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Transport and Regional Services Legislation Amendment (Application of Criminal Code) Bill 2001

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1998-1999-2000-2001

 

 

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

 

 

 

 

HOUSE OF REPRESENTATIVES

 

 

 

 

 

 

 

 

 

TRANSPORT AND REGIONAL SERVICES LEGISLATION AMENDMENT (APPLICATION OF CRIMINAL CODE) BILL 2001

 

 

 

 

 

 

 

 

 

 

 

EXPLANATORY MEMORANDUM

 

 

 

 

 

 

 

 

 

 

 

 

(Circulated by authority of the Minister for Transport and Regional Services,

the Honourable John Anderson, MP)



GENERAL OUTLINE …………………………………………………………………3

FINANCIAL IMPACT STATEMENT ………..……………………………………...6

NOTES ON INDIVIDUAL CLAUSES ……………………………………………….7

SCHEDULE 1 - AIRPORTS ACT 1996 …………………………………………..…8

SCHEDULE 2 - NAVIGATION ACT 1912 …………………………………………39

SCHEDULE 3 - AMENDMENT OF OTHER TRANSPORT LEGISLATION ….

Adelaide Airport Curfew Act 2000 ……………………………………………………..82

Aircraft Noise levy Collection Act 1995 ………………………………………………..84

Air Navigation Act 1920 ………………………………………………………………..85

Air Services Act 1995 …………………………………………………………………...91

Civil Aviation Act 1988 …………………………………………………………………93

Civil Aviation (Carriers’ Liability) Act 1959 …………………………………………...99

Explosives Act 1961 …………………………………………………………………….100

International Air Services Commission Act 1992 ………………………………………100

Interstate Road Transport Act 1985 ……………………………………………………103

Lighthouses Act 1911 …………………………………………………………………..110

Maritime College Act 1978 …………………………………………………………….113

Motor Vehicle Standards Act 1989 …………………………………………………….113

Port Statistics Act 1977 ………………………………………………………………..119

Protection of the Sea (Civil Liability) Act 1981 ……………………………………….120

Protection of the Sea (Oil Pollution Compensation Fund) Act 1993 ………………….123

Protection of the Sea (Powers of Intervention) Act 1981 ……………………………...125

Protection of the Sea (Prevention of Pollution from Ships) Act 1983 …………………126

Protection of the Sea (Shipping Levy Collection) Act 1981 ……………………………137

Shipping Registration Act 1981 ………………………………………………………...138

Ships (Capital Grants) Act 1987 ……………………………………………………….148

Submarine Cables and Pipelines Protection Act 1963 ………………………………...149

Sydney Airport Curfew Act 1995 ……………………………………………………....150

SCHEDULE 4 - AMENDMENT OF TERRITORIES AND REGIONAL SERVICES LEGISLATION ………………………………………………………………………

Albury-Wodonga Development Act 1973 ……………………………………………..156

Ashmore and Cartier Islands Acceptance Act 1933 …………………………………..157

Australian Antarctic Territory Act 1954 ………………………………………………157

Australian Capital Territory Taxation (Administration) Act 1969 ……………………158

Canberra Water Supply (Googong Dam) Act 1974 …………………………………..161

Christmas Island Act 1958 …………………………………………………………....163

Cocos (Keeling) Islands Act 1955 …………………………………………………….165

Heard Island and McDonald Islands Act 1953 ……………………………………….167

Jervis Bay Territory Acceptance Act 1915 …………………………………………....168

Norfolk Island Act 1979 ………………………………………………………………168

Pay-roll Tax (Territories) Assessment Act 1971 ……………………………………...169

SCHEDULE 5 - AMENDMENT OF TRANSPORT LEGISLATION …………….

Road Transport Reform (Dangerous Goods) Act 1995 ………………………………170

Road Transport Reform (Heavy Vehicles Registration) Act 1997 ……………………170

Road Transport Reform (Vehicles and Traffic) Act 1993 …………………………….170

 

 



 

TRANSPORT AND REGIONAL SERVICES LEGISLATION AMENDMENT (aPPLICATION OF CRIMINAL CODE) BILL 2001

 

 

GENERAL OUTLINE

 

The purpose of this Bill is to make consequential amendments to certain offence provisions in legislation, for which the Minister for Transport and Regional Services has ministerial responsibility, to reflect the application of the Criminal Code Act 1995 .  Some consequential amendments are also proposed for provisions of the Australian Antarctic Territory Act 1954 and the Heard Island and McDonald Islands Act 1953.  These Acts are administered by the Minister for Environment and Heritage.

 

If legislation containing offence provisions is not amended to have regard to the Criminal Code , the Criminal Code may alter the interpretation of the existing offence provisions.  Chapter 2 of the Criminal Code contains the General Principles of Criminal Responsibility that apply to the offence provisions contained in the Criminal Code and all other Commonwealth offence provisions.  Chapter 2 has applied to new offence provisions since 1 January 1997.  Staggered implementation was considered necessary in relation to existing offences to provide Departments and Agencies with sufficient time to assess the effect of the Criminal Code on their offence provisions, and to make any necessary amendments to their legislation.  The Criminal Code is scheduled to apply to pre-existing offences from 15 December 2001.

 

Chapter 2 of the Criminal Code adopts the common law approach of subjective fault based principles.  It clarifies the traditional distinction of dividing offences into actus reus (the physical act, now referred to as the physical element) and mens rea (what the defendant thought or intended, now referred to as the fault element).

 

The prosecution bears the onus of proving each of the physical elements.  Each offence must contain at least one of the physical elements, but any combination of the physical elements may be present in an offence provision.  For every physical element of an offence, the prosecution must also prove a corresponding fault element.  Table 1 sets out the physical elements and the corresponding fault elements.

 



Table 1:

 

Fault Elements

Physical Elements

 

Conduct

Circumstance in which conduct occurs

Result of conduct

Intention

Defendant intends to engage in that conduct

Defendant believes that the circumstance exists or will exist

Defendant intends to bring about that result, or is aware that that result will eventuate in the ordinary course of events

Knowledge

Not available as fault element

Defendant is aware that the circumstance exists, or will exist in the ordinary course of events

Defendant is aware that that result exists, or will exist in the ordinary course of events

Recklessness

Not available as fault element

Defendant is aware of a substantial risk that the circumstance exists or will exist and, having regard to the circumstances known to him or her, it is unjustifiable to take that risk

Defendant is aware of a substantial risk that the result will occur and, having regard to the circumstances known to him or her, it is unjustifiable to take that risk

Negligence

Defendant’s conduct involves:

 

(a)     such a great falling short of the standard of care that a reasonable person would exercise in the circumstances; and

(b)    such a high risk that the physical element exists or will exist;

 

that the conduct merits criminal punishment for the offence.

 

 

If legislation containing an offence provision does not specify a fault element for a physical element of the offence, the Criminal Code applies a default fault element under Section 5.6.  Table 2 sets out the default fault elements.

 

Table 2:

 

Fault element of:

Applies to physical element of:

Intention

Conduct

Recklessness

A circumstance

Recklessness

A 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 liability offence (or that a particular element is a strict liability element).  The defence of mistake of fact is available for a strict liability offence (or a strict liability element of an offence).  In the absence of express reference to the fact that an offence is a strict liability offence, a court will be obliged to interpret an offence provision as a fault offence rather than a strict liability offence, and will require proof of fault elements in relation to the physical elements.

 

AMENDMENTS ARISING FROM THIS BILL

 

This Bill amends the following Acts:

 

Airports Act 1996

Adelaide Airport Curfew Act 2000

Aircraft Noise Levy Collection Act 1995

Air Navigation Act 1920

Air Services Act 1995

Albury-Wodonga Development Act 1973

Ashmore and Cartier Islands Acceptance Act 1933

Australian Antarctic Territory Act 1954

Australian Capital Territory Taxation (Administration) Act 1969

Canberra Water Supply (Googong Dam) Act 1974

Christmas Island Act 1958

Civil Aviation Act 1988

Civil Aviation (Carriers’ Liability) Act 1959

Cocos (Keeling) Islands Act 1955

Explosives Act 1961

Heard Island and McDonald Islands Act 1953

International Air Services Commission Act 1992

Interstate Road Transport Act 1985

Jervis Bay Territory Acceptance Act 1915

Lighthouses Act 1911

Maritime College Act 1978

Motor Vehicle Standards Act 1989

Navigation Act 1912

Norfolk Island Act 1979

Pay-roll Tax (Territories) Assessment Act 1971

Port Statistics Act 1977

Protection of the Sea (Civil Liability) Act 1981

Protection of the Sea (Oil Pollution Compensation Fund) Act 1993

Protection of the Sea (Powers of Intervention) Act 1981

Protection of the Sea (Prevention of Pollution from Ships) Act 1983

Protection of the Sea (Shipping Levy Collection) Act 1981

Road Transport Reform (Dangerous Goods) Act 1995

Road Transport Reform (Heavy Vehicles Registration) 1997

Road Transport Reform (Vehicles and Traffic) Act 1993

Shipping Registration Act 1981

Ships (Capital Grants) Act 1987

Submarine Cables and Pipelines Protection Act 1963

Sydney Airport Curfew Act 1995

 

The amendments arise from the requirement to:

 

(a)     recognise the application (in whole or in part) of the Criminal Code ;

(b)    recognise that the Criminal Code does not apply to applied State and Territory offence provisions;

(c)     exempt certain legislation from the application of the Criminal Code ;

(d)    specify that an offence is one of strict liability;

(e)     clarify the physical elements of an offence:

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

(g)    separate defences from offences and identify the evidential or legal burden in relation to a defence;

(h)    repeal offence provisions that duplicate general offence provisions in the Criminal Code ; and

(i)      replace references to provisions of the Crimes Act 1914 with references to corresponding provisions in the Criminal Code .

 

 

FINANCIAL IMPACT STATEMENT

 

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

 



transport and regional services legislation amendment (Application of criminal code) bill 2001

 

 

 

 

NOTES ON CLAUSES

 

Clause 1: Short Title

 

This clause provides that the short title by which the Act may be cited is the Transport and Regional Services Legislation Amendment (Application of Criminal Code) Act 2001 .

 

Clause 2: Commencement

 

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

 

Clause 3: Schedule(s)

 

This clause makes it clear that any Act specified in a Schedule to the Act is amended or repealed as set out in the relevant Schedule.  It also provides that Schedules may contain other provisions that have affect according to their terms.

 

Clause 4: Application of Amendments

 

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

 

Subclause (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, then the act or omission is alleged to have taken place before the amendment commences.



SCHEDULE 1 - Airports Act 1996

 

Item 1 - Section 5

 

This item defines “engage in conduct” to mean:

 

(a)     do an act; or

(b)    omit to perform an act.

 

This definition is consistent with the definition at subsection 4.1(2) of the Criminal Code .

 

Item 2 - After section 10

 

This item inserts a new section 10A that provides that Chapter 2 of the Criminal Code (except Part 2.5) applies to all offences against the Airports Act 1996 .  It also inserts a note that says that Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.

 

Part 2.5 of the Criminal Code is the only Part of Chapter 2 that does not automatically apply to offences.  When the Criminal Code was introduced into the Senate on 30 June 1994, it was stated that Part 2.5 would be the basis of corporate criminal liability if no other basis were provided.  Section 224 of the Airports Act 1996 deals with corporate criminal responsibility by vicariously establishing criminal responsibility for corporations as a result of the state of mind and conduct of its directors, employees or agents.  The disapplication of Part 2.5 is necessary to prevent competing corporate criminal liability regimes operating in relation to the same criminal offences. 

 

Item 3 - Subsection 29(2)

 

This item replaces subsection 29(2) with a provision that more accurately identifies the physical elements of circumstance, conduct and result in the offence, to which the default fault elements of recklessness and intention, will be applied by the Criminal Code .

 

This amendment has rephrased the offence to clarify that:

 

·          paragraph 29(2)(a) is the physical element of the circumstances of the defendant’s conduct to which the default fault element of recklessness will apply;

·          paragraph 29(2)(b) is the physical element of conduct to which the default fault element of intention will apply; and

·          paragraph 29(2)(c) is the physical element of result to which the default element of recklessness will apply.

 

The maximum penalty under this subsection is 400 penalty units.

 

This item also inserts a provision at subsection 29(2A) that strict liability applies to the  physical element of circumstance at paragraph 29(2)(a).  This amendment ensures that the provision is not interpreted as requiring the prosecution to prove, as part of the offence, that the defendant had knowledge of a requirement to transfer a lease under subsection (1) or (1A) .  Subsection 9.3(1) of the Criminal Code provides that mistake or ignorance of statute law is no excuse.  Subsection 9.3(2) however provides that 9.3(1) does not apply if the particular Act is expressly or impliedly to the contrary effect.  This amendment does not create a new offence of strict liability .  The amendment is necessary to maintain the current operation of subsection 29(2), and ensure that it is not interpreted to indicate a contrary intention for the purposes of section 9.3 of the Criminal Code.

 

Items 4 - Subsection 32(3)

 

This item replaces subsection 32(3) with a provision that more accurately identifies the physical elements of circumstance, conduct and result in the offence to which the default fault elements of recklessness and intention will be applied by the Criminal Code .

 

This amendment has rephrased the offence to clarify that:

 

·          paragraph 32(3)(a) is the physical element of the circumstances of the defendant’s conduct to which the default fault element of recklessness will apply;

·          paragraph 32(3)(b) is the physical element of conduct to which the default fault element of intention will apply; and

·          paragraph 32(3)(c) is the physical element of result to which the default element of recklessness will apply.

 

The maximum penalty under this subsection is 2,000 penalty units.

 

This item also inserts a provision at subsection 32(3A) that strict liability applies to the physical element of circumstance at paragraph 32(3)(a).  This amendment ensures that the provision is not interpreted as requiring the prosecution to prove, as part of the offence, that the defendant had knowledge of a requirement under subsection (1) or (2) .  Subsection 9.3(1) of the Criminal Code provides that mistake or ignorance of statute law is no excuse.  Subsection 9.3(2) however provides that 9.3(1) does not apply if the particular Act is expressly or impliedly to the contrary effect.  This amendment does not create a new offence of strict liability .  The amendment is necessary to maintain the current operation of subsection 32(3), and ensure that it is not interpreted to indicate a contrary intention for the purposes of section 9.3 of the Criminal Code.

 

Item 5 - Subsection 42(2)

 

This item amends subsection 42(2) to delete the alternative fault elements of knowingly or recklessly that currently apply to the physical element of conduct in the offence.  Under the Criminal Code the fault elements of knowingly or recklessly can only apply to the physical elements of circumstances of conduct or result of conduct (see Division 5, Part 2.2, Chapter 2 of the Criminal Code ).  Once omitted, the fault element of intention will apply to the physical element of conduct in the offence.  The fault element of recklessness will apply to the physical element of circumstances in the offence (see section 5.6 of the Criminal Code ).  Section 5.4 of the Criminal Code provides that where recklessness is the fault element for a physical element of an offence, proof of intention , knowledge or recklessness will satisfy that fault element.  Thus, the actions of the defendant who either had the requisite knowledge or recklessness will be criminalised.

 

The maximum penalty under this subsection is 500 penalty units.

 



Item 6 - Subsection 46(2)

 

This item amends subsection 46(2) to delete the alternative fault elements of knowingly or recklessly that currently apply to the physical element of conduct in the offence.  Under the Criminal Code the fault elements of knowingly or recklessly can only apply to the physical elements of circumstances of conduct or result of conduct (see Division 5, Part 2.2, Chapter 2 of the Criminal Code ).  Once omitted, the fault element of intention will apply to the physical element of conduct in the offence.  The fault element of recklessness will apply to the physical element of circumstances in the offence (see section 5.6 of the Criminal Code ).  Section 5.4 of the Criminal Code provides that where recklessness is the fault element for a physical element of an offence, proof of intention , knowledge or recklessness will satisfy that fault element.  Thus, the actions of the defendant who either had the requisite knowledge or recklessness will be criminalised.

 

The maximum penalty under this subsection is 500 penalty units.

 

This item also inserts a provision at subsection 46(3A) that strict liability applies to the physical element of circumstance at paragraph 46(2)(a).  This amendment ensures that the provision is not interpreted as requiring the prosecution to prove, as part of the offence, that the defendant had knowledge of the requirement to take steps under subsection (1) .  Subsection 9.3(1) of the Criminal Code provides that mistake or ignorance of statute law is no excuse.  Subsection 9.3(2) however provides that 9.3(1) does not apply if the particular Act is expressly or impliedly to the contrary effect.  This amendment does not create a new offence of strict liability .  The amendment is necessary to maintain the current operation of subsection 46(3), and ensure that it is not interpreted to indicate a contrary intention for the purposes of section 9.3 of the Criminal Code.

 

Item 7 - Subsection 52(2)

 

This item amends subsection 52(2) to delete the alternative fault elements of knowingly or recklessly that currently apply to the physical element of conduct in the offence.  Under the Criminal Code the fault elements of knowingly or recklessly can only apply to the physical elements of circumstances of conduct or result of conduct (see Division 5, Part 2.2, Chapter 2 of the Criminal Code ).  Once omitted, the fault element of intention will apply to the physical element of conduct in the offence.  The fault element of recklessness will apply to the physical element of circumstances in the offence (see section 5.6 of the Criminal Code ).  Section 5.4 of the Criminal Code provides that where recklessness is the fault element for a physical element of an offence, proof of intention , knowledge or recklessness will satisfy that fault element.  Thus, the actions of the defendant who either had the requisite knowledge or recklessness will be criminalised.

 

The maximum penalty under this subsection is 500 penalty units.

 

This item also inserts a provision at subsection 52(3) that strict liability applies to the physical element of circumstance at paragraph 52(2)(a).  This amendment ensures that the provision is not interpreted as requiring the prosecution to prove, as part of the offence, that the defendant had knowledge of the requirement to take steps under subsection (1) .  Subsection 9.3(1) of the Criminal Code provides that mistake or ignorance of statute law is no excuse.  Subsection 9.3(2) however provides that 9.3(1) does not apply if the particular Act is expressly or impliedly to the contrary effect.  This amendment does not create a new offence of strict liability .  The amendment is necessary to maintain the current operation of subsection 52(2), and ensure that it is not interpreted to indicate a contrary intention for the purposes of section 9.3 of the Criminal Code.

 

Item 8 - Subsection 56(2)

 

This item amends subsection 56(2) to delete the alternative fault elements of knowingly or recklessly that currently apply to the physical element of conduct in the offence.  Under the Criminal Code the fault elements of knowingly or recklessly can only apply to the physical elements of circumstances of conduct or result of conduct (see Division 5, Part 2.2, Chapter 2 of the Criminal Code ).  Once omitted, the fault element of intention will apply to the physical element of conduct in the offence.  The fault element of recklessness will apply to the physical element of circumstances in the offence (see section 5.6 of the Criminal Code ).  Section 5.4 of the Criminal Code provides that where recklessness is the fault element for a physical element of an offence, proof of intention , knowledge or recklessness will satisfy that fault element.  Thus, the actions of the defendant who either had the requisite knowledge or recklessness will be criminalised.

 

The maximum penalty under this subsection is 400 penalty units.

 

This item also inserts a provision at subsection 56(3) that strict liability applies to the physical element of circumstance at paragraph 56 (2)(a).  This amendment ensures that the provision is not interpreted as requiring the prosecution to prove, as part of the offence, that the defendant had knowledge of the requirement to take steps under subsection (1) .  Subsection 9.3(1) of the Criminal Code provides that mistake or ignorance of statute law is no excuse.  Subsection 9.3(2) however provides that 9.3(1) does not apply if the particular Act is expressly or impliedly to the contrary effect.  This amendment does not create a new offence of strict liability .  The amendment is necessary to maintain the current operation of subsection 56(2), and ensure that it is not interpreted to indicate a contrary intention for the purposes of section 9.3 of the Criminal Code.

 

Item 9 - Subsection 60(4)

 

This item replaces subsection 60(4) with a provision that more accurately identifies the physical elements of circumstance, conduct and result in the offence to which the default fault elements of recklessness and intention will be applied by the Criminal Code .

 

This amendment has rephrased the offence to clarify that:

 

·          paragraph 60(4)(a) is the physical element of the circumstances of the defendant’s conduct to which the default fault element of recklessness will apply;

·          paragraph 60(4)(b) is the physical element of conduct to which the default fault element of intention will apply; and

·          paragraph 60(4)(c) is the physical element of result to which the default element of recklessness will apply.

 

The maximum penalty under this subsection is 50 penalty units.

 

This item also inserts a provision at subsection 60(4A) that strict liability applies to the physical element of circumstance at paragraph 60(4)(a).  This amendment ensures that the provision is not interpreted as requiring the prosecution to prove, as part of the offence, that the defendant had knowledge of the requirement to keep and retain records and to give information under subsection (1) .  Subsection 9.3(1) of the Criminal Code provides that mistake or ignorance of statute law is no excuse.  Subsection 9.3(2) however provides that 9.3(1) does not apply if the particular Act is expressly or impliedly to the contrary effect.  This amendment does not create a new offence of strict liability .  The amendment is necessary to maintain the current operation of subsection 60(4), and ensure that it is not interpreted to indicate a contrary intention for the purposes of section 9.3 of the Criminal Code.

 

Item 10 - Subsection 75(2)

 

This item replaces subsection 75(2) with a provision that more accurately identifies the physical elements of circumstance, conduct and result in the offence to which the default fault elements of recklessness and intention will be applied by the Criminal Code .

 

This amendment has rephrased the offence to clarify that:

 

·          paragraph 75(2)(a) is the physical element of the circumstances of the defendant’s conduct to which the default fault element of recklessness will apply;

·          paragraph 75(2)(b) is the physical element of conduct to which the default fault element of intention will apply; and

·          paragraph 75(2)(c) is the physical element of result to which the default element of recklessness will apply.

 

The maximum penalty under this subsection is 250 penalty units.

 

This item also inserts a provision at subsection 75(3) that strict liability applies to the physical element of circumstance at paragraph 75(2)(a).  This amendment ensures that the provision is not interpreted as requiring the prosecution to prove, as part of the offence, that the defendant had knowledge of the requirement to give the Minister a draft master plan under subsection (1) .  Subsection 9.3(1) of the Criminal Code provides that mistake or ignorance of statute law is no excuse.  Subsection 9.3(2) however provides that 9.3(1) does not apply if the particular Act is expressly or impliedly to the contrary effect.  This amendment does not create a new offence of strict liability .  The amendment is necessary to maintain the current operation of subsection 75(2), and ensure that it is not interpreted to indicate a contrary intention for the purposes of section 9.3 of the Criminal Code.

 

Item 11 - Subsection 76(2)

 

This item replaces subsection 76(2) with a provision that more accurately identifies the physical elements of circumstance, conduct and result in the offence to which the default fault elements of recklessness and intention will be applied by the Criminal Code .

 

This amendment has rephrased the offence to clarify that:

 

·          paragraph 76(2)(a) is the physical element of the circumstances of the defendant’s conduct to which the default fault element of recklessness will apply;

·          paragraph 76(2)(b) is the physical element of conduct to which the default fault element of intention will apply; and

·          paragraph 76 (2)(c) is the physical element of result to which the default element of recklessness will apply.

 

The maximum penalty under this subsection is 250 penalty units.

 

This item also inserts a provision at subsection 76(3) that strict liability applies to the physical  element of circumstance at paragraph 76(2)(a).  This amendment ensures that the provision is not interpreted as requiring the prosecution to prove, as part of the offence, that the defendant had knowledge of the requirement to give the Minister a draft master plan under subsection (1) .  Subsection 9.3(1) of the Criminal Code provides that mistake or ignorance of statute law is no excuse.  Subsection 9.3(2) however provides that 9.3(1) does not apply if the particular Act is expressly or impliedly to the contrary effect.  This amendment does not create a new offence of strict liability .  The amendment is necessary to maintain the current operation of subsection 76(2), and ensure that it is not interpreted to indicate a contrary intention for the purposes of section 9.3 of the Criminal Code.

 

Item 12 - Subsection 78(3)

 

This item replaces subsection 78(3) with a provision that more accurately identifies the physical elements of circumstance, conduct and result in the offence to which the default fault elements of recklessness and intention will be applied by the Criminal Code .

 

This amendment has rephrased the offence to clarify that:

 

·          paragraph 78(3)(a) is the physical element of the circumstances of the defendant’s conduct to which the default fault element of recklessness will apply;

·          paragraph 78(3)(b) is the physical element of conduct to which the default fault element of intention will apply; and

·          paragraph 78(3)(c) is the physical element of result to which the default element of recklessness will apply.

 

The maximum penalty under this subsection is 250 penalty units.

 

This item also inserts a provision at subsection 78(4) that strict liability applies to the physical element of circumstance at paragraph 78(3)(a).  This amendment ensures that the provision is not interpreted as requiring the prosecution to prove, as part of the offence, that the defendant had knowledge of the requirement to give the Minister a draft master plan under subsection (2) .  Subsection 9.3(1) of the Criminal Code provides that mistake or ignorance of statute law is no excuse.  Subsection 9.3(2) however provides that 9.3(1) does not apply if the particular Act is expressly or impliedly to the contrary effect.  This amendment does not create a new offence of strict liability .  The amendment is necessary to maintain the current operation of subsection 78(3), and ensure that it is not interpreted to indicate a contrary intention for the purposes of section 9.3 of the Criminal Code.

 

Item 13 - Subsection 81(9)

 

This item replaces subsection 81(9) with a provision that more accurately identifies the physical elements of circumstance, conduct and result in the offence to which the default fault elements of recklessness and intention will be applied by the Criminal Code .

 

This amendment has rephrased the offence to clarify that:

 

·          paragraph 81(9)(a) is the physical element of the circumstances of the defendant’s conduct to which the default fault element of recklessness will apply;

·          paragraph 81(9)(b) is the physical element of conduct to which the default fault element of intention will apply; and

·          paragraph 81(9)(c) is the physical element of result to which the default element of recklessness will apply.

 

The maximum penalty under this subsection is 250 penalty units.

 

Item 14 - Subsection 85(2)

 

This item replaces subsection 85(2) with a provision that more accurately identifies the physical elements of circumstance, conduct and result in the offence to which the default fault elements of recklessness and intention will be applied by the Criminal Code .

 

This amendment has rephrased the offence to clarify that:

 

·          paragraph 85(2)(a) is the physical element of the circumstances of the defendant’s conduct to which the default fault element of recklessness will apply;

·          paragraph 85(2)(b) is the physical element of conduct to which the default fault element of intention will apply; and

·          paragraph 85(2)(c) is the physical element of result to which the default element of recklessness will apply.

 

The maximum penalty under this subsection is 100 penalty units.

 

This item also inserts a provision at subsection 85(3) that strict liability applies to the physical element of circumstance at paragraph 85(2)(a).  This amendment ensures that the provision is not interpreted as requiring the prosecution to prove, as part of the offence, that the defendant had knowledge of the requirement to give the Minister a draft master plan under subsection (2) .  Subsection 9.3(1) of the Criminal Code provides that mistake or ignorance of statute law is no excuse.  Subsection 9.3(2) however provides that 9.3(1) does not apply if the particular Act is expressly or impliedly to the contrary effect.  This amendment does not create a new offence of strict liability .  The amendment is necessary to maintain the current operation of subsection 85(2), and ensure that it is not interpreted to indicate a contrary intention for the purposes of section 9.3 of the Criminal Code.

 

Item 15 - Subsection 86(3)

 

This item replaces subsection 86(3) with a provision that more accurately identifies the physical elements of circumstance, conduct and result in the offence to which the default fault elements of recklessness and intention will be applied by the Criminal Code .

 

This amendment has rephrased the offence to clarify that:

 

·          paragraph 86(3)(a) is the physical element of the circumstances of the defendant’s conduct to which the default fault element of recklessness will apply;

·          paragraph 86(3)(b) is the physical element of conduct to which the default fault element of intention will apply; and

·          paragraph 86(3)(c) is the physical element of result to which the default element of recklessness will apply.

 

The maximum penalty under this subsection is 250 penalty units.

 

This item also inserts a provision at subsection 86(4) that strict liability applies to the physical element of circumstance at paragraph 86(3)(a).  This amendment ensures that the provision is not interpreted as requiring the prosecution to prove, as part of the offence, that the defendant had knowledge of the requirement to publish a notice and make a plan or variation available for inspection under subsection (2) .  Subsection 9.3(1) of the Criminal Code provides that mistake or ignorance of statute law is no excuse.  Subsection 9.3(2) however provides that 9.3(1) does not apply if the particular Act is expressly or impliedly to the contrary effect.  This amendment does not create a new offence of strict liability .  The amendment is necessary to maintain the current operation of subsection 86(3), and ensure that it is not interpreted to indicate a contrary intention for the purposes of section 9.3 of the Criminal Code.

 

Item 16 - Subsection 90(3)

 

This item replaces subsection 90(3) with a provision that more accurately identifies the physical elements of circumstance, conduct and result in the offence to which the default fault elements of recklessness and intention will be applied by the Criminal Code .

 

This amendment has rephrased the offence to clarify that:

 

·          paragraph 90(3)(a) is the physical element of the circumstances of the defendant’s conduct to which the default fault element of recklessness will apply;

·          paragraph 90(3)(b) is the physical element of conduct to which the default fault element of intention will apply; and

·          paragraph 90(3)(c) is the physical element of result to which the default element of recklessness will apply.

