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Family and Community Services Legislation Amendment (Application of Criminal Code) Bill 2001

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1998-1999-2000-2001

 

 

 

 

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

 

 

 

 

SENATE

 

 

 

 

 

 

FAMILY AND COMMUNITY SERVICES LEGISLATION AMENDMENT (APPLICATION OF CRIMINAL CODE) BILL 2001

 

 

 

 

 

 

EXPLANATORY MEMORANDUM

 

 

 

 

 

 

 

 

 

 

 

 

(Circulated by authority of the Minister for Family and Community Services, Senator the Hon Amanda Vanstone)

 



FAMILY AND COMMUNITY SERVICES LEGISLATION AMENDMENT (APPLICATION OF CRIMINAL CODE) BILL 2001

 

OUTLINE AND FINANCIAL IMPACT STATEMENT

 

 

The purpose of the Family and Community Services Legislation Amendment (Application of Criminal Code) Bill 2001 (the Bill) is to make consequential amendments to certain offence provisions in legislation administered by the Minister for Family and Community Services and the Minister for Community Services to reflect the application of the Criminal Code Act 1995 (the Code).  The amendments are to ensure that the relevant offences continue to have the same meaning and operation as they do at present.

 

The Code is a Commonwealth Act which will alter the way in which criminal offence provisions are interpreted, including offences contained in legislation for with the Family and Community Services portfolio is responsible.  The Code contains a standard approach to the formulation of criminal offences.  Offences which have been developed over many years as part of the Commonwealth statutory regime are by no means standard and it is therefore necessary to make adjustment for when the Code applies to all Commonwealth offences from 15 December 2001 (as provided for in the Criminal Code Amendment (Application) Act 2000) .

 

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

 

In particular, the Code clarifies the traditional distinction between the actus reus (the physical act, now referred to as the ‘physical element’) and the mens rea (what the defendant thought or intended, now referred to as the ‘fault element’) and sets out that distinction in the Code.  The physical elements provided for by the Code are the conduct, the circumstance in which it occurs, and the result of the conduct.  For every physical element, there is a corresponding fault element.  The Code does not prevent an offence from specifying an alternative fault element, but the Code indicates that a default element will apply in the absence of a specified fault element.  The Code establishes 4 default fault elements: intention, knowledge, recklessness and negligence.  The Code provides that, for conduct, the default element is intention.  For circumstance or result, the default fault element is recklessness.

 

The major forms of amendments provided for by this Bill are:

 

·         making offence creating and related provisions in the Family and Community Services portfolio comply with the Code;

·         applying strict liability or absolute liability to individual offences or specified physical elements of offences where necessary;

·         removing the defences of lawful excuse and lawful authority that appear in certain provisions and instead placing reliance on the Code’s general defence of lawful authority and lawful excuse (see section 10.5 of the Code);

·         consequentially deleting references to certain provisions of the Crimes Act and replacing these with references to the equivalent Code provisions; and

·         reconstructing provisions in order to clarify physical elements of conduct, circumstance and result.

 

The legislation involved is the A New Tax System (Bonuses for Older Australians) Act 1999 , the A New Tax System (Family Assistance) (Administration) Act 1999 , the Child Support (Assessment) Act 1989 , the Child Support (Registration and Collection) Act 1988 , the Commonwealth Services Delivery Agency Act 1997 , the Data-matching Program (Assistance and Tax) Act 1990 , the Disability Services Act 1986 , the Farm Household Support Act 1992 , the First Home Owners Act 1983 , the Home Deposit Assistance Act 1982 , the Home Savings Grant Act 1964 , the Home Savings Grant Act 1976 , the Social Security Act 1991 , the Social Security (Administration) Act 1999 , the Social Welfare Commission (Repeal) Act 1976 .

 

 

Schedule 1—Amendment of Acts

 

Schedule 1 makes consequential amendments to certain offence provisions in legislation administered by the Minister for Family and Community Services and the Minister for Community Services to reflect the application of the Criminal Code Act 1995 .  The amendments are not intended to alter the current meaning or operation of the relevant offence provisions.

 

Date of Effect:           Schedule 1 commences on the day after the day on which it receives the Royal Assent.

 

Financial Impact:        There is no financial impact from these amendments.

 



FAMILY AND COMMUNITY SERVICES LEGISLATION AMENDMENT (APPLICATION OF CRIMINAL CODE) BILL 2001

 

NOTES ON CLAUSES

 

Clause 1—Short Title

 

Clause 1 of the Family and Community Services Legislation Amendment (Application of Criminal Code) Bill 2001 sets out how the amending Act is to be cited.

 

Clause 2—Commencement

 

Clause 2 specifies when the various clauses and Schedules of the amending Act are to commence.  Subclause 2(1) provides that, subject to Clause 2, this Act commences on the day after the day on which it receives the Royal Assent.  Subclause 2(2) provides that, if Item 19 of Schedule 1 to the Family and Community Services Legislation (Simplification and Other Measures) Act 2001 commences after this Act commences, Items 124 and 125 commence immediately after the commencement of that Item.

 

Clause 3—Schedule(s)

 

Clause 3 provides that each Act that is specified in a Schedule to the Family and Community Services Legislation Amendment (Application of Criminal Code)Bill 2001 is amended as set out in the applicable Items in those Schedules.

 

Acts amended by this Bill are:

 

·         A New Tax System (Bonuses for Older Australians) Act 1999 ;

·         A New Tax System (Family Assistance) (Administration) Act 1999 ;

·         Child Support (Assessment) Act 1989 ;

·         Child Support (Registration and Collection) Act 1988 ;

·         Commonwealth Services Delivery Agency Act 1997 ;

·         Data-matching Program (Assistance and Tax) Act 1990 ;

·         Disability Services Act 1986 ;

·         Farm Household Support Act 1992 ;

·         First Home Owners Act 1983 ;

·         Home Deposit Assistance Act 1982 ;

·         Home Savings Grant Act 1964 ;

·         Home Savings Grant Act 1976 ;

·         Social Security Act 1991 ;

·         Social Security (Administration) Act 1999 ; and

·         Social Welfare Commission (Repeal) Act 1976 .

 



Clause 4 Application of amendments

 

Subclause 4(1) provides that, subject to subsection 2, each amendment made by this Act applies to acts and omissions that take place after the amendment commences.

 

Subclause 4(2) provides that if an act or omission is alleged to have taken place between two dates, one before and one on or after the day on which a particular amendment commences, the amendment does not apply to the alleged act or omission.

 



SCHEDULE 1—AMENDMENT OF ACTS

 

 

1.                   Summary of proposed changes

 

Schedule 1 makes consequential amendments to certain offence provisions in legislation administered by the Minister for Family and Community Services and the Minister for Community Services to reflect the application of the Criminal Code Act 1995 (the Code).

 

 

2.                   Background

 

At present many hours of practitioners and court time are wasted in litigation about the meaning of particular fault elements or the extent to which the prosecution should have the burden of proving those fault elements.  Moreover, offences which have been developed over many years as part of the Commonwealth statutory regime are by no means standard.  The application of the Code to all offences will improve Commonwealth criminal law by clarifying important elements of offences and will provide a standard approach to the formulation of criminal offences.

 

This Bill makes consequential amendments to certain offence provisions in legislation administered by the Minister for Family and Community Services and the Minister for Community Services to reflect the application of the Code.

 

 

3.                   Explanation of the changes

 

A New Tax System (Bonuses for Older Australians) Act 1999

 

Item 1

 

Item 1 inserts proposed section 3AA which applies Chapter 2 of the Code to the above Act.  Chapter 2 establishes the codified general principles of criminal responsibility.

 

Item 2

 

Part 4 of the Act provides for bonus payments to be made to clients of the Australian Taxation Office.  In broad terms, section 55 creates an offence in certain circumstances where a person uses, records, discloses or communicates information relating to another person.  One element of the offence relates to the nature of the relevant information.  It requires that the information must be information that was acquired by the first person in the performance of a function or obligation, or in the exercise of a power under Part 4.  Item 2 repeals and substitutes section 55 of the Act.  The substituted section 55 recreates the offence provision and subsection 55(2) provides that the element of the offence relating to the nature of the information is one of strict liability.  Section 6.1 of the Code governs strict liability.

 

An individual physical element would generally qualify for application of strict liability where it describes something that a defendant would not ordinarily consider in the course of committing the offence.  In those circumstances, the defendant would not have a fault element in relation to that physical element and a prosecution would be defeated if the Crown was required to demonstrate that the defendant did possess such a fault element.  Where strict liability applies to an offence, the prosecution does not have to prove fault on the part of the defendant.  The prosecution need only prove that the physical element of the offence did occur.  However, there is a defence of mistake of fact under section 9.2 of the Code.  Section 9.2 provides that a person is not criminally responsible for an offence of this nature if, at the time of the conduct constituting the physical element, the person considered whether or not fact existed, and is under a mistaken but reasonable belief about those facts and, had those facts existed, the conduct would not have constituted an offence.  According to subsection 13.3(2) of the Code, the person wishing to deny criminal responsibility bears an evidential burden in relation to showing a mistake of fact.

 

A New Tax System (Family Assistance) (Administration) Act 1999

 

Item 3

 

Item 3 inserts proposed section 3A which applies Chapter 2 of the Code to the above Act.  Chapter 2 establishes the codified general principles of criminal responsibility.

 

Item 4

 

In general terms, section 25 of the Act requires a claimant who becomes eligible for family tax benefit to notify the Secretary in relation to the occurrence of particular events or circumstances.  The information must be notified in the manner set out in a written notice given to the service under section 25A .  The information must be notified as soon as practicable after the service becomes aware that the event or circumstance has happened or is likely to happen.  The penalty is imprisonment for 6 months.

 

The effect of the Item is to add subsection 25(2) which provides that strict liability applies to the element of an offence against subsection (1) to the extent that a notice given under section 25A is such a notice.  An individual physical element would generally qualify for application of strict liability where it describes something that a defendant would not ordinarily consider in the course of committing the offence.  In those circumstances, the defendant would not have a fault element in relation to that physical element and a prosecution would be defeated if the Crown was required to demonstrate that the defendant did possess such a fault element.

 

Where strict liability applies to an offence, the prosecution does not have to prove fault on the part of the defendant.  The prosecution need only prove that the physical element of the offence did occur.  However, there is a defence of mistake of fact under section 9.2 of the Code.  Section 9.2 provides that a person is not criminally responsible for an offence of this nature if, at the time of the conduct constituting the physical element, the person considered whether or not fact existed, and is under a mistaken but reasonable belief about those facts and, had those facts existed, the conduct would not have constituted an offence.  According to subsection 13.3(2) of the Code, the person wishing to deny criminal responsibility bears an evidential burden in relation to showing a mistake of fact.  It is appropriate that strict liability apply in relation to the physical element referred to above.

 

Item 5

 

In general terms, subsection 56C(1) of the Act provides that, where a determination of conditional eligibility under section 50F is in force in respect of a claimant who is an individual, the claimant must notify the Secretary in relation to the occurrence of particular events or circumstances.  The information must be notified in the manner set out in a written notice given to the individual under section 57 .  The information must be notified as soon as practicable after the claimant becomes aware that the event or circumstance has happened or is likely to happen.  The penalty is imprisonment for 6 months.

 

The effect of the Item is to add subsection 56(1A) which provides that strict liability applies to the element of an offence against subsection (1) to the extent that a determination under section 50F is such a determination and to the extent that a notice given under section 57 is such a notice.  An individual physical element would generally qualify for application of strict liability where it describes something that a defendant would not ordinarily consider in the course of committing the offence.  In those circumstances, the defendant would not have a fault element in relation to that physical element and a prosecution would be defeated if the Crown was required to demonstrate that the defendant did possess such a fault element.

 

Where strict liability applies to an offence, the prosecution does not have to prove fault on the part of the defendant.  The prosecution need only prove that the physical element of the offence did occur.  However, there is a defence of mistake of fact under section 9.2 of the Code.  Section 9.2 provides that a person is not criminally responsible for an offence of this nature if, at the time of the conduct constituting the physical element, the person considered whether or not fact existed, and is under a mistaken but reasonable belief about those facts and, had those facts existed, the conduct would not have constituted an offence.  According to subsection 13.3(2) of the Code, the person wishing to deny criminal responsibility bears an evidential burden in relation to showing a mistake of fact.  It is appropriate that strict liability apply in relation to the physical elements referred to above.

 

Item 6

 

In general terms, subsection 56C(2) of the Act requires claimants to notify the Secretary in relation to the occurrence of particular events or circumstances if:

 

·         determinations of conditional eligibility under section 50F and CCB% under section 50J are in force; and

·         the CCB% is calculated using Schedule 2 to the Family Assistance Act.

 

The information must be notified in the manner set out in a written notice given to the individual under section 57 .  The information must be notified as soon as practicable after the claimant becomes aware that the event or circumstance has happened or is likely to happen.  The penalty is imprisonment for 6 months.

 

The effect of the Item is to add subsection 56C(2A) which provides that strict liability applies to certain elements of an offence against subsection (2).  Firstly, strict liability applies to the element that a determination is a determination under section 50F or 50J.  Strict liability also applies to the element that Schedule 2 to the Family Assistance Act is used to calculate CCB%.  The Item also provides that strict liability applies to the element that a notice is a notice given under section 57.

 

An individual physical element would generally qualify for application of strict liability where it describes something that a defendant would not ordinarily consider in the course of committing the offence.  In those circumstances, the defendant would not have a fault element in relation to that physical element and a prosecution would be defeated if the Crown was required to demonstrate that the defendant did possess such a fault element.  Where strict liability applies to an offence, the prosecution does not have to prove fault on the part of the defendant.  The prosecution need only prove that the physical element of the offence did occur.  However, there is a defence of mistake of fact under section 9.2 of the Code.  Section 9.2 provides that a person is not criminally responsible for an offence of this nature if, at the time of the conduct constituting the physical element, the person considered whether or not fact existed, and is under a mistaken but reasonable belief about those facts and, had those facts existed, the conduct would not have constituted an offence.  According to subsection 13.3(2) of the Code, the person wishing to deny criminal responsibility bears an evidential burden in relation to showing a mistake of fact.  It is appropriate that strict liability apply in relation to the physical elements referred to above.

