2), (2A) or (3) is guilty of an offence The maximum penalty is $5,000, which is relatively low, and no fault elements are specified.  These factors indicate that the offence is one where strict liability would apply under the existing law.

 

Item 259 - Applying strict liability

 

This item inserts a new subsection 14(14AA), which specifies that the offence in subsection 14(14) is an offence of strict liability. Where strict liability applies to an offence the prosecution does not have to prove fault on the part of the defendant. The prosecution need only prove that the physical elements of the offence did occur. A defence of mistake of fact is open to the defendant under section 9.2 of the Criminal Code . This defence is available if a person is under a mistaken but reasonable belief about a fact and, had that fact existed, the conduct would not constitute an offence. Under the Criminal Code , any legislative provision that attracts strict liability must expressly state that it is an offence of strict liability (see Section 6.1 of the Code).

 

Subsection 14(14) provides that a person who takes fish in contravention of a notice in force under subsection (6), (7) or (8) is guilty of an offence The maximum penalty is $5,000 (or $25,000 for a body corporate). No fault elements are specified.  These factors indicate that the offence is one where strict liability would apply under the existing law.

 

Item 260 - Replacing references to certain Crimes Act provisions

 

Certain Crimes Act 1914 provisions, including sections 7, 7A and 86, are scheduled for progressive disapplication in relation to offence provisions to which the Criminal Code applies, and ultimately for repeal on 15 December 2001. It is necessary to replace references to those Crimes Act provisions with references to the equivalent Criminal Code provisions. This item replaces the references in subsection 42(6A) to sections 7, 7A and 86 of the Crimes Act 1914 (which concern attempting to commit primary offences, incitement to commit primary offences, and conspiring to commit primary offences) with references to the Criminal Code provisions which deal with attempt, incitement and conspiracy (sections 11.1, 11.4 and 11.5).

 

Items 261 and 262 - Clarifying defence of reasonable excuse

 

These items remove the defence of reasonable excuse from paragraphs 43(1)(b), (c) and (ca) and recreate it in a new subsection 43(1A).  The rationale for this amendment is to prevent the provisions from being interpreted in such a way as to include the reasonable excuse element of the provisions as an element of each of the offences, which would have to be disproved by the prosecution.  The amendment makes it clear that reasonable excuse is a defence to each of the offences.

 

A standard note is added after the new subsection referring to the fact that under subsection 13.3(3) of the Criminal Code a defendant seeking to rely on the reasonable excuse defence carries an evidential burden.

 

Item 263 - Clarifying fault element

 

This item replaces the phrase "for the purpose" in paragraph 44(1)(c) with the phrase "with the intention". The phrase "for the purpose" is potentially confusing as to what the applicable fault element is. It could be interpreted as a reference to the intention of the person when performing the conduct (with the intention of engaging in commercial fishing), or it could refer to the result of the conduct (with the result that commercial fishing takes place).

 

To avoid this confusion the paragraph has been amended to reflect the appropriate interpretation of the current offence, namely, "with the intention" of engaging in commercial fishing.

 

Item 264 - Applying strict liability

 

This item inserts a new subsection 44(3AA), which specifies that an offence under subsection 44(2) or (3) consisting of a contravention of paragraph 44(1)(a) or (b) is an offence of strict liability. Where strict liability applies to an offence the prosecution does not have to prove fault on the part of the defendant. The prosecution need only prove that the physical elements of the offence did occur. A defence of mistake of fact is open to the defendant under section 9.2 of the Criminal Code . This defence is available if a person is under a mistaken but reasonable belief about a fact and, had that fact existed, the conduct would not constitute an offence. Under the Criminal Code , any legislative provision that attracts strict liability must expressly state that it is an offence of strict liability (see Section 6.1 of the Code).

 

The relevant offences are doing an act that the person is prohibited from doing by a notice in force under section 16, and having in possession or control fish of a kind the taking of which is prohibited by a notice in force under section 16 . The maximum penalty is $5,000 for a natural person and $25,000 for a body corporate. If the relevant act is done with the aid of a foreign boat and the person is convicted on indictment, the maximum penalty is $50,000 for a natural person and $250,00 for a body corporate. No fault elements are specified for the offence and it is considered that the offence would have been interpreted under the existing law as a strict liability offence.