 

The maximum penalty under this subsection is 2,000 penalty units.

 

This item also notes that the defendant bears an evidential burden of proof with regard to the matters at paragraphs 90(1)(c) and (d).  Criminal Code policy is that the prosecution should prove every element of the offence relevant to the guilt of the person charged (see subsection 13.1(1) of the Criminal Code ).  However, there are some instances where it is appropriate for a defendant to bear a burden of proof, such as where a matter is peculiarly within the knowledge of the defendant.  In those instances, the Criminal Code policy is that the burden should be an evidential burden rather than a legal burden (see subsection 13.3(1) of the Criminal Code ).  An evidential burden is lighter than a legal burden.  Subsection 13.3(1) of the Criminal Code provides that, subject to section 13.4 , a burden of proof that a law imposes on a defendant is an evidential burden only .  An evidential burden is the burden of adducing or pointing to evidence that suggests a reasonable possibility that the matter exists or does not exist (see subsection 13.3(6) of the Criminal Code ), whereas a legal burden is the burden of proving the existence of the matter (see subsection 13.1(3) of the Criminal Code).

 

Subsection 13.3(3) of the Criminal Code provides that a defendant who wishes to rely on any exception, exemption, excuse, qualification or justification provided by law creating an offence bears an evidential burden in such circumstances.

 

This item also inserts a provision at subsection 90(3A) that strict liability applies to the physical element of circumstance at paragraph 90(3)(a).  This amendment ensures that the provision is not interpreted as requiring the prosecution to prove, as part of the offence, that the defendant had knowledge of a requirement under subsection (1).    Subsection 9.3(1) of the Criminal Code provides that mistake or ignorance of statute law is no excuse.  Subsection 9.3(2) however provides that 9.3(1) does not apply if the particular Act is expressly or impliedly to the contrary effect.  This amendment does not create a new offence of strict liability .  The amendment is necessary to maintain the current operation of subsection 90(3), and ensure that it is not interpreted to indicate a contrary intention for the purposes of section 9.3 of the Criminal Code.

 

Item 17 - Subsection 90(6)

 

This item replaces subsection 90(6) with a provision that more accurately identifies the physical elements of circumstance, conduct and result in the offence to which the default fault elements of recklessness and intention will be applied by the Criminal Code .

 

This amendment has rephrased the offence to clarify that:

 

·          paragraph 90(6)(a) is the physical element of the circumstances of the defendant’s conduct to which the default fault element of recklessness will apply;

·          paragraph 90(6)(b) is the physical element of conduct to which the default fault element of intention will apply; and

·          paragraph 90(6)(c) is the physical element of result to which the default element of recklessness will apply.

 

The maximum penalty under this subsection is 400 penalty units.

 

This item also notes that the defendant bears an evidential burden of proof with regard to the matters at paragraphs 90(4)(c) and (d). Criminal Code policy is that the prosecution should prove every element of the offence relevant to the guilt of the person charged (see subsection 13.1(1) of the Criminal Code ).  However, there are some instances where it is appropriate for a defendant to bear a burden of proof, such as where a matter is peculiarly within the knowledge of the defendant.  In those instances, the Criminal Code policy is that the burden should be an evidential burden rather than a legal burden (see subsection 13.3(1) of the Criminal Code ).  An evidential burden is lighter than a legal burden.  Subsection 13.3(1) of the Criminal Code provides that, subject to section 13.4 , a burden of proof that a law imposes on a defendant is an evidential burden only .  An evidential burden is the burden of adducing or pointing to evidence that suggests a reasonable possibility that the matter exists or does not exist (see subsection 13.3(6) of the Criminal Code ), whereas a legal burden is the burden of proving the existence of the matter (see subsection 13.1(3) of the Criminal Code).

 

Subsection 13.3(3) of the Criminal Code provides that a defendant who wishes to rely on any exception, exemption, excuse, qualification or justification provided by law creating an offence bears an evidential burden in such circumstances.

 

This item also inserts a provision at subsection 90(7) that strict liability applies to the physical element of circumstance at paragraph 90(6)(a).  This amendment ensures that the provision is not interpreted as requiring the prosecution to prove, as part of the offence, that the defendant had knowledge of a requirement under subsection (1).    Subsection 9.3(1) of the Criminal Code provides that mistake or ignorance of statute law is no excuse.  Subsection 9.3(2) however provides that 9.3(1) does not apply if the particular Act is expressly or impliedly to the contrary effect.  This amendment does not create a new offence of strict liability .  The amendment is necessary to maintain the current operation of subsection 90(6), and ensure that it is not interpreted to indicate a contrary intention for the purposes of section 9.3 of the Criminal Code.

 

Item 18 - Subsection 96(3)

 

This item replaces subsection 96(3) with a provision that more accurately identifies the physical elements of circumstance, conduct and result in the offence to which the default fault elements of recklessness and intention will be applied by the Criminal Code .

 

This amendment has rephrased the offence to clarify that:

 

·          paragraph 96(3)(a) is the physical element of the circumstances of the defendant’s conduct to which the default fault element of recklessness will apply;

·          paragraph 96(3)(b) is the physical element of conduct to which the default fault element of intention will apply; and

·          paragraph 96(3)(c) is the physical element of result to which the default element of recklessness will apply.

 

The maximum penalty under this subsection is 250 penalty units.

 

This item also inserts a provision at subsection 96(4) that strict liability applies to the physical element of circumstance at paragraph 96(3)(a).  This amendment ensures that the provision is not interpreted as requiring the prosecution to prove, as part of the offence, that the defendant had knowledge of the requirement that to publish a notice and make a plan or variation available for inspection under subsection (2) .  Subsection 9.3(1) of the Criminal Code provides that mistake or ignorance of statute law is no excuse.  Subsection 9.3(2) however provides that 9.3(1) does not apply if the particular Act is expressly or impliedly to the contrary effect.  This amendment does not create a new offence of strict liability .  The amendment is necessary to maintain the current operation of subsection 96(3), and ensure that it is not interpreted to indicate a contrary intention for the purposes of section 9.3 of the Criminal Code.

 

Item 19 - Subsection 99(2)

 

This item replaces subsection 99(2) with a provision that more accurately identifies the physical elements of circumstance, conduct and result in the offence to which the default fault elements of recklessness and intention will be applied by the Criminal Code .

 

This amendment has rephrased the offence to clarify that:

 

·          paragraph 99(2)(a) is the physical element of the circumstances of the defendant’s conduct to which the default fault element of recklessness will apply;

·          paragraph 99(2)(b) is the physical element of conduct to which the default fault element of intention will apply; and

·          paragraph 99(2)(c) is the physical element of result to which the default element of recklessness will apply.

 

The maximum penalty under this subsection is 250 penalty units.

 

This item also notes that the defendant bears an evidential burden of proof with regard to the matters at paragraphs 99(1)(c) and (d).  Criminal Code policy is that the prosecution should prove every element of the offence relevant to the guilt of the person charged (see subsection 13.1(1) of the Criminal Code ).  However, there are some instances where it is appropriate for a defendant to bear a burden of proof, such as where a matter is peculiarly within the knowledge of the defendant.  In those instances, the Criminal Code policy is that the burden should be an evidential burden rather than a legal burden (see subsection 13.3(1) of the Criminal Code ).  An evidential burden is lighter than a legal burden.  Subsection 13.3(1) of the Criminal Code provides that, subject to section 13.4 , a burden of proof that a law imposes on a defendant is an evidential burden only .  An evidential burden is the burden of adducing or pointing to evidence that suggests a reasonable possibility that the matter exists or does not exist (see subsection 13.3(6) of the Criminal Code ), whereas a legal burden is the burden of proving the existence of the matter (see subsection 13.1(3) of the Criminal Code).

 

Subsection 13.3(3) of the Criminal Code provides that a defendant who wishes to rely on any exception, exemption, excuse, qualification or justification provided by law creating an offence bears an evidential burden in such circumstances.

 

This item also inserts a provision at subsection 99(2A) that strict liability applies to the physical element of circumstance at paragraph 99(2)(a).  This amendment ensures that the provision is not interpreted as requiring the prosecution to prove, as part of the offence, that the defendant had knowledge of a requirement under subsection (1).  Subsection 9.3(1) of the Criminal Code provides that mistake or ignorance of statute law is no excuse.  Subsection 9.3(2) however provides that 9.3(1) does not apply if the particular Act is expressly or impliedly to the contrary effect.  This amendment does not create a new offence of strict liability .  The amendment is necessary to maintain the current operation of subsection 99(2), and ensure that it is not interpreted to indicate a contrary intention for the purposes of section 9.3 of the Criminal Code.

 

Item 20 - Subsection 99(4)

 

This item replaces subsection 99(4) with a provision that more accurately identifies the physical elements of circumstance, conduct and result in the offence to which the default fault elements of recklessness and intention will be applied by the Criminal Code .

 

This amendment has rephrased the offence to clarify that:

 

·          paragraph 99(4)(a) is the physical element of the circumstances of the defendant’s conduct to which the default fault element of recklessness will apply;

·          paragraph 99(4)(b) is the physical element of conduct to which the default fault element of intention will apply; and

·          paragraph 99(4)(c) is the physical element of result to which the default element of recklessness will apply.

 

The maximum penalty under this subsection is 50 penalty units.

 

This item also notes that the defendant bears an evidential burden of proof with regard to the matters at paragraphs 99(3)(c) and (d).  Criminal Code policy is that the prosecution should prove every element of the offence relevant to the guilt of the person charged (see subsection 13.1(1) of the Criminal Code ).  However, there are some instances where it is appropriate for a defendant to bear a burden of proof, such as where a matter is peculiarly within the knowledge of the defendant.  In those instances, the Criminal Code policy is that the burden should be an evidential burden rather than a legal burden (see subsection 13.3(1) of the Criminal Code ).  An evidential burden is lighter than a legal burden.  Subsection 13.3(1) of the Criminal Code provides that, subject to section 13.4 , a burden of proof that a law imposes on a defendant is an evidential burden only .  An evidential burden is the burden of adducing or pointing to evidence that suggests a reasonable possibility that the matter exists or does not exist (see subsection 13.3(6) of the Criminal Code ), whereas a legal burden is the burden of proving the existence of the matter (see subsection 13.1(3) of the Criminal Code).

 

Subsection 13.3(3) of the Criminal Code provides that a defendant who wishes to rely on any exception, exemption, excuse, qualification or justification provided by law creating an offence bears an evidential burden in such circumstances.

 

This item also inserts a provision at subsection 99(5) that strict liability applies to the physical element of circumstance at paragraph 99(4)(a).  This amendment ensures that the provision is not interpreted as requiring the prosecution to prove, as part of the offence, that the defendant had knowledge of a requirement under subsection (1).    Subsection 9.3(1) of the Criminal Code provides that mistake or ignorance of statute law is no excuse.  Subsection 9.3(2) however provides that 9.3(1) does not apply if the particular Act is expressly or impliedly to the contrary effect.  This amendment does not create a new offence of strict liability .  The amendment is necessary to maintain the current operation of subsection 99(4), and ensure that it is not interpreted to indicate a contrary intention for the purposes of section 9.3 of the Criminal Code.

 

Item 21 - Section 102

 

This item replaces subsection 102(1) with a provision that more accurately identifies the physical elements of circumstance, conduct and result in the offence to which the default fault elements of recklessness and intention will be applied by the Criminal Code .

 

This amendment has rephrased the offence to clarify that:

 

·          paragraph 102(1)(a) is the physical element of the circumstances of the defendant’s conduct to which the default fault element of recklessness will apply;

·          paragraph 102(1)(b) is the physical element of conduct to which the default fault element of intention will apply; and

·          paragraph 102(1)(c) is the physical element of result to which the default element of recklessness will apply.

 

The maximum penalty under this subsection is 50 penalty units.

 

This item also inserts a provision at subsection 102(2) that strict liability applies to the physical element of circumstance at paragraph 102(1)(a).  This amendment ensures that the provision is not interpreted as requiring the prosecution to prove, as part of the offence, that the defendant had knowledge of the approval under the regulations for the purposes of this subdivision.   Subsection 9.3(1) of the Criminal Code provides that mistake or ignorance of statute law is no excuse.  Subsection 9.3(2) however provides that 9.3(1) does not apply if the particular Act is expressly or impliedly to the contrary effect.  This amendment does not create a new offence of strict liability .  The amendment is necessary to maintain the current operation of section 102, and ensure that it is not interpreted to indicate a contrary intention for the purposes of section 9.3 of the Criminal Code.

 

Item 22 - Subsection 103(3)

 

This item replaces subsection 103(3) with a provision that more accurately identifies the physical elements of circumstance, conduct and result in the offence to which the default fault elements of recklessness and intention will be applied by the Criminal Code .

 

This amendment has rephrased the offence to clarify that:

 

·          paragraph 103(3)(a) is the physical element of the circumstances of the defendant’s conduct to which the default fault element of recklessness will apply;

·          paragraph 103(3)(b) is the physical element of conduct to which the default fault element of intention will apply; and

·          paragraph 103(3)(c) is the physical element of result to which the default element of recklessness will apply.

 

The maximum penalty under this subsection is 50 penalty units.

 

This item also inserts a provision at subsection 103(4) that strict liability applies to the physical element of circumstance at paragraph 103(3)(a).  This amendment ensures that the provision is not interpreted as requiring the prosecution to prove, as part of the offence, that the defendant had knowledge of a direction under subsection (1).   Subsection 9.3(1) of the Criminal Code provides that mistake or ignorance of statute law is no excuse.  Subsection 9.3(2) however provides that 9.3(1) does not apply if the particular Act is expressly or impliedly to the contrary effect.  This amendment does not create a new offence of strict liability .  The amendment is necessary to maintain the current operation of section 103(3), and ensure that it is not interpreted to indicate a contrary intention for the purposes of section 9.3 of the Criminal Code.

 

Item 23 - Subsection 106(3)

 

This item omits the reference to intentionally or recklessly in subsection 106(3).  Following application of the Criminal Code it will not be possible to apply a fault element of recklessness (that is, recklessly ) to a physical element of conduct (see Part 2.2, Division 5 of the Criminal Code ).  The fault element of recklessness can only be applied to the physical elements of circumstance or result .  The reference to intentionally is omitted as it is superfluous - the Criminal Code will apply the default fault element of intention to the physical element of conduct .    

 



Item 24 - At the end of subsection 106(3)

 

This item notes that the defendant bears an evidential burden of proof with regard to the matters at paragraphs 106(1)(c) and (d).  Criminal Code policy is that the prosecution should prove every element of the offence relevant to the guilt of the person charged (see subsection 13.1(1) of the Criminal Code ).  However, there are some instances where it is appropriate for a defendant to bear a burden of proof, such as where a matter is peculiarly within the knowledge of the defendant.  In those instances, the Criminal Code policy is that the burden should be an evidential burden rather than a legal burden (see subsection 13.3(1) of the Criminal Code ).  An evidential burden is lighter than a legal burden.  Subsection 13.3(1) of the Criminal Code provides that, subject to section 13.4 , a burden of proof that a law imposes on a defendant is an evidential burden only .  An evidential burden is the burden of adducing or pointing to evidence that suggests a reasonable possibility that the matter exists or does not exist (see subsection 13.3(6) of the Criminal Code ), whereas a legal burden is the burden of proving the existence of the matter (see subsection 13.1(3) of the Criminal Code).

 

Subsection 13.3(3) of the Criminal Code provides that a defendant who wishes to rely on any exception, exemption, excuse, qualification or justification provided by law creating an offence bears an evidential burden in such circumstances.

 

Item 25 - Subsection 106(6)

 

This item omits the reference to intentionally or recklessly in subsection 106(6).  Following application of the Criminal Code it will not be possible to apply a fault element of recklessness (that is, recklessly ) to a physical element of conduct (see Part 2.2, Division 5 of the Criminal Code ).  The fault element of recklessness can only be applied to the physical elements of circumstance or result .  The reference to intentionally is omitted as it is superfluous - the Criminal Code will apply the default fault element of intention to the physical element of conduct .    

 

Item 26 - At the end of subsection 106(6)

 

This item notes that the defendant bears an evidential burden of proof with regard to the matters at paragraphs 106(4)(c), (d) and (e).  Criminal Code policy is that the prosecution should prove every element of the offence relevant to the guilt of the person charged (see subsection 13.1(1) of the Criminal Code ).  However, there are some instances where it is appropriate for a defendant to bear a burden of proof, such as where a matter is peculiarly within the knowledge of the defendant.  In those instances, the Criminal Code policy is that the burden should be an evidential burden rather than a legal burden (see subsection 13.3(1) of the Criminal Code ).  An evidential burden is lighter than a legal burden.  Subsection 13.3(1) of the Criminal Code provides that, subject to section 13.4 , a burden of proof that a law imposes on a defendant is an evidential burden only .  An evidential burden is the burden of adducing or pointing to evidence that suggests a reasonable possibility that the matter exists or does not exist (see subsection 13.3(6) of the Criminal Code ), whereas a legal burden is the burden of proving the existence of the matter (see subsection 13.1(3) of the Criminal Code).

 

Subsection 13.3(3) of the Criminal Code provides that a defendant who wishes to rely on any exception, exemption, excuse, qualification or justification provided by law creating an offence bears an evidential burden in such circumstances.

 

Item 27 - Section 108

 

This item replaces 108 with a provision that more accurately identifies the physical elements of circumstance, conduct and result in the offence to which the default fault elements of recklessness and intention will be applied by the Criminal Code .

 

This amendment has rephrased the offence to clarify that:

 

·          subsection 108(a) is the physical element of the circumstances of the defendant’s conduct to which the default fault element of recklessness will apply;

·          paragraph 108(b) is the physical element of conduct to which the default fault element of intention will apply; and

·          paragraph 108(c) is the physical element of result to which the default element of recklessness will apply.

 

The maximum penalty under this subsection is 50 penalty units.

 

Item 28 - Subsection 109(3)

 

This item replaces subsection 109(3) with a provision that more accurately identifies the physical elements of circumstance, conduct and result in the offence to which the default fault elements of recklessness and intention will be applied by the Criminal Code .

 

This amendment has rephrased the offence to clarify that:

 

·          paragraph 109(3)(a) is the physical element of the circumstances of the defendant’s conduct to which the default fault element of recklessness will apply;

·          paragraph 109(3)(b) is the physical element of conduct to which the default fault element of intention will apply; and

·          paragraph 109(3)(c) is the physical element of result to which the default element of recklessness will apply.

 

The maximum penalty under this subsection is 50 penalty units.

 

Item 29 - Subsection 120(2)

 

This item replaces subsection 120(2) with a provision that more accurately identifies the physical elements of circumstance, conduct and result in the offence to which the default fault elements of recklessness and intention will be applied by the Criminal Code .

 

This amendment has rephrased the offence to clarify that:

 

·          paragraph 120(2)(a) is the physical element of the circumstances of the defendant’s conduct to which the default fault element of recklessness will apply;

·          paragraph 120(2)(b) is the physical element of conduct to which the default fault element of intention will apply; and

·          paragraph 120(2)(c) is the physical element of result to which the default element of recklessness will apply.

 

The maximum penalty under this subsection is 250 penalty units.

 

This item also inserts a provision at subsection 120(3) that strict liability applies to the physical element of circumstance at paragraph 120(2)(a).  This amendment ensures that the provision is not interpreted as requiring the prosecution to prove, as part of the offence, that the defendant had knowledge of the requirement to give the Minister a dr aft environment strategy under subsection (1).  Subsection 9.3(1) of the Criminal Code provides that mistake or ignorance of statute law is no excuse.  Subsection 9.3(2) however provides that 9.3(1) does not apply if the particular Act is expressly or impliedly to the contrary effect.  This amendment does not create a new offence of strict liability .  The amendment is necessary to maintain the current operation of subsection 120(2), and ensure that it is not interpreted to indicate a contrary intention for the purposes of section 9.3 of the Criminal Code.

 

Item 30 - Subsection 121(2)

 

This item replaces subsection 121(2) with a provision that more accurately identifies the physical elements of circumstance, conduct and result in the offence to which the default fault elements of recklessness and intention will be applied by the Criminal Code .

 

This amendment has rephrased the offence to clarify that:

 

·          paragraph 121(2)(a) is the physical element of the circumstances of the defendant’s conduct to which the default fault element of recklessness will apply;

·          paragraph 121(2)(b) is the physical element of conduct to which the default fault element of intention will apply; and

·          paragraph 121(2)(c) is the physical element of result to which the default element of recklessness will apply.

 

The maximum penalty under this subsection is 250 penalty units.

 

This item also inserts a provision at subsection 121(3) that strict liability applies to the  physical element of circumstance at paragraph 121(2)(a).  This amendment ensures that the provision is not interpreted as requiring the prosecution to prove, as part of the offence, that the defendant had knowledge of the requirement to give the Minister a dr aft environment strategy under subsection (1).  Subsection 9.3(1) of the Criminal Code provides that mistake or ignorance of statute law is no excuse.  Subsection 9.3(2) however provides that 9.3(1) does not apply if the particular Act is expressly or impliedly to the contrary effect.  This amendment does not create a new offence of strict liability .  The amendment is necessary to maintain the current operation of subsection 121(2), and ensure that it is not interpreted to indicate a contrary intention for the purposes of section 9.3 of the Criminal Code.

 

Item 31 - Subsection 123(3)

 

This item replaces subsection 123(3) with a provision that more accurately identifies the physical elements of circumstance, conduct and result in the offence to which the default fault elements of recklessness and intention will be applied by the Criminal Code .

 

This amendment has rephrased the offence to clarify that:

 

·          paragraph 123(3)(a) is the physical element of the circumstances of the defendant’s conduct to which the default fault element of recklessness will apply;

·          paragraph 123(3)(b) is the physical element of conduct to which the default fault element of intention will apply; and

·          paragraph 123(3)(c) is the physical element of result to which the default element of recklessness will apply.

 

The maximum penalty under this subsection is 250 penalty units.

 

Item 32 - Subsection 126(9)

 

This item replaces subsection 126(9) with a provision that more accurately identifies the physical elements of circumstance, conduct and result in the offence to which the default fault elements of recklessness and intention will be applied by the Criminal Code .

 

This amendment has rephrased the offence to clarify that:

 

·          paragraph 126(9)(a) is the physical element of the circumstances of the defendant’s conduct to which the default fault element of recklessness will apply;

·          paragraph 126(9)(b) is the physical element of conduct to which the default fault element of intention will apply; and

·          paragraph 126(9)(c) is the physical element of result to which the default element of recklessness will apply.

 

The maximum penalty under this subsection is 250 penalty units.

 

Item 33 - Subsection 131(3)

 

This item replaces subsection 131(3) with a provision that more accurately identifies the physical elements of circumstance, conduct and result in the offence to which the default fault elements of recklessness and intention will be applied by the Criminal Code .

 

This amendment has rephrased the offence to clarify that:

 

·          paragraph 131(3)(a) is the physical element of the circumstances of the defendant’s conduct to which the default fault element of recklessness will apply;

·          paragraph 131(3)(b) is the physical element of conduct to which the default fault element of intention will apply; and

·          paragraph 131(3)(c) is the physical element of result to which the default element of recklessness will apply.

 

The maximum penalty under this subsection is 250 penalty units.

 

This item also inserts a provision at subsection 131(4) that strict liability applies to the  physical element of circumstance at paragraph 131(3)(a).  This amendment ensures that the provision is not interpreted as requiring the prosecution to prove, as part of the offence, that the defendant had knowledge of the requirement to publish a notice and make a strategy or variation available for inspection and purchase by members of the public under subsection (2).  Subsection 9.3(1) of the Criminal Code provides that mistake or ignorance of statute law is no excuse.  Subsection 9.3(2) however provides that 9.3(1) does not apply if the particular Act is expressly or impliedly to the contrary effect.  This amendment does not create a new offence of strict liability .  The amendment is necessary to maintain the current operation of subsection 131(3), and ensure that it is not interpreted to indicate a contrary intention for the purposes of section 9.3 of the Criminal Code.

 

Item 34 - Subsection 131B(1)

 

This item redrafts subsection 131B(1) to omit the phrase must not, by act or omission, directly or indirectly cause and substitute commits an offence if the person engages in conduct that directly or indirectly results in .  The amendment more accurately identifies the physical elements of circumstance, conduct and result in the offence to which the default fault elements of recklessness and intention will be applied by the Criminal Code .

 

This item also inserts a note that the heading to section 131B is altered by omitting of causing and substituting resulting in.

 

Item 35 - At the end of subsection 131B(1)

 

This item adds Penalty: 500 penalty units to the end of subsection 131B(1).  This is a consequence of items 34 and 36.

 

Item 36 - Subsection 131B(2)

 

This item repeals subsection 131B(2).  The amendment is a consequence of item 34.

 

Item 37 - Subsection 131C(1)

 

This item redrafts subsection 131C(1) to omit the phrase must not, by act or omission, directly or indirectly cause and substitute commits an offence if the person engages in conduct that directly or indirectly results in .  The amendment more accurately identifies the physical elements of circumstance, conduct and result in the offence to which the default fault elements of recklessness and intention will be applied by the Criminal Code .

 

This item also inserts a note that the heading to section 131C is altered by omitting of causing and substituting resulting in.

 

Item 38 - At the end of subsection 131C(1)

 

This item adds Penalty: 200 penalty units to the end of subsection 131C(1).  This is a consequence of items 37 and 39.

 

Item 39 - Subsection 131C(2)

 

This item repeals subsection 131B(2).  The amendment is a consequence of item 37.

 

Item 40 - Subsection 131D(1)

 

This item redrafts subsection 131D(1) to omit the phrase must not, by act or omission, directly or indirectly cause and substitute commits an offence if the person engages in conduct that directly or indirectly results in .  The amendment more accurately identifies the physical elements of circumstance, conduct and result in the offence to which the default fault elements of recklessness and intention will be applied by the Criminal Code .

 

This item also inserts a note that the heading to section 131D is altered by omitting of causing and substituting resulting in.

 

Item 41 - Subsection 131D(1)

 

This item omits the phrase if the act or omission is not authorised by or under this Act or another law of the Commonwealth .  The effect of this phrase is to provide a defence of lawful authority .  The defence of lawful authority is now included in the Criminal Code (see section 10.5 of the Criminal Code ).  The defence applies to all offence provisions under Commonwealth law, and the specific mention in subsection 131D(1) is redundant.

 

Item 42 - At the end of subsection 131D(1)

 

This item adds Penalty: 50 penalty units to the end of subsection 131D(1).  This is a consequence of items 40 and 43.

 

Item 43 - Subsection 131D(2)

 

This item repeals subsection 131D(2).  The amendment is a consequence of item 40.

 

Item 44 - Subsection 131D(3)

 

This item omits the phrase an act or omission of a person, even if the act or omission and substitutes conduct of a person, even if the conduct .  The amendment is consistent with subsection 4.1(2) of the Criminal Code which defines conduct to mean an act, an omission to perform an act or a state of affairs .

 

Item 45 - Subsection 141(6)

 

This item replaces subsection 141(6) with a provision that more accurately identifies the physical elements of circumstance, conduct and result in the offence to which the default fault elements of recklessness and intention will be applied by the Criminal Code .

 

This amendment has rephrased the offence to clarify that:

 

·          paragraph 141(6)(a) is the physical element of the circumstances of the defendant’s conduct to which the default fault element of recklessness will apply;

·          paragraph 141(6)(b) is the physical element of conduct to which the default fault element of intention will apply; and

·          paragraph 141(6)(c) is the physical element of result to which the default element of recklessness will apply.

 

The maximum penalty under this subsection is 100 penalty units.

 

This item also inserts a provision at subsection 141(6A) that strict liability applies to the  physical element of circumstance at paragraph 141(6)(a).  This amendment ensures that the provision is not interpreted as requiring the prosecution to prove, as part of the offence, that the defendant had knowledge of the requirement under this section Subsection 9.3(1) of the Criminal Code provides that mistake or ignorance of statute law is no excuse.  Subsection 9.3(2) however provides that 9.3(1) does not apply if the particular Act is expressly or impliedly to the contrary effect.  This amendment does not create a new offence of strict liability .  The amendment is necessary to maintain the current operation of subsection 141(6), and ensure that it is not interpreted to indicate a contrary intention for the purposes of section 9.3 of the Criminal Code.

 

Item 46 - Subsection 142(4)

 

This item replaces subsection 142(4) with a provision that more accurately identifies the physical elements of circumstance, conduct and result in the offence to which the default fault elements of recklessness and intention will be applied by the Criminal Code .

 

This amendment has rephrased the offence to clarify that:

 

·          paragraph 142(4)(a) is the physical element of the circumstances of the defendant’s conduct to which the default fault element of recklessness will apply;

·          paragraph 142(4)(b) is the physical element of conduct to which the default fault element of intention will apply; and

·          paragraph 142(4)(c) is the physical element of result to which the default element of recklessness will apply.

 

The maximum penalty under this subsection is 100 penalty units.