 

Item 7

 

In general terms, subsection 56C(3) of the Act requires claimants to notify the Secretary in relation to the occurrence of particular events or circumstances if:

 

·         determinations of conditional eligibility under section 50F and a weekly limit of hours under section 50H are in force; and

·         the weekly limit of hours is more than 20 because a circumstance set out in subsection 54(2), (4), (6) or (8) of the Act or subsection 55(2) or (4) applies to the eligibility of the claimant.

 

The information must be notified in the manner set out in a written notice given to the individual under section 57 .  The information must be notified as soon as practicable after the claimant becomes aware that the event or circumstance has happened or is likely to happen.  The penalty is imprisonment for 6 months.

 

The effect of the Item is to add subsection 56C(3A) which provides that strict liability applies to certain elements of an offence against subsection (3).  Firstly, strict liability applies to the element that a determination is a determination under section 50F or 50H.  Strict liability also applies to the element that a circumstance is a circumstance set out in subsection 54(2), (4), (6) or (8) of the Act or subsection 55(2) or (4).  The Item also provides that strict liability applies to the element that a notice is a notice given under section 57.

 

An individual physical element would generally qualify for application of strict liability where it describes something that a defendant would not ordinarily consider in the course of committing the offence.  In those circumstances, the defendant would not have a fault element in relation to that physical element and a prosecution would be defeated if the Crown was required to demonstrate that the defendant did possess such a fault element.  Where strict liability applies to an offence, the prosecution does not have to prove fault on the part of the defendant.  The prosecution need only prove that the physical element of the offence did occur.  However, there is a defence of mistake of fact under section 9.2 of the Code.  Section 9.2 provides that a person is not criminally responsible for an offence of this nature if, at the time of the conduct constituting the physical element, the person considered whether or not fact existed, and is under a mistaken but reasonable belief about those facts and, had those facts existed, the conduct would not have constituted an offence.  According to subsection 13.3(2) of the Code, the person wishing to deny criminal responsibility bears an evidential burden in relation to showing a mistake of fact.  It is appropriate that strict liability apply in relation to the physical elements referred to above.

 

Item 8

 

In part, subsection 56C(4) of the Act requires claimants to notify the Secretary in relation to the occurrence of particular events or circumstances if determinations of conditional eligibility under section 50F and a weekly limit of hours under section 50H are in force.  The information must be notified in the manner set out in a written notice given to the claimant under section 57 .  The information must be notified as soon as practicable after the claimant becomes aware that the event or circumstance has happened or is likely to happen.  The penalty is imprisonment for 6 months.

 

The effect of the Item is to add subsection 56C(4A) which provides that strict liability applies to certain elements of an offence against subsection (4).  Firstly, strict liability applies to the element that a determination is a determination under section 50F or 50H.  The Item also provides that strict liability applies to the element that a notice is a notice given under section 57.

 

An individual physical element would generally qualify for application of strict liability where it describes something that a defendant would not ordinarily consider in the course of committing the offence.  In those circumstances, the defendant would not have a fault element in relation to that physical element and a prosecution would be defeated if the Crown was required to demonstrate that the defendant did possess such a fault element.  Where strict liability applies to an offence, the prosecution does not have to prove fault on the part of the defendant.  The prosecution need only prove that the physical element of the offence did occur.  However, there is a defence of mistake of fact under section 9.2 of the Code.  Section 9.2 provides that a person is not criminally responsible for an offence of this nature if, at the time of the conduct constituting the physical element, the person considered whether or not fact existed, and is under a mistaken but reasonable belief about those facts and, had those facts existed, the conduct would not have constituted an offence.  According to subsection 13.3(2) of the Code, the person wishing to deny criminal responsibility bears an evidential burden in relation to showing a mistake of fact.  It is appropriate that strict liability apply in relation to the physical elements referred to above.

 

Item 9

 

In part, subsection 56C(5) of the Act requires claimants to notify the Secretary in relation to the occurrence of particular events or circumstances if determinations of conditional eligibility under section 50F and schooling % under section 50K are in force.  The information must be notified in the manner set out in a written notice given to the claimant under section 57 .  The information must be notified as soon as practicable after the claimant becomes aware that the event or circumstance has happened or is likely to happen.  The penalty is imprisonment for 6 months.

 

The effect of the Item is to add subsection 56C(5A) which provides that strict liability applies to certain elements of an offence against subsection (5).  Firstly, strict liability applies to the element that a determination is a determination under section 50F or 50K.  The Item also provides that strict liability applies to the element that a notice is a notice given under section 57.

 

An individual physical element would generally qualify for application of strict liability where it describes something that a defendant would not ordinarily consider in the course of committing the offence.  In those circumstances, the defendant would not have a fault element in relation to that physical element and a prosecution would be defeated if the Crown was required to demonstrate that the defendant did possess such a fault element.  Where strict liability applies to an offence, the prosecution does not have to prove fault on the part of the defendant.  The prosecution need only prove that the physical element of the offence did occur.  However, there is a defence of mistake of fact under section 9.2 of the Code.  Section 9.2 provides that a person is not criminally responsible for an offence of this nature if, at the time of the conduct constituting the physical element, the person considered whether or not fact existed, and is under a mistaken but reasonable belief about those facts and, had those facts existed, the conduct would not have constituted an offence.  According to subsection 13.3(2) of the Code, the person wishing to deny criminal responsibility bears an evidential burden in relation to showing a mistake of fact.  It is appropriate that strict liability apply in relation to the physical elements referred to above.

 

Item 10

 

In general terms, subsection 56C(6) of the Act requires claimants to notify the Secretary in relation to the occurrence of particular events or circumstances if:

 

·         a determination of conditional eligibility under section 50F is in force; and

·         the claimant’s rate of child care benefit is the rate determined by the Secretary under subsection 81(2) of the Family Assistance Act.

 

The information must be notified in the manner set out in a written notice given to the individual under section 57 .  The information must be notified as soon as practicable after the claimant becomes aware that the event or circumstance has happened or is likely to happen.  The penalty is imprisonment for 6 months.

 

The effect of the Item is to add subsection 56C(6A) which provides that strict liability applies to certain elements of an offence against subsection (3).  Firstly, strict liability applies to the element that a determination is a determination under section 50F.  Strict liability also applies to the element that the determination of a rate is a determination under subsection 81(2) of the Act.  The Item also provides that strict liability applies to the element that a notice is a notice given under section 57.

 

An individual physical element would generally qualify for application of strict liability where it describes something that a defendant would not ordinarily consider in the course of committing the offence.  In those circumstances, the defendant would not have a fault element in relation to that physical element and a prosecution would be defeated if the Crown was required to demonstrate that the defendant did possess such a fault element.  Where strict liability applies to an offence, the prosecution does not have to prove fault on the part of the defendant.  The prosecution need only prove that the physical element of the offence did occur.  However, there is a defence of mistake of fact under section 9.2 of the Code.  Section 9.2 provides that a person is not criminally responsible for an offence of this nature if, at the time of the conduct constituting the physical element, the person considered whether or not fact existed, and is under a mistaken but reasonable belief about those facts and, had those facts existed, the conduct would not have constituted an offence.  According to subsection 13.3(2) of the Code, the person wishing to deny criminal responsibility bears an evidential burden in relation to showing a mistake of fact.  It is appropriate that strict liability apply in relation to the physical elements referred to above.

 

Item 11

 

In general terms, subsection 56D(1) of the Act requires an approved child care service that meets the requirements of paragraphs 56D(1)(a) to (d) to notify the Secretary in relation to the occurrence of particular events or circumstances.  The information must be notified in the manner set out in a written notice given to the service under section 57 .  The information must be notified as soon as practicable after the service becomes aware that the event or circumstance has happened or is likely to happen.  The penalty is 60 penalty units.

 

Paragraphs 56D(1)(a) to (c) are respectively concerned with the question of whether:

 

·         the service is eligible under section 47 of the Family Assistance Act for child care benefit by fee reduction;

·         a determination of a weekly limit of hours under section 54C is in force;

·         a circumstance under subsection 54(3), (5), (7), (9) or (12) or subsection 55(3), (5) or (8) of the Family Assistance Act applies.

 

Item 11 inserts paragraphs 56D(1A)(a) to (d) which apply strict liability to the following elements:

 

·         that a child care service’s eligibility for a child care benefit is an eligibility under section 47 of the Family Assistance Act;

·         that a determination is a determination under section 54C;

·         that a circumstance is a circumstance under subsection 54(3), (5), (7), (9) or (12) or subsection 55(3), (5) or (8) of the Family Assistance Act;

·         that a notice is a notice under section 57.

 

The rationale for the application of strict liability in relation to elements of this nature is discussed above (see, for example, the discussion at Item 4, 5, or 6).

 

Item 12

 

In general terms, subsection 56D(2) of the Act requires an approved child care service that meets the requirements of paragraphs 56D(2)(a) to (c) to notify the Secretary in relation to the occurrence of particular events or circumstances.  The information must be notified in the manner set out in a written notice given to the service under section 57 .  The information must be notified as soon as practicable after the service becomes aware that the event or circumstance has happened or is likely to happen.  The penalty is 60 penalty units.

 

Paragraphs 56D(2)(a) and (b) are respectively concerned with the question of whether:

 

·         the service is eligible under section 47 of the Family Assistance Act for child care benefit by fee reduction;

·         a rate, determined under subsection 81(4) of the Family Assistance Act , is in force.

 

Item 12 inserts paragraphs 56D(2A)(a) to (c) which apply strict liability to the following elements:

 

·         that a child care service’s eligibility for a child care benefit is an eligibility under section 47 of the Family Assistance Act;

·         that a determination of a rate is a determination under subsection 81(4) of the Family Assistance Act;

·         that a notice is a notice under section 57.

 

The rationale for the application of strict liability in relation to elements of this nature is discussed above (see, for example, the discussion at Item 4, 5, or 6).

 

Item 13

 

In general terms, subsection 56D(3) of the Act requires an approved child care service who meets the requirements of paragraphs 56D(3)(a) to (d) to notify the Secretary in relation to the occurrence of particular events or circumstances.  The information must be notified in the manner set out in a written notice given to the service under section 57 .  The information must be notified as soon as practicable after the service becomes aware that the event or circumstance has happened or is likely to happen.  The penalty is 60 penalty units.

 



Paragraphs 56D(3)(b) and (c) are respectively concerned with the question of whether:

 

·         a determination of conditional eligibility under section 50F is in force; and

·         the rate applicable is as determined by the Secretary under subsection 81(3) of the Family Assistance Act .

 

Item 13 inserts paragraphs 56D(3A)(a) to (c) which apply strict liability to the following elements:

 

·         that a determination is a determination under section 50F;

·         that a determination of a rate is a determination under subsection 81(3) of the Family Assistance Act;

·         that a notice is a notice given under section 57.

 

The rationale for the application of strict liability in relation to elements of this nature is discussed above (see, for example, the discussion at Item 4, 5, or 6).

 

Item 14

 

In general terms, where the requirements of paragraphs 56D(4)(a) to (d) of the Act are met, an approved child care service is required to notify the Secretary in relation to the occurrence of particular events or circumstances.  The information must be notified in the manner set out in a written notice given to the service under section 57 .  The information must be notified as soon as practicable after the service becomes aware that the event or circumstance has happened or is likely to happen.  The penalty is 60 penalty units.

 

Paragraph 56D(4)(b) is concerned with the question of whether:

 

·         a determination of conditional eligibility under section 50F is in force; and

·         a determination of a weekly limit of hours under section 50H is in force.

 

Paragraph 56D(4)(c) is concerned with the question of whether a circumstance set out in subsection 54(12) or 55(8) of the Family Assistance Act applies.

 

Item 14 inserts paragraphs 56D(4A)(a) to (d) which apply strict liability to the following elements:

 

·         that a determination is a determination under section 50F;

·         that a determination is a determination under 50H;

·         that a circumstance is a circumstance set out in subsection 54(12) or 55(8) of the Family Assistance Act; and

·         that a notice is a notice given under section 57.

 

The rationale for the application of strict liability in relation to elements of this nature is discussed above (see, for example, the discussion at Item 4, 5, or 6).

 

Item 15

 

In general terms, subsection 56D(5) of the Act requires an approved child care service that meets the requirements of paragraph 56D(5)(a) to notify the Secretary in relation to the occurrence of particular events or circumstances.  The information must be notified in the manner set out in a written notice given to the service under section 57 .  The information must be notified as soon as practicable after the service becomes aware that the event or circumstance has happened or is likely to happen.  The penalty is 60 penalty units.

 

Paragraph 56D(5)(a) is concerned with the question of whether a determination under section 57 of the Family Assistance Act is in force.

 

Item 15 inserts paragraphs 56D(5A)(a) and (b) which apply strict liability in relation to the following elements:

 

·         that a determination is a determination under section 57 of the Family Assistance Act;

·         that a notice is a notice given under section 57.

 

The rationale for the application of strict liability in relation to elements of this nature is discussed above (see, for example, the discussion at Item 4, 5, or 6).

 

Item 16

 

Sections 5, 7, 7A, 14, 15D and 86 of the Crimes Act 1914 (the Crimes Act) are being replaced in effect by sections 10.5, 11.1, 11.2, 11.4, 11.5, 13.3, 13.4 and 13.5 of the Code.  As paragraph 75(c) contains references to some of those Crimes Act provisions, Item 16 repeals paragraph 75(c) and substitutes a new provision that contains references to the relevant Code provisions.

 

Item 17

 

Subsection 133(1) provides that the Executive Director may make an order in certain circumstances.  Subsection 133(2) provides that a person who contravenes an order under subsection (1) is guilty of an offence.  The effect of Item 17 is to apply strict liability to subsection (2) to the element of an offence against subsection (2) that an order is an order under subsection (1).

 

The rationale for the application of strict liability in relation to elements of this nature is discussed above (see, for example, the discussion at Item 4, 5, or 6).

 



Item 18

 

The Item recreates the offence provided for by existing section 159 by removing the defences from the offence provision - the defences being ‘without reasonable excuse’ and ‘to the extent that the person is capable of complying with the requirement’.  The offence is that a person must not refuse or fail to comply with a requirement under Division 1 to give information or produce a document.  The penalty is imprisonment for 12 months.

 

The defence of a person not being capable of complying with the requirement is recreated in new subsection 159(2).  The defence of a person having a reasonable excuse is recreated in new subsection 159(3).

 

The rationale for these amendments is to prevent any future interpretation that ‘without reasonable excuse’ and ‘being not capable of complying’ are elements of the offence, which would have to be disproved by the prosecution.  The amendments put it beyond doubt that having a reasonable excuse or not being capable of complying with the requirement is a defence to the offence.  Pursuant to subsection 13.3(3) of the Code, a defendant who wishes to rely on such defences bears an evidential burden in relation to the defence.

