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Wednesday, 7 March 2001
Page: 25410


Dr STONE (Parliamentary Secretary to the Minister for the Environment and Heritage) (6:11 PM) —I move:

That the bill be now read a second time.

The purpose of this bill is to make consequential amendments to certain offence provisions in legislation administered within the Environment and Heritage portfolio. These amendments are intended to ensure that when chapter 2 of the Criminal Code Act 1995 (the Criminal Code) is applied to pre-existing portfolio offence provisions, from 15 December 2001, those provisions will continue to operate in the same manner as they operated previously. If legislation containing offence provisions were not amended in the ways proposed by this bill, the Criminal Code may alter the interpretation of existing offence provisions. Chapter 2 of the Criminal Code, which contains the general principles of criminal responsibility, has been applied to new offences since 1 January 1997. It will apply to all Commonwealth offences from 15 December 2001. Chapter 2 of the Criminal Code adopts the common law approach of subjective fault based principles. It adopts the traditional distinction of dividing offences into actus reus and mens rea but uses the plainer labels of physical elements and fault elements.

The general rule is that for each physical element of an offence it is necessary to prove that the defendant had the relevant fault element. The prosecution must prove every physical and fault element of an offence. The physical elements are conduct, result of conduct and circumstances of conduct. The fault elements specified in the code are intention, knowledge, recklessness and negligence. The default fault elements, which the Criminal Code provides, will apply where a fault element is not specified and where the offence or an element of the offence is not specified to be a strict or absolute liability offence. These default fault elements are intention for a physical element of conduct and recklessness for a physical element of circumstances or result.

A fault element can only be dispensed with in relation to an offence, or in relation to a particular element of an offence, if the offence specifies that it is a strict or absolute liability offence, or that a particular element is a strict or absolute liability element. In the absence of express reference to the fact that an offence is either a strict or absolute liability offence, after the application of the Criminal Code, the offence would not be interpreted in the same way as it would before the application of the code. In other words a court would be obliged to interpret an offence provision as a fault offence and no longer as a strict liability offence, and would require the proof of fault elements in relation to the physical elements.

I have also taken the opportunity presented by the harmonisation process to make several additional amendments that bring the portfolio's legislation more closely into accord with the Criminal Code which is that defendants generally should bear an evidential and not a legal burden. Items 15 to 16 of the bill change the burden of proof on the defendant in subsection 8(2) of the Antarctic Marine Living Resources Conservation Act 1981 from a legal burden to an evidential burden. Similarly items 37 to 39 of the bill amend subsection 21A(4) of the Antarctic Treaty (Environment Protection) Act 1980 to change the current legal burden on the defendant which is to `prove' the defence in subsection (4) to an evidential burden. These are desirable amendments because they harmonise the acts with the code and they have been approved by the Prime Minister and the Minister for Justice and Customs.

This bill amends the following acts: the Aboriginal and Torres Strait Islander Heritage Protection Act 1984, the Antarctic Marine Living Resources Conservation Act 1981, the Antarctic Treaty (Environment Protection) Act 1980, the Environment Protection (Alligator Rivers Region) Act 1978, the Great Barrier Reef Marine Park Act 1975, the Hazardous Waste (Regulation of Exports and Imports) Act 1989, the Historic Shipwrecks Act 1976, the National Environment Protection Measures (Implementation) Act 1998, the Ozone Protection Act 1989, the Sea Installations Act 1987, and the Wildlife Protection (Regulation of Exports and Imports) Act 1982. I commend the bill and present the explanatory memorandum.