 

This item also inserts a provision at subsection 142(4A) that strict liability applies to the  physical element of circumstance at paragraph 142(4)(a).  This amendment ensures that the provision is not interpreted as requiring the prosecution to prove, as part of the offence, that the defendant had knowledge of the requirement to make arrangements under subsection (3).  Subsection 9.3(1) of the Criminal Code provides that mistake or ignorance of statute law is no excuse.  Subsection 9.3(2) however provides that 9.3(1) does not apply if the particular Act is expressly or impliedly to the contrary effect.  This amendment does not create a new offence of strict liability .  The amendment is necessary to maintain the current operation of subsection 142(4), and ensure that it is not interpreted to indicate a contrary intention for the purposes of section 9.3 of the Criminal Code.

 

Item 47 - Subsection 142(6)

 

This item replaces subsection 142(6) with a provision that more accurately identifies the physical elements of circumstance, conduct and result in the offence to which the default fault elements of recklessness and intention will be applied by the Criminal Code .

 

This amendment has rephrased the offence to clarify that:

 

·          paragraph 142(6)(a) is the physical element of the circumstances of the defendant’s conduct to which the default fault element of recklessness will apply;

·          paragraph 142(6)(b) is the physical element of conduct to which the default fault element of intention will apply; and

·          paragraph 142(6)(c) is the physical element of result to which the default element of recklessness will apply.

 

The maximum penalty under this subsection is 50 penalty units.

 

This item also inserts a provision at subsection 142(7) that strict liability applies to the  physical element of circumstance at paragraph 142(6)(a).  This amendment ensures that the provision is not interpreted as requiring the prosecution to prove, as part of the offence, that the defendant had knowledge of the requirement to give a company certificate under subsection (5).  Subsection 9.3(1) of the Criminal Code provides that mistake or ignorance of statute law is no excuse.  Subsection 9.3(2) however provides that 9.3(1) does not apply if the particular Act is expressly or impliedly to the contrary effect.  This amendment does not create a new offence of strict liability .  The amendment is necessary to maintain the current operation of subsection 142(6), and ensure that it is not interpreted to indicate a contrary intention for the purposes of section 9.3 of the Criminal Code.

 

Item 48 - Subsection 143(3)

 

This item replaces subsection 143(3) with a provision that more accurately identifies the physical elements of circumstance, conduct and result in the offence to which the default fault elements of recklessness and intention will be applied by the Criminal Code .

 

This amendment has rephrased the offence to clarify that:

 

·          paragraph 143(3)(a) is the physical element of the circumstances of the defendant’s conduct to which the default fault element of recklessness will apply;

·          paragraph 143(3)(b) is the physical element of conduct to which the default fault element of intention will apply; and

·          paragraph 143(3)(c) is the physical element of result to which the default element of recklessness will apply.

 

The maximum penalty under this subsection is 100 penalty units.

 

This item also inserts a provision at subsection 143(4) that strict liability applies to the physical element of circumstance at paragraph 143(3)(a).  This amendment ensures that the provision is not interpreted as requiring the prosecution to prove, as part of the offence, that the defendant had knowledge of the requirement under this section.  Subsection 9.3(1) of the Criminal Code provides that mistake or ignorance of statute law is no excuse.  Subsection 9.3(2) however provides that 9.3(1) does not apply if the particular Act is expressly or impliedly to the contrary effect.  This amendment does not create a new offence of strict liability .  The amendment is necessary to maintain the current operation of subsection 143(3), and ensure that it is not interpreted to indicate a contrary intention for the purposes of section 9.3 of the Criminal Code.

 

Item 49 - Subsection 145(2)

 

This item replaces subsection 145(2) with a provision that more accurately identifies the physical elements of circumstance, conduct and result in the offence to which the default fault elements of recklessness and intention will be applied by the Criminal Code .

 

This amendment has rephrased the offence to clarify that:

 

·          paragraph 145(2)(a) is the physical element of the circumstances of the defendant’s conduct to which the default fault element of recklessness will apply;

·          paragraph 145(2)(b) is the physical element of conduct to which the default fault element of intention will apply; and

·          paragraph 145(2)(c) is the physical element of result to which the default element of recklessness will apply.

 

The maximum penalty under this subsection is 50 penalty units.

 

This item also inserts a provision at subsection 145(3) that strict liability applies to the physical element of circumstance at paragraph 145(2)(a).  This amendment ensures that the provision is not interpreted as requiring the prosecution to prove, as part of the offence, that the defendant had knowledge of the requirement under the regulations to give the ACCC written reports about the airport.   Subsection 9.3(1) of the Criminal Code provides that mistake or ignorance of statute law is no excuse.  Subsection 9.3(2) however provides that 9.3(1) does not apply if the particular Act is expressly or impliedly to the contrary effect.  This amendment does not create a new offence of strict liability .  The amendment is necessary to maintain the current operation of subsection 145(2), and ensure that it is not interpreted to indicate a contrary intention for the purposes of section 9.3 of the Criminal Code.

 

Item 50 - Subsection 146(2)

 

This item replaces subsection 146(2) with a provision that more accurately identifies the physical elements of circumstance, conduct and result in the offence to which the default fault elements of recklessness and intention will be applied by the Criminal Code .

 

This amendment has rephrased the offence to clarify that:

 

·          paragraph 146(2)(a) is the physical element of the circumstances of the defendant’s conduct to which the default fault element of recklessness will apply;

·          paragraph 146(2)(b) is the physical element of conduct to which the default fault element of intention will apply; and

·          paragraph 146(2)(c) is the physical element of result to which the default element of recklessness will apply.

 

The maximum penalty under this subsection is 50 penalty units.

 

This item also inserts a provision at subsection 146(3) that strict liability applies to the  physical element of circumstance at paragraph 146(2)(a).  This amendment ensures that the provision is not interpreted as requiring the prosecution to prove, as part of the offence, that the defendant had knowledge of the requirement under the regulations to keep and retain records.   Subsection 9.3(1) of the Criminal Code provides that mistake or ignorance of statute law is no excuse.  Subsection 9.3(2) however provides that 9.3(1) does not apply if the particular Act is expressly or impliedly to the contrary effect.  This amendment does not create a new offence of strict liability .  The amendment is necessary to maintain the current operation of subsection 146(2), and ensure that it is not interpreted to indicate a contrary intention for the purposes of section 9.3 of the Criminal Code.

 



Item 51 - Subsection 156(5)

 

This item replaces subsection 156(5) with a provision that more accurately identifies the physical elements of circumstance, conduct and result in the offence to which the default fault elements of recklessness and intention will be applied by the Criminal Code .

 

This amendment has rephrased the offence to clarify that:

 

·          paragraph 156(5)(a) is the physical element of the circumstances of the defendant’s conduct to which the default fault element of recklessness will apply;

·          paragraph 156(5)(b) is the physical element of conduct to which the default fault element of intention will apply; and

·          paragraph 156(5)(c) is the physical element of result to which the default element of recklessness will apply.

 

The maximum penalty under this subsection is 50 penalty units.

 

This item also inserts a provision at subsection 156(5A) that strict liability applies to the physical element of circumstance at paragraph 156(5)(a).  This amendment ensures that the provision is not interpreted as requiring the prosecution to prove, as part of the offence, that the defendant had knowledge of the requirement under the regulations to keep and retain records and give information to the ACCC.   Subsection 9.3(1) of the Criminal Code provides that mistake or ignorance of statute law is no excuse.  Subsection 9.3(2) however provides that 9.3(1) does not apply if the particular Act is expressly or impliedly to the contrary effect.  This amendment does not create a new offence of strict liability .  The amendment is necessary to maintain the current operation of subsection 156(5), and ensure that it is not interpreted to indicate a contrary intention for the purposes of section 9.3 of the Criminal Code.

 

Item 52 - Section 167

 

This item amends section 167 to delete the alternative fault elements of knowingly or recklessly that currently apply to the physical element of conduct in the offence.  Under the Criminal Code the fault elements of knowingly or recklessly can only apply to the physical elements of circumstances of conduct or result of conduct (see Division 5, Part 2.2, Chapter 2 of the Criminal Code ).  Once omitted, the fault element of intention will apply to the physical element of conduct in the offence.  The fault element of recklessness will apply to the physical element of circumstances in the offence (see section 5.6 of the Criminal Code ).  Section 5.4 of the Criminal Code provides that where recklessness is the fault element for a physical element of an offence, proof of intention , knowledge or recklessness will satisfy that fault element.  Thus, the actions of the defendant who either had the requisite knowledge or recklessness will be criminalised.

 

The maximum penalty under this subsection is 250 penalty units.

 

This item also inserts a provision at subsection 167(2) that strict liability applies to the physical element of circumstance at paragraph 167(1)(a).  This amendment ensures that the provision is not interpreted as requiring the prosecution to prove, as part of the offence, that the defendant had knowledge of the requirement under the regulations made for the purposes of section 166 and the regulations declare that this section applies to that provision.    Subsection 9.3(1) of the Criminal Code provides that mistake or ignorance of statute law is no excuse.  Subsection 9.3(2) however provides that 9.3(1) does not apply if the particular Act is expressly or impliedly to the contrary effect.  This amendment does not create a new offence of strict liability .  The amendment is necessary to maintain the current operation of subsection 167(1), and ensure that it is not interpreted to indicate a contrary intention for the purposes of section 9.3 of the Criminal Code

 

Item 53 - Subsection 183(2)

 

This item replaces subsection 183(2) with a provision that more accurately identifies the physical elements of circumstance, conduct and result in the offence to which the default fault elements of recklessness and intention will be applied by the Criminal Code .

 

This amendment has rephrased the offence to clarify that:

 

·          paragraph 183(2)(a) is the physical element of the circumstances of the defendant’s conduct to which the default fault element of recklessness will apply;

·          paragraph 183(2)(b) is the physical element of conduct to which the default fault element of intention will apply; and

·          paragraph 183(2)(c) is the physical element of result to which the default element of recklessness will apply.

 

The maximum penalty under this subsection is 250 penalty units.

 

This item also notes that the defendant bears an evidential burden of proof with regard to the matters at paragraphs 183(1)(c) and (d).  Criminal Code policy is that the prosecution should prove every element of the offence relevant to the guilt of the person charged (see subsection 13.1(1) of the Criminal Code ).  However, there are some instances where it is appropriate for a defendant to bear a burden of proof, such as where a matter is peculiarly within the knowledge of the defendant.  In those instances, the Criminal Code policy is that the burden should be an evidential burden rather than a legal burden (see subsection 13.3(1) of the Criminal Code ).  An evidential burden is lighter than a legal burden.  Subsection 13.3(1) of the Criminal Code provides that, subject to section 13.4 , a burden of proof that a law imposes on a defendant is an evidential burden only .  An evidential burden is the burden of adducing or pointing to evidence that suggests a reasonable possibility that the matter exists or does not exist (see subsection 13.3(6) of the Criminal Code ), whereas a legal burden is the burden of proving the existence of the matter (see subsection 13.1(3) of the Criminal Code).

 

Subsection 13.3(3) of the Criminal Code provides that a defendant who wishes to rely on any exception, exemption, excuse, qualification or justification provided by law creating an offence bears an evidential burden in such circumstances.

 

This item also inserts a provision at subsection 183(3) that strict liability applies to the physical element of circumstance at paragraph 183(2)(a).  This amendment ensures that the provision is not interpreted as requiring the prosecution to prove, as part of the offence, that the defendant had knowledge of a requirement under subsection (1).    Subsection 9.3(1) of the Criminal Code provides that mistake or ignorance of statute law is no excuse.  Subsection 9.3(2) however provides that 9.3(1) does not apply if the particular Act is expressly or impliedly to the contrary effect.  This amendment does not create a new offence of strict liability .  The amendment is necessary to maintain the current operation of subsection 183(2), and ensure that it is not interpreted to indicate a contrary intention for the purposes of section 9.3 of the Criminal Code.

 

Item 54 - Section 185

 

This item replaces Section 185 with a provision that more accurately identifies the physical elements of circumstance, conduct and result in the offence to which the default fault elements of recklessness and intention will be applied by the Criminal Code .

 

This amendment has rephrased the offence to clarify that:

 

·          paragraph 185(1)(a) is the physical element of the circumstances of the defendant’s conduct to which the default fault element of recklessness will apply;

·          paragraph 185(1)(b) is the physical element of conduct to which the default fault element of intention will apply; and

·          paragraph 185(1)(c) is the physical element of result to which the default element of recklessness will apply.

 

The maximum penalty under this subsection is 250 penalty units.

 

This item also inserts a provision at subsection 185(2) that strict liability applies to the physical element of circumstance at paragraph 185(1)(a).  This amendment ensures that the provision is not interpreted as requiring the prosecution to prove, as part of the offence, that the defendant had knowledge of the granting of an approval under the regulations made for the purposes of this Division.    Subsection 9.3(1) of the Criminal Code provides that mistake or ignorance of statute law is no excuse.  Subsection 9.3(2) however provides that 9.3(1) does not apply if the particular Act is expressly or impliedly to the contrary effect.  This amendment does not create a new offence of strict liability .  The amendment is necessary to maintain the current operation of subsection 185(1), and ensure that it is not interpreted to indicate a contrary intention for the purposes of section 9.3 of the Criminal Code.

 

Item 55 - Subsection 186(2)

 

This item replaces subsection 186(2) with a provision that more accurately identifies the physical elements of circumstance, conduct and result in the offence to which the default fault elements of recklessness and intention will be applied by the Criminal Code .

 

This amendment has rephrased the offence to clarify that:

 

·          paragraph 186(2)(a) is the physical element of the circumstances of the defendant’s conduct to which the default fault element of recklessness will apply;

·          paragraph 186(2)(b) is the physical element of conduct to which the default fault element of intention will apply; and

·          paragraph 186(2)(c) is the physical element of result to which the default element of recklessness will apply.

 

The maximum penalty under this subsection is 50 penalty units.

 

This item also inserts a provision at subsection 186(2A) that strict liability applies to the physical element of circumstance at paragraph 186(2)(a).  This amendment ensures that the provision is not interpreted as requiring the prosecution to prove, as part of the offence, that the defendant had knowledge of a requirement under the regulations to give information to the operator of an airport.    Subsection 9.3(1) of the Criminal Code provides that mistake or ignorance of statute law is no excuse.  Subsection 9.3(2) however provides that 9.3(1) does not apply if the particular Act is expressly or impliedly to the contrary effect.  This amendment does not create a new offence of strict liability .  The amendment is necessary to maintain the current operation of subsection 186(2), and ensure that it is not interpreted to indicate a contrary intention for the purposes of section 9.3 of the Criminal Code.

 

Item 56 - Section 208

 

This item amends section 208 to delete the alternative fault elements of knowingly or recklessly that currently apply to the physical element of conduct in the offence.  Under the Criminal Code the fault elements of knowingly or recklessly can only apply to the physical elements of circumstances of conduct or result of conduct (see Division 5, Part 2.2, Chapter 2 of the Criminal Code ).  Once omitted, the fault element of intention will apply to the physical element of conduct in the offence.  The fault element of recklessness will apply to the physical element of circumstances in the offence (see section 5.6 of the Criminal Code ).  Section 5.4 of the Criminal Code provides that where recklessness is the fault element for a physical element of an offence, proof of intention , knowledge or recklessness will satisfy that fault element.  Thus, the actions of the defendant who either had the requisite knowledge or recklessness will be criminalised.

 

The maximum penalty under this subsection is 250 penalty units.

 

Item 57 - Subsection 216(2)

 

This item replaces subsection 216(2) with a provision that more accurately identifies the physical elements of circumstance, conduct and result in the offence to which the default fault elements of recklessness and intention will be applied by the Criminal Code .

 

This amendment has rephrased the offence to clarify that:

 

·          paragraph 216(2)(a) is the physical element of the circumstances of the defendant’s conduct to which the default fault element of recklessness will apply;

·          paragraph 216(2)(b) is the physical element of conduct to which the default fault element of intention will apply; and

·          paragraph 216(2)(c) is the physical element of result to which the default element of recklessness will apply.

 

The maximum penalty under this subsection is 250 penalty units.

 

This item also notes that the defendant bears an evidential burden of proof with regard to the matters at paragraphs 216(1)(c),(d) and (e).  Criminal Code policy is that the prosecution should prove every element of the offence relevant to the guilt of the person charged (see subsection 13.1(1) of the Criminal Code ).  However, there are some instances where it is appropriate for a defendant to bear a burden of proof, such as where a matter is peculiarly within the knowledge of the defendant.  In those instances, the Criminal Code policy is that the burden should be an evidential burden rather than a legal burden (see subsection 13.3(1) of the Criminal Code ).  An evidential burden is lighter than a legal burden.  Subsection 13.3(1) of the Criminal Code provides that, subject to section 13.4 , a burden of proof that a law imposes on a defendant is an evidential burden only .  An evidential burden is the burden of adducing or pointing to evidence that suggests a reasonable possibility that the matter exists or does not exist (see subsection 13.3(6) of the Criminal Code ), whereas a legal burden is the burden of proving the existence of the matter (see subsection 13.1(3) of the Criminal Code).

 

Subsection 13.3(3) of the Criminal Code provides that a defendant who wishes to rely on any exception, exemption, excuse, qualification or justification provided by law creating an offence bears an evidential burden in such circumstances.

 

This item also inserts a provision at subsection 216(2A) that strict liability applies to the physical element of circumstance at paragraph 216(2)(a).  This amendment ensures that the provision is not interpreted as requiring the prosecution to prove, as part of the offence, that the defendant had knowledge of a requirement under subsection (1).    Subsection 9.3(1) of the Criminal Code provides that mistake or ignorance of statute law is no excuse.  Subsection 9.3(2) however provides that 9.3(1) does not apply if the particular Act is expressly or impliedly to the contrary effect.  This amendment does not create a new offence of strict liability .  The amendment is necessary to maintain the current operation of subsection 216(2), and ensure that it is not interpreted to indicate a contrary intention for the purposes of section 9.3 of the Criminal Code.

 

Item 58 - Subsection 224(6)

 

This item repeals the definition of extended meaning of offence against this Act, at subsection 224(6) of the Airports Act 1996 , that refers to sections 7 and 7A, and subsection 86(1) of the Crimes Act 1914.  Sections 7 and 7A are concerned with the offences of attempt and inciting or urging the commission of an offence.  Subsection 86(1) is concerned with the offence of conspiracy.  These sections were repealed by the Law and Justice Legislation Amendment (Application of Criminal Code) Act 2000

 

This item also substitutes a new definition of extended meaning of offence against this Act that refers to the equivalent provisions in the Criminal Code - sections 11.1, 11.4 and 11.5 respectively.

 

Item 59 - Subsection 228(2)

 

This item replaces subsection 228(2) with a provision that more accurately identifies the physical elements of circumstance, conduct and result in the offence to which the default fault elements of recklessness and intention will be applied by the Criminal Code .

 

This amendment has rephrased the offence to clarify that:

 

·          paragraph 228(2)(a) is the physical element of the circumstances of the defendant’s conduct to which the default fault element of recklessness will apply;

·          paragraph 228(2)(b) is the physical element of conduct to which the default fault element of intention will apply; and

·          paragraph 228(2)(c) is the physical element of result to which the default element of recklessness will apply.

 

The maximum penalty under this subsection is 6 months imprisonment.

 

This item also inserts a provision at subsection 228(3) that strict liability applies to the physical element of circumstance at paragraph 228(2)(a).  This amendment ensures that the provision is not interpreted as requiring the prosecution to prove, as part of the offence, that the defendant had knowledge of a requirement under subsection (1).    Subsection 9.3(1) of the Criminal Code provides that mistake or ignorance of statute law is no excuse.  Subsection 9.3(2) however provides that 9.3(1) does not apply if the particular Act is expressly or impliedly to the contrary effect.  This amendment does not create a new offence of strict liability .  The amendment is necessary to maintain the current operation of subsection 228(2), and ensure that it is not interpreted to indicate a contrary intention for the purposes of section 9.3 of the Criminal Code.

 

Item 60 - Subsection 230(2)

 

This item replaces subsection 230(2) with a provision that more accurately identifies the physical elements of circumstance, conduct and result in the offence to which the default fault elements of recklessness and intention will be applied by the Criminal Code .

 

This amendment has rephrased the offence to clarify that:

 

·          paragraph 230(2)(a) is the physical element of the circumstances of the defendant’s conduct to which the default fault element of recklessness will apply;

·          paragraph 230(2)(b) is the physical element of conduct to which the default fault element of intention will apply; and

·          paragraph 230(2)(c) is the physical element of result to which the default element of recklessness will apply.

 

The maximum penalty under this subsection is 150 penalty units.

 

This item also inserts a provision at subsection 230(3) that strict liability applies to the physical element of circumstance at paragraph 230(2)(a).  This amendment ensures that the provision is not interpreted as requiring the prosecution to prove, as part of the offence, that the defendant had knowledge of a requirement under subsection (1).    Subsection 9.3(1) of the Criminal Code provides that mistake or ignorance of statute law is no excuse.  Subsection 9.3(2) however provides that 9.3(1) does not apply if the particular Act is expressly or impliedly to the contrary effect.  This amendment does not create a new offence of strict liability .  The amendment is necessary to maintain the current operation of subsection 230(2), and ensure that it is not interpreted to indicate a contrary intention for the purposes of section 9.3 of the Criminal Code.

 

Item 61 - Section 231

 

This item amends section 231 to delete the alternative fault elements of knowingly or recklessly that currently apply to the physical element of conduct in the offence.  Under the Criminal Code the fault elements of knowingly or recklessly can only apply to the physical elements of circumstances of conduct or result of conduct (see Division 5, Part 2.2, Chapter 2 of the Criminal Code ).  Once omitted, the fault element of intention will apply to the physical element of conduct in the offence.  The fault element of recklessness will apply to the physical element of circumstances in the offence (see section 5.6 of the Criminal Code ).  Section 5.4 of the Criminal Code provides that where recklessness is the fault element for a physical element of an offence, proof of intention , knowledge or recklessness will satisfy that fault element.  Thus, the actions of the defendant who either had the requisite knowledge or recklessness will be criminalised.

 

The maximum penalty under this subsection is 6 months imprisonment.

 

Item 62 - Subsection 234(4)

 

This item replaces subsection 234(4) with a provision that more accurately identifies the physical elements of circumstance, conduct and result in the offence to which the default fault elements of recklessness and intention will be applied by the Criminal Code .

 

This amendment has rephrased the offence to clarify that:

 

·          paragraph 234(4)(a) is the physical element of the circumstances of the defendant’s conduct to which the default fault element of recklessness will apply;

·          paragraph 234(4)(b) is the physical element of conduct to which the default fault element of intention will apply; and

·          paragraph 234(4)(c) is the physical element of result to which the default element of recklessness will apply.

 

The maximum penalty under this subsection is 5 penalty units.

 

This item also amends subsection (4) to omit the words without reasonable excuse.    The defence is now drafted as a separate subsection (5).  This amendment is necessary to ensure that the defence is not mistakenly interpreted to be an element of the offence that must be proved by the prosecution.

 

This item also notes that the defendant bears an evidential burden of proof with regard to the matters at subsection (5).  Criminal Code policy is that the prosecution should prove every element of the offence relevant to the guilt of the person charged (see subsection 13.1(1) of the Criminal Code ).  However, there are some instances where it is appropriate for a defendant to bear a burden of proof, such as where a matter is peculiarly within the knowledge of the defendant.  In those instances, the Criminal Code policy is that the burden should be an evidential burden rather than a legal burden (see subsection 13.3(1) of the Criminal Code ).  An evidential burden is lighter than a legal burden.  Subsection 13.3(1) of the Criminal Code provides that, subject to section 13.4 , a burden of proof that a law imposes on a defendant is an evidential burden only .  An evidential burden is the burden of adducing or pointing to evidence that suggests a reasonable possibility that the matter exists or does not exist (see subsection 13.3(6) of the Criminal Code ), whereas a legal burden is the burden of proving the existence of the matter (see subsection 13.1(3) of the Criminal Code).

 

Subsection 13.3(3) of the Criminal Code provides that a defendant who wishes to rely on any exception, exemption, excuse, qualification or justification provided by law creating an offence bears an evidential burden in such circumstances.

 

This item also inserts a provision at subsection 234(6) that strict liability applies to the physical element of circumstance at paragraph 234(4)(a).  This amendment ensures that the provision is not interpreted as requiring the prosecution to prove, as part of the offence, that the defendant had knowledge of a requirement to return his or her identity card under subsection (3).    Subsection 9.3(1) of the Criminal Code provides that mistake or ignorance of statute law is no excuse.  Subsection 9.3(2) however provides that 9.3(1) does not apply if the particular Act is expressly or impliedly to the contrary effect.  This amendment does not create a new offence of strict liability . The amendment is necessary to ensure that paragraph 234(4)(a) is not interpreted to indicate a contrary intention for the purposes of section 9.3 of the Criminal Code. The amendment is also necessary to maintain the current operation of subsection 234(4), where the inclusion of the term fails is interpreted as strict liability and does not require proof of intention.

 

Item 63 - Subsection 237(3)

 

This item replaces subsection 237(3) with a provision that more accurately identifies the physical elements of circumstance, conduct and result in the offence to which the default fault elements of recklessness and intention will be applied by the Criminal Code .

 

This amendment has rephrased the offence to clarify that:

 

·          paragraph 237(3)(a) is the physical element of the circumstances of the defendant’s conduct to which the default fault element of recklessness will apply;

·          paragraph 237(3)(b) is the physical element of conduct to which the default fault element of intention will apply; and

·          paragraph 237(3)(c) is the physical element of result to which the default element of recklessness will apply.

 

The maximum penalty under this subsection is 6 months imprisonment.

 

This item also amends section 237 to draft the defence (that is, without reasonable excuse ) in as a separate subsection (3A).  This amendment is necessary to ensure that the defence is not mistakenly interpreted to be an element of the offence that must be proved by the prosecution.

 

This item also notes that the defendant bears an evidential burden of proof with regard to the matters at subsection (3A).  Criminal Code policy is that the prosecution should prove every element of the offence relevant to the guilt of the person charged (see subsection 13.1(1) of the Criminal Code ).  However, there are some instances where it is appropriate for a defendant to bear a burden of proof, such as where a matter is peculiarly within the knowledge of the defendant.  In those instances, the Criminal Code policy is that the burden should be an evidential burden rather than a legal burden (see subsection 13.3(1) of the Criminal Code ).  An evidential burden is lighter than a legal burden.  Subsection 13.3(1) of the Criminal Code provides that, subject to section 13.4 , a burden of proof that a law imposes on a defendant is an evidential burden only .  An evidential burden is the burden of adducing or pointing to evidence that suggests a reasonable possibility that the matter exists or does not exist (see subsection 13.3(6) of the Criminal Code ), whereas a legal burden is the burden of proving the existence of the matter (see subsection 13.1(3) of the Criminal Code).

 

Subsection 13.3(3) of the Criminal Code provides that a defendant who wishes to rely on any exception, exemption, excuse, qualification or justification provided by law creating an offence bears an evidential burden in such circumstances.

 

This item also inserts a provision at subsection 237(3B) that strict liability applies to the physical element of circumstance at paragraph 237(3)(a).  This amendment ensures that the provision is not interpreted as requiring the prosecution to prove, as part of the offence, that the defendant had knowledge of a requirement under subsection (2).  Subsection 9.3(1) of the Criminal Code provides that mistake or ignorance of statute law is no excuse.  Subsection 9.3(2) however provides that 9.3(1) does not apply if the particular Act is expressly or impliedly to the contrary effect.  This amendment does not create a new offence of strict liability . The amendment is necessary to ensure that paragraph 237(3) (a) is not interpreted to indicate a contrary intention for the purposes of section 9.3 of the Criminal Code.  The amendment is necessary to maintain the current operation of subsection 237(3), where the inclusion of the term fails is interpreted as strict liability and does not require proof of intention.



SCHEDULE 2 - Navigation Act 1912

 

Item 1 - After section 4

 

This item inserts a new section 5 that provides that Chapter 2 of the Criminal Code (except Part 2.5) applies to all offences against the Navigation Act 1912 .  It also inserts a note that says that Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.

 

Part 2.5 of the Criminal Code is the only Part of Chapter 2 that does not automatically apply to offences.  When the Criminal Code was introduced into the Senate on 30 June 1994, it was stated that Part 2.5 would be the basis of corporate criminal liability if no other basis were provided.  Section 395A of the Navigation Act 1912 deals with corporate criminal responsibility by vicariously establishing criminal responsibility for corporations as a result of the state of mind and conduct of its directors, servant or agents.  The disapplication of Part 2.5 is necessary to prevent competing corporate criminal liability regimes operating in relation to the same criminal offences.

 

Item 2 - Subsection 6(1)

 

This item defines engage in conduct to mean:

 

(a)     do an act; or

(b)    omit to perform an act.

 

This definition is consistent with the definition at subsection 4.1(2) of the Criminal Code .

 

Item 3 - At the end of section 8B

 

This item adds a new subsection 8B(5) that provides that strict liability applies to the offence under section 8B.  This amendment does not create a new offence of strict liability.  The existing offence under section 8B makes the master and owner of the ship vicariously liable for any contravention of requirements under subsection 8B(2).  Vicarious liability is interpreted as giving rise to strict liability and therefore not requiring proof of fault.  The amendment is necessary to maintain the current operation of section 8B.  Once the Criminal Code applies, in the absence of an express reference to the fact that an offence is a strict liability offence, a court will be required to interpret the offence as a fault offence rather than a strict liability offence. 