 

New subsection 159(4) provides that strict liability applies to the element of an offence against subsection 159(1) that a requirement is a requirement under Division 1.  The rationale for the application of strict liability in relation to elements of this nature is discussed above (see, for example, the discussion at Item 4, 5, or 6).

 

Item 19

 

Section 163 creates an offence in relation to unauthorised access to protected information.  The Item recreates the offence by removing the defence of lawful authority.  Under section 10.5 of the Code there is a general defence which provides that a person is not criminally responsible for an offence if the conduct constituting the offence is justified or excused by a law.

 

New subsection 163(2) provides that strict liability applies to the element of an offence against subsection (1) that a person not authorised to do something is not authorised under the family assistance law to do that thing.  The rationale for the application of strict liability in relation to elements of this nature is discussed above (see, for example, the discussion at Item 4, 5, or 6).

 



Item 20

 

Section 164 creates an offence in relation to unauthorised use of protected information.  One element of the offence, set out at paragraph 164(1)(b), is that the person is not authorised or required under:

 

(i)                   the family assistance law;

(ii)                 the Social Security Act 1991 ; or

(iii)                the Social Security (Administration) Act 1999 ;

 

to record, disclose or use the information.

 

New subsection 164(2) provides that strict liability applies to the element of an offence against subsection (1) that a person not authorised or required to do something is not authorised or required to do that thing under:

 

(i)                   the family assistance law;

(ii)                 the Social Security Act 1991 ; or

(iii)                the Social Security (Administration) Act 1999 .

 

The rationale for the application of strict liability in relation to elements of this nature is discussed above (see, for example, the discussion at Item 4, 5, or 6).

 

Item 21

 

Section 165 creates an offence in relation to soliciting the disclosure of protected information.  One element of the offence, set out at paragraph 165(b), is that the disclosure would be in contravention of  Division 2.  This Item inserts new subsection 165(2) which provides that strict liability applies in relation to paragraph 165(1)(b).  The rationale for the application of strict liability in relation to elements of this nature is discussed above (see, for example, the discussion at Item 4, 5, or 6).

 

Item 22

 

Section 172 is concerned with the making of false statements in connection with a claim.  Currently the section applies the fault elements of knowledge (or "knowingly") and recklessness (or “recklessly”) in relation to the proscribed physical element of conduct, namely making a statement.  Following application of the Code, the fault elements of knowledge and recklessness will be restricted to physical elements of circumstance or result, and intention will be the sole fault element that can be applied to a physical element of conduct: see Division 5 of Part 2.2 of the Code.  Applying "knowingly" to a physical element of conduct in the pre-Code environment is equivalent to applying the fault element of intention.  This Item recreates the offence so that intention is the fault element in relation to the physical element of conduct.  The offence is recreated so that the fault element of recklessness applies in relation to other physical elements.

 

Item 23

 

Section 173 is also concerned with the making of false statements.  Currently the section applies the fault elements of knowledge (or "knowingly") and recklessness (or “recklessly”) in relation to the proscribed physical element of conduct, namely making a statement.  Following application of the Code, the fault elements of knowledge and recklessness will be restricted to physical elements of circumstance or result, and intention will be the sole fault element that can be applied to a physical element of conduct: see Division 5 of Part 2.2 of the Code.  Applying "knowingly" to a physical element of conduct in the pre-Code environment is equivalent to applying the fault element of intention.  This Item recreates the offence so that intention is the fault element in relation to the physical element of conduct.  The offence is recreated so that the fault element of recklessness applies in relation to other physical elements.

 

For the purposes of an offence against section 177 that relates to a contravention of subsection 173(1), new subsection (2) provides for strict liability to apply to the elements set out in paragraphs (2)(a) and (2)(b).  The rationale for the application of strict liability in relation to elements of this nature is discussed above (see, for example, the discussion at Item 4, 5, or 6).

 

Item 24

 

Section 174 is concerned with the making of false statements or producing documents that are false.  Currently the section applies the fault elements of knowledge (or "knowingly") and recklessness (or “recklessly”) in relation to the proscribed physical element of conduct, namely making a statement.  Following application of the Code, the fault elements of knowledge and recklessness will be restricted to physical elements of circumstance or result, and intention will be the sole fault element that can be applied to a physical element of conduct: see Division 5 of Part 2.2 of the Code.  Applying "knowingly" to a physical element of conduct in the pre-Code environment is equivalent to applying the fault element of intention.  This Item recreates the offence so that intention is the fault element in relation to the physical element of conduct.  The offence is recreated so that the fault element of recklessness applies in relation to other physical elements.

 

The broad effect of paragraph 174(1)(a) is that the statement or document must be given to an officer or an approved child care service exercising powers or performing duties or functions under the family assistance law.  For the purposes of an offence against section 177 that relates to a contravention of subsection 174(1), new subsection (2) provides for strict liability to apply to the element of the offence that a power, duty or function is a power, duty or function under the family assistance law.  The rationale for the application of strict liability in relation to elements of this nature is discussed above (see, for example, the discussion at Item 4, 5, or 6).

 

Item 25

 

In broad terms, section 175 creates an offence where a person knowingly obtains a payment of family assistance to which the person is not entitled or only entitled in part.  The section applies the fault element of knowledge (or "knowingly") in relation to the proscribed physical element of conduct, namely obtaining the payment.  Following application of the Code, the fault element of knowledge will be restricted to physical elements of circumstance or result, and intention will be the sole fault element that can be applied to a physical element of conduct: see Division 5 of Part 2.2 of the Code.  Applying "knowingly" to a physical element of conduct in the pre-Code environment is equivalent to applying the fault element of intention.  This Item recreates the offence by omitting the word ‘knowingly’ so that intention is the fault element in relation to the physical element of conduct.  The offence is recreated so that the fault element of knowledge applies in relation to other physical elements.

 

Item 26

 

In broad terms, subsections 175A(1) to (3) create an offence for an individual or an approved child care service to knowingly obtain certain benefits.  The subsections apply the fault element of knowledge (or "knowingly") in relation to the proscribed physical element of conduct, namely obtaining the relevant benefits.  Following application of the Code, the fault element of knowledge will be restricted to physical elements of circumstance or result, and intention will be the sole fault element that can be applied to a physical element of conduct: see Division 5 of Part 2.2 of the Code.  Applying "knowingly" to a physical element of conduct in the pre-Code environment is equivalent to applying the fault element of intention.  This Item recreates the offence by omitting the word ‘knowingly’ so that intention is the fault element in relation to the physical element of conduct.

 

Item 27

 

In broad terms, subsection 175A(3) provides that, if an approved child care service is not eligible under section 47 of the Family Assistance Act for child care benefit, the service must not obtain an amount of an advance paid under section 219R For the purposes of an offence against section 177 that relates to a contravention of subsection 175A(3), new subsection (3A) provides for strict liability to apply to the elements set out in paragraphs (3A)(a) and (3A)(b).  The rationale for the application of strict liability in relation to elements of this nature is discussed above (see, for example, the discussion at Item 4, 5, or 6).

 



Item 28

 

In broad terms, subsection 175A(4) creates an offence for an approved child care service to knowingly obtain certain benefits.  The subsection applies the fault element of knowledge (or "knowingly") in relation to the proscribed physical element of conduct, namely obtaining the relevant benefits.  Following application of the Code, the fault element of knowledge will be restricted to physical elements of circumstance or result, and intention will be the sole fault element that can be applied to a physical element of conduct: see Division 5 of Part 2.2 of the Code.  Applying "knowingly" to a physical element of conduct in the pre-Code environment is equivalent to applying the fault element of intention.  This Item recreates the offence by omitting the word ‘knowingly’ so that intention is the fault element in relation to the physical element of conduct.

 

Item 29

 

In broad terms, subsection 175A(4) provides that, if an approved child care service is eligible under section 47 of the Family Assistance Act for child care benefit, the service must not obtain an incorrect amount of an advance paid under section 219R For the purposes of an offence against section 177 that relates to a contravention of subsection 175(4), new subsection (4A) provides for strict liability to apply to the elements set out in paragraphs (4A)(a) and (4A)(b).  The rationale for the application of strict liability in relation to elements of this nature is discussed above (see, for example, the discussion at Item 4, 5, or 6).

 

Item 30

 

In broad terms, section 176 deals with payments or fee reductions obtained by fraud.  At present, the section applies the fault element of knowledge (or "knowingly") in relation to the proscribed physical element of conduct, namely obtaining one of the benefits set out in paragraphs (a) to (c).  Following application of the Code, the fault element of knowledge will be restricted to physical elements of circumstance or result, and intention will be the sole fault element that can be applied to a physical element of conduct: see Division 5 of Part 2.2 of the Code.  Applying "knowingly" to a physical element of conduct in the pre-Code environment is equivalent to applying the fault element of intention.  This Item recreates the offence by, firstly, omitting the word ‘knowingly’ so that intention is the fault element in relation to the physical element of conduct.

 

The Item also recreates the offence by separately providing for situations where the relevant benefits are obtained as a result of false or misleading statements.  Currently the effect of paragraph (d) is to apply the fault elements of knowledge (or "knowingly") and recklessness (or “recklessly”) in relation to the proscribed physical element of conduct, namely making a statement.  Following application of the Code, the fault elements of knowledge and recklessness will be restricted to physical elements of circumstance or result, and intention will be the sole fault element that can be applied to a physical element of conduct: see Division 5 of Part 2.2 of the Code.  Applying "knowingly" to a physical element of conduct in the pre-Code environment is equivalent to applying the fault element of intention.  This Item recreates the offence so that intention is the fault element in relation to the physical element of conduct.  The offence is recreated so that the fault element of recklessness applies in relation to other physical elements.

 

Subparagraphs 176(1)(a)(iii) and (3)(d)(iii) are concerned with situations involving payment of an amount of an advance paid under section 219R For the purposes of an offence against section 177 that relates to a contravention of subsections 175(1) or (3), new subsections (2) and (4) respectively provide for strict liability to apply to the element of the offence that an amount of an advance paid to reimburse a service is an amount paid under section 219R.  The rationale for the application of strict liability in relation to elements of this nature is discussed above (see, for example, the discussion at Item 4, 5, or 6).

 

Item 31

 

Currently the heading to Part 7 includes a reference to the liability of corporations.  As it is proposed that the relevant provisions of the family assistance law be repealed so that Part 2.5 of the Code applies in relation to corporations, this Item omits the reference to liability of corporations.

 

Item 32

 

This Item repeals sections 186 to 188.  Existing section 186 is concerned with the term ‘director of a corporation’ while section 187 deals with the term ‘engaging in conduct’.  These provisions are repealed as it is intended that the provisions of the Code which cover the subject matter of these provisions be applied in relation to the family assistance law.

 

Sections 5, 7, 7A, 14, 15D and 86 of the Crimes Act are being replaced in effect by sections 10.5, 11.1, 11.2, 11.4, 11.5, 13.3, 13.4 and 13.5 of the Code.  As section 188 contains references to some of those Crimes Act provisions, Item 32 repeals section 188 and substitutes a new provision that contains references to the relevant Code provisions.

 



Item 33

 

Division 2 of Part 7 deals with proceedings against corporations.  This Item repeals the Division as it is intended that Part 2.5 of the Code, which deals with corporate criminal responsibility, apply in relation to corporate offences under the family assistance law.

 

Item 34

 

Subsection 219A(2) sets out the obligations that apply to an approved child care service that receives certain notices or gives a certificate under the family assistance law.  This Item applies strict liability in respect of that subsection as it is considered that the provision presently attracts strict liability.  The provision is expressed in mandatory language and does not imply that proof of fault is required.  The penalty is monetary only.

 

Item 35

 

Subsection 219B(1) sets out the obligations that apply to an approved child care service that is eligible under section 47 of the Family Assistance Act for child care benefit by fee reduction.  This Item applies strict liability in respect of that subsection as it is considered that the provision presently attracts strict liability.  The provision is expressed in mandatory language and does not imply that proof of fault is required.  The penalty is monetary only.

 

Item 36

 

Section 219C creates an obligation for approved child care services to pay amounts to individuals where certain conditions are met.  This Item applies strict liability in respect of that section as it is considered that the provision presently attracts strict liability.  The provision is expressed in mandatory language and does not imply that proof of fault is required.  The penalty is monetary only.

 

Item 37

 

Subsections 219D(1) and (2) create certain obligations where an approved child care service receives notice that its approval has been suspended or cancelled (subsection (1)) or that its suspension has been revoked (subsection (2)).  This Item applies strict liability in respect of those subsections as it is considered that the provisions presently attract strict liability.  The provisions are expressed in mandatory language and do not imply that proof of fault is required.  The penalty is monetary only.

 



Item 38

 

Subsection 219E(1) creates an obligation for approved child care services to issue receipts containing certain information.  This Item applies strict liability in respect of that subsection as it is considered that the provision presently attracts strict liability.  The provision is expressed in mandatory language and does not imply that proof of fault is required.  The penalty is monetary only.

 

Item 39

 

Subsection 219F(1) provides that an approved child care service must keep certain records and subsection 219F(2) provides that the records must be kept for 36 months.  This Item applies strict liability in respect of those subsections as it is considered that the provisions presently attract strict liability.  The provisions are expressed in mandatory language and do not imply that proof of fault is required.  The penalty is monetary only.

 

Item 40

 

Subsection 219F(1) requires a person who operates an approved child care service to keep records in certain circumstances.  This Item applies strict liability in respect of that subsection as it is considered that the provision presently attracts strict liability.  The provision is expressed in mandatory language and does not imply that proof of fault is required.  The penalty is monetary only.

 

Item 41

 

Subsections 219L(1) and (2) require the occupier of premises to produce documents to an authorised officer in certain circumstances.  Subsection 219L(3) states that the occupier must assist the officer with certain matters.  This Item applies strict liability in respect of those subsections as it is considered that the provisions presently attracts strict liability.  The provisions are expressed in mandatory language and do not imply that proof of fault is required.  The penalty is monetary only.

 

Child Support (Assessment) Act 1989

 

Item 42

 

This Item inserts proposed section 4A which applies Chapter 2 of the Code to the above Act.  Chapter 2 establishes the codified general principles of criminal responsibility.