 

The item also inserts a new subsection 44(3AB) which provides that, in the case of an offence under subsection (2) or (3) consisting of a contravention of paragraph (1)(c), strict liability applies to the physical elements of circumstance, that the relevant conduct occurs in an area of Australian jurisdiction and that the relevant notice is in force under section 16 . The result of specifying that strict liability applies to those physical elements of circumstance is that the prosecution does not have to prove fault on the part of the defendant in relation to those physical elements. The prosecution need only prove that those physical elements of the offence did occur - in this case that the relevant conduct occurred in an area of Australian jurisdiction and that the relevant notice was in force under section 16 .

 

Item 265 - Applying strict liability

 

This item inserts a new subsection 45(4AA), which specifies that an offence under subsection 45(2), (3) or (4) is an offence of strict liability. Where strict liability applies to an offence the prosecution does not have to prove fault on the part of the defendant. The prosecution need only prove that the physical elements of the offence did occur. A defence of mistake of fact is open to the defendant under section 9.2 of the Criminal Code . This defence is available if a person is under a mistaken but reasonable belief about a fact and, had that fact existed, the conduct would not constitute an offence. Under the Criminal Code , any legislative provision that attracts strict liability must expressly state that it is an offence of strict liability (see Section 6.1 of the Code).

 

The relevant offences relate to using a boat for fishing otherwise than in accordance with a licence or endorsement The maximum penalties range from $5,000 to $250,000, depending on whether the offence is committed by a natural person or a body corporate, or by the master of the boat, and whether the conviction is summary or on indictment. No fault elements are specified for the offence and it is considered that the offence would have been interpreted under the existing law as a strict liability offence.

 

Item 266 - Clarifying fault element

 

This item replaces the phrase "for the purpose" in subsection 46(1) with the phrase "with the intention". The phrase "for the purpose" is potentially confusing as to what the applicable fault element is. It could be interpreted as a reference to the intention of the person when performing the conduct (with the intention of engaging in commercial fishing), or it could refer to the result of the conduct (with the result that commercial fishing takes place).

 

To avoid this confusion the paragraph has been amended to reflect the appropriate interpretation of the current offence, namely "with the intention" of engaging in commercial fishing.

 

Item 267 - Applying strict liability

 

This item inserts a new subsection 46(3) which provides that strict liability applies to the physical element of circumstance in the offence in subsection 46(2), that the boat is in an area of Australian jurisdiction . The result of specifying that strict liability applies to that physical element of circumstance is that the prosecution does not have to prove fault on the part of the defendant in relation to that physical element.  The prosecution need only prove that the physical element of the offence did occur - in this case that the boat is in an area of Australian jurisdiction.

 

Items 268 and 269 - Clarifying defence and applying strict liability

 

These items remove from subsection 47(1) the exception that the person owns the equipment or is acting with the authority of the owner and recreate it in a new subsection 47(2).  The rationale for this amendment is to prevent the provision from being interpreted in such a way as to include this element of the provision as an element of the offence, which would have to be disproved by the prosecution.  The amendment makes it clear that the fact that the person owns the equipment or is acting with the authority of the owner is a defence to the offence.

 

A standard note is added after the new subsection referring to the fact that under subsection 13.3(3) of the Criminal Code a defendant seeking to rely on the defence in the new subsection carries an evidential burden.

 

Item 269 also inserts a new subsection 47(3) which provides that strict liability applies to the physical element of circumstance in the offence in subsection 47(1), that the removal occurs in an area of Australian jurisdiction . The result of specifying that strict liability applies to that physical element of circumstance is that the prosecution does not have to prove fault on the part of the defendant in relation to that physical element.  The prosecution need only prove that the physical element of the offence did occur - in this case that the removal occurred in an area of Australian jurisdiction.

 

Item 270 - Applying strict liability

 

This item inserts a new subsection 48(2), which specifies that the offence in subsection 48(1) is an offence of strict liability. Where strict liability applies to an offence the prosecution does not have to prove fault on the part of the defendant. The prosecution need only prove that the physical elements of the offence did occur. A defence of mistake of fact is open to the defendant under section 9.2 of the Criminal Code . This defence is available if a person is under a mistaken but reasonable belief about a fact and, had that fact existed, the conduct would not constitute an offence. Under the Criminal Code , any legislative provision that attracts strict liability must expressly state that it is an offence of strict liability (see Section 6.1 of the Code).

 

Subsection 48(1) provides that a person must not, in an area of Australian jurisdiction, use a foreign boat for taking, catching or capturing, fish for private purposes, or for processing or carrying fish that have been taken, caught or captured for private purposes . The maximum penalty is $5,000, which is relatively low, and no fault elements are specified.  These factors indicate that the offence is one where strict liability would apply under the existing law.