 

The note to subsection 8B(5) refers to section 6.1 of the Criminal Code .  Section 6.1 provides that if a law that creates an offence provides that the offence is an offence of strict liability:

 

(a)    there are no fault elements for any of the physical elements of the offence; and

(b)    the defence of mistake of fact under section 9.2 is available.

 

This means that the prosecution does not have to prove fault on the part of the defendant.  Fault includes intention if it is with regard to conduct , and recklessness where it is with regard to a circumstance in which conduct occurs or a result of conduct.  The defendant will be able to activate the defence of honest or reasonable mistake of fact if he or she can point to or adduce evidence that he or she made a relevant mistake of fact.  If that occurs, the prosecution bears the onus to prove beyond reasonable doubt that there was no mistake.

 

Item 4 - After subsection 14(8)

 

This item adds a new subsection 14(8A) that provides that strict liability applies to the offence under subsection 14(8).  This amendment does not create a new offence of strict liability.  The existing offence under subsection 14(8) makes the master and owner of the ship vicariously liable for any contravention of requirements under subsections 14(1) and (6).  Vicarious liability is interpreted as giving rise to strict liability and therefore not requiring proof of fault.  The amendment is necessary to maintain the current operation of subsection 14(8).  Once the Criminal Code applies, in the absence of an express reference to the fact that an offence is a strict liability offence, a court will be required to interpret the offence as a fault offence rather than a strict liability offence. 

 

The note to subsection 14(8A) refers to section 6.1 of the Criminal Code .  Section 6.1 provides that if a law that creates an offence provides that the offence is an offence of strict liability:

 

(a)     there are no fault elements for any of the physical elements of the offence; and

(b)    the defence of mistake of fact under section 9.2 is available.

 

This means that the prosecution does not have to prove fault on the part of the defendant.  Fault includes intention if it is with regard to conduct , and recklessness where it is with regard to a circumstance in which conduct occurs or a result of conduct.  The defendant will be able to activate the defence of honest or reasonable mistake of fact if he or she can point to or adduce evidence that he or she made a relevant mistake of fact.  If that occurs, the prosecution bears the onus to prove beyond reasonable doubt that there was no mistake.

 

Item 5 - After subsection 14(11)

 

This item adds a new subsection 14(11A) that provides that strict liability applies to the offence under subsection 14(11).  This amendment does not create a new offence of strict liability.  The existing offence under subsection 14(11) makes the master and owner of the ship vicariously liable for any contravention of requirements under paragraph 14(9)(b).  Vicarious liability is interpreted as giving rise to strict liability and therefore not requiring proof of fault.  The amendment is necessary to maintain the current operation of subsection 14(11).  Once the Criminal Code applies, in the absence of an express reference to the fact that an offence is a strict liability offence, a court will be required to interpret the offence as a fault offence rather than a strict liability offence.

 

The note to subsection 14(11A) refers to section 6.1 of the Criminal Code .  Section 6.1 provides that if a law that creates an offence provides that the offence is an offence of strict liability:

 

(a)     there are no fault elements for any of the physical elements of the offence; and

(b)    the defence of mistake of fact under section 9.2 is available.

 

This means that the prosecution does not have to prove fault on the part of the defendant.  Fault includes intention if it is with regard to conduct , and recklessness where it is with regard to a circumstance in which conduct occurs or a result of conduct.  The defendant will be able to activate the defence of honest or reasonable mistake of fact if he or she can point to or adduce evidence that he or she made a relevant mistake of fact.  If that occurs, the prosecution bears the onus to prove beyond reasonable doubt that there was no mistake.

 

Item 6 - Section 17

 

This item amends section 17 to omit the words without reasonable excuse .  The defence is drafted as a separate subsection at item 7.

 

Item 7 - At the end of section 17

 

This item is consequential upon the omission of the words without reasonable excuse from section 17 at item 6.  The defence is drafted as a new subsection 17(2).  This amendment is necessary to ensure that the defence is not mistakenly interpreted to be an element of the offence that must be proved by the prosecution.

 

This item also notes that the defendant bears an evidential burden of proof with regard to the matter in subsection (2).  Criminal Code policy is that the prosecution should prove every element of the offence relevant to the guilt of the person charged (see subsection 13.1(1) of the Criminal Code ).  However, there are some instances where it is appropriate for a defendant to bear a burden of proof, such as where a matter is peculiarly within the knowledge of the defendant.  In those instances, the Criminal Code policy is that the burden should be an evidential burden rather than a legal burden (see subsection 13.3 of the Criminal Code ).  An evidential burden is lighter than a legal burden.  Subsection 13.3(1) of the Criminal Code provides that, subject to section 13.4, a burden of proof that a law imposes on a defendant is an evidential burden only .  An evidential burden is the burden of adducing or pointing to evidence that suggests a reasonable possibility that the matter exists or does not exist (see subsection 13.3(6) of the Criminal Code ), whereas a legal burden is the burden of proving the existence of the matter (see subsection 13.3(3) of the Criminal Code ).

 

Subsection 13.3(3) of the Criminal Code provides that a defendant who wishes to rely on any exception, exemption, excuse, qualification or justification provided by the law creating an offence bears an evidential burden in relation to that matter.  

 

This item also adds a new subsection 17(3) that provides that strict liability applies to the offence under subsection 17(1).  This amendment does not create a new offence of strict liability.  The use of the term fails in the existing offence under subsection 17(1) is interpreted as strict liability and therefore not requiring proof of fault.  The amendment is necessary to maintain the current operation of subsection 17(1).  Once the Criminal Code applies, in the absence of an express reference to the fact that an offence is a strict liability offence, a court will be required to interpret the offence as a fault offence rather than a strict liability offence.

 

The note to subsection 17(1) refers to section 6.1 of the Criminal Code .  Section 6.1 provides that if a law that creates an offence provides that the offence is an offence of strict liability:

 

(a)     there are no fault elements for any of the physical elements of the offence; and

(b)    the defence of mistake of fact under section 9.2 is available.

 

This means that the prosecution does not have to prove fault on the part of the defendant.  Fault includes intention if it is with regard to conduct , and recklessness where it is with regard to a circumstance in which conduct occurs or a result of conduct.  The defendant will be able to activate the defence of honest or reasonable mistake of fact if he or she can point to or adduce evidence that he or she made a relevant mistake of fact.  If that occurs, the prosecution bears the onus to prove beyond reasonable doubt that there was no mistake.

 

Item 8 - At the end of section 52

 

This item adds a new subsection 52(2) that provides that strict liability applies to the offence under subsection 52(1).  This amendment does not create a new offence of strict liability.  The existing offence under subsection 52(1) makes the master and owner of the ship vicariously liable for any contravention of requirements under subsection 52(1).  Vicarious liability is interpreted as giving rise to strict liability and therefore not requiring proof of fault.  The amendment is necessary to maintain the current operation of subsection 52(1).  Once the Criminal Code applies, in the absence of an express reference to the fact that an offence is a strict liability offence, a court will be required to interpret the offence as a fault offence rather than a strict liability offence. 

 

The note to subsection 52(2) refers to section 6.1 of the Criminal Code .  Section 6.1 provides that if a law that creates an offence provides that the offence is an offence of strict liability:

 

(a)     there are no fault elements for any of the physical elements of the offence; and

(b)    the defence of mistake of fact under section 9.2 is available.

 

This means that the prosecution does not have to prove fault on the part of the defendant.  Fault includes intention if it is with regard to conduct , and recklessness where it is with regard to a circumstance in which conduct occurs or a result of conduct.  The defendant will be able to activate the defence of honest or reasonable mistake of fact if he or she can point to or adduce evidence that he or she made a relevant mistake of fact.  If that occurs, the prosecution bears the onus to prove beyond reasonable doubt that there was no mistake.

 

Item 9 - Subsection 53(2)

 

This item replaces subsection 53(2) with a provision that more accurately identifies the physical elements of circumstance, conduct and result in the offence, to which the default fault elements of recklessness and intention , will be applied by the Criminal Code

 

This amendment has rephrased the offence to clarify that:

 

  • paragraph 53(2)(a) is the physical element of the circumstances of the defendant’s conduct to which the default fault element of recklessness will apply;
  • paragraph 53(2)(b) is the physical element of conduct to which the default fault element of intention will apply; and
  • paragraph 53(2)(c) is the physical element of result to which the default fault element of recklessness will apply.

 

The maximum penalty under this subsection is $500.

 

This item also omits the term wilfully from subsection (2).  The use of the word wilfully in relation to the physical element of conduct, is akin to the use of the word intentionally .  The fault element of intention is the equivalent used in the Criminal Code .  The omission of the tem wilfully ensures that future courts do not attempt to distinguish wilfulness from intention on the basis that it appears to differ from the Criminal Code fault element.

 

This item also omits the terms deface or destroy and substitutes defacing or destruction.   This amendment has reconstructed the offence to clarify that defacing and destruction are physical results of the accused person’s conduct to which the fault element of recklessness will apply.

 

The rationale behind the amendment is that an accused person does not deface or destroy .  Rather, the defacing or destruction is the result of the accused person’s conduct , and is a physical element of result rather than a physical element of conduct .  Using deface or destroy as the active verb in a criminal offence may lead to difficulties in interpreting the offence following application of the Criminal Code .  Reconstructing the offence enables the physical elements of conduct and result to be better identified.

 

This item also inserts a provision at subsection 53(3) that strict liability applies to the physical element of circumstance at paragraph 53(2)(a).  This amendment ensures that the provision is not interpreted as requiring the prosecution to prove, as part of the offence, that the defendant had knowledge that a copy of an agreement has been posted under subsection (1).   Subsection 9.3(1) of the Criminal Code provides that mistake or ignorance of statute law is no excuse.  Subsection 9.3(2) however provides that 9.3(1) does not apply if the particular Act is expressly or impliedly to the contrary effect.  This amendment does not create a new offence of strict liability .  The amendment is necessary to maintain the current operation of subsection 53(2), and ensures that it is not interpreted to indicate a contrary intention for the purpose of section 9.3 of the Criminal Code .

 

Item 10 - Paragraph 68(1)(a)

 

This item omits the term knowingly from paragraph 68(1)(a).  Following application of the Criminal Code it will not be possible to apply a fault element of knowledge (that is, knowingly ) to a physical element of conduct (see Part 2.2, Division 5 of the Criminal Code ).  The fault element of knowledge can only be applied to the physical elements of circumstance or result .

 

Item 11 - Section 99

 

This item replaces section 99 so that it more accurately identifies the physical elements of the offence so that appropriate fault elements may be applied.  As ‘engage in conduct’ includes omitting to do an act, a breach of duty as a result of a master’s or seaman’s neglect of duty remains an offence.

 

The maximum penalty under this section is $5000 or imprisonment for 2 years.

 

Item 12 - After subsection 132(5)

 

This item adds a new subsection 132(5A) that provides that strict liability applies to the offence under subsection 132(5).  This amendment does not create a new offence of strict liability.  The existing offence under subsection 132(5) makes the owner and agent of the ship vicariously liable for any contravention of requirements under subsections 132(1) and (2).  Vicarious liability is interpreted as giving rise to strict liability and therefore not requiring proof of fault.  The amendment is necessary to maintain the current operation of subsection 132(5).  Once the Criminal Code applies, in the absence of an express reference to the fact that an offence is a strict liability offence, a court will be required to interpret the offence as a fault offence rather than a strict liability offence. 

 

The note to subsection 132(5) refers to section 6.1 of the Criminal Code .  Section 6.1 provides that if a law that creates an offence provides that the offence is an offence of strict liability:

 

(a)     there are no fault elements for any of the physical elements of the offence; and

(b)    the defence of mistake of fact under section 9.2 is available.

 

This means that the prosecution does not have to prove fault on the part of the defendant.  Fault includes intention if it is with regard to conduct , and recklessness where it is with regard to a circumstance in which conduct occurs or a result of conduct.  The defendant will be able to activate the defence of honest or reasonable mistake of fact if he or she can point to or adduce evidence that he or she made a relevant mistake of fact.  If that occurs, the prosecution bears the onus to prove beyond reasonable doubt that there was no mistake.

 

Item 13 - After subsection 132A(2)

 

This item also inserts a provision at subsection 132A(2A) that strict liability applies to the physical element of circumstance at subsection 132(2).  This amendment ensures that the provision is not interpreted as requiring the prosecution to prove, as part of the offence, that the defendant had knowledge of a requirement made by a proper authority under subsection (1) .  Subsection 9.3(1) of the Criminal Code provides that mistake or ignorance of statute law is no excuse.  Subsection 9.3(2) however provides that 9.3(1) does not apply if the particular Act is expressly or impliedly to the contrary effect.  This amendment does not create a new offence of strict liability .  The amendment is necessary to maintain the current operation of subsection 132(2), and ensures that it is not interpreted to indicate a contrary intention for the purpose of section 9.3 of the Criminal Code .

 

Item 14 - At the end of section 148C

 

This item adds a new subsection 148C(6) that provides that strict liability applies to the offence under subsection 148C(5).  This amendment does not create a new offence of strict liability.  The existing offence under subsection 148C(5) makes the master and owner of the ship vicariously liable for any contravention of section 148C.  Vicarious liability is interpreted as giving rise to strict liability and therefore not requiring proof of fault.  The existing offence also uses the term fails in relation to the master of the ship.  The use of the term fails in the existing offence is interpreted as strict liability and therefore not requiring proof of fault.  The amendment is necessary to maintain the current operation of subsection 148C(5).  Once the Criminal Code applies, in the absence of an express reference to the fact that an offence is a strict liability offence, a court will be required to interpret the offence as a fault offence rather than a strict liability offence.

 

The note to subsection 148C(6) refers to section 6.1 of the Criminal Code .  Section 6.1 provides that if a law that creates an offence provides that the offence is an offence of strict liability:

 

(a)     there are no fault elements for any of the physical elements of the offence; and

(b)    the defence of mistake of fact under section 9.2 is available.

 

This means that the prosecution does not have to prove fault on the part of the defendant.  Fault includes intention if it is with regard to conduct , and recklessness where it is with regard to a circumstance in which conduct occurs or a result of conduct.  The defendant will be able to activate the defence of honest or reasonable mistake of fact if he or she can point to or adduce evidence that he or she made a relevant mistake of fact.  If that occurs, the prosecution bears the onus to prove beyond reasonable doubt that there was no mistake.

 

Item 15 - After subsection 152(1)

 

This item also adds a new subsection 152(1A) that provides that strict liability applies to the offence under subsection 152(1).  This amendment does not create a new offence of strict liability.  The use of the term fails in the existing offence under subsection 152(1) is interpreted as strict liability and therefore not requiring proof of fault.  The amendment is necessary to maintain the current operation of subsection 152(1).  Once the Criminal Code applies, in the absence of an express reference to the fact that an offence is a strict liability offence, a court will be required to interpret the offence as a fault offence rather than a strict liability offence.

 

The note to subsection 152(1A) refers to section 6.1 of the Criminal Code .  Section 6.1 provides that if a law that creates an offence provides that the offence is an offence of strict liability:

 

(a)     there are no fault elements for any of the physical elements of the offence; and

(b)    the defence of mistake of fact under section 9.2 is available.

 

This means that the prosecution does not have to prove fault on the part of the defendant.  Fault includes intention if it is with regard to conduct , and recklessness where it is with regard to a circumstance in which conduct occurs or a result of conduct.  The defendant will be able to activate the defence of honest or reasonable mistake of fact if he or she can point to or adduce evidence that he or she made a relevant mistake of fact.  If that occurs, the prosecution bears the onus to prove beyond reasonable doubt that there was no mistake.

 

Item 16 - After subsection 152(2)

 

This item adds a new subsection 152(2A) that provides that strict liability applies to the offence under subsection 152(2).  This amendment does not create a new offence of strict liability.  The existing offence under subsection 152(2) makes the owner of the ship vicariously liable for any contravention of section 152(2).  Vicarious liability is interpreted as giving rise to strict liability and therefore not requiring proof of fault.  The amendment is necessary to maintain the current operation of subsection 152(2).  Once the Criminal Code applies, in the absence of an express reference to the fact that an offence is a strict liability offence, a court will be required to interpret the offence as a fault offence rather than a strict liability offence.

 

The note to subsection 152(2A) refers to section 6.1 of the Criminal Code .  Section 6.1 provides that if a law that creates an offence provides that the offence is an offence of strict liability:

 

(a)     there are no fault elements for any of the physical elements of the offence; and

(b)    the defence of mistake of fact under section 9.2 is available.

 

This means that the prosecution does not have to prove fault on the part of the defendant.  Fault includes intention if it is with regard to conduct , and recklessness where it is with regard to a circumstance in which conduct occurs or a result of conduct.  The defendant will be able to activate the defence of honest or reasonable mistake of fact if he or she can point to or adduce evidence that he or she made a relevant mistake of fact.  If that occurs, the prosecution bears the onus to prove beyond reasonable doubt that there was no mistake.

 

Item 17 - Paragraph 164(2)(c)

 

This item omits the term conceal and substitutes the phrase engage in conduct that results in the concealment of .  This amendment has reconstructed the offence to clarify that concealment is a physical result of the accused person’s conduct to which the fault element of recklessness will apply.

 

The rationale behind the amendment is that an accused person does not conceal .  Rather, the concealment is the result of the accused person’s conduct , and is a physical element of result rather than a physical element of conduct .  Using conceal as the active verb in a criminal offence may lead to difficulties in interpreting the offence following application of the Criminal Code .  Reconstructing the offence enables the physical elements of conduct and result to be better identified.

 

Item 18 - Subsection 172(1)

 

This item omits the term wilfully from subsection 172(1).  The use of the word wilfully in relation to the physical element of conduct is akin to the use of intentionally .  The fault element of intention is the equivalent used in the Criminal Code .  The omission of the term wilfully ensures that future courts do not attempt to distinguish wilfulness from intention on the basis that it appears to differ from the Criminal Code fault element.

 

This item also replaces paragraphs 172(1)(a),(b), (c) and (d), with paragraphs 172(1)(a) and (b) and paragraphs 172(2)(a) and (b), that more accurately identifies the physical elements of conduct and result in the offence, to which the default fault elements of recklessness and intention, will be applied by the Criminal Code .

 

The maximum penalty under these subsections is $5000 or imprisonment for 2 years, or both.

 

The amendment has also rephrased the offence to clarify that destroy, mutilate and render illegible are physical elements of result of the defendant’s conduct to which the default fault element of recklessness will apply.

 

The rationale for the amendment is that an accused person does not destroy, mutilate or render illegible .  Rather the destruction, mutilation or being rendered illegible is the result of the accused person’ conduct, and are physical elements of result rather than physical elements of conduct .  Using destroy, mutilate , or render illegible as the active verb in a criminal offence may lead to difficulties in interpreting the offence following application of the Criminal Code .

 

Item 19 - Section 186E

 

This item replaces section 186E with a number of provisions that more accurately identify the physical elements of circumstance, conduct and result in the offences at paragraphs (1) (a) and (b), and subsections (2), to which the default fault elements of recklessness and intention , will be applied by the Criminal Code .  In so doing, the amendments omit the term knowingly .  Following application of the Criminal Code it will not be possible to apply a fault element of knowledge (that is, knowingly ) to a physical element of conduct (see Part 2.2, Division 5 of the Criminal Code ).  The fault element of knowledge can only be applied to the physical element of circumstance or result.

 

The amendment to paragraph (1)(a) is drafted in the new subsection (1) and has rephrased the offence to clarify that:

 

  • paragraph 186E(1)(a) is the physical element of the conduct to which the default fault element of intention will apply; and
  • paragraph 186E(1)(b) is the physical element of circumstance to which the default fault element of recklessness will apply.

 

The maximum penalty under this subsection is 20 penalty units.

 

The amendment to paragraph (1) (b) is drafted in the new subsection (2) and has rephrased the offence to clarify that:

 

  • paragraph 186E(2)(a) is the physical element of the conduct to which the default fault element of intention will apply;
  • paragraph 186E(2)(b) is the physical element of result to which the default fault element of recklessness will apply; and
  • paragraph 186E(2)(c) is the physical element of circumstance to which the default element of recklessness will apply.

 

The maximum penalty under this subsection is 20 penalty units.

 

This item also omits of the words without reasonable excuse from paragraph (1) (b).  The defence is drafted as a new subsection (3).  This amendment is necessary to ensure that the defence is not mistakenly interpreted to be an element of the offence that must be proved by the prosecution.

 

This item also notes that the defendant bears an evidential burden of proof with regard to the matter in subsection (3).  Criminal Code policy is that the prosecution should prove every element of the offence relevant to the guilt of the person charged (see subsection 13.1(1) of the Criminal Code ).  However, there are some instances where it is appropriate for a defendant to bear a burden of proof, such as where a matter is peculiarly within the knowledge of the defendant.  In those instances, the Criminal Code policy is that the burden should be an evidential burden rather than a legal burden (see subsection 13.3 of the Criminal Code ).  An evidential burden is lighter than a legal burden.  Subsection 13.3(1) of the Criminal Code provides that, subject to section 13.4, a burden of proof that a law imposes on a defendant is an evidential burden only .  An evidential burden is the burden of adducing or pointing to evidence that suggests a reasonable possibility that the matter exists or does not exist (see subsection 13.3(6) of the Criminal Code ), whereas a legal burden is the burden of proving the existence of the matter (see subsection 13.3(3) of the Criminal Code ).

 

Subsection 13.3(3) of the Criminal Code provides that a defendant who wishes to rely on any exception, exemption, excuse, qualification or justification provided by the law creating an offence bears an evidential burden in relation to that matter.  

 

This item also inserts a provision at subsection 186E(4) that strict liability applies to the physical element of result at paragraph 186E(2)(b).  This amendment ensures that the provision is not interpreted as requiring the prosecution to prove, as part of the offence, that the defendant had knowledge that the duties are those of a licensed pilot under the regulations .  Subsection 9.3(1) of the Criminal Code provides that mistake or ignorance of statute law is no excuse.  Subsection 9.3(2) however provides that 9.3(1) does not apply if the particular Act is expressly or impliedly to the contrary effect.  This amendment does not create a new offence of strict liability .  The amendment is necessary to maintain the current operation of subsection 186E(2), and ensures that it is not interpreted to indicate a contrary intention for the purpose of section 9.3 of the Criminal Code .

 

The amendment to subsection (2) is drafted in the new subsection (5) and has rephrased the offence to clarify that:

 

  • paragraph 186E(5)(a) is the physical element of the conduct to which the default fault element of intention will apply;
  • paragraph 186E(5)(b) is the physical element of result to which the default fault element of recklessness will apply; and
  • paragraph 186E(5)(c) is the physical element of circumstance to which the default element of recklessness will apply.

 

The maximum penalty under this subsection is 20 penalty units.

 

This item also inserts a provision at subsection 186E(6) that strict liability applies to the physical element of result at paragraph 186E(5)(b).  This amendment ensures that the provision is not interpreted as requiring the prosecution to prove, as part of the offence, that the defendant had knowledge that the duties are those of a licensed pilot under the regulations .  Subsection 9.3(1) of the Criminal Code provides that mistake or ignorance of statute law is no excuse.  Subsection 9.3(2) however provides that 9.3(1) does not apply if the particular Act is expressly or impliedly to the contrary effect.  This amendment does not create a new offence of strict liability .  The amendment is necessary to maintain the current operation of subsection 186E(5), and ensures that it is not interpreted to indicate a contrary intention for the purpose of section 9.3 of the Criminal Code .

 

Item 20 - At the end of section 188

 

This item adds a new subsection 188(5) that provides that strict liability applies to the offence under subsection 188(4).  This amendment does not create a new offence of strict liability.  The existing offence under subsection 188(4) makes the master and owner of the ship vicariously liable for any contravention of section 188(3).  Vicarious liability is interpreted as giving rise to strict liability and therefore not requiring proof of fault.  The amendment is necessary to maintain the current operation of subsection 188(4).  Once the Criminal Code applies, in the absence of an express reference to the fact that an offence is a strict liability offence, a court will be required to interpret the offence as a fault offence rather than a strict liability offence.

 

The note to subsection 188(5) refers to section 6.1 of the Criminal Code .  Section 6.1 provides that if a law that creates an offence provides that the offence is an offence of strict liability:

 

(a)     there are no fault elements for any of the physical elements of the offence; and

(b)    the defence of mistake of fact under section 9.2 is available.

 

This means that the prosecution does not have to prove fault on the part of the defendant.  Fault includes intention if it is with regard to conduct , and recklessness where it is with regard to a circumstance in which conduct occurs or a result of conduct.  The defendant will be able to activate the defence of honest or reasonable mistake of fact if he or she can point to or adduce evidence that he or she made a relevant mistake of fact.  If that occurs, the prosecution bears the onus to prove beyond reasonable doubt that there was no mistake.

 

Significant penalties are required to serve as a deterrent and to ensure that there is an incentive to obey the requirements and standards prescribed and that the incentive outweighs any economic advantage that may present in breaching the offence provisions.

 

The maximum penalty for this subsection is $10,000 or 4 years imprisonment, or both.

 

Item 21 - Subsection 190AA(4)

 

This item amends subsection 190AA(4) to omit the phrase without reasonable excuse .  The defence is drafted as a separate subsection at item 23.

 

Item 22 - After subsection 190A(1A)

 

This item adds a new subsection 190A(1B) that provides that strict liability applies to the offence under subsection 190A(1A).  This amendment does not create a new offence of strict liability.  The existing offence under subsection 190A(1A) makes the master and owner of the ship vicariously liable for any contravention of section 190A(1).  Vicarious liability is interpreted as giving rise to strict liability and therefore not requiring proof of fault.  The amendment is necessary to maintain the current operation of subsection 190A(1A).  Once the Criminal Code applies, in the absence of an express reference to the fact that an offence is a strict liability offence, a court will be required to interpret the offence as a fault offence rather than a strict liability offence.

 

The note to subsection 190A(1B) refers to section 6.1 of the Criminal Code .  Section 6.1 provides that if a law that creates an offence provides that the offence is an offence of strict liability:

 

(a)     there are no fault elements for any of the physical elements of the offence; and

(b)    the defence of mistake of fact under section 9.2 is available.

 

This means that the prosecution does not have to prove fault on the part of the defendant.  Fault includes intention if it is with regard to conduct , and recklessness where it is with regard to a circumstance in which conduct occurs or a result of conduct.  The defendant will be able to activate the defence of honest or reasonable mistake of fact if he or she can point to or adduce evidence that he or she made a relevant mistake of fact.  If that occurs, the prosecution bears the onus to prove beyond reasonable doubt that there was no mistake.

 

Item 23 - At the end of section 190AA

 

This item is consequential upon the omission of the words without reasonable excuse from subsection 190AA(4) at item 21.  The defence is drafted as a new subsection (5).  This amendment is necessary to ensure that the defence is not mistakenly interpreted to be an element of the offence that must be proved by the prosecution.

 

This item also notes that the defendant bears an evidential burden of proof with regard to the matter in subsection (5).  Criminal Code policy is that the prosecution should prove every element of the offence relevant to the guilt of the person charged (see subsection 13.1(1) of the Criminal Code ).  However, there are some instances where it is appropriate for a defendant to bear a burden of proof, such as where a matter is peculiarly within the knowledge of the defendant.  In those instances, the Criminal Code policy is that the burden should be an evidential burden rather than a legal burden (see subsection 13.3 of the Criminal Code ).  An evidential burden is lighter than a legal burden.  Subsection 13.3(1) of the Criminal Code provides that, subject to section 13.4, a burden of proof that a law imposes on a defendant is an evidential burden only .  An evidential burden is the burden of adducing or pointing to evidence that suggests a reasonable possibility that the matter exists or does not exist (see subsection 13.3(6) of the Criminal Code ), whereas a legal burden is the burden of proving the existence of the matter (see subsection 13.3(3) of the Criminal Code ).

 

Subsection 13.3(3) of the Criminal Code provides that a defendant who wishes to rely on any exception, exemption, excuse, qualification or justification provided by the law creating an offence bears an evidential burden in relation to that matter.  

 

This item also adds a new subsection 190AA(6) that provides that strict liability applies to the offence under subsection 190AA(4).  This amendment does not create a new offence of strict liability.  The use of the term fails in the existing offence under subsection 190AA(4) is interpreted as strict liability and therefore not requiring proof of fault.  The amendment is necessary to maintain the current operation of subsection 190AA(4).  Once the Criminal Code applies, in the absence of an express reference to the fact that an offence is a strict liability offence, a court will be required to interpret the offence as a fault offence rather than a strict liability offence.

 

The note to subsection 190AA(6) refers to section 6.1 of the Criminal Code .  Section 6.1 provides that if a law that creates an offence provides that the offence is an offence of strict liability:

 

(a)     there are no fault elements for any of the physical elements of the offence; and

(b)    the defence of mistake of fact under section 9.2 is available.