 



Item 43

 

The Item recreates the offence provided for by existing subsection 150(2) by removing the defences from the offence provision.  The offence is that a person must not make a record of any protected information or (directly or indirectly) communicate to a person any protected information concerning another person.  The penalty is imprisonment for 1 year.

 

New subsection 150(2A) provides defences where the record is made, or the information is communicated:

 

·         under or for the purposes of the Act; or

·         in the performance of duties under or in relation to this Act.

 

The rationale for these amendments is to prevent any future interpretation that these defences are elements of the offence, which would have to be disproved in the negative by the prosecution.  The amendments put it beyond doubt that these are defences to the offence.  Pursuant to subsection 13.3(3) of the Code, a defendant who wishes to rely on such defences bears an evidential burden in relation to the defence.

 

Item 44

 

This Item repeals and substitutes subsections 159A(1) and (2).  New subsection 159A(1) recreates the offence created at existing subsection 159A(1) by separating the physical element of conduct from the physical elements of circumstance which are converted into discrete subparagraphs.

 

At present, the section applies the fault element of recklessness (or "recklessly") in relation to the proscribed physical element of conduct, namely making the statement or omitting matter from the statement.  Following application of the Code, the fault element of recklessness will be restricted to physical elements of circumstance or result, and intention will be the sole fault element that can be applied to a physical element of conduct: see Division 5 of Part 2.2 of the Code.  The Item therefore recreates the offence by separating the physical element of conduct from the physical elements of circumstance or result.

 

The Item also amends subsection 159A(2) by omitting the word ‘wilful’ and replacing it with the word ‘intentional’.  At present, subsection (2) uses the non-Code fault element of wilfulness in relation to the physical element of conduct, namely acting with disregard to certain requirements.  This is equivalent to applying the Code fault element of intention.  It is possible that future courts may attempt to distinguish wilfulness from intention on the basis that wilfulness appears to differ from the basic Code fault element.  Accordingly this Item proposes the replacement of "wilful" by the appropriate and equivalent Code fault element, namely intention.  Subsection (2) will continue to operate in the same manner as at present following this amendment.

 

At present, subsection (2) refers to the person being taken to have acted recklessly in making the statement.  This approach applies the fault element of recklessness (or "recklessly") in relation to a physical element of conduct, namely making the statement.  The Item therefore reconstructs subsection (2) so that the fault element of recklessness applies in relation to the physical element of circumstance, namely whether the statement is false or misleading in a material particular.

 

Item 45

 

This Item repeals and substitutes section 159B.  New subsection 159B(1) recreates the offence created at existing subsection 159B(1) by separating the physical element of conduct from the physical elements of circumstance which are converted into discrete subparagraphs.

 

At present, the section applies the fault elements of intention (or “intentionally”) and recklessness (or "recklessly") in relation to the proscribed physical element of conduct, namely failing to notify.  Following application of the Code, the fault element of recklessness will be restricted to physical elements of circumstance or result, and intention will be the sole fault element that can be applied to a physical element of conduct: see Division 5 of Part 2.2 of the Code.  The Item therefore recreates the offence by separating the physical element of conduct from the physical elements of circumstance or result.  By omitting the words ‘intentionally’ and ‘recklessly’, the Code will provide for intention to be the fault element in relation to the physical element of conduct.

 

New subsection 159B(2) applies strict liability to paragraph (1)(b).  The rationale for the application of strict liability in relation to elements of this nature is discussed above (see, for example, the discussion at Item 4, 5, or 6).

 

The Item also amends subsection 159B(2) by omitting the word ‘wilful’ and replacing it with the word ‘intentional’.  Currently, subsection (2) uses the non-Code fault element of wilfulness in relation to the physical element of conduct, namely acting with disregard in relation to the requirement to notify.  This is equivalent to applying the Code fault element of intention.  It is possible that future courts may attempt to distinguish wilfulness from intention on the basis that wilfulness appears to differ from the basic Code fault element.  Accordingly this Item proposes the replacement of "wilful" by the appropriate and equivalent Code fault element, namely intention.  Subsection (2) will continue to operate in the same manner as at present following this amendment.

 

At present, subsection (2) refers to the person being taken to have acted recklessly in failing to notify the Register.  This approach applies the fault element of recklessness (or "recklessly") in relation to a physical element of conduct, namely failing to notify.  The Item therefore reconstructs subsection (2) so that the fault element of recklessness applies in relation to the physical element of circumstance, namely the requirement to notify.

 



Item 46

 

The Item recreates the offence provided for by existing subsection 160(3) by removing the defences from the offence provision - the defences being ‘without reasonable excuse’ and ‘to the extent that the person is capable of complying’.  The offence is that a person must not refuse or fail to comply with a notice under subsection (1).  The penalty is imprisonment for a period not exceeding 6 months.

 

The defence of a person not being capable of complying is recreated in new subsection 160(3A).  The defence of a person having a reasonable excuse is recreated in new subsection 160(3B).  The rationale for these amendments is to prevent any future interpretation that ‘without reasonable excuse’ and ‘being not capable of complying’ are elements of the offence, which would have to be disproved in the negative by the prosecution.  The amendments put it beyond doubt that having a reasonable excuse or not being capable of complying with the requirement is a defence to the offence.  Pursuant to subsection 13.3(3) of the Code, a defendant who wishes to rely on such defences bears an evidential burden in relation to the defence.

 

New subsection 160(3C) provides that subsection (3) is an offence of strict liability as it is considered that the provision presently attracts strict liability.  The reference to ‘without reasonable excuse’ suggests that the legislature only wanted the general defences and mistake of fact to apply, not proof of fault.  The penalty is imprisonment for a period not exceeding 6 months.

 

Item 47

 

The Item recreates the offence provided for by existing subsection 161(3) by removing the defences from the offence provision - the defences being ‘without reasonable excuse’ and ‘to the extent that the person is capable of complying’.  The offence is that a person must not refuse or fail to comply with a requirement under subsection (1).  The penalty is imprisonment for a period not exceeding 6 months.

 

The defence of a person not being capable of complying is recreated in new subsection 161(3A).  The defence of a person having a reasonable excuse is recreated in new subsection 161(3B).  The rationale for these amendments is to prevent any future interpretation that ‘without reasonable excuse’ and ‘being not capable of complying’ are elements of the offence, which would have to be disproved in the negative by the prosecution.  The amendments put it beyond doubt that having a reasonable excuse or not being capable of complying with the requirement is a defence to the offence.  Pursuant to subsection 13.3(3) of the Code, a defendant who wishes to rely on such defences bears an evidential burden in relation to the defence.

 

New subsection 161(3C) provides that subsection (3) is an offence of strict liability as it is considered that the provision presently attracts strict liability.  The reference to ‘without reasonable excuse’ suggests that the legislature only wanted the general defences and mistake of fact to apply, not proof of fault.  The penalty is imprisonment for a period not exceeding 6 months.

 

Item 48

 

In broad terms, subsection 162(1) provides that, where the circumstances contemplated in the subsection exist, a court may make an order requiring a person to comply with certain requirements.  Subsection 162(3) creates an offence where a person contravenes an order under subsection (1).  This Item provides that strict liability applies to the element of an offence against subsection (3) that an order is an order under subsection (1).  The rationale for the application of strict liability in relation to elements of this nature is discussed above (see, for example, the discussion at Item 4, 5, or 6).

 

Child Support (Registration and Collection) Act 1988

 

Item 49

 

This Item inserts proposed section 3A which applies Chapter 2 of the Code (except Part 2.5) to the above Act.  Chapter 2 establishes the codified general principles of criminal responsibility.  Part 2.5 of the Code covers corporate criminal responsibility.  However, the above Act already provides for proof of fault in relation to corporate criminal liability and it is proposed that the operation of those provisions be retained.

 

Item 50

 

Existing subsection 16(2) essentially creates an offence where a person makes a record of protected information or communicates such information and the recording or communication is not for the purposes of the Act or does not occur in the performance of duties under the Act.  This Item reconstructs the offence by removing the defences from the offence provision and providing for those defences in new subsection 16(2A).  The rationale for that approach is to prevent any future interpretation that the defences are an element of the offence, which would have to be disproved in the negative by the prosecution.  Pursuant to subsection 13.3(3) of the Code, a defendant who wishes to rely on such defences bears an evidential burden in relation to the defence.

 



Item 51

 

In broad terms, subsections 23(2) and (5) respectively require the payee and the payer of a registrable maintenance liability to give notice to the Registrar in relation to the order or agreement.  Subsection (7) provides that a person who contravenes either of those subsections is guilty of an offence punishable by a fine not exceeding $1000.  This Item applies strict liability in respect of subsection (7) as it is considered that the provision presently attracts strict liability.  The provision is expressed in mandatory language and does not imply that proof of fault is required.  The penalty is monetary only.

 

Item 52

 

In broad terms, subsection 33(1) requires the payee of a registrable maintenance liability to give notice to the Registrar in relation to a Court order or agreement varying the registrable maintenance liability.  Subsection (2) provides that a person who contravenes subsection (1) is guilty of an offence punishable by a fine not exceeding $1000.  This Item applies strict liability in respect of subsection (2) as it is considered that the provision presently attracts strict liability.  The provision is expressed in mandatory language and does not imply that proof of fault is required.  The penalty is monetary only.

 

Item 53

 

In broad terms, subsection 34(1) requires the payee of an enforceable maintenance liability to give notice to the Registrar in relation to any affecting event in relation to the liability.  Subsection (2) provides that a person who contravenes subsection (1) is guilty of an offence punishable by a fine not exceeding $1000.  This Item applies strict liability in respect of subsection (2) as it is considered that the provision presently attracts strict liability.  The provision is expressed in mandatory language and does not imply that proof of fault is required.  The penalty is monetary only.

 

Item 54

 

In broad terms, subsection 46(1) provides that, where an employer pays wages to an employee in relation to whom a notice given to the employer under subsection 45(1) is in force, the employer is to make certain deductions from the wages.  A penalty of $1000 applies for contravention.  This Item applies strict liability in respect of subsection (1) as it is considered that the provision presently attracts strict liability.  The provision is expressed in mandatory language and does not imply that proof of fault is required.  The penalty is monetary only.

 



Item 55

 

Subsections 47(1A), (2) and (3) create offences for employers who contravene those provisions.  Unlike subsection (1), which provides penalties of $5000 or imprisonment for 12 months, subsection (1A) to (3) provide for a maximum penalty of $1000.  This Item applies strict liability in respect of those subsections as it is considered that the provisions presently attract strict liability.  The provisions are expressed in mandatory language and do not imply that proof of fault is required.  The penalties are monetary only.

 

Item 56

 

In broad terms, section 57 is concerned with ensuring employers do not prejudice employees who are payers of registrable maintenance liabilities or, in relation to whom, the employer has received a notice under subsection 45(1).  New subsection 57(1A) provides that strict liability applies to the element of an offence against subsection (1) that a notice is a notice given under subsection 45(1).  The rationale for the application of strict liability in relation to elements of this nature is discussed above (see, for example, the discussion at Item 4, 5, or 6).

 

Item 57

 

The Item recreates the offence provided for by existing subsection 58 by removing the defences from the offence provision.  In general terms, the offence is that a person must not divulge or communicate to a person any protected information concerning another person.

 

New subsection 58(2) provides that subsection (1) if the information is divulged or communicated:

 

·         for the purposes of the Part; or

·         in the performance of the employer’s duties under this Part or in connection with the carrying on of the employer’s affairs.

 

The rationale for these amendments is to prevent any future interpretation that these defences are elements of the offence, which would have to be disproved in the negative by the prosecution.  The amendments put it beyond doubt that these are defences to the offence.  Pursuant to subsection 13.3(3) of the Code, a defendant who wishes to rely on such defences bears an evidential burden in relation to the defence.

 

New subsection (3) provides that strict liability applies to the element of an offence against subsection (1) that a disclosure or obtaining of information is a disclosure or obtaining under or for the purposes of the Part.  The rationale for the application of strict liability in relation to elements of this nature is discussed above (see, for example, the discussion at Item 4, 5, or 6).

 

Item 58

 

Subsection 59(1) requires employers to keep certain records.  Generally, subsection (2) provides that the records must be kept in a certain form or manner.  A penalty of $2000 applies.

 

This Item applies strict liability in respect of those subsections as it is considered that the provisions presently attract strict liability.  The provisions are expressed in mandatory language and do not imply that proof of fault is required.  The penalty is monetary only.

 

Item 59

 

Subsection 60(1) creates an offence where an employer does not keep records in such a way as to correctly record and explain the matters or acts to which they relate.  A penalty of $2000 applies.

 

This Item applies strict liability in respect of those subsections as it is considered that the provisions presently attract strict liability.  The provisions are expressed in mandatory language and do not imply that proof of fault is required.  The penalty is monetary only.

 

Item 60

 

In general terms, section 61 creates an offence where the occupier of premises which are proposed to be entered by an authorised officer does not provide the officer with all reasonable facilities and assistance that the occupier is capable of providing for the purpose of enabling the effective exercise of the officer’s powers under section 61.  A $1000 penalty applies.  The Item reconstructs the offence by separating the various physical elements into discrete paragraphs.

 

Paragraph 61(3)(b) provides the physical element of conduct.  This element is that the person does not provide the officer with all reasonable facilities and assistance that the occupier is capable of providing.  New subsection 61(4) applies strict liability in relation to the element that the person does not provide those facilities or assistance in circumstances where the officer is exercising his or her powers under section 61.  The rationale for the application of strict liability in relation to elements of this nature is discussed above (see, for example, the discussion at Item 4, 5, or 6).

 



Item 61

 

Section 72A is essentially concerned with the use of garnishee notices for the purposes of debt recovery.  Subsection 72A(2) creates an offence where a person fails to comply with a notice ‘without reasonable excuse’.  This Item recreates the offence by omitting that defence from the offence and the defence is recreated in new subsection 72A(2A) (see Item 62).  The rationale for this amendment is to prevent any future interpretation that ‘without reasonable excuse’ is an element of the offence, which would have to be disproved in the negative by the prosecution.  The amendment, in combination with Item 62, puts it beyond doubt that having a reasonable excuse is a defence to the offence.  Pursuant to subsection 13.3(3) of the Code, a defendant who wishes to rely on such defences bears an evidential burden in relation to the defence.

 

Item 62

 

Section 72A is concerned with the use of garnishee notices for the purposes of debt recovery.  Subsection 72A(2) creates an offence where a person fails to comply with a notice ‘without reasonable excuse’.  Item 61 recreates the offence by omitting that defence from the offence.  This Item reconstructs the defence in new subsection 72A(2A).  The rationale for that approach is discussed at Item 61.