 

Item 271 - Applying strict liability

 

This item inserts a new subsection 49(2A), which specifies that the offence in subsection 49(1) is an offence of strict liability. Where strict liability applies to an offence the prosecution does not have to prove fault on the part of the defendant. The prosecution need only prove that the physical elements of the offence did occur. A defence of mistake of fact is open to the defendant under section 9.2 of the Criminal Code . This defence is available if a person is under a mistaken but reasonable belief about a fact and, had that fact existed, the conduct would not constitute an offence. Under the Criminal Code , any legislative provision that attracts strict liability must expressly state that it is an offence of strict liability (see Section 6.1 of the Code).

 

Subsection 49(1) provides that the master of a foreign fishing boat, not being a boat that is being used in the course of traditional fishing, who, otherwise than in accordance with an entry made in a licence or in a Treaty endorsement under paragraph 21(2)(a) or (b), causes the boat to be brought into a place in Australia that is within the Protected Zone, is guilty of an offence The maximum penalty is $5,000 (or $50,000 if convicted on indictment). The defence of unforeseen emergency is available. The offence carries a relatively low penalty in the commercial context and the availability of an express defence implies that fault need not be proved. These factors indicate that the offence is one where strict liability would apply under the existing law.

 

Item 272 - Applying strict liability

 

This item inserts a new subsection 50(3), which specifies that the offence in subsection 50(1) is an offence of strict liability. Where strict liability applies to an offence the prosecution does not have to prove fault on the part of the defendant. The prosecution need only prove that the physical elements of the offence did occur. A defence of mistake of fact is open to the defendant under section 9.2 of the Criminal Code . This defence is available if a person is under a mistaken but reasonable belief about a fact and, had that fact existed, the conduct would not constitute an offence. Under the Criminal Code , any legislative provision that attracts strict liability must expressly state that it is an offence of strict liability (see Section 6.1 of the Code).

 

Subsection 50(1) provides the master of a foreign boat or a Papua New Guinea boat who lands fish in Australia is guilty of an offence, except if it is in accordance with an entry made in a licence or in a Treaty endorsement or in the course of traditional fishing The maximum penalty is $5,000 (or $50,000 if convicted on indictment) and some administrative defences are set out in subsection (2). The offence carries a relatively low penalty in the commercial context and the availability of express defences implies that fault need not be proved. These factors indicate that the offence is one where strict liability would apply under the existing law.

 

Item 273 - Applying strict liability

 

This item inserts a new subsection 51(4A), which specifies that an offence under subsection 51(2) or (3) is an offence of strict liability. Where strict liability applies to an offence the prosecution does not have to prove fault on the part of the defendant. The prosecution need only prove that the physical elements of the offence did occur. A defence of mistake of fact is open to the defendant under section 9.2 of the Criminal Code . This defence is available if a person is under a mistaken but reasonable belief about a fact and, had that fact existed, the conduct would not constitute an offence. Under the Criminal Code , any legislative provision that attracts strict liability must expressly state that it is an offence of strict liability (see Section 6.1 of the Code).

 

The relevant offences are having in possession or control, in an area of Australian jurisdiction, an unlicensed boat equipped with nets, traps or other equipment for taking fish The maximum penalties range from $5,000 to $250,000, depending on whether the offence is committed by a natural person or a body corporate, whether the offence is committed with a foreign boat, and whether the conviction is summary or on indictment. No fault elements are specified for the offence and it is considered that the offence would have been interpreted under the existing law as a strict liability offence.

 

Item 274 - Applying strict liability

 

This item inserts a new subsection 54(5), which specifies that the offence in subsection 54(2) is an offence of strict liability. Where strict liability applies to an offence the prosecution does not have to prove fault on the part of the defendant. The prosecution need only prove that the physical elements of the offence did occur. A defence of mistake of fact is open to the defendant under section 9.2 of the Criminal Code . This defence is available if a person is under a mistaken but reasonable belief about a fact and, had that fact existed, the conduct would not constitute an offence. Under the Criminal Code , any legislative provision that attracts strict liability must expressly state that it is an offence of strict liability (see Section 6.1 of the Code).

 

Subsection 54(2) provides that an Australian citizen or a person on an Australian boat or licensed foreign boat who, in an area of Papua New Guinea jurisdiction, contravenes any Papua New Guinea fishing law is guilty of an offence . The maximum penalty is $5,000. It is a defence that the person has been prosecuted in Papua New Guinea for that contravention. No fault elements are specified and the maximum penalty is relatively low. These factors indicate that the offence is one where strict liability would apply under the existing law.

 

 

 

 

 

 

Wheat Marketing Act 1989

 

Item 275 - Application of the Criminal Code

 

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