 

This means that the prosecution does not have to prove fault on the part of the defendant.  Fault includes intention if it is with regard to conduct , and recklessness where it is with regard to a circumstance in which conduct occurs or a result of conduct.  The defendant will be able to activate the defence of honest or reasonable mistake of fact if he or she can point to or adduce evidence that he or she made a relevant mistake of fact.  If that occurs, the prosecution bears the onus to prove beyond reasonable doubt that there was no mistake.

 

Item 24 - Paragraph 191B(1)(b)

 

This item amends paragraph 191B(1)(b) to omit the words without reasonable cause .  The defence is drafted as a separate subsection at item 25.

 

Item 25 - After subsection 191B(1)

 

This item is consequential upon the omission of the words without reasonable cause from paragraph 191B(1)(b) at item 24.  The defence is drafted as a new subsection (1A).  This amendment is necessary to ensure that the defence is not mistakenly interpreted to be an element of the offence that must be proved by the prosecution.

 

This item also notes that the defendant bears an evidential burden of proof with regard to the matter in subsection (1A).  Criminal Code policy is that the prosecution should prove every element of the offence relevant to the guilt of the person charged (see subsection 13.1(1) of the Criminal Code ).  However, there are some instances where it is appropriate for a defendant to bear a burden of proof, such as where a matter is peculiarly within the knowledge of the defendant.  In those instances, the Criminal Code policy is that the burden should be an evidential burden rather than a legal burden (see subsection 13.3 of the Criminal Code ).  An evidential burden is lighter than a legal burden.  Subsection 13.3(1) of the Criminal Code provides that, subject to section 13.4, a burden of proof that a law imposes on a defendant is an evidential burden only .  An evidential burden is the burden of adducing or pointing to evidence that suggests a reasonable possibility that the matter exists or does not exist (see subsection 13.3(6) of the Criminal Code ), whereas a legal burden is the burden of proving the existence of the matter (see subsection 13.3(3) of the Criminal Code ).

 

Subsection 13.3(3) of the Criminal Code provides that a defendant who wishes to rely on any exception, exemption, excuse, qualification or justification provided by the law creating an offence bears an evidential burden in relation to that matter.  

 

This item also adds a new subsection 191B(1B) that provides that strict liability applies to the offence under subsection 191B(1).  This amendment does not create a new offence of strict liability.  The existing offence under subsection 191B(1) makes the master and owner of the ship vicariously liable for any contravention of section 191B(1).  Vicarious liability is interpreted as giving rise to strict liability and therefore not requiring proof of fault.  The amendment is necessary to maintain the current operation of subsection 191B(1).  Once the Criminal Code applies, in the absence of an express reference to the fact that an offence is a strict liability offence, a court will be required to interpret the offence as a fault offence rather than a strict liability offence.

 

The note to subsection 191B(1B) refers to section 6.1 of the Criminal Code .  Section 6.1 provides that if a law that creates an offence provides that the offence is an offence of strict liability:

 

(a)     there are no fault elements for any of the physical elements of the offence; and

(b)    the defence of mistake of fact under section 9.2 is available.

 

This means that the prosecution does not have to prove fault on the part of the defendant.  Fault includes intention if it is with regard to conduct , and recklessness where it is with regard to a circumstance in which conduct occurs or a result of conduct.  The defendant will be able to activate the defence of honest or reasonable mistake of fact if he or she can point to or adduce evidence that he or she made a relevant mistake of fact.  If that occurs, the prosecution bears the onus to prove beyond reasonable doubt that there was no mistake.

 

Item 26 - Subsection 191B(2)

 

This item omits the phrase except with reasonable cause from subsection 191B(2).  The defence is drafted as a new subsection (3).  This amendment is necessary to ensure that the defence is not mistakenly interpreted to be an element of the offence that must be proved by the prosecution.

 

This item also notes that the defendant bears an evidential burden of proof with regard to the matter in subsection (3).  Criminal Code policy is that the prosecution should prove every element of the offence relevant to the guilt of the person charged (see subsection 13.1(1) of the Criminal Code ).  However, there are some instances where it is appropriate for a defendant to bear a burden of proof, such as where a matter is peculiarly within the knowledge of the defendant.  In those instances, the Criminal Code policy is that the burden should be an evidential burden rather than a legal burden (see subsection 13.3 of the Criminal Code ).  An evidential burden is lighter than a legal burden.  Subsection 13.3(1) of the Criminal Code provides that, subject to section 13.4, a burden of proof that a law imposes on a defendant is an evidential burden only .  An evidential burden is the burden of adducing or pointing to evidence that suggests a reasonable possibility that the matter exists or does not exist (see subsection 13.3(6) of the Criminal Code ), whereas a legal burden is the burden of proving the existence of the matter (see subsection 13.3(3) of the Criminal Code ).

 

Subsection 13.3(3) of the Criminal Code provides that a defendant who wishes to rely on any exception, exemption, excuse, qualification or justification provided by the law creating an offence bears an evidential burden in relation to that matter.  

 

This item also redrafts subsection (2) so that it more accurately identifies the physical elements of circumstance, conduct and result in the offence, to which the default fault elements of recklessness and intention will be applied by the Criminal Code .  This amendment has rephrased the offence to clarify that:

 

·          paragraph 191B(2)(a) is the physical element of circumstance to which the default fault element of recklessness will apply;

·          paragraph 191B(2)(b) is the physical element of conduct to which the default fault element of intention will apply;

·          paragraph 191B(2)(c) is the physical element of result to which the default fault element of recklessness will apply.

 

The amendment has also rephrased the offence to clarify that conceals, removes, alters, defaces, and obliterates are physical elements of result of the defendant’s conduct to which the default fault element of recklessness will apply.

 

The rationale for the amendment is that an accused person does not conceal, remove, alter, deface, or obliterate .  Rather the concealment, removal, alteration, defacing or mutilation is the result of the accused person’ conduct, and are physical elements of result rather than physical elements of conduct .  Using conceal, remove, alter, deface, or obliterate as the active verb in a criminal offence may lead to difficulties in interpreting the offence following application of the Criminal Code .

 

The maximum penalty under this subsection is $5000 or imprisonment for 2 years, or both.

 

Item 27 - At the end of section 206H

 

This item adds a new subsection 206H(3) that provides that strict liability applies to the offence under subsection 206(H)(2).  This amendment does not create a new offence of strict liability.  The existing offence under subsection 206H(2) makes the master and owner of the ship vicariously liable for any contravention of subsection 206H(2).  Vicarious liability is interpreted as giving rise to strict liability and therefore not requiring proof of fault.  The amendment is necessary to maintain the current operation of subsection 206H(2).  Once the Criminal Code applies, in the absence of an express reference to the fact that an offence is a strict liability offence, a court will be required to interpret the offence as a fault offence rather than a strict liability offence.

 

The note to subsection 206H(3) refers to section 6.1 of the Criminal Code .  Section 6.1 provides that if a law that creates an offence provides that the offence is an offence of strict liability:

 

(a)     there are no fault elements for any of the physical elements of the offence; and

(b)    the defence of mistake of fact under section 9.2 is available.

 

This means that the prosecution does not have to prove fault on the part of the defendant.  Fault includes intention if it is with regard to conduct , and recklessness where it is with regard to a circumstance in which conduct occurs or a result of conduct.  The defendant will be able to activate the defence of honest or reasonable mistake of fact if he or she can point to or adduce evidence that he or she made a relevant mistake of fact.  If that occurs, the prosecution bears the onus to prove beyond reasonable doubt that there was no mistake.

 

Significant penalties are required to serve as a deterrent and to ensure that there is an incentive to obey the requirements and standards prescribed and that the incentive outweighs any economic advantage that may present in breaching the offence provisions.

 

The maximum penalty for this subsection is $10,000 or 4 years imprisonment, or both.

 

Item 28 - Subsection 208(1)

 

This item amends subsection 208(1) to omit the phrase unless that person proves that he or she used all reasonable means to ensure the sea worthiness of the ship .  The defence is drafted as a separate subsection at item 29.

 

Item 29 - After subsection 208(1)

 

This item is consequential upon item 28.  New subsection (1A) provides a defence if the defendant proves that he or she used all reasonable means to ensure the seaworthiness of the ship .  The amendment is necessary to ensure that the defence is not mistakenly interpreted to be an element of the offence that must be proved by the prosecution.

 

Subsection (1A) also notes that the defendant bears a legal burden of proof with regard to the matter in subsection (1A).  Criminal Code policy is that the prosecution should prove every element of the offence relevant to the guilt of the person charged (see subsection 13.1(1) of the Criminal Code ).  However, there are some instances where it is appropriate for a defendant to bear a burden of proof, such as where a matter is peculiarly within the knowledge of the defendant.  In those instances, the Criminal Code policy is that the burden should be an evidential burden rather than a legal burden (see subsection 13.3 of the Criminal Code ).  An evidential burden is lighter than a legal burden.  Subsection 13.3(1) of the Criminal Code provides that, subject to section 13.4, a burden of proof that a law imposes on a defendant is an evidential burden only .  An evidential burden is the burden of adducing or pointing to evidence that suggests a reasonable possibility that the matter exists or does not exist (see subsection 13.3(6) of the Criminal Code ), whereas a legal burden is the burden of proving the existence of the matter (see subsection 13.3(3) of the Criminal Code ).

 

Section 13.4 of the Criminal Code outlines the instances that would result in the imposition of a legal burden on the defendant.  A legal burden may be imposed on a defendant if and only if the relevant legislation expressly:

 

·          specifies that the burden of proof is a legal burden;

·          requires the defendant to prove the matter; or

·          creates a presumption that the matter exists unless the contrary is proved.

 

Subsection 208(1) currently requires the defendant to prove that he or she used all reasonable means to ensure the seaworthiness of the ship .  The provision therefore currently places a legal burden of proof in relation to the defence in the subsection.  The amendment at new subsection 208(1A) is necessary to maintain the current operation of subsection (1).

 

Item 30 - Subsection 208(2)

 

This item omits the phrase knowingly takes a ship to sea , and substitutes takes a ship to sea, reckless as to whether the ship is .  Following application of the Criminal Code it will not be possible to apply a fault element of knowledge (that is, knowingly ) to a physical element of conduct (see Part 2.2, Division 5 of the Criminal Code ).

 

Item 31 - After subsection 217(1)

 

This item adds a new subsection 217(1A) that provides that strict liability applies to the offence under subsection 217(1).  This amendment does not create a new offence of strict liability.  The existing offence under subsection 217(1) makes the master and owner of the ship vicariously liable for any contravention of subsection 217(1).  Vicarious liability is interpreted as giving rise to strict liability and therefore not requiring proof of fault.  The amendment is necessary to maintain the current operation of subsection 217(1).  Once the Criminal Code applies, in the absence of an express reference to the fact that an offence is a strict liability offence, a court will be required to interpret the offence as a fault offence rather than a strict liability offence.

 

The note to subsection 217(1A) refers to section 6.1 of the Criminal Code .  Section 6.1 provides that if a law that creates an offence provides that the offence is an offence of strict liability:

 

(a)     there are no fault elements for any of the physical elements of the offence; and

(b)    the defence of mistake of fact under section 9.2 is available.

 

This means that the prosecution does not have to prove fault on the part of the defendant.  Fault includes intention if it is with regard to conduct , and recklessness where it is with regard to a circumstance in which conduct occurs or a result of conduct.  The defendant will be able to activate the defence of honest or reasonable mistake of fact if he or she can point to or adduce evidence that he or she made a relevant mistake of fact.  If that occurs, the prosecution bears the onus to prove beyond reasonable doubt that there was no mistake.

 

Significant penalties are required to serve as a deterrent and to ensure that there is an incentive to obey the requirements and standards prescribed and that the incentive outweighs any economic advantage that may present in breaching the offence provisions.

 

The maximum penalty for this subsection is $10,000 or 4 years imprisonment, or both.

 

Item 32 - At the end of section 217

 

This item adds a new subsection 217(4) that provides that strict liability applies to the offence under subsection 217(3).  This amendment does not create a new offence of strict liability.  The existing offence under subsection 217(3) makes the master and owner of the ship vicariously liable for any contravention of subsection 217(3).  Vicarious liability is interpreted as giving rise to strict liability and therefore not requiring proof of fault.  The amendment is necessary to maintain the current operation of subsection 217(3).  Once the Criminal Code applies, in the absence of an express reference to the fact that an offence is a strict liability offence, a court will be required to interpret the offence as a fault offence rather than a strict liability offence.

 

The note to subsection 217(4) refers to section 6.1 of the Criminal Code .  Section 6.1 provides that if a law that creates an offence provides that the offence is an offence of strict liability:

 

(a)     there are no fault elements for any of the physical elements of the offence; and

(b)    the defence of mistake of fact under section 9.2 is available.

 

This means that the prosecution does not have to prove fault on the part of the defendant.  Fault includes intention if it is with regard to conduct , and recklessness where it is with regard to a circumstance in which conduct occurs or a result of conduct.  The defendant will be able to activate the defence of honest or reasonable mistake of fact if he or she can point to or adduce evidence that he or she made a relevant mistake of fact.  If that occurs, the prosecution bears the onus to prove beyond reasonable doubt that there was no mistake.

 

Significant penalties are required to serve as a deterrent and to ensure that there is an incentive to obey the requirements and standards prescribed and that the incentive outweighs any economic advantage that may present in breaching the offence provisions.

 

The maximum penalty for this subsection is $10,000 or 4 years imprisonment, or both.

 

Item 33 - After subsection 221(1C)

 

This item adds a new subsection 221(1D) that provides that strict liability applies to the offence under subsection 221(1C).  This amendment does not create a new offence of strict liability.  The existing offence under subsection 221(1C) makes the master and owner of the ship vicariously liable for any contravention of subsection 221(1A).  Vicarious liability is interpreted as giving rise to strict liability and therefore not requiring proof of fault.  The amendment is necessary to maintain the current operation of subsection 221(1C).  Once the Criminal Code applies, in the absence of an express reference to the fact that an offence is a strict liability offence, a court will be required to interpret the offence as a fault offence rather than a strict liability offence.

 

The note to subsection 221(1D) refers to section 6.1 of the Criminal Code .  Section 6.1 provides that if a law that creates an offence provides that the offence is an offence of strict liability:

 

(a)     there are no fault elements for any of the physical elements of the offence; and

(b)    the defence of mistake of fact under section 9.2 is available.

 

This means that the prosecution does not have to prove fault on the part of the defendant.  Fault includes intention if it is with regard to conduct , and recklessness where it is with regard to a circumstance in which conduct occurs or a result of conduct.  The defendant will be able to activate the defence of honest or reasonable mistake of fact if he or she can point to or adduce evidence that he or she made a relevant mistake of fact.  If that occurs, the prosecution bears the onus to prove beyond reasonable doubt that there was no mistake.

 

Item 34 - After subsection 221(4)

 

This item adds a new subsection 221(4A) that provides that strict liability applies to the offence under subsection 221(4).  This amendment does not create a new offence of strict liability.  The existing offence under subsection 221(4) makes the master and owner of the ship vicariously liable for any contravention of subsection 221(3).  Vicarious liability is interpreted as giving rise to strict liability and therefore not requiring proof of fault.  The amendment is necessary to maintain the current operation of subsection 221(4).  Once the Criminal Code applies, in the absence of an express reference to the fact that an offence is a strict liability offence, a court will be required to interpret the offence as a fault offence rather than a strict liability offence.

 

The note to subsection 221(4A) refers to section 6.1 of the Criminal Code .  Section 6.1 provides that if a law that creates an offence provides that the offence is an offence of strict liability:

 

(a)     there are no fault elements for any of the physical elements of the offence; and

(b)    the defence of mistake of fact under section 9.2 is available.

 

This means that the prosecution does not have to prove fault on the part of the defendant.  Fault includes intention if it is with regard to conduct , and recklessness where it is with regard to a circumstance in which conduct occurs or a result of conduct.  The defendant will be able to activate the defence of honest or reasonable mistake of fact if he or she can point to or adduce evidence that he or she made a relevant mistake of fact.  If that occurs, the prosecution bears the onus to prove beyond reasonable doubt that there was no mistake.

 

Significant penalties are required to serve as a deterrent and to ensure that there is an incentive to obey the requirements and standards prescribed and that the incentive outweighs any economic advantage that may present in breaching the offence provisions.

 

The maximum penalty for this subsection is $10,000 or 4 years imprisonment, or both.

 

Item 35 - At the end of section 221

 

This item adds a new subsection 221(9) that provides that strict liability applies to the offence under subsection 221(8).  This amendment does not create a new offence of strict liability.  The existing offence under subsection 221(8) makes the master and owner of the ship vicariously liable for any contravention of subsection 221(6).  Vicarious liability is interpreted as giving rise to strict liability and therefore not requiring proof of fault.  The amendment is necessary to maintain the current operation of subsection 221(8).  Once the Criminal Code applies, in the absence of an express reference to the fact that an offence is a strict liability offence, a court will be required to interpret the offence as a fault offence rather than a strict liability offence.

 

The note to subsection 221(9) refers to section 6.1 of the Criminal Code .  Section 6.1 provides that if a law that creates an offence provides that the offence is an offence of strict liability:

 

(a)     there are no fault elements for any of the physical elements of the offence; and

(b)    the defence of mistake of fact under section 9.2 is available.

 

This means that the prosecution does not have to prove fault on the part of the defendant.  Fault includes intention if it is with regard to conduct , and recklessness where it is with regard to a circumstance in which conduct occurs or a result of conduct.  The defendant will be able to activate the defence of honest or reasonable mistake of fact if he or she can point to or adduce evidence that he or she made a relevant mistake of fact.  If that occurs, the prosecution bears the onus to prove beyond reasonable doubt that there was no mistake.

 

Significant penalties are required to serve as a deterrent and to ensure that there is an incentive to obey the requirements and standards prescribed and that the incentive outweighs any economic advantage that may present in breaching the offence provisions.

 

The maximum penalty for this subsection is $10,000 or 4 years imprisonment, or both.

 

Item 36 - Subsection 227B(1)

 

This item omits the defence of lawful authority from subsection 227B(1).   The defence of lawful authority is now included in Chapter 2 of the Criminal Code at section 10.5.  The defence applies to all offence provisions under Commonwealth law, and the specific mention in those provisions is redundant.

 

Item 37 - After subsection 227B(1)

 

This item adds a new subsection 227B(1A) that provides that strict liability applies to the offence under subsection 227B(1).  This amendment does not create a new offence of strict liability.  The existing offence under subsection 227B(1) makes the master and owner of the ship vicariously liable for any contravention of subsection 227B(1).  Vicarious liability is interpreted as giving rise to strict liability and therefore not requiring proof of fault.  The amendment is necessary to maintain the current operation of subsection 227B(1).  Once the Criminal Code applies, in the absence of an express reference to the fact that an offence is a strict liability offence, a court will be required to interpret the offence as a fault offence rather than a strict liability offence.

 

The note to subsection 227B(1A) refers to section 6.1 of the Criminal Code .  Section 6.1 provides that if a law that creates an offence provides that the offence is an offence of strict liability:

 

(a)     there are no fault elements for any of the physical elements of the offence; and

(b)    the defence of mistake of fact under section 9.2 is available.

 

This means that the prosecution does not have to prove fault on the part of the defendant.  Fault includes intention if it is with regard to conduct , and recklessness where it is with regard to a circumstance in which conduct occurs or a result of conduct.  The defendant will be able to activate the defence of honest or reasonable mistake of fact if he or she can point to or adduce evidence that he or she made a relevant mistake of fact.  If that occurs, the prosecution bears the onus to prove beyond reasonable doubt that there was no mistake.

 

Significant penalties are required to serve as a deterrent and to ensure that there is an incentive to obey the requirements and standards prescribed and that the incentive outweighs any economic advantage that may present in breaching the offence provisions.

 

The maximum penalty for this subsection is $8,000.

 

Item 38 - At the end of section 227B

 

This item inserts a note to section 227B that the defendant bears a legal burden of proof with regard to the matter in subsection (3).  Criminal Code policy is that the prosecution should prove every element of the offence relevant to the guilt of the person charged (see subsection 13.1(1) of the Criminal Code ).  However, there are some instances where it is appropriate for a defendant to bear a burden of proof, such as where a matter is peculiarly within the knowledge of the defendant.  In those instances, the Criminal Code policy is that the burden should be an evidential burden rather than a legal burden (see subsection 13.3 of the Criminal Code ).  An evidential burden is lighter than a legal burden.  Subsection 13.3(1) of the Criminal Code provides that, subject to section 13.4, a burden of proof that a law imposes on a defendant is an evidential burden only .  An evidential burden is the burden of adducing or pointing to evidence that suggests a reasonable possibility that the matter exists or does not exist (see subsection 13.3(6) of the Criminal Code ), whereas a legal burden is the burden of proving the existence of the matter (see subsection 13.3(3) of the Criminal Code ).

 

Section 13.4 of the Criminal Code outlines the instances that would result in the imposition of a legal burden on the defendant.  A legal burden may be imposed on a defendant if and only if the relevant legislation expressly:

 

·          specifies that the burden of proof is a legal burden;

·          requires the defendant to prove the matter; or

·          creates a presumption that the matter exists unless the contrary is proved.

 

Subsection 227B(3) currently requires the defendant to prove that the circumstances giving rise to the offence….   The provision therefore currently places a legal burden of proof on the defendant.  The amendment is necessary to maintain the current operation of subsection (3).

 

Item 39 - Subsection 227D(1)

 

This item amends subsection 227D(1) to omit the phrase except with reasonable cause .  The defence is drafted as a separate subsection at item 40.

 

Item 40 - Subsection 227D(2)

 

This item repeals subsection 227D(2) and substitutes a number of new subsections.

 

New subsection (2) provides a defence of reasonable cause and is consequential upon the omission of the words except with reasonable cause from subsection 227D(1) at item 39. The amendment is necessary to ensure that the defence is not mistakenly interpreted to be an element of the offence that must be proved by the prosecution.

 

Subsection (2) also notes that the defendant bears an evidential burden of proof with regard to the matter in subsection (2).  Criminal Code policy is that the prosecution should prove every element of the offence relevant to the guilt of the person charged (see subsection 13.1(1) of the Criminal Code ).  However, there are some instances where it is appropriate for a defendant to bear a burden of proof, such as where a matter is peculiarly within the knowledge of the defendant.  In those instances, the Criminal Code policy is that the burden should be an evidential burden rather than a legal burden (see subsection 13.3 of the Criminal Code ).  An evidential burden is lighter than a legal burden.  Subsection 13.3(1) of the Criminal Code provides that, subject to section 13.4, a burden of proof that a law imposes on a defendant is an evidential burden only .  An evidential burden is the burden of adducing or pointing to evidence that suggests a reasonable possibility that the matter exists or does not exist (see subsection 13.3(6) of the Criminal Code ), whereas a legal burden is the burden of proving the existence of the matter (see subsection 13.3(3) of the Criminal Code ).

 

Subsection 13.3(3) of the Criminal Code provides that a defendant who wishes to rely on any exception, exemption, excuse, qualification or justification provided by the law creating an offence bears an evidential burden in relation to that matter.  

 

This item also adds a new subsection 227D(3) that provides that strict liability applies to the offence under subsection 227D(1).  This amendment does not create a new offence of strict liability.  The existing offence under subsection 227D(1) makes the master and owner of the ship vicariously liable for any contravention of subsection 227D(1).  Vicarious liability is interpreted as giving rise to strict liability and therefore not requiring proof of fault.  The amendment is necessary to maintain the current operation of subsection 227D(1).  Once the Criminal Code applies, in the absence of an express reference to the fact that an offence is a strict liability offence, a court will be required to interpret the offence as a fault offence rather than a strict liability offence.

 

The note to subsection 227D(3) refers to section 6.1 of the Criminal Code .  Section 6.1 provides that if a law that creates an offence provides that the offence is an offence of strict liability:

 

(a)     there are no fault elements for any of the physical elements of the offence; and

(b)    the defence of mistake of fact under section 9.2 is available.

 

This means that the prosecution does not have to prove fault on the part of the defendant.  Fault includes intention if it is with regard to conduct , and recklessness where it is with regard to a circumstance in which conduct occurs or a result of conduct.  The defendant will be able to activate the defence of honest or reasonable mistake of fact if he or she can point to or adduce evidence that he or she made a relevant mistake of fact.  If that occurs, the prosecution bears the onus to prove beyond reasonable doubt that there was no mistake.

 

New subsection (4) redrafts subsection (2) so that it more accurately identifies the physical elements of circumstance, conduct and result in the offence, to which the default fault elements of recklessness and intention will be applied by the Criminal Code .  This amendment has rephrased the offence to clarify that:

 

·          paragraph 227D(4)(a) is the physical element of circumstance to which the default fault element of recklessness will apply;

·          paragraph 227D(4)(b) is the physical element of conduct to which the default fault element of intention will apply;

·          paragraph 227D(4)(c) is the physical element of result to which the default fault element of recklessness will apply.

 

The amendment has also rephrased the offence to clarify that conceals, removes, alters, defaces, and obliterates are physical elements of result of the defendant’s conduct to which the default fault element of recklessness will apply.

 

The rationale for the amendment is that an accused person does not conceal, remove, alter, deface, or obliterate .  Rather the concealment, removal, alteration, defacing or mutilation is the result of the accused person’ conduct, and are physical elements of result rather than physical elements of conduct .  Using conceal, remove, alter, deface, or obliterate as the active verb in a criminal offence may lead to difficulties in interpreting the offence following application of the Criminal Code .

 

The maximum penalty under this subsection is $5000 or imprisonment for 2 years or both.

 

Item 41 - Subsections 253(1) and (2)

 

This item omits the term knowingly .  Following application of the Criminal Code it will not be possible to apply a fault element of knowledge (that is, knowingly ) to a physical element of conduct (see Part 2.2, Division 5 of the Criminal Code ).  The fault element of knowledge can only be applied to the physical element of circumstance or result.   The fault element of intention will now apply to the proscribed conduct.

 

Item 42 - Subsection 264(2)

 

This item amends subsection 264(2) to omit the phrase without reasonable cause .  The defence is drafted as a separate subsection at item 43.

 

Item 43 - After subsection 264(2)

 

This item is consequential upon the omission of the words without reasonable cause from subsection 264(2) at item 42.  The defence is drafted as a new subsection (2A).  This amendment is necessary to ensure that the defence is not mistakenly interpreted to be an element of the offence that must be proved by the prosecution.

 

This item also notes that the defendant bears an evidential burden of proof with regard to the matter in subsection (2A).  Criminal Code policy is that the prosecution should prove every element of the offence relevant to the guilt of the person charged (see subsection 13.1(1) of the Criminal Code ).  However, there are some instances where it is appropriate for a defendant to bear a burden of proof, such as where a matter is peculiarly within the knowledge of the defendant.  In those instances, the Criminal Code policy is that the burden should be an evidential burden rather than a legal burden (see subsection 13.3 of the Criminal Code ).  An evidential burden is lighter than a legal burden.  Subsection 13.3(1) of the Criminal Code provides that, subject to section 13.4, a burden of proof that a law imposes on a defendant is an evidential burden only .  An evidential burden is the burden of adducing or pointing to evidence that suggests a reasonable possibility that the matter exists or does not exist (see subsection 13.3(6) of the Criminal Code ), whereas a legal burden is the burden of proving the existence of the matter (see subsection 13.3(3) of the Criminal Code ).

 

Subsection 13.3(3) of the Criminal Code provides that a defendant who wishes to rely on any exception, exemption, excuse, qualification or justification provided by the law creating an offence bears an evidential burden in relation to that matter.  

 

Item 44 - Subsection 265(1)

 

This item amends subsection 265(1) to omit the phrase unless he or she is unable to do so or, in the special circumstances of the case, considers it unreasonable or unnecessary to do so .  The defence is drafted as a separate subsection at item 45.

 

Item 45 - After subsection 265(1)

 

This item is consequential upon the omission of the words unless he or she is unable to do so or, in the special circumstances of the case, considers it unreasonable or unnecessary to do so from subsection 265(1) at item 44.  The defence is drafted as a new subsection (1A).  This amendment is necessary to ensure that the defence is not mistakenly interpreted to be an element of the offence that must be proved by the prosecution.

 

This item also notes that the defendant bears an evidential burden of proof with regard to the matter in subsection (1A).  Criminal Code policy is that the prosecution should prove every element of the offence relevant to the guilt of the person charged (see subsection 13.1(1) of the Criminal Code ).  However, there are some instances where it is appropriate for a defendant to bear a burden of proof, such as where a matter is peculiarly within the knowledge of the defendant.  In those instances, the Criminal Code policy is that the burden should be an evidential burden rather than a legal burden (see subsection 13.3 of the Criminal Code ).  An evidential burden is lighter than a legal burden.  Subsection 13.3(1) of the Criminal Code provides that, subject to section 13.4, a burden of proof that a law imposes on a defendant is an evidential burden only .  An evidential burden is the burden of adducing or pointing to evidence that suggests a reasonable possibility that the matter exists or does not exist (see subsection 13.3(6) of the Criminal Code ), whereas a legal burden is the burden of proving the existence of the matter (see subsection 13.3(3) of the Criminal Code ).

 

Subsection 13.3(3) of the Criminal Code provides that a defendant who wishes to rely on any exception, exemption, excuse, qualification or justification provided by the law creating an offence bears an evidential burden in relation to that matter.  