 

New subsection 72A(2B) provides that subsection (2) is an offence of strict liability.  It is considered that the provision presently attracts strict liability.  The reference to ‘without reasonable excuse’ suggests that the legislature only wanted the general defences and mistake of fact to apply, not proof of fault.  The penalty, $1000, is monetary only.

 

Item 63

 

In general terms, section 111 is concerned with the duties of payers of enforceable maintenance liabilities.  Subsections (1) and (2) requires payers to notify the Register of certain matters within 14 days and subsection (3) creates an offence where a person contravenes those subsections.  The penalty cannot exceed $1000.

 

This Item applies strict liability in respect of those subsections as it is considered that the provisions presently attract strict liability.  The provisions are expressed in mandatory language and do not imply that proof of fault is required.  The penalty is monetary only.

 

Item 64

 

In general terms, section 120 is concerned with the powers of the Registrar in relation to obtaining information and evidence.  Subsection (3) creates an offence where a person refuses or fails to comply with a requirement made under subsection (1) ‘to the extent that the person is capable of doing so’.

 

The Item recreates the offence in section 120 by removing the defence ‘to the extent that the person is capable of complying with the requirement’.  The offence is that a person must not refuse or fail to comply with a requirement to give information or produce documents.  The penalty is a fine not exceeding $2000.

 

The defence of a person not being capable of complying is recreated in new subsection 120(4).  The rationale for this amendment is to prevent any future interpretation that ‘to the extent that the person is capable of complying with the requirement’ is an element of the offence, which would have to be disproved in the negative by the prosecution.  The amendment puts it beyond doubt that not being capable of complying with the requirement is a defence to the offence.  Pursuant to subsection 13.3(3) of the Code, a defendant who wishes to rely on such defences bears an evidential burden in relation to the defence.

 

This Item applies strict liability in respect of subsection (3) as it is considered that the provisions presently attract strict liability.  The provisions are expressed in mandatory language and do not imply that proof of fault is required.  The penalty is monetary only.  The reference to ‘to the extent that the person was capable of complying’ suggests that the legislature only wanted the general defences and mistake of fact to apply, not proof of fault.

 

Item 65

 

This Item applies strict liability to the element of an offence against subsection 121(3) that an order is an order under subsection 121(1).  The rationale for the application of strict liability in relation to elements of this nature is discussed above (see, for example, the discussion at Item 4, 5, or 6).

 

Commonwealth Services Delivery Agency Act 1997

 

Item 66

 

This Item inserts proposed section 2A which applies Chapter 2 of the Code to the above Act.  Chapter 2 establishes the codified general principles of criminal responsibility.

 

Item 67

 

Section 38 is concerned with the use of the name and the official symbol of the Commonwealth Services Delivery Agency (ie Centrelink).  Subsection (1) provides for a penalty of 30 units for contravention.  This Item applies strict liability in respect of that subsection as it is considered that the provision presently attracts strict liability.  The provision is expressed in mandatory language and does not imply that proof of fault is required.  The penalty is monetary only.

 

Data-matching Program (Assistance and Tax) Act 1990

 

Item 68

 

This Item inserts proposed section 2A which applies Chapter 2 of the Code to the above Act.  Chapter 2 establishes the codified general principles of criminal responsibility.

 

Item 69

 

Section 15 provides that a person must not make a record or disclose information except:

 

(a)     in the course of carrying out functions and duties under this Act; or

(b)    with the consent of the person to whom the information relates.

 

The penalty for contravention is imprisonment for 2 years.

 

The Item recreates the offence in section 15 by removing the defences from the offence provision.  The rationale for this approach is to prevent any future interpretation that those defences are elements of the offence, which would have to be disproved in the negative by the prosecution.  The amendments put it beyond doubt that recording or disclosing information is not an offence where that disclosure or recording occurs in the circumstances contemplated by either paragraph (a) or (b) above.  Pursuant to subsection 13.3(3) of the Code, a defendant who wishes to rely on such defences bears an evidential burden in relation to the defence.

 

Disability Services Act 1986

 

Item 70

 

This Item inserts proposed section 3A which applies Chapter 2 of the Code to the above Act.  Chapter 2 establishes the codified general principles of criminal responsibility.

 

Item 71

 

In broad terms, section 27 allows the Secretary, by notice served on the person, to require a person to furnish information or produce documents.  Subsection 27(3) provides that a person shall not refuse or fail to comply with a notice to the extent that the person is capable of complying with it or, in purported compliance, knowingly furnish information that is false or misleading.  The penalty is a fine of $1000 or imprisonment for 6 months.

 

The Item recreates the offence by omitting that defence from the offence and the defence is recreated in new subsection 27(3A) (see Item 73).  The rationale for this amendment is to prevent any future interpretation that ‘to the extent that the person is capable of complying with the notice’ is an element of the offence, which would have to be disproved in the negative by the prosecution.  The amendment, in combination with Item 73, puts it beyond doubt that not being capable of complying with the notice is a defence to the offence.  Pursuant to subsection 13.3(3) of the Code, a defendant who wishes to rely on such defences bears an evidential burden in relation to the defence.

 

Item 72

 

In broad terms, section 27 allows the Secretary, by notice served on the person, to require a person to furnish information or produce documents.  In part, subsection 27(3) provides that a person shall not, in purported compliance with the notice, knowingly furnish information that is false or misleading.  The penalty is a fine of $1000 or imprisonment for 6 months.

 

At present, subsection (3) applies the fault element of knowledge (or "knowingly") in relation to the proscribed physical element of conduct, namely furnishing information.  Following application of the Code, the fault element of knowledge will be restricted to physical elements of circumstance or result, and intention will be the sole fault element that can be applied to a physical element of conduct: see Division 5 of Part 2.2 of the Code.  Applying "knowingly" to a physical element of conduct in the pre-Code environment is equivalent to applying the fault element of intention.  This Item recreates the offence by omitting the word ‘knowingly’ so that intention is the fault element in relation to the physical element of conduct.  The fault element of knowledge is applied in relation to the physical element of circumstance, namely that the information or evidence is false or misleading.

 

Item 73

 

In broad terms, section 27 allows the Secretary, by notice served on the person, to require a person to furnish information or produce documents.  In part, subsection 27(3) provides that a person shall not refuse or fail to comply with a notice to the extent that the person is capable of complying with it.

 

Item 71 recreates the offence by omitting that defence from the offence and the defence is recreated in by this Item in a discrete provision, subsection 27(3A).  The rationale for this amendment is to prevent any future interpretation that ‘to the extent that the person is capable of complying with the notice’ is an element of the offence, which would have to be disproved in the negative by the prosecution.  The amendment, in combination with Item 71, puts it beyond doubt that not being capable of complying with the notice is a defence to the offence.  Pursuant to subsection 13.3(3) of the Code, a defendant who wishes to rely on such defences bears an evidential burden in relation to the defence.

 

Item 74

 

Existing subsection 28(2) essentially creates an offence where a person makes a record of, or divulges, information with respect to the affairs of another person that was acquired by the first person in the performance of duties under Part III.  An exception exists where the disclosure occurs in the performance of duties under Part III or for the purposes of the administration of the Social Security Act 1991 .

 

This Item reconstructs the offence by removing the defences from the offence provision and the defence is recreated in new subsection 28(2A) (see Item 75).  The rationale for that approach is to prevent any future interpretation that the defences are an element of the offence, which would have to be disproved in the negative by the prosecution.  Pursuant to subsection 13.3(3) of the Code, a defendant who wishes to rely on such defences bears an evidential burden in relation to the defence.

 

Item 75

 

Existing subsection 28(2) essentially creates an offence where a person makes a record of, or divulges, information with respect to the affairs of another person that was acquired by the first person in the performance of duties under Part III.  An exception exists where the disclosure occurs in the performance of duties under Part III or for the purposes of the administration of the Social Security Act 1991 .

 

Item 74 reconstructs the offence by removing the defences from the offence provision and the defence is recreated by this Item in new subsection 28(2A).  The rationale for that approach is to prevent any future interpretation that the defences are an element of the offence, which would have to be disproved in the negative by the prosecution.  Pursuant to subsection 13.3(3) of the Code, a defendant who wishes to rely on such defences bears an evidential burden in relation to the defence.

 

Item 76

 

Existing subsection 28(2) essentially creates an offence where a person makes a record of, or divulges, information with respect to the affairs of another person that was acquired by the first person in the performance of duties or the exercise of powers under Part III.  This Item applies strict liability to the element of an offence against subsection (2) that an acquisition of information is an acquisition in the performance of duties or exercise of powers under Part III.  The rationale for the application of strict liability in relation to elements of this nature is discussed above (see, for example, the discussion at Item 4, 5, or 6).

 



Farm Household Support Act 1992

 

Item 77

 

This Item inserts proposed section 2A which applies Chapter 2 of the Code to the above Act.  Chapter 2 establishes the codified general principles of criminal responsibility.

 

Item 78

 

In broad terms, subsection 41(1) provides that the Secretary may give a person a notice that requires the person to inform the Department if a specified event or change of circumstances occurs.  Subsection 41(5) creates an offence where a person fails or refuses to comply with a notice under subsection (1).  This Item recreates the offence by removing the defence of ‘without reasonable excuse’.

 

The defence of a person having a reasonable excuse is recreated in new subsection 41(6A) (see Item 80).  The rationale for this amendment is to prevent any future interpretation that ‘without reasonable excuse’ is an element of the offence, which would have to be disproved in the negative by the prosecution.  The amendment puts it beyond doubt that having a reasonable excuse is a defence to the offence.  Pursuant to subsection 13.3(3) of the Code, a defendant who wishes to rely on such defences bears an evidential burden in relation to the defence.

 

Item 79

 

In broad terms, subsection 41(1) provides that the Secretary may give a person a notice that requires the person to inform the Department if a specified event or change of circumstances occurs.  Subsection 41(5) creates an offence where a person fails or refuses to comply with a notice under subsection (1).  This Item recreates the offence by removing the defence of ‘to the extent that the person is capable of complying with the notice’.

 

The defence of a person not being capable of complying is recreated in new subsection 41(6) (see Item 80).  The rationale for this amendment is to prevent any future interpretation that ‘to the extent that the person is capable of complying with the notice’ is an element of the offence, which would have to be disproved in the negative by the prosecution.  The amendment puts it beyond doubt that not being capable of complying with the notice is a defence to the offence.  Pursuant to subsection 13.3(3) of the Code, a defendant who wishes to rely on such defences bears an evidential burden in relation to the defence.

 



Item 80

 

New subsections 41(6) and (6A) recreate the defences in current section 41, the defences being ‘without reasonable excuse’ and ‘to the extent that the person is capable of complying with the notice’.  The rationale for this amendment is to prevent any future interpretation that ‘without reasonable excuse’ or ‘to the extent that the person is capable of complying with the notice’ are elements of the offence, which would have to be disproved in the negative by the prosecution.  The amendments put it beyond doubt that having a reasonable excuse or not being capable of complying with the notice is a defence to the offence.  Pursuant to subsection 13.3(3) of the Code, a defendant who wishes to rely on such defences bears an evidential burden in relation to the defence.

 

In broad terms, subsection 41(1) provides that the Secretary may give a person a notice that requires the person to inform the Department if a specified event or change of circumstances occurs.  Subsection 41(5) creates an offence where a person fails or refuses to comply with a notice under subsection (1).  New subsection 41(6B) provides that subsection (5) is an offence of strict liability as it is considered that the provision presently attracts strict liability.  The reference to ‘without reasonable excuse’ suggests that the legislature only wanted the general defences and mistake of fact to apply, not proof of fault.

 

Item 81

 

In broad terms, subsection 42(1) provides that the Secretary may give a person a notice that requires the person to give the Department a statement about a matter that might affect payment.  Subsection 42(5) creates an offence where a person fails or refuses to comply with a notice under subsection (1).  This Item recreates the offence by removing the defence of ‘without reasonable excuse’.

 

The defence of a person having a reasonable excuse is recreated in new subsection 42(6A) (see Item 83).  The rationale for this amendment is to prevent any future interpretation that ‘without reasonable excuse’ is an element of the offence, which would have to be disproved in the negative by the prosecution.  The amendment puts it beyond doubt that having a reasonable excuse is a defence to the offence.  Pursuant to subsection 13.3(3) of the Code, a defendant who wishes to rely on such defences bears an evidential burden in relation to the defence.

 

Item 82

 

In broad terms, subsection 42(1) provides that the Secretary may give a person a notice that requires the person to give the Department a statement about a matter that might affect payment.  Subsection 42(5) creates an offence where a person fails or refuses to comply with a notice under subsection (1).  This Item recreates the offence by removing the defence of ‘to the extent that the person is capable of complying with the notice’.

 

The defence of a person not being capable of complying is recreated in new subsection 42(6) (see Item 83).  The rationale for this amendment is to prevent any future interpretation that ‘to the extent that the person is capable of complying with the notice’ is an element of the offence, which would have to be disproved in the negative by the prosecution.  The amendment puts it beyond doubt that not being capable of complying with the notice is a defence to the offence.  Pursuant to subsection 13.3(3) of the Code, a defendant who wishes to rely on such defences bears an evidential burden in relation to the defence.

 

Item 83

 

New subsections 42(6) and (6A) recreate the defences in current section 42, the defences being ‘without reasonable excuse’ and ‘to the extent that the person is capable of complying with the notice’.  The rationale for this amendment is to prevent any future interpretation that ‘without reasonable excuse’ or ‘to the extent that the person is capable of complying with the notice’ are elements of the offence, which would have to be disproved in the negative by the prosecution.  The amendments put it beyond doubt that having a reasonable excuse or not being capable of complying with the notice is a defence to the offence.  Pursuant to subsection 13.3(3) of the Code, a defendant who wishes to rely on such defences bears an evidential burden in relation to the defence.

 

In broad terms, subsection 42(1) provides that the Secretary may give a person a notice that requires the person to give the Department a statement about a matter that might affect payment.  Subsection 42(5) creates an offence where a person fails or refuses to comply with a notice under subsection (1).  New subsection 42(6B) provides that subsection (5) is an offence of strict liability as it is considered that the provision presently attracts strict liability.  The reference to ‘without reasonable excuse’ suggests that the legislature only wanted the general defences and mistake of fact to apply, not proof of fault.

 

Item 84

 

Section 54 deals with the Secretary’s powers to obtain information and to require a person to produce documents.  Subsection 54(7) creates an offence where a person fails or refuses to comply with a notice under section 54.  This Item recreates the offence by removing the defence of ‘without reasonable excuse’.

 

The defence of a person having a reasonable excuse is recreated in new subsection 54(8) (see Item 85).  The rationale for this amendment is to prevent any future interpretation that ‘without reasonable excuse’ is an element of the offence, which would have to be disproved in the negative by the prosecution.  The amendment puts it beyond doubt that having a reasonable excuse is a defence to the offence.  Pursuant to subsection 13.3(3) of the Code, a defendant who wishes to rely on such defences bears an evidential burden in relation to the defence.

 

Item 85

 

New subsection 54(8) recreates the defence in current section 54, the defence being ‘without reasonable excuse’.  The rationale for this amendment is to prevent any future interpretation that ‘without reasonable excuse’ is an element of the offence, which would have to be disproved in the negative by the prosecution.  The amendment puts it beyond doubt that having a reasonable excuse is a defence to the offence.  Pursuant to subsection 13.3(3) of the Code, a defendant who wishes to rely on such defences bears an evidential burden in relation to the defence.

 

Section 54 deals with the Secretary’s powers to obtain information and to require a person to produce documents.  Subsection 54(7) creates an offence where a person fails or refuses to comply with a notice under section 54.  New subsection 54(8A) provides that subsection (7) is an offence of strict liability as it is considered that the provision presently attracts strict liability.  The reference to ‘without reasonable excuse’ suggests that the legislature only wanted the general defences and mistake of fact to apply, not proof of fault.

 

First Home Owners Act 1983

 

Item 86

 

This Item inserts proposed section 3A which applies Chapter 2 of the Code to the above Act.  Chapter 2 establishes the codified general principles of criminal responsibility.

 

Item 87

 

Existing subsection 29(1) essentially creates an offence where a person makes a record of, or divulges, information with respect to the affairs of another person that was acquired by the first person in the performance of duties under the Act.  An exception exists where the disclosure occurs for the purposes of the Act.  The penalty is a $2000 fine, imprisonment for 12 months, or both.

 

This Item reconstructs the offence by removing the defence from the offence provision and the defence is recreated in new subsection 29(1A) (see Item 88).  The rationale for that approach is to prevent any future interpretation that the defence is an element of the offence, which would have to be disproved in the negative by the prosecution.  Pursuant to subsection 13.3(3) of the Code, a defendant who wishes to rely on such defences bears an evidential burden in relation to the defence.

 



Item 88

 

Existing subsection 29(1) essentially creates an offence where a person makes a record of, or divulges, information with respect to the affairs of another person that was acquired by the first person in the performance of duties under the Act.  An exception exists where the disclosure occurs for the purposes of the Act.  The penalty is a $2000 fine, imprisonment for 12 months, or both.

 

Item 87 reconstructs the offence by removing the defence from the offence provision and the defence is recreated by this Item in new subsection 29(1A).  The rationale for that approach is to prevent any future interpretation that the defence is an element of the offence, which would have to be disproved in the negative by the prosecution.  Pursuant to subsection 13.3(3) of the Code, a defendant who wishes to rely on such defences bears an evidential burden in relation to the defence.

 

This Item also applies strict liability to the element of an offence against subsection (1) that an acquisition of information is an acquisition in the exercise of powers, or the performance of duties or functions, under the Act.  The rationale for the application of strict liability in relation to elements of this nature is discussed above (see, for example, the discussion at Item 4, 5, or 6).

 

Item 89

 

Subsection 30(1) provides that the Secretary may require a person to furnish a confidential report in certain circumstances.  In part, subsection 30(2) states that a person shall not, without lawful excuse, refuse or fail to comply with the notice.

 

This Item recreates the offence by removing the defence of lawful excuse.  Under section 10.5 of the Code there is a general defence which provides that a person is not criminally responsible for an offence if the conduct constituting the offence is justified or excused by a law.

 

Item 90

 

Subsection 31(1) provides that the Secretary may, for the purposes of the Act, summon witnesses, receive evidence and require the production of documents.  Subsection (2) provides that a person who has been summoned shall not, without lawful excuse, fail to appear.

 

This Item recreates the offence by removing the defence of lawful excuse.  Under section 10.5 of the Code there is a general defence which provides that a person is not criminally responsible for an offence if the conduct constituting the offence is justified or excused by a law.

 



Item 91

 

Subsection 31(1) provides that the Secretary may, for the purposes of the Act, summon witnesses, receive evidence and require the production of documents.  In broad terms, subsection (3) provides that a person shall not, without lawful excuse, fail to answer questions or fail to produce documents.

 

This Item recreates the offence by removing the defence of lawful excuse.  Under section 10.5 of the Code there is a general defence which provides that a person is not criminally responsible for an offence if the conduct constituting the offence is justified or excused by a law.

 

Item 92

 

Subsection 31(1) provides that the Secretary may, for the purposes of the Act, summon witnesses, receive evidence and require the production of documents.  Subsection (2) provides that a person who has been summoned shall not, without lawful excuse, fail to appear.  In broad terms, subsection (3) provides that a person shall not, without lawful excuse, fail to answer questions or fail to produce documents.  A penalty of $1000 applies.

 

This Item applies strict liability in respect of those subsections as it is considered that the provisions presently attract strict liability.  The provisions are expressed in mandatory language and do not imply that proof of fault is required.  The penalty is monetary only.

 

Item 93

 

Section 35 applies where assistance has been paid in respect of a dwelling whose purchase or construction had not been completed on the date on which the application was made.  In broad terms, the effect of subsection (2) is that the applicant for the grant must notify the Secretary of certain matters if the purchase or construction of the dwelling is not completed within a specified period of time.  The penalty is a fine not exceeding $1000 or imprisonment for a period not exceeding 6 months or both.  This Item applies strict liability in respect of subsection (2) as it is considered that the provision presently attracts strict liability.  The provision is expressed in mandatory language, does not imply that proof of fault is required and is satisfied by notice being sent to the Secretary. 

 

Item 94

 

The broad intention of section 36 is that, where a person has notified the Secretary of his or her taxable income and the person has subsequently received notification that the amount notified to the Secretary was incorrect, the person is required to provide the Secretary with further notification of the correct amount of his or her taxable income.  There is a penalty of $1000 or imprisonment for 6 months, or both.

 

Currently, there is potential ambiguity in the operation of subsection 36(1) of the Act.  This Item and Item 95 redraft the provision to clarify its operation and to clarify the physical elements of the offence provision.  This Item omits the words “, or a further certificate, as the case may be,”. 

 

Item 95

 

The broad intention of section 36 is that, where a person has notified the Secretary of his or her taxable income and the person has subsequently received notification that the amount notified to the Secretary was incorrect, the person is required to provide the Secretary with further notification of the correct amount of his or her taxable income.  There is a penalty of $1000 or imprisonment for 6 months, or both.

 

Currently, there is potential ambiguity in the operation of subsection 36(1) of the Act.  This Item and Item 94 redraft the provision to clarify its operation and to clarify the physical elements of the offence provision.  This Item makes it clear that the person is required to provide the subsequently received notification to the Secretary.

 

Item 96

 

This Item applies strict liability to the element of an offence against subsection 36(1) that a statement is a statement under paragraph 20(2)(b).  The rationale for the application of strict liability in relation to elements of this nature is discussed above (see, for example, the discussion at Item 4, 5, or 6).

 

 

Home Deposit Assistance Act 1982

 

Item 97

 

This Item inserts proposed section 3A which applies Chapter 2 of the Code to the above Act.  Chapter 2 establishes the codified general principles of criminal responsibility.

 



Item 98

 

Existing subsection 50(1) essentially creates an offence where a person makes a record of, or divulges, information with respect to the affairs of another person that was acquired by the first person in the performance of duties under the Act.  An exception exists where the disclosure occurs for the purposes of the Act.  The penalty is a $2000 fine, imprisonment for 12 months, or both.

 

This Item reconstructs the offence by removing the defence from the offence provision and the defence is recreated in new subsection 50(1A) (see Item 99).  The rationale for that approach is to prevent any future interpretation that the defence is an element of the offence, which would have to be disproved in the negative by the prosecution.  Pursuant to subsection 13.3(3) of the Code, a defendant who wishes to rely on such defences bears an evidential burden in relation to the defence.

 

Item 99

 

Existing subsection 50(1) essentially creates an offence where a person makes a record of, or divulges, information with respect to the affairs of another person that was acquired by the first person in the performance of duties under the Act.  An exception exists where the disclosure occurs for the purposes of the Act.  The penalty is a $2000 fine, imprisonment for 12 months, or both.

 

Item 98 reconstructs the offence by removing the defence from the offence provision and the defence is recreated by this Item in new subsection 50(1A).  The rationale for that approach is to prevent any future interpretation that the defence is an element of the offence, which would have to be disproved in the negative by the prosecution.  Pursuant to subsection 13.3(3) of the Code, a defendant who wishes to rely on such defences bears an evidential burden in relation to the defence.

 

This Item also applies strict liability to the element of an offence against subsection (1) that an acquisition of information is an acquisition in the exercise of powers, or the performance of duties or functions, under the Act.  The rationale for the application of strict liability in relation to elements of this nature is discussed above (see, for example, the discussion at Item 4, 5, or 6).

 

Item 100

 

Subsection 51(1) provides that the Secretary may, by notice in writing, require a person to furnish a confidential report in certain circumstances.  Paragraph 51(2)(a) states that a person shall not, without lawful excuse, refuse or fail to comply with the notice.

 

This Item recreates the offence by removing the defence of lawful excuse.  Under section 10.5 of the Code there is a general defence which provides that a person is not criminally responsible for an offence if the conduct constituting the offence is justified or excused by a law.

 

Item 101

 

Subsection 52(1) provides that the Secretary may, for the purposes of the Act, summon witnesses, receive evidence and require the production of documents.  Subsection (2) provides that a person who has been summoned shall not, without lawful excuse, fail to appear.

 

This Item recreates the offence by removing the defence of lawful excuse.  Under section 10.5 of the Code there is a general defence which provides that a person is not criminally responsible for an offence if the conduct constituting the offence is justified or excused by a law.

 

Item 102

 

Subsection 52(1) provides that the Secretary may, for the purposes of the Act, summon witnesses, receive evidence and require the production of documents.  In broad terms, subsection (3) provides that a person shall not, without lawful excuse, fail to answer questions or fail to produce documents.

 

This Item recreates the offence by removing the defence of lawful excuse.  Under section 10.5 of the Code there is a general defence which provides that a person is not criminally responsible for an offence if the conduct constituting the offence is justified or excused by a law.

 

Item 103

 

Subsection 52(1) provides that the Secretary may, for the purposes of the Act, summon witnesses, receive evidence and require the production of documents.  Subsection (2) provides that a person who has been summoned shall not fail to appear.  In broad terms, subsection (3) provides that a person shall not fail to answer questions or fail to produce documents.  A penalty of $1000 applies.

 

This Item applies strict liability in respect of those subsections as it is considered that the provisions presently attract strict liability.  The provisions are expressed in mandatory language.  The reference to ‘without reasonable excuse’ suggests that the legislature only wanted the general defences and mistake of fact to apply, not proof of fault.  The penalty is monetary only.

 



Item 104

 

Section 58 applies where a grant has been paid in respect of a dwelling whose purchase or construction had not been completed on the date on which the application for the grant was made.  In broad terms, the effect of subsection (2) is that the applicant for the grant must notify the Secretary of certain matters if the purchase or construction of the dwelling is not completed within a specified period of time.  The penalty is a fine not exceeding $1000 or imprisonment for a period not exceeding 6 months or both.  This Item applies strict liability in respect of subsection (2) as it is considered that the provision presently attracts strict liability.  The provision is expressed in mandatory language, does not imply that proof of fault is required and is satisfied by notice being sent to the Secretary.

 

Item 105

 

Section 59 creates an offence where, in the circumstances contemplated by the provision, a person fails to provide the Secretary with details of taxable income.  A penalty of $1000 or imprisonment for 6 months, or both applies.  This Item applies strict liability to the element of an offence against subsection 59(1) that a statement is a statement under paragraph 34(2)(b).  The rationale for the application of strict liability in relation to elements of this nature is discussed above (see, for example, the discussion at Item 4, 5, or 6).

 

Home Savings Grant Act 1964

 

Item 106

 

This Item inserts proposed section 2A which applies Chapter 2 of the Code to the above Act.  Chapter 2 establishes the codified general principles of criminal responsibility.

 

Item 107

 

Subsection 12(1) provides that the Secretary may, for the purposes of the Act, summon witnesses, receive evidence and require the production of documents.  Subsection (2) provides that a person who has been summoned shall not, without lawful excuse, fail to appear.

 

This Item recreates the offence by removing the defence of lawful excuse.  Under section 10.5 of the Code there is a general defence which provides that a person is not criminally responsible for an offence if the conduct constituting the offence is justified or excused by a law.

 



Item 108

 

Subsection 12(1) provides that the Secretary may, for the purposes of the Act, summon witnesses, receive evidence and require the production of documents.  Subsection (2) provides that a person who has been summoned shall not fail to appear.  In broad terms, subsection (3) provides that a person shall not fail to answer questions or fail to produce documents.  A penalty of $40 applies.

 

This Item applies strict liability in respect of those subsections as it is considered that the provisions presently attract strict liability.  The provisions are expressed in mandatory language and do not imply that proof of fault is required.  The penalty is monetary only.

 

Item 109

 

Existing subsection 13(2) essentially creates an offence where a person makes a record of, or divulges, information with respect to the affairs of another person that was acquired by the first person in the performance of duties under the Act.  An exception exists where the disclosure occurs in the performance of duties under the Act.  A penalty of $500 applies.

 

This Item reconstructs the offence by removing the defence from the offence provision and the defence is recreated in new subsection 13(2A) (see Item 110).  The rationale for that approach is to prevent any future interpretation that the defence is an element of the offence, which would have to be disproved in the negative by the prosecution.  Pursuant to subsection 13.3(3) of the Code, a defendant who wishes to rely on such defences bears an evidential burden in relation to the defence.

 

Item 110

 

Existing subsection 13(2) essentially creates an offence where a person makes a record of, or divulges, information with respect to the affairs of another person that was acquired by the first person in the performance of duties under the Act.  An exception exists where the disclosure occurs in the performance of duties under the Act.  A penalty of $500 applies.