 

Item 46 - After subsection 267D(2)

 

This item adds a new subsection 267D(3) that provides that strict liability applies to an offence under subsections 267D(1) and (2).  This amendment does not create a new offence of strict liability.  The existing offences under subsections 267D(1) and (2) make the master and owner of the ship vicariously liable for any contravention of subsections 267D(1) and (2).  Vicarious liability is interpreted as giving rise to strict liability and therefore not requiring proof of fault.  The amendment is necessary to maintain the current operation of subsections 267D(1) and (2).  Once the Criminal Code applies, in the absence of an express reference to the fact that an offence is a strict liability offence, a court will be required to interpret the offence as a fault offence rather than a strict liability offence.

 

The note to subsection 267D(3) refers to section 6.1 of the Criminal Code .  Section 6.1 provides that if a law that creates an offence provides that the offence is an offence of strict liability:

 

(a)     there are no fault elements for any of the physical elements of the offence; and

(b)    the defence of mistake of fact under section 9.2 is available.

 

This means that the prosecution does not have to prove fault on the part of the defendant.  Fault includes intention if it is with regard to conduct , and recklessness where it is with regard to a circumstance in which conduct occurs or a result of conduct.  The defendant will be able to activate the defence of honest or reasonable mistake of fact if he or she can point to or adduce evidence that he or she made a relevant mistake of fact.  If that occurs, the prosecution bears the onus to prove beyond reasonable doubt that there was no mistake.

 

Item 47 - At the end of section 267E

 

This item adds a new subsection 267E(3) that provides that strict liability applies to the offence under subsection 267E(2).  This amendment does not create a new offence of strict liability.  The use of the term fails in the existing offence under subsection 267E(2) is interpreted as strict liability and therefore not requiring proof of fault.  The amendment is necessary to maintain the current operation of subsection 267E(2).  Once the Criminal Code applies, in the absence of an express reference to the fact that an offence is a strict liability offence, a court will be required to interpret the offence as a fault offence rather than a strict liability offence.

 

The note to subsection 267E(3) refers to section 6.1 of the Criminal Code .  Section 6.1 provides that if a law that creates an offence provides that the offence is an offence of strict liability:

 

(a)     there are no fault elements for any of the physical elements of the offence; and

(b)    the defence of mistake of fact under section 9.2 is available.

 

This means that the prosecution does not have to prove fault on the part of the defendant.  Fault includes intention if it is with regard to conduct , and recklessness where it is with regard to a circumstance in which conduct occurs or a result of conduct.  The defendant will be able to activate the defence of honest or reasonable mistake of fact if he or she can point to or adduce evidence that he or she made a relevant mistake of fact.  If that occurs, the prosecution bears the onus to prove beyond reasonable doubt that there was no mistake.

 

Item 48 - After subsection 267K(4)

 

This item adds a new subsection 267K(4A) that provides that strict liability applies to an offence under subsection 267K(4).  This amendment does not create a new offence of strict liability.  The existing offence under subsection 267K(4) makes the master and owner of the ship vicariously liable for any contravention of subsection 267K(4).  Vicarious liability is interpreted as giving rise to strict liability and therefore not requiring proof of fault.  The amendment is necessary to maintain the current operation of subsection 267K(4).  Once the Criminal Code applies, in the absence of an express reference to the fact that an offence is a strict liability offence, a court will be required to interpret the offence as a fault offence rather than a strict liability offence.

 

The note to subsection 267K(4) refers to section 6.1 of the Criminal Code .  Section 6.1 provides that if a law that creates an offence provides that the offence is an offence of strict liability:

 

(a)     there are no fault elements for any of the physical elements of the offence; and

(b)    the defence of mistake of fact under section 9.2 is available.

 

This means that the prosecution does not have to prove fault on the part of the defendant.  Fault includes intention if it is with regard to conduct , and recklessness where it is with regard to a circumstance in which conduct occurs or a result of conduct.  The defendant will be able to activate the defence of honest or reasonable mistake of fact if he or she can point to or adduce evidence that he or she made a relevant mistake of fact.  If that occurs, the prosecution bears the onus to prove beyond reasonable doubt that there was no mistake.

 

Significant penalties are required to serve as a deterrent and to ensure that there is an incentive to obey the requirements and standards prescribed and that the incentive outweighs any economic advantage that may present in breaching the offence provisions.

 

The maximum penalty for this subsection is $10,000.

 



Item 49 - After subsection 267S(2)

 

This item adds a new subsection 267S(3) that provides that strict liability applies to an offence under subsection 267S(1) or (2).  This amendment does not create a new offence of strict liability.  The existing offences under subsections 267S(1) and (2) make the master and owner of the ship vicariously liable for any contravention of subsections 267S(1) and (2).  Vicarious liability is interpreted as giving rise to strict liability and therefore not requiring proof of fault.  The amendment is necessary to maintain the current operation of subsections 267S(1) and (2).  Once the Criminal Code applies, in the absence of an express reference to the fact that an offence is a strict liability offence, a court will be required to interpret the offence as a fault offence rather than a strict liability offence.

 

The note to subsection 267S(3) refers to section 6.1 of the Criminal Code .  Section 6.1 provides that if a law that creates an offence provides that the offence is an offence of strict liability:

 

(a)     there are no fault elements for any of the physical elements of the offence; and

(b)    the defence of mistake of fact under section 9.2 is available.

 

This means that the prosecution does not have to prove fault on the part of the defendant.  Fault includes intention if it is with regard to conduct , and recklessness where it is with regard to a circumstance in which conduct occurs or a result of conduct.  The defendant will be able to activate the defence of honest or reasonable mistake of fact if he or she can point to or adduce evidence that he or she made a relevant mistake of fact.  If that occurs, the prosecution bears the onus to prove beyond reasonable doubt that there was no mistake.

 

Item 50 - At the end of section 267T

 

This item adds a new subsection 267T(3) that provides that strict liability applies to the offence under subsection 267T(2).  This amendment does not create a new offence of strict liability.  The use of the term fails in the existing offence under subsection 267T(2) is interpreted as strict liability and therefore not requiring proof of fault.  The amendment is necessary to maintain the current operation of subsection 267T(2).  Once the Criminal Code applies, in the absence of an express reference to the fact that an offence is a strict liability offence, a court will be required to interpret the offence as a fault offence rather than a strict liability offence.

 

The note to subsection 267T(3) refers to section 6.1 of the Criminal Code .  Section 6.1 provides that if a law that creates an offence provides that the offence is an offence of strict liability:

 

(a)     there are no fault elements for any of the physical elements of the offence; and

(b)    the defence of mistake of fact under section 9.2 is available.

 

This means that the prosecution does not have to prove fault on the part of the defendant.  Fault includes intention if it is with regard to conduct , and recklessness where it is with regard to a circumstance in which conduct occurs or a result of conduct.  The defendant will be able to activate the defence of honest or reasonable mistake of fact if he or she can point to or adduce evidence that he or she made a relevant mistake of fact.  If that occurs, the prosecution bears the onus to prove beyond reasonable doubt that there was no mistake.

 

Item 51 - After subsection 267Y(4)

 

This item adds a new subsection 267Y(4A) that provides that strict liability applies to an offence under subsection 267Y(4).  This amendment does not create a new offence of strict liability.  The existing offence under subsection 267Y(4) makes the master and owner of the ship vicariously liable for any contravention of subsections 267Y(4).  Vicarious liability is interpreted as giving rise to strict liability and therefore not requiring proof of fault.  The amendment is necessary to maintain the current operation of subsections 267Y(4).  Once the Criminal Code applies, in the absence of an express reference to the fact that an offence is a strict liability offence, a court will be required to interpret the offence as a fault offence rather than a strict liability offence.

 

The note to subsection 267Y(4A) refers to section 6.1 of the Criminal Code .  Section 6.1 provides that if a law that creates an offence provides that the offence is an offence of strict liability:

 

(a)     there are no fault elements for any of the physical elements of the offence; and

(b)    the defence of mistake of fact under section 9.2 is available.

 

This means that the prosecution does not have to prove fault on the part of the defendant.  Fault includes intention if it is with regard to conduct , and recklessness where it is with regard to a circumstance in which conduct occurs or a result of conduct.  The defendant will be able to activate the defence of honest or reasonable mistake of fact if he or she can point to or adduce evidence that he or she made a relevant mistake of fact.  If that occurs, the prosecution bears the onus to prove beyond reasonable doubt that there was no mistake.

 

Significant penalties are required to serve as a deterrent and to ensure that there is an incentive to obey the requirements and standards prescribed and that the incentive outweighs any economic advantage that may present in breaching the offence provisions.

 

The maximum penalty for this subsection is $10,000.

 

Item 52 - After subsection 267ZJ(2)

 

This item adds a new subsection 267ZJ(2A) that provides that strict liability applies to an offence under subsections 267ZJ(1) or (2).  This amendment does not create new offences of strict liability.  The existing offences under subsections 267ZJ(1) and (2) make the master and owner of the ship vicariously liable for any contravention of subsections 267ZJ(1) and (2).  Vicarious liability is interpreted as giving rise to strict liability and therefore not requiring proof of fault.  The amendment is necessary to maintain the current operation of subsections 267ZJ(1) and (2).  Once the Criminal Code applies, in the absence of an express reference to the fact that an offence is a strict liability offence, a court will be required to interpret the offence as a fault offence rather than a strict liability offence.

 

The note to subsection 267ZJ(2A) refers to section 6.1 of the Criminal Code .  Section 6.1 provides that if a law that creates an offence provides that the offence is an offence of strict liability:

 

(a)     there are no fault elements for any of the physical elements of the offence; and

(b)    the defence of mistake of fact under section 9.2 is available.

 

This means that the prosecution does not have to prove fault on the part of the defendant.  Fault includes intention if it is with regard to conduct , and recklessness where it is with regard to a circumstance in which conduct occurs or a result of conduct.  The defendant will be able to activate the defence of honest or reasonable mistake of fact if he or she can point to or adduce evidence that he or she made a relevant mistake of fact.  If that occurs, the prosecution bears the onus to prove beyond reasonable doubt that there was no mistake.

 

Item 53 - At the end of section 267ZK

 

This item adds a new subsection 267ZK(3) that provides that strict liability applies to the offence under subsection 267ZK(2).  This amendment does not create a new offence of strict liability.  The use of the term fails in the existing offence under subsection 267ZK(2) is interpreted as strict liability and therefore not requiring proof of fault.  The amendment is necessary to maintain the current operation of subsection 267ZK(2).  Once the Criminal Code applies, in the absence of an express reference to the fact that an offence is a strict liability offence, a court will be required to interpret the offence as a fault offence rather than a strict liability offence.

 

The note to subsection 267ZK(3) refers to section 6.1 of the Criminal Code .  Section 6.1 provides that if a law that creates an offence provides that the offence is an offence of strict liability:

 

(a)     there are no fault elements for any of the physical elements of the offence; and

(b)    the defence of mistake of fact under section 9.2 is available.

 

This means that the prosecution does not have to prove fault on the part of the defendant.  Fault includes intention if it is with regard to conduct , and recklessness where it is with regard to a circumstance in which conduct occurs or a result of conduct.  The defendant will be able to activate the defence of honest or reasonable mistake of fact if he or she can point to or adduce evidence that he or she made a relevant mistake of fact.  If that occurs, the prosecution bears the onus to prove beyond reasonable doubt that there was no mistake.

 

Item 54 - After subsection 267ZQ(4)

 

This item adds a new subsection 267ZQ(4A) that provides that strict liability applies to an offence under subsection 267ZQ(4).  This amendment does not create a new offence of strict liability.  The existing offence under subsection 267ZQ(4) makes the master and owner of the ship vicariously liable for any contravention of subsection 267ZQ(4).  Vicarious liability is interpreted as giving rise to strict liability and therefore not requiring proof of fault.  The amendment is necessary to maintain the current operation of subsections 267ZQ(4).  Once the Criminal Code applies, in the absence of an express reference to the fact that an offence is a strict liability offence, a court will be required to interpret the offence as a fault offence rather than a strict liability offence.

 

The note to subsection 267ZQ(4A) refers to section 6.1 of the Criminal Code .  Section 6.1 provides that if a law that creates an offence provides that the offence is an offence of strict liability:

 

(a)     there are no fault elements for any of the physical elements of the offence; and

(b)    the defence of mistake of fact under section 9.2 is available.

 

This means that the prosecution does not have to prove fault on the part of the defendant.  Fault includes intention if it is with regard to conduct , and recklessness where it is with regard to a circumstance in which conduct occurs or a result of conduct.  The defendant will be able to activate the defence of honest or reasonable mistake of fact if he or she can point to or adduce evidence that he or she made a relevant mistake of fact.  If that occurs, the prosecution bears the onus to prove beyond reasonable doubt that there was no mistake.

 

Item 55 - After subsection 269N(1)

 

This item adds a new subsection 269N(1A) that provides that strict liability applies to an offence under subsection 269N(1).  This amendment does not create a new offence of strict liability.  The existing offence under subsection 269N(1) makes the master and owner of the ship vicariously liable for any contravention of subsection 269N(1).  Vicarious liability is interpreted as giving rise to strict liability and therefore not requiring proof of fault.  The amendment is necessary to maintain the current operation of subsections 269N(1).  Once the Criminal Code applies, in the absence of an express reference to the fact that an offence is a strict liability offence, a court will be required to interpret the offence as a fault offence rather than a strict liability offence.

 

The note to subsection 269N(1A) refers to section 6.1 of the Criminal Code .  Section 6.1 provides that if a law that creates an offence provides that the offence is an offence of strict liability:

 

(a)     there are no fault elements for any of the physical elements of the offence; and

(b)    the defence of mistake of fact under section 9.2 is available.

 

This means that the prosecution does not have to prove fault on the part of the defendant.  Fault includes intention if it is with regard to conduct , and recklessness where it is with regard to a circumstance in which conduct occurs or a result of conduct.  The defendant will be able to activate the defence of honest or reasonable mistake of fact if he or she can point to or adduce evidence that he or she made a relevant mistake of fact.  If that occurs, the prosecution bears the onus to prove beyond reasonable doubt that there was no mistake.

 

Item 56 - At the end of section 269N

 

This item inserts a note to subsection 269N(2) that the defendant bears a legal burden of proof with regard to the matter in subsection (2).  Criminal Code policy is that the prosecution should prove every element of the offence relevant to the guilt of the person charged (see subsection 13.1(1) of the Criminal Code ).  However, there are some instances where it is appropriate for a defendant to bear a burden of proof, such as where a matter is peculiarly within the knowledge of the defendant.  In those instances, the Criminal Code policy is that the burden should be an evidential burden rather than a legal burden (see subsection 13.3 of the Criminal Code ).  An evidential burden is lighter than a legal burden.  Subsection 13.3(1) of the Criminal Code provides that, subject to section 13.4, a burden of proof that a law imposes on a defendant is an evidential burden only .  An evidential burden is the burden of adducing or pointing to evidence that suggests a reasonable possibility that the matter exists or does not exist (see subsection 13.3(6) of the Criminal Code ), whereas a legal burden is the burden of proving the existence of the matter (see subsection 13.3(3) of the Criminal Code ).

 

Section 13.4 of the Criminal Code outlines the instances that would result in the imposition of a legal burden on the defendant.  A legal burden may be imposed on a defendant if and only if the relevant legislation expressly:

 

·          specifies that the burden of proof is a legal burden;

·          requires the defendant to prove the matter; or

·          creates a presumption that the matter exists unless the contrary is proved.

 

Subsection 269N(2) currently requires the defendant to prove that it was not possible for the aster of the ship concerned to comply with, or not to contravene, the provision or conditions to which the charge relates.   The provision therefore currently places a legal burden of proof on the defendant.  The amendment is necessary to maintain the current operation of subsection (2).

 

Item 57 - Section 275

 

This item repeals the existing section 275 and substitutes a new subsection 275(1) that more accurately identify the physical elements of conduct and result in the offence, to which the default fault elements of intention and recklessness will be applied by the Criminal Code.

 

This item also places the defence in a new subsection 275(2).  This amendment is necessary to ensure that the defence is not mistakenly interpreted to be an element of the offence that must be proved by the prosecution.

 

This item also notes that the defendant bears an evidential burden of proof with regard to the matter in subsection (2).  Criminal Code policy is that the prosecution should prove every element of the offence relevant to the guilt of the person charged (see subsection 13.1(1) of the Criminal Code ).  However, there are some instances where it is appropriate for a defendant to bear a burden of proof, such as where a matter is peculiarly within the knowledge of the defendant.  In those instances, the Criminal Code policy is that the burden should be an evidential burden rather than a legal burden (see subsection 13.3 of the Criminal Code ).  An evidential burden is lighter than a legal burden.  Subsection 13.3(1) of the Criminal Code provides that, subject to section 13.4, a burden of proof that a law imposes on a defendant is an evidential burden only .  An evidential burden is the burden of adducing or pointing to evidence that suggests a reasonable possibility that the matter exists or does not exist (see subsection 13.3(6) of the Criminal Code ), whereas a legal burden is the burden of proving the existence of the matter (see subsection 13.3(3) of the Criminal Code ).

 

Subsection 13.3(3) of the Criminal Code provides that a defendant who wishes to rely on any exception, exemption, excuse, qualification or justification provided by the law creating an offence bears an evidential burden in relation to that matter.

 

Item 58 - Subsection 278(1)

 

This item replaces subsection 278(1) with a provision that more accurately identifies the physical elements of conduct and result to which the default fault elements of intention and recklessness , will be applied by the Criminal Code .  In so doing, this item also omits the term wilfully from subsection (1).  The use of the word wilfully in relation to the physical element of conduct, is akin to the use of the word intentionally .  The fault element of intention is the equivalent used in the Criminal Code .  The omission of the tem wilfully ensures that future courts do not attempt to distinguish wilfulness from intention on the basis that it appears to differ from the Criminal Code fault element.

 

The maximum penalty for this subsection is $1,000.

 

Item 59 - Subsection 278(3) (penalty)

 

This item repeals the penalty created by a contravention of subsection (3).  The penalty is attached to a new subsection (4) at item 60.

 

Item 60 - At the end of section 278

 

This item adds a new subsection (4) that more accurately identifies the physical elements of circumstance, conduct and result in the offence arising from subsection (3), to which the default fault elements of recklessness and intention will be applied by the Criminal Code .

 

This amendment has rephrased the offence to clarify that:

 

·          paragraph 278(4)(a) is the physical element of circumstance to which the default fault element of recklessness will apply;

·          paragraph 278(4)(b) is the physical element of conduct to which the default fault element of intention will apply;

·          paragraph 278(4)(c) is the physical element of result to which the default fault element of recklessness will apply.

 

The maximum penalty under this subsection is $500.

 

Item 61 - Paragraph 282(1)(d)

 

This item omits the term knowingly .  Following application of the Criminal Code it will not be possible to apply a fault element of knowledge (that is, knowingly ) to a physical element of conduct (see Part 2.2, Division 5 of the Criminal Code ).  The fault element of knowledge can only be applied to the physical element of circumstance or result. The fault element of intention will now apply to the proscribed conduct.

 

Item 62 - Paragraph 282(1)(e)

 

This item omits the term knowingly and wilfully .  Following application of the Criminal Code it will not be possible to apply a fault element of knowledge (that is, knowingly ) to a physical element of conduct (see Part 2.2, Division 5 of the Criminal Code ).  The fault element of knowledge can only be applied to the physical element of circumstance or result.

 

The use of the word wilfully in relation to the physical element of conduct , is akin to the use of intentionally .  The fault element of intention is the equivalent used in the Criminal Code .  The omission of the term wilfully ensures that future courts do not attempt to distinguish wilfulness from intention on the basis that it appears to differ from the Criminal Code fault element. The fault element of intention will now apply to the proscribed conduct.



Item 63 - At the end of section 283F

 

This item adds a new subsection 283F(4) that provides that strict liability applies to an offence under subsection 283F(3).  This amendment does not create a new offence of strict liability.  The existing offence under subsection 283F(3) makes the master and owner of the ship vicariously liable for any contravention of subsection 283F(3).  Vicarious liability is interpreted as giving rise to strict liability and therefore not requiring proof of fault.  The amendment is necessary to maintain the current operation of subsections 283F(3).  Once the Criminal Code applies, in the absence of an express reference to the fact that an offence is a strict liability offence, a court will be required to interpret the offence as a fault offence rather than a strict liability offence.

 

The note to subsection 283F(4) refers to section 6.1 of the Criminal Code .  Section 6.1 provides that if a law that creates an offence provides that the offence is an offence of strict liability:

 

(a)     there are no fault elements for any of the physical elements of the offence; and

(b)    the defence of mistake of fact under section 9.2 is available.

 

This means that the prosecution does not have to prove fault on the part of the defendant.  Fault includes intention if it is with regard to conduct , and recklessness where it is with regard to a circumstance in which conduct occurs or a result of conduct.  The defendant will be able to activate the defence of honest or reasonable mistake of fact if he or she can point to or adduce evidence that he or she made a relevant mistake of fact.  If that occurs, the prosecution bears the onus to prove beyond reasonable doubt that there was no mistake.

 

Item 64 - At the end of section 283G

 

This item adds a new subsection 283G(5) that provides that strict liability applies to an offence under subsection 283G(4).  This amendment does not create a new offence of strict liability.  The existing offence under subsection 283G(4) makes the master and owner of the ship vicariously liable for any contravention of subsection 283G(4).  Vicarious liability is interpreted as giving rise to strict liability and therefore not requiring proof of fault.  The amendment is necessary to maintain the current operation of subsections 283G(4).  Once the Criminal Code applies, in the absence of an express reference to the fact that an offence is a strict liability offence, a court will be required to interpret the offence as a fault offence rather than a strict liability offence.

 

The note to subsection 283G(5) refers to section 6.1 of the Criminal Code .  Section 6.1 provides that if a law that creates an offence provides that the offence is an offence of strict liability:

 

(a)     there are no fault elements for any of the physical elements of the offence; and

(b)    the defence of mistake of fact under section 9.2 is available.

 

This means that the prosecution does not have to prove fault on the part of the defendant.  Fault includes intention if it is with regard to conduct , and recklessness where it is with regard to a circumstance in which conduct occurs or a result of conduct.  The defendant will be able to activate the defence of honest or reasonable mistake of fact if he or she can point to or adduce evidence that he or she made a relevant mistake of fact.  If that occurs, the prosecution bears the onus to prove beyond reasonable doubt that there was no mistake.

 

Item 65 - Subsection 287(1)

 

This item replaces subsection (1) with a provision that more accurately identifies the physical elements of circumstance, conduct and result in the offence, to which the default fault elements of recklessness and intention will be applied by the Criminal Code .

 

This amendment has rephrased the offence to clarify that:

 

·          paragraph 287(1)(a) is the physical element of conduct to which the default fault element of intention will apply;

·          paragraph 287(1)(b) is the physical element of circumstance to which the default fault element of recklessness will apply;

·          paragraph 287(1)(c) is the physical element of result to which the default fault element of recklessness will apply.

 

The maximum penalty under this subsection is $5000.

 

This item also adds a new subsection 287(1A) that provides that strict liability applies to an offence under subsection 287(1).  This amendment does not create a new offence of strict liability.  The existing offence under subsection 287(1) makes the master, owner and agent of the ship vicariously liable for any contravention of subsection 287(1).  Vicarious liability is interpreted as giving rise to strict liability and therefore not requiring proof of fault.  The amendment is necessary to maintain the current operation of subsections 287(1).  Once the Criminal Code applies, in the absence of an express reference to the fact that an offence is a strict liability offence, a court will be required to interpret the offence as a fault offence rather than a strict liability offence.

 

The note to subsection 287(1A) refers to section 6.1 of the Criminal Code .  Section 6.1 provides that if a law that creates an offence provides that the offence is an offence of strict liability:

 

(a)     there are no fault elements for any of the physical elements of the offence; and

(b)    the defence of mistake of fact under section 9.2 is available.

 

This means that the prosecution does not have to prove fault on the part of the defendant.  Fault includes intention if it is with regard to conduct , and recklessness where it is with regard to a circumstance in which conduct occurs or a result of conduct.  The defendant will be able to activate the defence of honest or reasonable mistake of fact if he or she can point to or adduce evidence that he or she made a relevant mistake of fact.  If that occurs, the prosecution bears the onus to prove beyond reasonable doubt that there was no mistake.

 

Item 66 - At the end of section 288

 

This item adds a new subsection 288(8) that provides that strict liability applies to an offence under subsections 288(1) or (4).  This amendment does not create a new offence of strict liability.  The existing offence under subsection 288(1) makes the master, owner and agent of the ship vicariously liable for any contravention of subsection 288(1).  The existing offence under subsection 288(4) makes the owner of the ship vicariously liable for any contravention of subsection 288(4).  Vicarious liability is interpreted as giving rise to strict liability and therefore not requiring proof of fault.  The amendment is necessary to maintain the current operation of subsections 288(1) and (4).  Once the Criminal Code applies, in the absence of an express reference to the fact that an offence is a strict liability offence, a court will be required to interpret the offence as a fault offence rather than a strict liability offence.

 

The note to subsection 288(8) refers to section 6.1 of the Criminal Code .  Section 6.1 provides that if a law that creates an offence provides that the offence is an offence of strict liability:

 

(a)     there are no fault elements for any of the physical elements of the offence; and

(b)    the defence of mistake of fact under section 9.2 is available.

 

This means that the prosecution does not have to prove fault on the part of the defendant.  Fault includes intention if it is with regard to conduct , and recklessness where it is with regard to a circumstance in which conduct occurs or a result of conduct.  The defendant will be able to activate the defence of honest or reasonable mistake of fact if he or she can point to or adduce evidence that he or she made a relevant mistake of fact.  If that occurs, the prosecution bears the onus to prove beyond reasonable doubt that there was no mistake.

 

Item 67 - Section 293

 

This item omits the phrase by or in respect of the ship, and shall be liable to any pecuniary penalty provided by this Act for any breach or contravention of this Part because they are superfluous to the operation of the offence provisions in the Part VI of the Act.   

 

Item 68 - Subsection 296(2)

 

This item also omits the term wilfully from subsection (2).  The use of the word wilfully in relation to the physical element of conduct, is akin to the use of the word intentionally .  The fault element of intention is the equivalent used in the Criminal Code .  The omission of the tem wilfully ensures that future courts do not attempt to distinguish wilfulness from intention on the basis that it appears to differ from the Criminal Code fault element.

 

Item 69 - Subsection 297(2)

 

This item amends subsection 297(2) to omit the phrase without reasonable cause .  The defence is drafted as a separate subsection at item 70.

 

Item 70 - At the end of section 297

 

This item is consequential upon the omission of the phrase without reasonable cause from subsection 297(2) at item 69.  The defence is drafted as a new subsection (3).  This amendment is necessary to ensure that the defence is not mistakenly interpreted to be an element of the offence that must be proved by the prosecution.

 

This item also notes that the defendant bears an evidential burden of proof with regard to the matter in subsection (3).  Criminal Code policy is that the prosecution should prove every element of the offence relevant to the guilt of the person charged (see subsection 13.1(1) of the Criminal Code ).  However, there are some instances where it is appropriate for a defendant to bear a burden of proof, such as where a matter is peculiarly within the knowledge of the defendant.  In those instances, the Criminal Code policy is that the burden should be an evidential burden rather than a legal burden (see subsection 13.3 of the Criminal Code ).  An evidential burden is lighter than a legal burden.  Subsection 13.3(1) of the Criminal Code provides that, subject to section 13.4, a burden of proof that a law imposes on a defendant is an evidential burden only .  An evidential burden is the burden of adducing or pointing to evidence that suggests a reasonable possibility that the matter exists or does not exist (see subsection 13.3(6) of the Criminal Code ), whereas a legal burden is the burden of proving the existence of the matter (see subsection 13.3(3) of the Criminal Code ).

 

Subsection 13.3(3) of the Criminal Code provides that a defendant who wishes to rely on any exception, exemption, excuse, qualification or justification provided by the law creating an offence bears an evidential burden in relation to that matter.  

 

Item 71 - Subsection 298(3)

 

This item replaces subsection (3) with a provision that more accurately identifies the physical elements of conduct and result in the offence, to which the default fault elements of intention and recklessness will be applied by the Criminal Code .  The amendment has rephrased the offence to clarify that impeding and prevention is a physical element of result of the defendant’s conduct to which the default fault element of recklessness will apply.

 

The rationale for the amendment is that an accused person does not impede or prevent .  Rather the impeding or prevention is the result of the accused person’s conduct, and is a physical element of result rather than a physical element of conduct .  Using impede or prevent as the active verb in a criminal offence may lead to difficulties in interpreting the offence following application of the Criminal Code .

 

The maximum penalty under this subsection is $500.

 

Item 72 - Subsection 313(1)

 

This item amends subsection 313(1) to omit the words without the leave of the master or the authority of this or any Act .  The defence is drafted as a separate subsection at item 73.

 

Item 73 - After subsection 313(1)

 

This item is consequential upon the omission of the words without the leave of the master or the authority of this or any Act from subsection 313(1) at item 72.  The defence is drafted as a new subsection (1A).  This amendment is necessary to ensure that the defence is not mistakenly interpreted to be an element of the offence that must be proved by the prosecution.  The defence does not include the reference to the authority of this or any other Act because the defence of lawful authority is now included in Chapter 2 of the Criminal Code at section 10.5.  The defence applies to all offence provisions under Commonwealth law, and the specific mention in those provisions is redundant.