 

Item 109 reconstructs the offence by removing the defence from the offence provision and the defence is recreated by this Item in new subsection 13(2A).  The rationale for that approach is to prevent any future interpretation that the defence is an element of the offence, which would have to be disproved in the negative by the prosecution.  Pursuant to subsection 13.3(3) of the Code, a defendant who wishes to rely on such defences bears an evidential burden in relation to the defence.

 

The Item also applies strict liability to the element of an offence against subsection (2) that an acquisition of information is an acquisition in the exercise of powers, or in the performance of duties or functions under the Act.  The rationale for the application of strict liability in relation to elements of this nature is discussed above (see, for example, the discussion at Item 4, 5, or 6).

 

Item 111

 

Section 24 applies where a grant under the Act has been paid to an eligible person in respect of a dwelling-house the purchase of which had not been completed, or the construction of which had not been completed, at the time when the application for the grant was made.  In broad terms, the effect of subsection (1A) is that the applicant for the grant must notify the Secretary of certain matters if the purchase or construction of the dwelling is not completed within a specified period of time.  The penalty is a fine of $100.  This Item applies strict liability in respect of subsection (1A) as it is considered that the provision presently attracts strict liability.  The provision is expressed in mandatory language, does not imply that proof of fault is required and is satisfied by notice being sent to the Secretary.  The penalty is monetary only.

 

Item 112

 

The broad effect of subsections 26A(1) to (3) is that a credit union that is not an approved credit union for the purposes of the Act must not represent itself as an approved credit union and, where approval of the credit union has been withdrawn, it must notify members that approval has been withdrawn.  A penalty of $500 applies in situations of non-compliance.  This Item applies strict liability in respect of those subsections as it is considered that the provisions presently attracts strict liability.  The provisions are expressed in mandatory language and do not imply that proof of fault is required.  The penalty is monetary only.

 

Home Savings Grant Act 1976

 

Item 113

 

This Item inserts proposed section 3A which applies Chapter 2 of the Code to the above Act.  Chapter 2 establishes the codified general principles of criminal responsibility.

 



Item 114

 

Existing subsection 41(2) essentially creates an offence where a person makes a record of, or divulges, information with respect to the affairs of another person that was acquired by the first person in the performance of duties under the Act.  An exception exists where the disclosure occurs in the performance of duties under the Act.  A penalty of $500 applies.

 

This Item reconstructs the offence by removing the defence from the offence provision and the defence is recreated in new subsection 41(2A) (see Item 115).  The rationale for that approach is to prevent any future interpretation that the defence is an element of the offence, which would have to be disproved in the negative by the prosecution.  Pursuant to subsection 13.3(3) of the Code, a defendant who wishes to rely on such defences bears an evidential burden in relation to the defence.

 

Item 115

 

Existing subsection 41(2) essentially creates an offence where a person makes a record of, or divulges, information with respect to the affairs of another person that was acquired by the first person in the performance of duties under the Act.  An exception exists where the disclosure occurs in the performance of duties under the Act.  A penalty of $500 applies.

 

Item 114 reconstructs the offence by removing the defence from the offence provision and the defence is recreated by this Item in new subsection 41(2A).  The rationale for that approach is to prevent any future interpretation that the defence is an element of the offence, which would have to be disproved in the negative by the prosecution.  Pursuant to subsection 13.3(3) of the Code, a defendant who wishes to rely on such defences bears an evidential burden in relation to the defence.

 

The Item also applies strict liability to the element of an offence against subsection (2) that an acquisition of information is an acquisition in the exercise of powers, or in the performance of duties or functions, under the Act.  The rationale for the application of strict liability in relation to elements of this nature is discussed above (see, for example, the discussion at Item 4, 5, or 6).

 

Item 116

 

Subsection 42(1) provides that the Secretary may, by notice in writing, require a person to furnish a confidential report in certain circumstances.  Paragraph 42(2) states that a person shall not, without lawful excuse, refuse or fail to comply with the notice.  A penalty of $100 applies.

 

This Item recreates the offence by removing the defence of lawful excuse.  Under section 10.5 of the Code there is a general defence which provides that a person is not criminally responsible for an offence if the conduct constituting the offence is justified or excused by a law.

 

Item 117

 

Subsection 43(1) provides that the Secretary may, for the purposes of the Act, summon witnesses, receive evidence and require the production of documents.  Subsection (2) provides that a person who has been summoned shall not, without lawful excuse, fail to appear.  A penalty of $100 applies.

 

This Item recreates the offence by removing the defence of lawful excuse.  Under section 10.5 of the Code there is a general defence which provides that a person is not criminally responsible for an offence if the conduct constituting the offence is justified or excused by a law.

 

Item 118

 

Subsection 43(1) provides that the Secretary may, for the purposes of the Act, summon witnesses, receive evidence and require the production of documents.  In broad terms, subsection (3) provides that a person shall not, without lawful excuse, fail to answer questions or fail to produce documents.  A penalty of $100 applies.

 

This Item recreates the offence by removing the defence of lawful excuse.  Under section 10.5 of the Code there is a general defence which provides that a person is not criminally responsible for an offence if the conduct constituting the offence is justified or excused by a law.

 

Item 119

 

Subsection 43(1) provides that the Secretary may, for the purposes of the Act, summon witnesses, receive evidence and require the production of documents.  Subsection (2) provides that a person who has been summoned shall not fail to appear.  In broad terms, subsection (3) provides that a person shall not fail to answer questions or fail to produce documents.  A penalty of $100 applies.

 

This Item applies strict liability in respect of those subsections as it is considered that the provisions presently attract strict liability.  The provisions are expressed in mandatory language.  The reference to ‘without reasonable excuse’ suggests that the legislature only wanted the general defences and mistake of fact to apply, not proof of fault.  The penalty is monetary only.

 



Item 120

 

Section 35 applies where a grant has been paid in respect of a dwelling-house the purchase of which had not been completed, or the construction of which had not been completed, on the date on which the application for the grant was made.  In broad terms, the effect of subsection (2) is that the applicant for the grant must notify the Secretary of certain matters if the purchase or construction of the dwelling is not completed within a specified period of time.  The penalty is a fine not exceeding $500.  This Item applies strict liability in respect of subsection (2) as it is considered that the provision presently attracts strict liability.  The provision is expressed in mandatory language, does not imply that proof of fault is required and is satisfied by notice being sent to the Secretary.  The penalty is monetary only.

 

Social Security Act 1991

 

Item 121

 

This Item inserts proposed section 3 which applies Chapter 2 of the Code to the above Act.  Chapter 2 establishes the codified general principles of criminal responsibility.

 

Item 122

 

Section 1061ZZBW is concerned with refusal or failure to comply with notices.  Currently the provision applies the fault elements of intention (or "intentionally") and recklessness (or “recklessly”) in relation to the proscribed physical element of conduct, namely the refusal or failure to comply.  Following application of the Code, the fault element of recklessness will be restricted to physical elements of circumstance or result, and intention will be the sole fault element that can be applied to a physical element of conduct: see Division 5 of Part 2.2 of the Code.  This Item recreates the offence so that intention is the only fault element in relation to the physical element of conduct.  The Item also reconstructs the offence so that the fault element of recklessness applies in relation to the physical element of circumstance, namely the requirement to comply.

 

The Item also recreates the offence by removing the defences of ‘to the extent that the person is capable of complying with the notice’ and ‘without reasonable excuse’.  The defences are recreated in new subsections 1061ZZBW(2) and (3).  The rationale for these amendments is to prevent any future interpretation that the defences are an element of the offence, which would have to be disproved in the negative by the prosecution.  The amendments put it beyond doubt that having a reasonable excuse or not being capable of complying with the notice is a defence to the offence.  Pursuant to subsection 13.3(3) of the Code, a defendant who wishes to rely on such defences bears an evidential burden in relation to the defence.

 

New subsection (4) provides that strict liability applies to paragraph (1)(b).  The rationale for the application of strict liability in relation to elements of this nature is discussed above (see, for example, the discussion at Item 4, 5, or 6).

 

Item 123

 

Section 1061ZZCD is concerned with refusal or failure to comply with notices.  Currently the provision applies the fault elements of intention (or "intentionally") and recklessness (or “recklessly”) in relation to the proscribed physical element of conduct, namely the refusal or failure to comply.  Following application of the Code, the fault element of recklessness will be restricted to physical elements of circumstance or result, and intention will be the sole fault element that can be applied to a physical element of conduct: see Division 5 of Part 2.2 of the Code.  This Item recreates the offence so that intention is the only fault element in relation to the physical element of conduct.  The Item also reconstructs the offence so that the fault element of recklessness applies in relation to the physical element of circumstance, namely the requirement to comply.

 

The Item also recreates the offence by removing the defences of ‘to the extent that the person is capable of complying with the notice’ and ‘without reasonable excuse’.  The defences are recreated in new subsections 1061ZZCD(2) and (3).  The rationale for these amendments is to prevent any future interpretation that the defences are an element of the offence, which would have to be disproved in the negative by the prosecution.  These amendments put it beyond doubt that having a reasonable excuse or not being capable of complying with the notice is a defence to the offence.  Pursuant to subsection 13.3(3) of the Code, a defendant who wishes to rely on such defences bears an evidential burden in relation to the defence.

 

New subsection (4) provides that strict liability applies to paragraph (1)(b).  The rationale for the application of strict liability in relation to elements of this nature is discussed above (see, for example, the discussion at Item 4, 5, or 6).

 

Item 124

 

In part, Item 19 of Schedule 1 to the Family and Community Services Legislation (Simplification and Other Measures) Act 2001 inserts new section 1184D into the Act.  That Item commences from 20 September 2001.  The broad effect of subsections (1) and (2) respectively is that a potential compensation payer or an insurer must not make payments if a notice under section 1182 or 1184 has been issued.  A penalty of imprisonment for 12 months applies.  Paragraphs 1184D(1)(a) to (c) and (2)(a) to (c) create certain exceptions in relation to the offence.

 

This Item recreates the offence by removing the defences in subsection (1) from the offence and recreating them as discrete paragraphs in new subsection (1A).  The rationale for this amendment is to prevent any future interpretation that those defences are elements of the offence, which would have to be disproved in the negative by the prosecution.  The amendment puts it beyond doubt that the relevant exceptions are defences to the offence.  Pursuant to subsection 13.3(3) of the Code, a defendant who wishes to rely on such defences bears an evidential burden in relation to the defence.

 

Item 125

 

In part, Item 19 of Schedule 1 to the Family and Community Services Legislation (Simplification and Other Measures) Act 2001 inserts new section 1184D into the Act.  That Item commences from 20 September 2001.  The broad effect of subsections (1) and (2) respectively is that a potential compensation payer or an insurer must not make payments if a notice under section 1182 or 1184 has been issued.  A penalty of imprisonment for 12 months applies.  Paragraphs 1184D(1)(a) to (c) and (2)(a) to (c) create certain exceptions in relation to the offence.

 

This Item recreates the offence by removing the defences in subsection (2) from the offence and recreating them as discrete paragraphs in new subsection (2A).  The rationale for this amendment is to prevent any future interpretation that those defences are elements of the offence, which would have to be disproved in the negative by the prosecution.  The amendment puts it beyond doubt that the relevant exceptions are defences to the offence.  Pursuant to subsection 13.3(3) of the Code, a defendant who wishes to rely on such defences bears an evidential burden in relation to the defence.

 

Item 126

 

Sections 5, 7, 7A, 14, 15D and 86 of the Crimes Act are being replaced in effect by sections 10.5, 11.1, 11.2, 11.4, 11.5, 13.3, 13.4 and 13.5 of the Code.  As section 1224AB contains references to some of those Crimes Act provisions, Item 126 substitutes the relevant Code references.

 

Item 127

 

Section 1233 is concerned with the use of garnishee notices for the purposes of debt recovery.  Subsection 1233(3) creates an offence where a person fails to comply with a notice ‘to the extent that the person is capable of doing so’.  The Item recreates the offence by omitting that defence from the offence and the defence is recreated in new subsection 1233(3A) (see Item 128).  The rationale for this amendment is to prevent any future interpretation that ‘to the extent that the person is capable of complying with the notice’ is an element of the offence, which would have to be disproved in the negative by the prosecution.  The amendment, in combination with Item 128, puts it beyond doubt that not being capable of complying with the notice is a defence to the offence.  Pursuant to subsection 13.3(3) of the Code, a defendant who wishes to rely on such defences bears an evidential burden in relation to the defence.

 

Item 128

 

Section 1233 is concerned with the use of garnishee notices for the purposes of debt recovery.  Subsection 1233(3) creates an offence where a person fails to comply with a notice ‘to the extent that the person is capable of doing so’.  Item 127 recreates the offence by omitting that defence from the offence.  This Item reconstructs the defence in new subsection 1233(3A).  The rationale for that approach is discussed at Item 127.

 

New subsection 1233(3B) provides that strict liability applies to the element of an offence against subsection (3) that a notice is a notice under subsection (1).  The rationale for the application of strict liability in relation to elements of this nature is discussed above (see, for example, the discussion at Item 4, 5, or 6).

 

Social Security (Administration) Act 1999

 

Item 129

 

This Item inserts proposed section 2A which applies Chapter 2 of the Code to the above Act.  Chapter 2 establishes the codified general principles of criminal responsibility.

 

Item 130

 

Section 72 of the Act contains provisions relating to notices.  In general terms, subsection 72(8) currently provides that a person is taken to have failed to comply with a notice if the person, in response to the notice, knowingly or recklessly gives information or a statement that is false or misleading.  Section 74 creates an offence where a person refuses or rails to comply with a notice.

 

Currently subsection 72(a) applies the fault elements of knowledge (or "knowingly") and recklessness (or “recklessly”) in relation to the proscribed physical element of conduct, namely giving information or a statement.  Following application of the Code, the fault elements of knowledge and recklessness will be restricted to physical elements of circumstance or result, and intention will be the sole fault element that can be applied to a physical element of conduct: see Division 5 of Part 2.2 of the Code.  Applying "knowingly" to a physical element of conduct in the pre-Code environment is equivalent to applying the fault element of intention.  This Item recreates the offence so that intention is the fault element in relation to the physical element of conduct.  The offence is recreated so that the fault element of recklessness applies in relation to other physical elements.

 

Item 131

 

This Item recreates the offence provided for by existing section 74 by removing the defence of ‘without reasonable excuse’.  The offence is that a person must not refuse or fail to comply with a notice under certain provisions of the Act.  The penalty is imprisonment for a period not exceeding 6 months.