 

This item also notes that the defendant bears an evidential burden of proof with regard to the matter in subsection (1A).  Criminal Code policy is that the prosecution should prove every element of the offence relevant to the guilt of the person charged (see subsection 13.1(1) of the Criminal Code ).  However, there are some instances where it is appropriate for a defendant to bear a burden of proof, such as where a matter is peculiarly within the knowledge of the defendant.  In those instances, the Criminal Code policy is that the burden should be an evidential burden rather than a legal burden (see subsection 13.3 of the Criminal Code ).  An evidential burden is lighter than a legal burden.  Subsection 13.3(1) of the Criminal Code provides that, subject to section 13.4, a burden of proof that a law imposes on a defendant is an evidential burden only .  An evidential burden is the burden of adducing or pointing to evidence that suggests a reasonable possibility that the matter exists or does not exist (see subsection 13.3(6) of the Criminal Code ), whereas a legal burden is the burden of proving the existence of the matter (see subsection 13.3(3) of the Criminal Code ).

 

Subsection 13.3(3) of the Criminal Code provides that a defendant who wishes to rely on any exception, exemption, excuse, qualification or justification provided by the law creating an offence bears an evidential burden in relation to that matter.  

 

Item 74 - Section 314

 

This item replaces section 314 with a provision that more accurately identifies the physical elements of conduct and result in the offence, to which the default fault elements of intention and recklessness will be applied by the Criminal Code .

 

The amendment has rephrased the offence to clarify that impeding, secreting and removal are physical elements of result of the defendant’s conduct to which the default fault element of recklessness will apply.

 

The rationale for the amendment is that an accused person does not impede, secrete or remove .  Rather the impeding , secreting or removal is the result of the accused person’ conduct, and are physical elements of result rather than physical elements of conduct .  Using impede, secrete or remove as the active verb in a criminal offence may lead to difficulties in interpreting the offence following application of the Criminal Code .

 

The maximum penalty under this subsection is $2000.

 

Item 75 - After subsection 386B(1)

 

This item adds a new subsection 386B(1A) that provides that strict liability applies to the offence under subsection 386B(1).  This amendment does not create a new offence of strict liability.  The use of the phrase is guilty of an offence in the existing offence under subsection 386B(1) is consistent with an offence of strict liability and therefore not requiring proof of fault.  The amendment is necessary to maintain the current operation of subsection 386B(1).  Once the Criminal Code applies, in the absence of an express reference to the fact that an offence is a strict liability offence, a court will be required to interpret the offence as a fault offence rather than a strict liability offence.

 

The note to subsection 386B(1A) refers to section 6.1 of the Criminal Code .  Section 6.1 provides that if a law that creates an offence provides that the offence is an offence of strict liability:

 

(a)     there are no fault elements for any of the physical elements of the offence; and

(b)    the defence of mistake of fact under section 9.2 is available.

 

This means that the prosecution does not have to prove fault on the part of the defendant.  Fault includes intention if it is with regard to conduct , and recklessness where it is with regard to a circumstance in which conduct occurs or a result of conduct.  The defendant will be able to activate the defence of honest or reasonable mistake of fact if he or she can point to or adduce evidence that he or she made a relevant mistake of fact.  If that occurs, the prosecution bears the onus to prove beyond reasonable doubt that there was no mistake.

 

Item 76 - After subsection 386E(2)

 

This item adds a new subsection 386E(2A) that provides that strict liability applies to the offences under subsections 386E(1) and (2).  This amendment does not create new offences of strict liability.  The use of the phrase is guilty of an offence in the existing offences under subsections 386E(1) and (2) is consistent with an offence of strict liability and therefore not requiring proof of fault.  The amendment is necessary to maintain the current operation of subsections 386E(1) and (2).  Once the Criminal Code applies, in the absence of an express reference to the fact that an offence is a strict liability offence, a court will be required to interpret the offence as a fault offence rather than a strict liability offence.

 

The note to subsection 386E(2A) refers to section 6.1 of the Criminal Code .  Section 6.1 provides that if a law that creates an offence provides that the offence is an offence of strict liability:

 

(a)     there are no fault elements for any of the physical elements of the offence; and

(b)    the defence of mistake of fact under section 9.2 is available.

 

This means that the prosecution does not have to prove fault on the part of the defendant.  Fault includes intention if it is with regard to conduct , and recklessness where it is with regard to a circumstance in which conduct occurs or a result of conduct.  The defendant will be able to activate the defence of honest or reasonable mistake of fact if he or she can point to or adduce evidence that he or she made a relevant mistake of fact.  If that occurs, the prosecution bears the onus to prove beyond reasonable doubt that there was no mistake.

 

Item 77 - Subsection 386G(4)

 

This item amends subsection 386G(4) to omit the words without reasonable excuse .  The defence is drafted as a separate subsection at item 78.

 

Item 78 - At the end of section 286G

 

This item is consequential upon the omission of the words without reasonable excuse from subsection 386G(4) at item 77.  The defence is drafted as a new subsection (5).  This amendment is necessary to ensure that the defence is not mistakenly interpreted to be an element of the offence that must be proved by the prosecution.

 

This item also notes that the defendant bears an evidential burden of proof with regard to the matter in subsection (5).  Criminal Code policy is that the prosecution should prove every element of the offence relevant to the guilt of the person charged (see subsection 13.1(1) of the Criminal Code ).  However, there are some instances where it is appropriate for a defendant to bear a burden of proof, such as where a matter is peculiarly within the knowledge of the defendant.  In those instances, the Criminal Code policy is that the burden should be an evidential burden rather than a legal burden (see subsection 13.3 of the Criminal Code ).  An evidential burden is lighter than a legal burden.  Subsection 13.3(1) of the Criminal Code provides that, subject to section 13.4, a burden of proof that a law imposes on a defendant is an evidential burden only .  An evidential burden is the burden of adducing or pointing to evidence that suggests a reasonable possibility that the matter exists or does not exist (see subsection 13.3(6) of the Criminal Code ), whereas a legal burden is the burden of proving the existence of the matter (see subsection 13.3(3) of the Criminal Code ).

 

Subsection 13.3(3) of the Criminal Code provides that a defendant who wishes to rely on any exception, exemption, excuse, qualification or justification provided by the law creating an offence bears an evidential burden in relation to that matter.  

 

Item 79 - Subsection 388(1)

 

This item amends subsection 388(1) to omit the words without reasonable excuse or the permission of the master .  The defence is drafted as a separate subsection at item 80.

 

Item 80 - After subsection 388(1)

 

This item is consequential upon the omission of the words without reasonable excuse or the permission of the master from subsection 388(1) at item 79.  The defence is drafted as a new subsection (1A).  This amendment is necessary to ensure that the defence is not mistakenly interpreted to be an element of the offence that must be proved by the prosecution.

 

This item also notes that the defendant bears an evidential burden of proof with regard to the matter in subsection (1A).  Criminal Code policy is that the prosecution should prove every element of the offence relevant to the guilt of the person charged (see subsection 13.1(1) of the Criminal Code ).  However, there are some instances where it is appropriate for a defendant to bear a burden of proof, such as where a matter is peculiarly within the knowledge of the defendant.  In those instances, the Criminal Code policy is that the burden should be an evidential burden rather than a legal burden (see subsection 13.3 of the Criminal Code ).  An evidential burden is lighter than a legal burden.  Subsection 13.3(1) of the Criminal Code provides that, subject to section 13.4, a burden of proof that a law imposes on a defendant is an evidential burden only .  An evidential burden is the burden of adducing or pointing to evidence that suggests a reasonable possibility that the matter exists or does not exist (see subsection 13.3(6) of the Criminal Code ), whereas a legal burden is the burden of proving the existence of the matter (see subsection 13.3(3) of the Criminal Code ).

 

Subsection 13.3(3) of the Criminal Code provides that a defendant who wishes to rely on any exception, exemption, excuse, qualification or justification provided by the law creating an offence bears an evidential burden in relation to that matter.  

 

Item 81 - Section 389

 

This item omits the term knowingly .  Following application of the Criminal Code it will not be possible to apply a fault element of knowledge (that is, knowingly ) to a physical element of conduct (see Part 2.2, Division 5 of the Criminal Code ).  The fault element of knowledge can only be applied to the physical element of circumstance or result.  The fault element of intention will now apply to the proscribed conduct.

 

Item 82 - Paragraph 389A(1)(a)

 

This item omits the term knowingly .  Following application of the Criminal Code it will not be possible to apply a fault element of knowledge (that is, knowingly ) to a physical element of conduct (see Part 2.2, Division 5 of the Criminal Code ).  The fault element of knowledge can only be applied to the physical element of circumstance or result. The fault element of intention will now apply to the proscribed conduct.

 

Item 83 - Subsection 389A(4)

 

This item adds a new subsection 389A(4A) that provides that strict liability applies to the offence under subsection 389A(4).  This amendment does not create new offences of strict liability.  The use of the phrase shall comply in the existing offence under subsection 389A(4) is consistent with an offence of strict liability and therefore not requiring proof of fault.  The amendment is necessary to maintain the current operation of subsection 389A(4).  Once the Criminal Code applies, in the absence of an express reference to the fact that an offence is a strict liability offence, a court will be required to interpret the offence as a fault offence rather than a strict liability offence.

 

The note to subsection 389A(4A) refers to section 6.1 of the Criminal Code .  Section 6.1 provides that if a law that creates an offence provides that the offence is an offence of strict liability:

 

(a)     there are no fault elements for any of the physical elements of the offence; and

(b)    the defence of mistake of fact under section 9.2 is available.

 

This means that the prosecution does not have to prove fault on the part of the defendant.  Fault includes intention if it is with regard to conduct , and recklessness where it is with regard to a circumstance in which conduct occurs or a result of conduct.  The defendant will be able to activate the defence of honest or reasonable mistake of fact if he or she can point to or adduce evidence that he or she made a relevant mistake of fact.  If that occurs, the prosecution bears the onus to prove beyond reasonable doubt that there was no mistake.

 

Item 84 - Subsection 405K(2)

 

This item amends subsection 405K(2) to omit the words without reasonable excuse .  The defence is drafted as a separate subsection at item 85.

 

Item 85 - At the end of section 405K

 

This item is consequential upon the omission of the words without reasonable excuse from subsection 405K(2) at item 84.  The defence is drafted as a new subsection (3).  This amendment is necessary to ensure that the defence is not mistakenly interpreted to be an element of the offence that must be proved by the prosecution.

 

This item also notes that the defendant bears an evidential burden of proof with regard to the matter in subsection (3).  Criminal Code policy is that the prosecution should prove every element of the offence relevant to the guilt of the person charged (see subsection 13.1(1) of the Criminal Code ).  However, there are some instances where it is appropriate for a defendant to bear a burden of proof, such as where a matter is peculiarly within the knowledge of the defendant.  In those instances, the Criminal Code policy is that the burden should be an evidential burden rather than a legal burden (see subsection 13.3 of the Criminal Code ).  An evidential burden is lighter than a legal burden.  Subsection 13.3(1) of the Criminal Code provides that, subject to section 13.4, a burden of proof that a law imposes on a defendant is an evidential burden only .  An evidential burden is the burden of adducing or pointing to evidence that suggests a reasonable possibility that the matter exists or does not exist (see subsection 13.3(6) of the Criminal Code ), whereas a legal burden is the burden of proving the existence of the matter (see subsection 13.3(3) of the Criminal Code ).

 

Subsection 13.3(3) of the Criminal Code provides that a defendant who wishes to rely on any exception, exemption, excuse, qualification or justification provided by the law creating an offence bears an evidential burden in relation to that matter.  

 

This item also adds a new subsection 405K(4) that provides that strict liability applies to the offence under subsection 405K(2).  This amendment does not create new offences of strict liability.  The use of the term fail in the existing offence under subsection 405K(2) is consistent with an offence of strict liability and therefore not requiring proof of fault.  The amendment is necessary to maintain the current operation of subsection 405K(2).  Once the Criminal Code applies, in the absence of an express reference to the fact that an offence is a strict liability offence, a court will be required to interpret the offence as a fault offence rather than a strict liability offence.

 

The note to subsection 405K(4) refers to section 6.1 of the Criminal Code .  Section 6.1 provides that if a law that creates an offence provides that the offence is an offence of strict liability:

 

(a)     there are no fault elements for any of the physical elements of the offence; and

(b)    the defence of mistake of fact under section 9.2 is available.

 

This means that the prosecution does not have to prove fault on the part of the defendant.  Fault includes intention if it is with regard to conduct , and recklessness where it is with regard to a circumstance in which conduct occurs or a result of conduct.  The defendant will be able to activate the defence of honest or reasonable mistake of fact if he or she can point to or adduce evidence that he or she made a relevant mistake of fact.  If that occurs, the prosecution bears the onus to prove beyond reasonable doubt that there was no mistake.

 

Item 86 - Subsection 413(2)

 

This item amends subsection 413(2) to omit the words without just cause .  The defence is drafted as a separate subsection at item 87.

 

Item 87 - At the end of section 413

 

This item is consequential upon the omission of the words without just cause from subsection 413(2) at item 86.  The defence is drafted as a new subsection (3).  This amendment is necessary to ensure that the defence is not mistakenly interpreted to be an element of the offence that must be proved by the prosecution.

 

This item also notes that the defendant bears an evidential burden of proof with regard to the matter in subsection (3).  Criminal Code policy is that the prosecution should prove every element of the offence relevant to the guilt of the person charged (see subsection 13.1(1) of the Criminal Code ).  However, there are some instances where it is appropriate for a defendant to bear a burden of proof, such as where a matter is peculiarly within the knowledge of the defendant.  In those instances, the Criminal Code policy is that the burden should be an evidential burden rather than a legal burden (see subsection 13.3 of the Criminal Code ).  An evidential burden is lighter than a legal burden.  Subsection 13.3(1) of the Criminal Code provides that, subject to section 13.4, a burden of proof that a law imposes on a defendant is an evidential burden only .  An evidential burden is the burden of adducing or pointing to evidence that suggests a reasonable possibility that the matter exists or does not exist (see subsection 13.3(6) of the Criminal Code ), whereas a legal burden is the burden of proving the existence of the matter (see subsection 13.3(3) of the Criminal Code ).

 

Subsection 13.3(3) of the Criminal Code provides that a defendant who wishes to rely on any exception, exemption, excuse, qualification or justification provided by the law creating an offence bears an evidential burden in relation to that matter.  

 

Item 88 - At the end of section 415

 

This item adds a new subsection 415(2) that provides that strict liability applies to an offence under subsection 415(1).  This amendment does not create a new offence of strict liability.  The existing offence under subsection 415(1) makes the master and owner of the ship vicariously liable for any contravention of subsection 415(1).  Vicarious liability is interpreted as giving rise to strict liability and therefore not requiring proof of fault.  The amendment is necessary to maintain the current operation of subsection 415(1).  Once the Criminal Code applies, in the absence of an express reference to the fact that an offence is a strict liability offence, a court will be required to interpret the offence as a fault offence rather than a strict liability offence.

 

The note to subsection 415(2) refers to section 6.1 of the Criminal Code .  Section 6.1 provides that if a law that creates an offence provides that the offence is an offence of strict liability:

 

(a)     there are no fault elements for any of the physical elements of the offence; and

(b)    the defence of mistake of fact under section 9.2 is available.

 

This means that the prosecution does not have to prove fault on the part of the defendant.  Fault includes intention if it is with regard to conduct , and recklessness where it is with regard to a circumstance in which conduct occurs or a result of conduct.  The defendant will be able to activate the defence of honest or reasonable mistake of fact if he or she can point to or adduce evidence that he or she made a relevant mistake of fact.  If that occurs, the prosecution bears the onus to prove beyond reasonable doubt that there was no mistake.

 

Item 89 - After subsection 421(4)

 

This item adds a new subsection 421(4A) that provides that strict liability applies to an offence under subsection 421(4).  This amendment does not create a new offence of strict liability.  The existing offence under subsection 421(4) makes the master and owner of the ship vicariously liable for any contravention of subsection 421(4).  Vicarious liability is interpreted as giving rise to strict liability and therefore not requiring proof of fault.  The amendment is necessary to maintain the current operation of subsection 421(4).  Once the Criminal Code applies, in the absence of an express reference to the fact that an offence is a strict liability offence, a court will be required to interpret the offence as a fault offence rather than a strict liability offence.

 

The note to subsection 421(4A) refers to section 6.1 of the Criminal Code .  Section 6.1 provides that if a law that creates an offence provides that the offence is an offence of strict liability:

 

(a)     there are no fault elements for any of the physical elements of the offence; and

(b)    the defence of mistake of fact under section 9.2 is available.

 

This means that the prosecution does not have to prove fault on the part of the defendant.  Fault includes intention if it is with regard to conduct , and recklessness where it is with regard to a circumstance in which conduct occurs or a result of conduct.  The defendant will be able to activate the defence of honest or reasonable mistake of fact if he or she can point to or adduce evidence that he or she made a relevant mistake of fact.  If that occurs, the prosecution bears the onus to prove beyond reasonable doubt that there was no mistake.

 

Significant penalties are required to serve as a deterrent and to ensure that there is an incentive to obey the requirements and standards prescribed and that the incentive outweighs any economic advantage that may present in breaching the offence provisions.

 

The maximum penalty for this subsection is 4 years imprisonment.

 

Item 90 - Subsection 421(5)

 

This item replaces subsection (5) with a provision that more accurately identifies the physical elements of circumstance, conduct and result in the offence, to which the default fault elements of recklessness and intention will be applied by the Criminal Code .

 

This amendment has rephrased the offence to clarify that:

 

·          paragraph 421(5)(a) is the physical element of circumstance to which the default fault element of recklessness will apply;

·          paragraph 421(5)(b) is the physical element of conduct to which the default fault element of intention will apply;

·          paragraph 421(5)(c) is the physical element of result to which the default fault element of recklessness will apply.

 

The maximum penalty under this subsection is 4 years imprisonment.

 

This item also inserts a provision at subsection (5A) that strict liability applies to the physical element of circumstance at paragraph 421(5)(a).  This amendment ensures that the provision is not interpreted as requiring the prosecution to prove, as part of the offence, that the defendant had knowledge of a requirement under subsection (3) to comply with a condition .  Subsection 9.3(1) of the Criminal Code provides that mistake or ignorance of the statute law is no excuse.  Subsection 9.3(2) however provides that 9.3(1) does not apply if the particular Act is expressly or impliedly to the contrary effect.  This amendment does not create a new offence of strict liability.  The amendment is necessary to maintain the current operation of subsection (5), and ensure that it is not interpreted to indicate a contrary intention for the purposes of section 9.3 of the Criminal Code .



SCHEDULE 3 - Amendment of other transport legislation

 

Adelaide Airport Curfew Act 2000

 

Item 1 - After section 5

 

This item inserts a new section 5A that provides that Chapter 2 of the Criminal Code (except Part 2.5) applies to all offences against the Adelaide Airport Curfew Act 2000 .  It also inserts a note that says that Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.

 

Part 2.5 of the Criminal Code is the only Part of Chapter 2 that does not automatically apply to offences.  When the Criminal Code was introduced into the Senate on 30 June 1994, it was stated that Part 2.5 would be the basis of corporate criminal liability if no other basis were provided.  Section 23 of the Adelaide Airport Curfew Act 2000 deals with corporate criminal responsibility by vicariously establishing criminal responsibility for corporations as a result of the conduct of its directors, employees or agents.  The disapplication of Part 2.5 is necessary to prevent competing corporate criminal liability regimes operating in relation to the same criminal offences.

 

Item 2 - Section 6

 

This item replaces subsection 6(2) with a provision that more accurately identifies the physical elements of conduct and result in the offence, to which the default fault elements of intention and recklessness, will be applied by the Criminal Code .

 

This amendment has rephrased the offence to clarify that:

 

·          paragraph 6(1)(a) is the physical element of conduct to which the default fault element of intention will apply; and

·          paragraph 6(1)(b) is the physical element of result to which the default element of recklessness will apply.

 

The maximum penalty under this subsection is 200 penalty units.

 

This item also drafts the defence of unless permitted under Part 3 as a separate subsection (2).  This amendment is necessary to ensure that the defence is not mistakenly interpreted to be an element of the offence that must be proved by the prosecution.

 

This item also notes that the defendant bears an evidential burden of proof with regard to the matter in subsection (2).  Criminal Code policy is that the prosecution should prove every element of the offence relevant to the guilt of the person charged (see subsection 13.1(1) of the Criminal Code ).  However, there are some instances where it is appropriate for a defendant to bear a burden of proof, such as where a matter is peculiarly within the knowledge of the defendant.  In those instances, the Criminal Code policy is that the burden should be an evidential burden rather than a legal burden (see subsection 13.3(1) of the Criminal Code ).  An evidential burden is lighter than a legal burden.  Subsection 13.3(1) of the Criminal Code provides that, subject to section 13.4 , a burden of proof that a law imposes on a defendant is an evidential burden only .  An evidential burden is the burden of adducing or pointing to evidence that suggests a reasonable possibility that the matter exists or does not exist (see subsection 13.3(6) of the Criminal Code ), whereas a legal burden is the burden of proving the existence of the matter (see subsection 13.1(3) of the Criminal Code).

 

Subsection 13.3(3) of the Criminal Code provides that a defendant who wishes to rely on any exception, exemption, excuse, qualification or justification provided by law creating an offence bears an evidential burden in such circumstances.

 

This item also defines “engage in conduct” to mean:

 

(c)     do an act; or

(d)    omit to perform an act.

 

This definition is consistent with the definition at subsection 4.1(2) of the Criminal Code

 

Item 3 - Subsection 19(2)

 

This item replaces subsection 19(2) with a provision that more accurately identifies the physical elements of circumstance, conduct and result in the offence, to which the default fault elements of recklessness and intention, will be applied by the Criminal Code .

 

This amendment has rephrased the offence to clarify that:

 

·          paragraph 19(2)(a) is the physical element of the circumstances of the defendant’s conduct to which the default fault element of recklessness will apply;

·          paragraph 19(2)(b) is the physical element of conduct to which the default fault element of intention will apply; and

·          paragraph 19(2)(c) is the physical element of result to which the default element of recklessness will apply.

 

The maximum penalty under this subsection is 50 penalty units.

 

Item 4 - At the end of section 19

 

This item defines “engage in conduct” to mean:

 

(a)     do an act; or

(b)    omit to perform an act.

 

This definition is consistent with the definition at subsection 4.1(2) of the Criminal Code.

 

Item 5 - Section 20

 

This item replaces section 20 with a provision that more accurately identifies the physical elements of conduct and result in the offence, to which the default fault elements of recklessness and intention, will be applied by the Criminal Code .

 

This amendment has rephrased the offence to clarify that:

 

·          paragraph 20(a) is the physical element of conduct to which the default fault element of intention will apply; and

·          paragraph 20(b) is the physical element of result to which the default element of recklessness will apply.

 

The maximum penalty under this subsection is 50 penalty units.

 

Item 6 - Subsection 23(5) (definition of offence against this Act )

 

This item repeals the definition of offence against this Act in subsection 23(5), that refers to sections 7 and 7A, and subsection 86(1) of the Crimes Act 1914.  Sections 7 and 7A of the Crimes Act 1914 are concerned with the offences of attempt and inciting or urging the commission of an offence.  Subsection 86(1) is concerned with the offence of conspiracy.  These sections were repealed by the Law and Justice Legislation Amendment (Application of Criminal Code) Act 2000

 

This item also substitutes a new definition of offence against this Act that refers to the equivalent provisions in the Criminal Code - sections 11.1, 11.4 and 11.5 respectively.

 

Aircraft Noise Levy Collection Act 1995

 

Item 7 - At the end of Part 1

 

This item inserts a new section 5A that provides that Chapter 2 of the Criminal Code (except Part 2.5) applies to all offences against the Aircraft Noise Levy Collection Act 1995 .  It also inserts a note that says that Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.

 

Part 2.5 of the Criminal Code is the only Part of Chapter 2 that does not automatically apply to offences.  When the Criminal Code was introduced into the Senate on 30 June 1994, it was stated that Part 2.5 would be the basis of corporate criminal liability if no other basis were provided.  Section 16 of the Aircraft Noise Levy Collection Act 1995 deals with corporate criminal responsibility by vicariously establishing criminal responsibility for corporations as a result of the conduct of its directors, employees or agents.  The disapplication of Part 2.5 is necessary to prevent competing corporate criminal liability regimes operating in relation to the same criminal offences.

 

Item 8 - Subsection 15(1)

 

This item amends subsection 15(1) to omit the words without reasonable excuse, refuse or fail and substitutes the word fail

 

The defence of without reasonable excuse is now drafted as a separate subsection at item 9. 

 

Item 9 - After subsection 15(1)

 

This item is consequential of item 8 and drafts the defence of without reasonable excuse as a separate subsection 15(1A).  This amendment is necessary to ensure that the defence is not mistakenly interpreted to be an element of the offence that must be proved by the prosecution.

 

This item also inserts a note advising that the defendant bears an evidential burden of proof with regard to the matter in subsection (1A).  Criminal Code policy is that the prosecution should prove every element of the offence relevant to the guilt of the person charged (see subsection 13.1(1) of the Criminal Code ).  However, there are some instances where it is appropriate for a defendant to bear a burden of proof, such as where a matter is peculiarly within the knowledge of the defendant.  In those instances, the Criminal Code policy is that the burden should be an evidential burden rather than a legal burden (see subsection 13.3(1) of the Criminal Code ).  An evidential burden is lighter than a legal burden.  Subsection 13.3(1) of the Criminal Code provides that, subject to section 13.4 , a burden of proof that a law imposes on a defendant is an evidential burden only .  An evidential burden is the burden of adducing or pointing to evidence that suggests a reasonable possibility that the matter exists or does not exist (see subsection 13.3(6) of the Criminal Code ), whereas a legal burden is the burden of proving the existence of the matter (see subsection 13.1(3) of the Criminal Code).

 

Subsection 13.3(3) of the Criminal Code provides that a defendant who wishes to rely on any exception, exemption, excuse, qualification or justification provided by law creating an offence bears an evidential burden in such circumstances.

 

Item 10 - Paragraph 16(1)(b)

 

This item omits the term knowingly from paragraph 16(1)(b).  Following application of the Criminal Code it will not be possible to apply a fault element of knowledge (ie knowingly ) to a physical element of conduct (see Part 2.2, Division 5 of the Criminal Code ).  The fault element of knowledge can only be applied to the physical elements of circumstance or result.

 

Air Navigation Act 1920

 

Item 11 - At the end of Part 1

 

This item inserts a new section 3AG that provides that Chapter 2 of the Criminal Code (other than Part 2.5) applies to all offences against the Air Navigation Act 1920 .  It also inserts a note that says that Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.

 

Part 2.5 of the Criminal Code is the only Part of Chapter 2 that does not automatically apply to offences.  When the Criminal Code was introduced into the Senate on 30 June 1994, it was stated that Part 2.5 would be the basis of corporate criminal liability if no other basis were provided.  Section 24A of the Air Navigation Act 1920 deals with corporate criminal responsibility by vicariously establishing criminal responsibility for corporations as a result of the conduct of its directors, employees or agents.  The disapplication of Part 2.5 is necessary to prevent competing corporate criminal liability regimes operating in relation to the same criminal offences.

 

Item 12 - Subsection 10(2)

 

This item omits the reference to intentionally and recklessly in relation to subsection (2).  Following application of the Criminal Code , it will not be possible to apply a fault element of recklessness (that is, recklessly ) to a physical element of conduct (see Part 2.2, Division 5 of the Criminal Code ).  The fault element of recklessness can only be applied to the physical elements of circumstance or result .  The reference to intentionally is omitted as it is superfluous - the Criminal Code will apply the default fault element of intention to the physical element of conduct .

 

Item 13 - Subsection 10(2)

 

This item amends subsection 10(2) to omit the words unless the operator or pilot in command, as the case may be, has a reasonable excuse .  The defence is now drafted as a separate subsection 10(3) at item 14.  This amendment is necessary to ensure that the defence is not mistakenly interpreted to be an element of the offence that must be proved by the prosecution.

 

Item 14 - At the end of section 10

 

This item is consequential upon the omission of the phrase unless the operator or pilot in command, as the case may be, has a reasonable excuse from subsection 10(2) at item 13. This amendment is necessary to ensure that the defence is not mistakenly interpreted to be an element of the offence that must be proved by the prosecution.

 

This item notes that the defendant bears an evidential burden of proof with regard to the matter in subsection (3).  Criminal Code policy is that the prosecution should prove every element of the offence relevant to the guilt of the person charged (see subsection 13.1(1) of the Criminal Code ).  However, there are some instances where it is appropriate for a defendant to bear a burden of proof, such as where a matter is peculiarly within the knowledge of the defendant.  In those instances, the Criminal Code policy is that the burden should be an evidential burden rather than a legal burden (see subsection 13.3(1) of the Criminal Code ).  An evidential burden is lighter than a legal burden.  Subsection 13.3(1) of the Criminal Code provides that, subject to section 13.4 , a burden of proof that a law imposes on a defendant is an evidential burden only .  An evidential burden is the burden of adducing or pointing to evidence that suggests a reasonable possibility that the matter exists or does not exist (see subsection 13.3(6) of the Criminal Code ), whereas a legal burden is the burden of proving the existence of the matter (see subsection 13.1(3) of the Criminal Code).