 

The defence of a person having a reasonable excuse is recreated in new subsection 74(3) (see Item 133).  The rationale for this amendment is to prevent any future interpretation that ‘without reasonable excuse’ is an element of the offence, which would have to be disproved in the negative by the prosecution.  The amendment puts it beyond doubt that having a reasonable excuse is a defence to the offence.  Pursuant to subsection 13.3(3) of the Code, a defendant who wishes to rely on such defences bears an evidential burden in relation to the defence.

 

Item 132

 

The Item recreates the offence provided for by existing section 74 by removing the defence of ‘to the extent that the person is capable of complying with the notice’.  The offence is that a person must not refuse or fail to comply with a notice under certain provisions of the Act.  The penalty is imprisonment for a period not exceeding 6 months.

 

The defence of a person not being capable of complying is recreated in new subsection 74(2) (see Item 133).  The rationale for this amendment is to prevent any future interpretation that ‘to the extent that the person is capable of complying with the notice’ is an element of the offence, which would have to be disproved in the negative by the prosecution.  The amendment puts it beyond doubt that not being capable of complying with the notice is a defence to the offence.  Pursuant to subsection 13.3(3) of the Code, a defendant who wishes to rely on such defences bears an evidential burden in relation to the defence.

 

Item 133

 

New subsections 74(2) and (3) recreate the defences in current section 74, the defences being ‘without reasonable excuse’ and ‘to the extent that the person is capable of complying with the notice’.  The rationale for this amendment is to prevent any future interpretation that ‘without reasonable excuse’ or ‘to the extent that the person is capable of complying with the notice’ are elements of the offence, which would have to be disproved in the negative by the prosecution.  The amendments put it beyond doubt that having a reasonable excuse or not being capable of complying with the notice is a defence to the offence.  Pursuant to subsection 13.3(3) of the Code, a defendant who wishes to rely on such defences bears an evidential burden in relation to the defence.

 

New subsection 74(4) provides that subsection (1) is an offence of strict liability as it is considered that the provision presently attracts strict liability.  The reference to ‘without reasonable excuse’ suggests that the legislature only wanted the general defences and mistake of fact to apply, not proof of fault.

 



Item 134

 

This Item recreates the offence in existing section 197 by removing the defence of ‘without reasonable excuse’.  The offence is that a person must not refuse or fail to comply with a requirement to give information or produce documents.  The penalty is imprisonment for a period not exceeding 12 months.

 

The defence of a person having a reasonable excuse is recreated in new subsection 197(3) (see Item 138).  The rationale for this amendment is to prevent any future interpretation that ‘without reasonable excuse’ is an element of the offence, which would have to be disproved in the negative by the prosecution.  The amendment puts it beyond doubt that having a reasonable excuse is a defence to the offence.  Pursuant to subsection 13.3(3) of the Code, a defendant who wishes to rely on such defences bears an evidential burden in relation to the defence.

 

Item 135

 

The Item recreates the offence in existing section 197 by removing the defence ‘to the extent that the person is capable of complying with the requirement’.  The offence is that a person must not refuse or fail to comply with a requirement to give information or produce documents.  The penalty is imprisonment for a period not exceeding 12 months.

 

The defence of a person not being capable of complying is recreated in new subsection 197(2) (see Item 136).  The rationale for this amendment is to prevent any future interpretation that ‘to the extent that the person is capable of complying with the requirement’ is an element of the offence, which would have to be disproved in the negative by the prosecution.  The amendment puts it beyond doubt that not being capable of complying with the requirement is a defence to the offence.  Pursuant to subsection 13.3(3) of the Code, a defendant who wishes to rely on such defences bears an evidential burden in relation to the defence.

 

Item 136

 

New subsections 197(2) and (3) recreate the defences in current section 197, the defences being ‘without reasonable excuse’ and ‘to the extent that the person is capable of complying with the notice’.  The rationale for this amendment is to prevent any future interpretation that ‘without reasonable excuse’ or ‘to the extent that the person is capable of complying with the notice’ are elements of the offence, which would have to be disproved in the negative by the prosecution.  The amendments put it beyond doubt that having a reasonable excuse or not being capable of complying with the notice is a defence to the offence.  Pursuant to subsection 13.3(3) of the Code, a defendant who wishes to rely on such defences bears an evidential burden in relation to the defence.

 



Item 137

 

Existing subsection 200(1) creates an offence in circumstances where a person makes a request under section 199 and a former employer fails to comply with that request.  This Item adds new subsection 200(2) which applies strict liability to the element of an offence against subsection (1) that a request is a request under section 199.  The rationale for the application of strict liability in relation to elements of this nature is discussed above (see, for example, the discussion at Item 4, 5, or 6).

 

Item 138

 

Section 203 creates an offence in relation to unauthorised access to information.  Paragraph 203(1)(b) requires that the person was not authorised by or under the social security law or the Farm Household Support Act 1992 to obtain the information and has no other lawful authority to obtain the information.  The Item recreates the offence by removing the defence of lawful authority.  Under section 10.5 of the Code there is a general defence which provides that a person is not criminally responsible for an offence if the conduct constituting the offence is justified or excused by a law.

 

Item 139

 

New subsection 203(3) provides that strict liability applies to the element of an offence against subsection (1) that a person not authorised to do something is not authorised by or under the social security law or the Farm Household Support Act 1992 to do that thing.  The rationale for the application of strict liability in relation to elements of this nature is discussed above (see, for example, the discussion at Item 4, 5, or 6).

 

Item 140

 

Section 204 creates an offence in relation to unauthorised use of protected information.  Paragraph 204(1)(b) requires that the person was not authorised or required by or under the social security law or the Farm Household Support Act 1992 to make the record, disclosure or use of the information that is made by the person.  New subsection 204(3) provides that strict liability applies to the element of an offence against subsection (1) that a person not authorised or required to do something is not authorised or required by or under the social security law or the Farm Household Support Act 1992 to do that thing.  The rationale for the application of strict liability in relation to elements of this nature is discussed above (see, for example, the discussion at Item 4, 5, or 6).

 



Item 141

 

Section 205 creates an offence for soliciting the disclosure of protected information.  Paragraph 205(1)(b) requires that the disclosure would be in contravention of the Division.  New subsection 205(3) provides that strict liability applies to the element of an offence against subsection (1) that a contravention is a contravention of this Division.  The rationale for the application of strict liability in relation to elements of this nature is discussed above (see, for example, the discussion at Item 4, 5, or 6).

 

Item 142

 

In general terms, section 212 is concerned with false statements made in connection with a claim or hardship request.  Currently the provision applies the fault elements of knowledge (or "knowingly") and recklessness (or “recklessly”) in relation to the proscribed physical element of conduct, namely making a statement.  Following application of the Code, the fault elements of knowledge and recklessness will be restricted to physical elements of circumstance or result, and intention will be the sole fault element that can be applied to a physical element of conduct: see Division 5 of Part 2.2 of the Code.  Applying "knowingly" to a physical element of conduct in the pre-Code environment is equivalent to applying the fault element of intention.  This Item recreates the offence so that intention is the fault element in relation to the physical element of conduct.

 

For the purposes of an offence against section 217 that relates to subsection 212(1), new subsection (2) provides for strict liability to apply to the elements set out in paragraphs (2)(a) to (2)(d).  The rationale for the application of strict liability in relation to elements of this nature is discussed above (see, for example, the discussion at Item 4, 5, or 6).

 

Item 143

 

In general terms, section 213 is concerned with false statements made to deceive or affect rates.  Currently the provision applies the fault elements of knowledge (or "knowingly") and recklessness (or “recklessly”) in relation to the proscribed physical element of conduct, namely making a statement.  Following application of the Code, the fault elements of knowledge and recklessness will be restricted to physical elements of circumstance or result, and intention will be the sole fault element that can be applied to a physical element of conduct: see Division 5 of Part 2.2 of the Code.  Applying "knowingly" to a physical element of conduct in the pre-Code environment is equivalent to applying the fault element of intention.  This Item recreates the offence so that intention is the fault element in relation to the physical element of conduct.

 

For the purposes of an offence against section 217 that relates to subsection 213(1), new subsection (2) provides for strict liability to apply to the elements set out in paragraphs (2)(a) and (2)(b).  The rationale for the application of strict liability in relation to elements of this nature is discussed above (see, for example, the discussion at Item 4, 5, or 6).

 

Item 144

 

In general terms, section 214 is concerned with false statements and the production of documents.  Currently the provision applies the fault elements of knowledge (or "knowingly") and recklessness (or “recklessly”) in relation to the proscribed physical element of conduct, namely making a statement.  Following application of the Code, the fault elements of knowledge and recklessness will be restricted to physical elements of circumstance or result, and intention will be the sole fault element that can be applied to a physical element of conduct: see Division 5 of Part 2.2 of the Code.  Applying "knowingly" to a physical element of conduct in the pre-Code environment is equivalent to applying the fault element of intention.  This Item recreates the offence so that intention is the fault element in relation to the physical element of conduct.  The Item also reconstructs the offence so that the fault element of recklessness applies in relation to any physical elements of circumstance or result.

 

Item 145

 

In broad terms, section 215 creates an offence where a person knowingly obtains a social security payment which is not payable or only payable in part.  At present, the section applies the fault element of knowledge (or "knowingly") in relation to the proscribed physical element of conduct, namely obtaining the payment.  Following application of the Code, the fault element of knowledge will be restricted to physical elements of circumstance or result, and intention will be the sole fault element that can be applied to a physical element of conduct: see Division 5 of Part 2.2 of the Code.  Applying "knowingly" to a physical element of conduct in the pre-Code environment is equivalent to applying the fault element of intention.  This Item recreates the offence by omitting the word ‘knowingly’ so that intention is the fault element in relation to the physical element of conduct.

 

Item 146

 

In broad terms, section 215 creates an offence where a person knowingly obtains a social security payment which is not payable or only payable in part.  The effect of Item 145 is to recreate the offence by omitting the word ‘knowingly’ so that intention is the fault element in relation to the physical element of conduct.  The effect of this Item is to make it clear that the fault element of knowledge applies in relation to the physical elements of paragraph (c) and (d).

 



Item 147

 

For the purposes of an offence against section 217 that relates to subsection 215(1), new subsection (2) provides for strict liability to apply to the elements set out in paragraphs (2)(a) and (2)(b).  The rationale for the application of strict liability in relation to elements of this nature is discussed above (see, for example, the discussion at Item 4, 5, or 6).

 

Item 148

 

In general terms, section 216 deals with payments knowingly obtained by fraud.  At present, the section applies the fault element of knowledge (or "knowingly") in relation to the proscribed physical element of conduct, namely obtaining the relevant payment.  Following application of the Code, the fault element of knowledge will be restricted to physical elements of circumstance or result, and intention will be the sole fault element that can be applied to a physical element of conduct: see Division 5 of Part 2.2 of the Code.  Applying "knowingly" to a physical element of conduct in the pre-Code environment is equivalent to applying the fault element of intention.  This Item recreates the offence by, firstly, omitting the word ‘knowingly’ so that intention is the fault element in relation to the physical element of conduct.

 

The Item also recreates the offence by separately providing for situations where the relevant payments are obtained as a result of false or misleading statements (in contrast to impersonation or fraudulent device).  Currently the effect of paragraph (c) is to apply the fault elements of knowledge (or "knowingly") and recklessness (or “recklessly”) in relation to the proscribed physical element of conduct, namely making a statement.  Following application of the Code, the fault elements of knowledge and recklessness will be restricted to physical elements of circumstance or result, and intention will be the sole fault element that can be applied to a physical element of conduct: see Division 5 of Part 2.2 of the Code.  Applying "knowingly" to a physical element of conduct in the pre-Code environment is equivalent to applying the fault element of intention.  This Item recreates the offence so that intention is the fault element in relation to the physical element of conduct.  The offence is recreated so that the fault element of recklessness applies in relation to other physical elements.

 

The effect of paragraphs 216(1)(a) and (3)(d) is that the relevant payment must be either:

 

(a)     a social security payment under the social security law; or

(b)    an instalment of a social security payment under the social security law.

 

For the purposes of an offence against section 217 that relates to subsections 216(1) or (3), new subsections (2) and (4) respectively provide for strict liability to apply to the following elements of the offence:

 

(a)      that a payment is a social security payment under the social security law; and

(b)      that an instalment is an instalment of a social security payment under the social security law.

 

The rationale for the application of strict liability in relation to elements of this nature is discussed above (see, for example, the discussion at Item 4, 5, or 6).

 

Item 149

 

Currently the heading to Division 5 of Part 6 includes a reference to the liability of corporations.  As it is proposed that the relevant provisions of the social security law be repealed so that Part 2.5 of the Code applies in relation to corporations, this Item omits the reference to liability of corporations.

 

Item 150

 

This Item repeals sections 226 to 228.  Existing section 226 is concerned with the term ‘director of a corporation’ while section 227 deals with the term ‘engaging in conduct’.  These provisions are repealed as it is intended that the provisions of the Code which cover the subject matter of these existing provisions be applied in relation to the social security law.

 

Sections 5, 7, 7A, 14, 15D and 86 of the Crimes Act are being replaced in effect by sections 10.5, 11.1, 11.2, 11.4, 11.5, 13.3, 13.4 and 13.5 of the Code.  As section 228 contains references to some of those Crimes Act provisions, Item 150 repeals section 228 and substitutes a new provision that contains references to the relevant Code provisions.

 

Item 151

 

Subdivision B of Division 5 of Part 6 is concerned with proceedings against corporations.  Subdivision B is repealed as it is intended that the provisions of the Code which cover the issue of corporate liability be applied in relation to the social security law.

 

Social Welfare Commission (Repeal) Act 1976

 

Item 152

 

This Item inserts proposed section 3A which applies Chapter 2 of the Code to the above Act.  Chapter 2 establishes the codified general principles of criminal responsibility.

 



Item 153

 

In general terms, subsection 8(2) provides that a person shall not:

 

(a)     make a record or divulge certain information acquired by the person by reason of his office or employment under or for the purposes of certain enactments; or

(b)      produce certain documents that were furnished for the purposes of those enactments.

 

The effect of this Item is to apply strict liability in relation to the elements of the offence relating to the matters in paragraphs (a) and (b).  The rationale for the application of strict liability in relation to elements of this nature is discussed above (see, for example, the discussion at Item 4, 5, or 6).