 

Subsection 13.3(3) of the Criminal Code provides that a defendant who wishes to rely on any exception, exemption, excuse, qualification or justification provided by law creating an offence bears an evidential burden in such circumstances.

 

Item 15 - Subsection 12(1A)

 

This item omits the reference to intentionally and recklessly in relation to subsection (1A).  Following application of the Criminal Code , it will not be possible to apply a fault element of recklessness (that is, recklessly ) to a physical element of conduct (see Part 2.2, Division 5 of the Criminal Code ).  The fault element of recklessness can only be applied to the physical elements of circumstance or result .  The reference to intentionally is omitted as it is superfluous - the Criminal Code will apply the default fault element of intention to the physical element of conduct .

 

Item 16 - Subsection 12(1A)

 

This item amends subsection 12(1A) to omit the words unless the operator has a reasonable excuse .  The defence is now drafted as a separate subsection 12(1AA) at item 17.

 

Item 17 - After subsection 12(1A)

 

This item inserts a new subsection (1AA) and is consequential upon the omission of the phrase unless the operator has a reasonable excuse from subsection 12(1A) at item 16. This amendment is necessary to ensure that the defence is not mistakenly interpreted to be an element of the offence that must be proved by the prosecution.

 

This item also inserts a note advising that the defendant bears an evidential burden of proof with regard to the matter in subsection (1AA).  Criminal Code policy is that the prosecution should prove every element of the offence relevant to the guilt of the person charged (see subsection 13.1(1) of the Criminal Code ).  However, there are some instances where it is appropriate for a defendant to bear a burden of proof, such as where a matter is peculiarly within the knowledge of the defendant.  In those instances, the Criminal Code policy is that the burden should be an evidential burden rather than a legal burden (see subsection 13.3(1) of the Criminal Code ).  An evidential burden is lighter than a legal burden.  Subsection 13.3(1) of the Criminal Code provides that, subject to section 13.4 , a burden of proof that a law imposes on a defendant is an evidential burden only .  An evidential burden is the burden of adducing or pointing to evidence that suggests a reasonable possibility that the matter exists or does not exist (see subsection 13.3(6) of the Criminal Code ), whereas a legal burden is the burden of proving the existence of the matter (see subsection 13.1(3) of the Criminal Code).

 

Subsection 13.3(3) of the Criminal Code provides that a defendant who wishes to rely on any exception, exemption, excuse, qualification or justification provided by law creating an offence bears an evidential burden in such circumstances.

 

Item 18 - Subsections 15A(1) and (2)

 

This section replaces the existing section 15A(1) and (2).  It was necessary to redraft the provision to ensure that appropriate fault elements were applied to the physical elements so that the provision retained its present operation.  Although, subsection 15A(6) refers to the intentional or reckless contravention of subsection (1) or (2) in respect of an aircraft, it makes the operator of the aircraft and the pilot in command of the aircraft guilty of an offence unless the operator or pilot, as the case may be, has a reasonable excuse for the contravention.  By making the pilot and operator guilty of an offence in this way it is imposing vicarious liability on them.  It does not require that the pilot or operator have any knowledge of the conduct that gives rise to the offence.

 

The new provisions make it clear that it is the intentional conduct of any person that results in an aircraft taking on passengers, cargo or mail for carriage for reward in Australian territory before beginning a non-scheduled flight or an intermediate stopping place in the course of such a flight.  The result has strict liability as its fault element because vicarious liability is being placed on the pilot and the operator.  The existing defences are maintained.

 

Subsection 15A(6) currently attracts a penalty of 2 years imprisonment.  This item reduces the penalty to 6 months imprisonment in keeping with Criminal Code policy.

 



Item 19 - Subsection 15A(6)

 

This item repeals subsection 15A(6).  This amendment is consequential upon item 18.

 

Item 20 - At the end of section 15A

 

This item defines “engage in conduct” to mean:

 

(a)     do an act; or

(b)    omit to perform an act.

 

This definition is consistent with the definition at subsection 4.1(2) of the Criminal Code .

 

Item 21 - Subsection 17(1) and (1A)

 

This section replaces existing subsections 17(1) and (1A).  It was necessary to redraft the provision to ensure that appropriate fault elements were applied to the physical elements so that the provision retained its present operation.  Although subsection 17(1A) refers to the intention or reckless contravention of subsection (1) in respect of an aircraft it makes the operator of the aircraft and the pilot in command of the aircraft guilty of an offence unless the operator or pilot, as the case may be, has a reasonable excuse for the contravention.  By making the pilot and operator guilty of an offence in this way it is imposing vicarious liability on them.  The current offence provision does not require that the pilot or operator have any knowledge of the conduct that gives rise to the offence.

 

The new provisions make it clear that it is the intentional conduct of any person that results in an aircraft arriving in Australian territory from a place outside Australian territory or departing from Australian territory for a place outside Australian territory.  The result has strict liability as its fault element because vicarious liability is being placed on the pilot and the operator.  The existing defences are maintained.

 

Subsection 17(1A) currently attracts a penalty of 2 years imprisonment.  This item reduces the penalty to 6 months imprisonment in keeping with Criminal Code policy.

 

Item 22 - At the end of section 17

 

This item defines “engage in conduct” to mean:

 

(a)     do an act; or

(b)    omit to perform an act.

 

This definition is consistent with the definition at subsection 4.1(2) of the Criminal Code.

 

Item 23 - Subsections 19BA(3), (5) and (7)

 

This item omits the reference to intentionally and recklessly in relation to subsections (3), (5) and (7).  Following application of the Criminal Code , it will not be possible to apply a fault element of recklessness (that is, recklessly ) to a physical element of conduct (see Part 2.2, Division 5 of the Criminal Code ).  The fault element of recklessness can only be applied to the physical elements of circumstance or result .  The reference to intentionally is omitted as it is superfluously - the Criminal Code will apply the default fault element of intention to the physical element of conduct .

 

Item 24 - Subsection 19BC(3)

 

This item omits the reference to intentionally and recklessly in relation to subsection (3).  Following application of the Criminal Code , it will not be possible to apply a fault element of recklessness (that is, recklessly ) to a physical element of conduct (see Part 2.2, Division 5 of the Criminal Code ).  The fault element of recklessness can only be applied to the physical elements of circumstance or result .  The reference to intentionally is omitted as it is superfluously - the Criminal Code will apply the default fault element of intention to the physical element of conduct .

 

Item 25 - Subsection 19CC(4)

 

This item amends subsection 19CC(4) to omit the words without reasonable excuse .  The defence is now drafted as a separate subsection at item 27.  This amendment is necessary to ensure that the defence is not mistakenly interpreted to be an element of the offence that must be proved by the prosecution.

 

Item 26 - Paragraph 19CC(4)(c)

 

This item amends subsection 19CC(4)(c) to omit the word refuse or

 

Item 27 - After subsection 19CC(4)

 

This item is consequential upon item 25, and inserts a reference to the new subsection 19CC(4A).

 

This item notes that the defendant bears an evidential burden of proof with regard to the matter in subsection (4A).  Criminal Code policy is that the prosecution should prove every element of the offence relevant to the guilt of the person charged (see subsection 13.1(1) of the Criminal Code ).  However, there are some instances where it is appropriate for a defendant to bear a burden of proof, such as where a matter is peculiarly within the knowledge of the defendant.  In those instances, the Criminal Code policy is that the burden should be an evidential burden rather than a legal burden (see subsection 13.3(1) of the Criminal Code ).  An evidential burden is lighter than a legal burden.  Subsection 13.3(1) of the Criminal Code provides that, subject to section 13.4 , a burden of proof that a law imposes on a defendant is an evidential burden only .  An evidential burden is the burden of adducing or pointing to evidence that suggests a reasonable possibility that the matter exists or does not exist (see subsection 13.3(6) of the Criminal Code ), whereas a legal burden is the burden of proving the existence of the matter (see subsection 13.1(3) of the Criminal Code).

 

Subsection 13.3(3) of the Criminal Code provides that a defendant who wishes to rely on any exception, exemption, excuse, qualification or justification provided by law creating an offence bears an evidential burden in such circumstances.

 

This item also adds a new subsection (4B) that provides that strict liability applies to the offences under paragraphs (4)(a), (c) or (d).  This amendment does not create new offences of strict liability.  The use of the term failure in the existing offences is consistent with an offence of strict liability and therefore not requiring proof of fault.  The amendment is necessary to maintain the current operation of subsection 19CC(4).  Once the Criminal Code applies, in the absence of an express reference to the fact that an offence is a strict liability offence, a court will be required to interpret the offence as a fault offence rather than a strict liability offence.

 

The note to subsection (4B) refers to section 6.1 of the Criminal Code .  Section 6.1 provides that if a law that creates an offence provides that the offence is an offence of strict liability:

(a)     there are no fault elements for any of the physical elements of the offence; and

(b)    the defence of mistake of fact under section 9.2 is available.

 

This means that the prosecution does not have to prove fault on the part of the defendant.  Fault includes intention if it is in regards to conduct , and recklessness where it is with regard to a circumstance in which conduct occurs or a result of conduct.  The defendant will be able to activate the defence of honest and reasonable mistake of fact if he or she can point to or adduce evidence that he or she made a relevant mistake of fact.  If that occurs, the prosecution bears the onus to prove beyond reasonable doubt that there was no mistake.

 

Item 28 - Section 19CS

 

This item replaces section 19CS with a provision that more accurately identifies the physical elements of conduct or circumstance of the offence, to which the default fault elements of recklessness and intention will be applied by the Criminal Code .

 

The maximum penalty under this section is imprisonment for 6 months.

 

Item 29 - Subsection 19FJ(2)

 

This item omits the reference to intentionally and recklessly in relation to subsection (2).  Following application of the Criminal Code , it will not be possible to apply a fault element of recklessness (that is, recklessly ) to a physical element of conduct (see Part 2.2, Division 5 of the Criminal Code ).  The fault element of recklessness can only be applied to the physical elements of circumstance or result .  The reference to intentionally is omitted as it is superfluously - the Criminal Code will apply the default fault element of intention to the physical element of conduct .

 

Item 30 - At the end of section 19GD

 

This item adds a new subsection (4) that provides that strict liability applies to the offence under subsection (3).  This amendment does not create a new offence of strict liability.  The nature of the offence and the low level penalty indicates that the offence is strict liability and therefore not requiring proof of fault.  The amendment is necessary to maintain the current operation of subsection 19GD(3). Once the Criminal Code applies, in the absence of an express reference to the fact that an offence is a strict liability offence, a court will be required to interpret the offence as a fault offence rather than a strict liability offence.

 

The note to subsection (4) refers to section 6.1 of the Criminal Code .  Section 6.1 provides that if a law that creates an offence provides that the offence is an offence of strict liability:

(a)     there are no fault elements for any of the physical elements of the offence; and

(b)    the defence of mistake of fact under section 9.2 is available.

 

This means that the prosecution does not have to prove fault on the part of the defendant.  Fault includes intention if it is in regards to conduct , and recklessness where it is with regard to a circumstance in which conduct occurs or a result of conduct.  The defendant will be able to activate the defence of honest and reasonable mistake of fact if he or she can point to or adduce evidence that he or she made a relevant mistake of fact.  If that occurs, the prosecution bears the onus to prove beyond reasonable doubt that there was no mistake.

 

Item 31 - Section 19HK

 

This item omits the reference to intentionally and recklessly in relation to section 19HK.  Following application of the Criminal Code , it will not be possible to apply a fault element of recklessness (that is, recklessly ) to a physical element of conduct (see Part 2.2, Division 5 of the Criminal Code ).  The fault element of recklessness can only be applied to the physical elements of circumstance or result .  The reference to intentionally is omitted as it is superfluously - the Criminal Code will apply the default fault element of intention to the physical element of conduct .

 

Item 32 - Subsection 24A(9)

 

This item repeals subsection 24A(9) of the Air Navigation Act 1920 , that refers to sections 7 and 7A, and subsection 86(1) of the Crimes Act 1914.  Sections 7 and 7A are concerned with the offences of attempt and inciting or urging the commission of an offence.  Subsection 86(1) is concerned with the offence of conspiracy.  These sections were repealed by the Law and Justice Legislation Amendment (Application of Criminal Code) Act 2000

 

This item also substitutes a new subsection 24A(9) that refers to the equivalent provisions in the Criminal Code - sections 11.1, 11.4 and 11.5 respectively.

 

Air Services Act 1995

 

Item 33 - At the end of Part 1

 

This item inserts a new section 5A that provides that Chapter 2 of the Criminal Code (except Part 2.5) applies to all offences against the Air Services Act 1995 .   It also inserts a note that says that Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.

 

Part 2.5 of the Criminal Code is the only Part of Chapter 2 that does not automatically apply to offences.  When the Criminal Code was introduced into the Senate on 30 June 1994, it was stated that Part 2.5 would be the basis of corporate criminal liability if no other basis were provided.  Section 76 of the Air Services Act 1995 deals with corporate criminal responsibility by vicariously establishing criminal responsibility for corporations as a result of the conduct of its directors, employees or agents.  The disapplication of Part 2.5 is necessary to prevent competing corporate criminal liability regimes operating in relation to the same criminal offences.

 



Item 34 - Subsection 70(1)

 

This item amends subsection 70(1) to omit the words without the prior approval of an authorised employee .  The defence is now drafted as a separate subsection at item 35.  This amendment is necessary to ensure that the defence is not mistakenly interpreted to be an element of the offence that must be proved by the prosecution.

 

Item 35 - After subsection 70(1)

 

This item is consequential upon the omission of the phrase without the prior approval of an authorised employee from subsection 70(1) at item 34.  This amendment is necessary to ensure that the defence is not mistakenly interpreted to be an element of the offence that must be proved by the prosecution.

 

This item notes that the defendant bears an evidential burden of proof with regard to the matter in subsection (1A).  Criminal Code policy is that the prosecution should prove every element of the offence relevant to the guilt of the person charged (see subsection 13.1(1) of the Criminal Code ).  However, there are some instances where it is appropriate for a defendant to bear a burden of proof, such as where a matter is peculiarly within the knowledge of the defendant.  In those instances, the Criminal Code policy is that the burden should be an evidential burden rather than a legal burden (see subsection 13.3(1) of the Criminal Code ).  An evidential burden is lighter than a legal burden.  Subsection 13.3(1) of the Criminal Code provides that, subject to section 13.4 , a burden of proof that a law imposes on a defendant is an evidential burden only .  An evidential burden is the burden of adducing or pointing to evidence that suggests a reasonable possibility that the matter exists or does not exist (see subsection 13.3(6) of the Criminal Code ), whereas a legal burden is the burden of proving the existence of the matter (see subsection 13.1(3) of the Criminal Code).

 

Subsection 13.3(3) of the Criminal Code provides that a defendant who wishes to rely on any exception, exemption, excuse, qualification or justification provided by law creating an offence bears an evidential burden in such circumstances.

 

Item 36 - Subsection 71(1)

 

This item redrafts subsection 71(1) to separate the defence of prior approval of an authorised employee from subsection (1).  The defence is now drafted as a separate subsection at subsection (1A).  This amendment is necessary to ensure that the defence is not mistakenly interpreted to be an element of the offence that must be proved by the prosecution.

 

This item also notes that the defendant bears an evidential burden of proof with regard to the defence provided at subsection 71(1A).  Criminal Code policy is that the prosecution should prove every element of the offence relevant to the guilt of the person charged (see subsection 13.1(1) of the Criminal Code ).  However, there are some instances where it is appropriate for a defendant to bear a burden of proof, such as where a matter is peculiarly within the knowledge of the defendant.  In those instances, the Criminal Code policy is that the burden should be an evidential burden rather than a legal burden (see subsection 13.3(1) of the Criminal Code ).  An evidential burden is lighter than a legal burden.  Subsection 13.3(1) of the Criminal Code provides that, subject to section 13.4 , a burden of proof that a law imposes on a defendant is an evidential burden only .  An evidential burden is the burden of adducing or pointing to evidence that suggests a reasonable possibility that the matter exists or does not exist (see subsection 13.3(6) of the Criminal Code ), whereas a legal burden is the burden of proving the existence of the matter (see subsection 13.1(3) of the Criminal Code).

 

Subsection 13.3(3) of the Criminal Code provides that a defendant who wishes to rely on any exception, exemption, excuse, qualification or justification provided by law creating an offence bears an evidential burden in such circumstances.

 

Item 37 - Subsection 76(6) (paragraph (b) of the definition of offence against this Act )

 

This item omits the reference to sections 6, 7 and 7A of the Crimes Act 1914 in paragraph 76(6)(b) of the Air Services Act 1995 , and substitutes a reference to section 6 of the Crimes Act 1914.   

 

Sections 7 and 7A are concerned with the offences of attempt and inciting or urging the commission of an offence.  These sections were repealed by the Law and Justice Legislation Amendment (Application of Criminal Code) Act 2000 .  The equivalent provisions in the Criminal Code are sections 11.1 and 11.4 respectively, are substituted in the replacement paragraph 76(6)(c) at item 38.

 

Item 38 - Subsection 76(6) (paragraph (c) of the definition of offence against this Act )

 

This item repeals paragraph 76(6)(c) of the Air Services Act 1995 , that refers to subsection 86(1) of the Crimes Act 1914.  Subsection 86(1) is concerned with the offence of conspiracy.  This section was repealed by the Law and Justice Legislation Amendment (Application of Criminal Code) Act 2000

 

This item also substitutes a new paragraph 76(6)(c) that refers to sections 11.1 and 11.4 of the Criminal Code which replace section 7 ad 7A of the Crimes Act 1914 (repealed at item 5U).

 

The new paragraph 76(6)(c) also refers to section 11.5 of the Criminal Code which replaces subsection 86(1) of the Crimes Act 1914 .

 

Civil Aviation Act 1988

 

Item 39 - At the end of Part 1

 

This item inserts a new section 7A that provides that Chapter 2 of the Criminal Code (except Part 2.5) applies to all offences against the Civil Aviation Act 1988 .   It also inserts a note that says that Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.

 

Part 2.5 of the Criminal Code is the only Part of Chapter 2 that does not automatically apply to offences.  When the Criminal Code was introduced into the Senate on 30 June 1994, it was stated that Part 2.5 would be the basis of corporate criminal liability if no other basis were provided.  Subsections 97A (1), (2) and (6) of the Civil Aviation Act 1988 deal with corporate criminal responsibility by vicariously establishing criminal responsibility for corporations as a result of the conduct of its directors, employees or agents. The disapplication of Part 2.5 is necessary to prevent competing corporate criminal liability regimes operating in relation to the same criminal offences.

 

Item 40 - At the end of section 19

 

This item adds a new subsection (4) that provides that strict liability applies to the offence under subsection (3).  This amendment does not create a new offence of strict liability.  The nature of the offence and the low level penalty indicates that the offence is strict liability and therefore not requiring proof of fault.  The amendment is necessary to maintain the current operation of subsection 19(3). Once the Criminal Code applies, in the absence of an express reference to the fact that an offence is a strict liability offence, a court will be required to interpret the offence as a fault offence rather than a strict liability offence.

 

The note to subsection (4) refers to section 6.1 of the Criminal Code .  Section 6.1 provides that if a law that creates an offence provides that the offence is an offence of strict liability:

(a)    there are no fault elements for any of the physical elements of the offence; and

(b)    the defence of mistake of fact under section 9.2 is available.

 

This means that the prosecution does not have to prove fault on the part of the defendant.  Fault includes intention if it is in regards to conduct , and recklessness where it is with regard to a circumstance in which conduct occurs or a result of conduct.  The defendant will be able to activate the defence of honest and reasonable mistake of fact if he or she can point to or adduce evidence that he or she made a relevant mistake of fact.  If that occurs, the prosecution bears the onus to prove beyond reasonable doubt that there was no mistake.

 

Item 41 - Section 20A

 

This item repeals section 20A and substitutes a new section 20A to clarify the physical element of circumstance to which the fault element of recklessness applies.

 

Item 41A - Subsection 21(8)

 

This item repeals subsection 21(8) and substitutes a new subsection 21(8) setting out the offence.  Under subsection 5.6(1) of the Criminal Code the default fault element of intention applies to the conduct in subsection 21(8).  The defence of reasonable excuse is drafted at a separate subsection 21(8A).   This amendment is necessary to ensure that the defence is not mistakenly interpreted to be an element of the offence that must be proved by the prosecution.

 

This item notes that the defendant bears an evidential burden of proof with regard to the matter in subsection 21(8A).  Criminal Code policy is that the prosecution should prove every element of the offence relevant to the guilt of the person charged (see subsection 13.1(1) of the Criminal Code ).  However, there are some instances where it is appropriate for a defendant to bear a burden of proof, such as where a matter is peculiarly within the knowledge of the defendant.  In those instances, the Criminal Code policy is that the burden should be an evidential burden rather than a legal burden (see subsection 13.3(1) of the Criminal Code ).  An evidential burden is lighter than a legal burden.  Subsection 13.3(1) of the Criminal Code provides that, subject to section 13.4 , a burden of proof that a law imposes on a defendant is an evidential burden only .  An evidential burden is the burden of adducing or pointing to evidence that suggests a reasonable possibility that the matter exists or does not exist (see subsection 13.3(6) of the Criminal Code ), whereas a legal burden is the burden of proving the existence of the matter (see subsection 13.1(3) of the Criminal Code).

 

Subsection 13.3(3) of the Criminal Code provides that a defendant who wishes to rely on any exception, exemption, excuse, qualification or justification provided by law creating an offence bears an evidential burden in such circumstances.

 

Item 42 - Subsection 23(2)

 

This item amends subsection 23(2) to delete the alternative fault elements of knowingly or recklessly that currently apply to the physical element of conduct in the offence.  Under the Criminal Code the fault elements of knowingly or recklessly can only apply to the physical elements of circumstances of conduct or result of conduct (see Division 5, Part 2.2, Chapter2 of the Criminal Code ).  Once omitted, the fault element of intention will apply to the physical element of conduct in the offence.  The fault element of recklessness will apply to the physical element of circumstances in the offence (see section 5.6 of the Criminal Code ).  Section 5.4 of the Criminal Code provides that where recklessness is the fault element for a physical element of an offence, proof of intention , knowledge or recklessness will satisfy that fault element.  Thus, the actions of the defendant who either had the requisite knowledge or recklessness will be criminalised.

 

Item 43 - Section 29

 

This item repeals section 29 and inserts a new subsection 29(1) with a provision that more accurately identifies the physical elements of conduct and result in the offence, to which the default fault elements of intention and recklessness, will be applied by the Criminal Code .

 

This amendment has rephrased the offence to clarify that:

 

·          paragraph 29(1)(a) is the physical element of conduct to which the default fault element of intention will apply; and

·          paragraph 29(1)(b) is the physical element of result to which the default element of recklessness will apply.

 

The maximum penalty under this subsection is imprisonment for 2 years.

 

This item also inserts a provision at subsection 29(2) that strict liability applies to the physical element of result at paragraphs 29(1)(b)(i) and (ii).  This amendment ensures that the provision is not interpreted as requiring the prosecution to prove, as part of the offence, that the defendant had knowledge of conditions specified under section 20, or of a provision of this part (other than subsection 20A(1) or 23(1)) or of a direction given or condition imposed under such a provision .

 

Subsection 9.3(1) of the Criminal Code provides that mistake or ignorance of statute law is no excuse.  Subsection 9.3(2) provides that subsection 9.3(1) does not apply if the particular Act is expressly or impliedly to the contrary effect.  This amendment does not create a new offence of strict liability.  The amendment is necessary to maintain the current operation of section 29, and ensure that it is not interpreted to indicate a contrary intention for the purposes of section 9.3 of the Criminal Code

 

This item also replaces subsection 29(1A) with a new provision at subsection 29(3) that more accurately identifies the physical elements of conduct and result in the offence, to which the default fault elements of intention and recklessness, will be applied by the Criminal Code .

 

This amendment has rephrased the offence to clarify that:

 

·          paragraph 29(3)(a) is the physical element of the conduct of the defendant’s conduct to which the default fault element of intention will apply;

·          paragraph 29(3)(b) is the physical elements of result to which the default fault element of recklessness will apply.

 

The maximum penalty under this subsection is imprisonment for 5 years.

 

This item also inserts a provision at subsection 29(4) that strict liability applies to the physical element of result at subparagraph 29(3)(b).  This amendment ensures that the provision is not interpreted as requiring the prosecution to prove, as part of the offence, that the defendant had knowledge of the requirements of subsection 20A(1).

 

Subsection 9.3(1) of the Criminal Code provides that mistake or ignorance of statute law is no excuse.  Subsection 9.3(2) provides that subsection 9.3(1) does not apply if the particular Act is expressly or impliedly to the contrary effect.  This amendment does not create a new offence of strict liability.  The amendment is necessary to maintain the current operation of section 29, and ensure that it is not interpreted to indicate a contrary intention for the purposes of section 9.3 of the Criminal Code .

 

This item also replaces subsection 29(1B) with a new provision at subsection 29(5) that more accurately identifies the physical elements of conduct and result in the offence, to which the default fault elements of intention and recklessness, will be applied by the Criminal Code .

 

This amendment has rephrased the offence to clarify that:

 

·          paragraph 29(5)(a) is the physical element of the conduct of the defendant’s conduct to which the default fault element of intention will apply;

·          paragraph 29(5)(b) is the physical element of result to which the default fault element of recklessness will apply.

 

The maximum penalty under this subsection is imprisonment for 7 years.

 

This item also inserts a provision at subsection 29(6) that strict liability applies to the physical element of result at subparagraph 29(5)(b).  This amendment ensures that the provision is not interpreted as requiring the prosecution to prove, as part of the offence, that the defendant had knowledge of the requirements of subsection 23(1).

 

Subsection 9.3(1) of the Criminal Code provides that mistake or ignorance of statute law is no excuse.  Subsection 9.3(2) provides that subsection 9.3(1) does not apply if the particular Act is expressly or impliedly to the contrary effect.  This amendment does not create a new offence of strict liability.  The amendment is necessary to maintain the current operation of section 29, and ensure that it is not interpreted to indicate a contrary intention for the purposes of section 9.3 of the Criminal Code .



Item 44 - Subsection 32AB(3)

 

This item amends subsection 32AB(3) to omit the words without reasonable excuse .  The defence is now drafted as a separate subsection 32AB(4) at item 45.

 

Item 45 - At the end of section 32AB

 

This item is consequential upon the omission of the phrase without reasonable excuse from subsection 32AB(3) at item 5VBA.  This amendment is necessary to ensure that the defence is not mistakenly interpreted to be an element of the offence that must be proved by the prosecution.

 

This item notes that the defendant bears an evidential burden of proof with regard to the matter in subsection 32AB(4).  Criminal Code policy is that the prosecution should prove every element of the offence relevant to the guilt of the person charged (see subsection 13.1(1) of the Criminal Code ).  However, there are some instances where it is appropriate for a defendant to bear a burden of proof, such as where a matter is peculiarly within the knowledge of the defendant.  In those instances, the Criminal Code policy is that the burden should be an evidential burden rather than a legal burden (see subsection 13.3(1) of the Criminal Code ).  An evidential burden is lighter than a legal burden.  Subsection 13.3(1) of the Criminal Code provides that, subject to section 13.4 , a burden of proof that a law imposes on a defendant is an evidential burden only .  An evidential burden is the burden of adducing or pointing to evidence that suggests a reasonable possibility that the matter exists or does not exist (see subsection 13.3(6) of the Criminal Code ), whereas a legal burden is the burden of proving the existence of the matter (see subsection 13.1(3) of the Criminal Code).

 

Subsection 13.3(3) of the Criminal Code provides that a defendant who wishes to rely on any exception, exemption, excuse, qualification or justification provided by law creating an offence bears an evidential burden in such circumstances.

 

This item also adds a new subsection 32AB(5) that provides that strict liability applies to the offence under subsection (3).  This amendment does not create a new offence of strict liability.  The use of the term fails in the existing offence under subsection 32AB(3) is interpreted as strict liability and therefore not requiring proof of fault.  The amendment is necessary to maintain the current operation of subsection 32AB(3).  Once the Criminal Code applies, in the absence of an express reference to the fact that an offence is a strict liability offence, a court will be required to interpret the offence as a fault offence rather than a strict liability offence.

 

The note to subsection 32AB(5) refers to section 6.1 of the Criminal Code .  Section 6.1 provides that if a law that creates an offence provides that the offence is an offence of strict liability:

 

(c)     there are no fault elements for any of the physical elements of the offence; and

(d)    the defence of mistake of fact under section 9.2 is available.

 

This means that the prosecution does not have to prove fault on the part of the defendant.  Fault includes intention if it is with regard to conduct , and recklessness where it is with regard to a circumstance in which conduct occurs or a result of conduct.  The defendant will be able to activate the defence of honest or reasonable mistake of fact if he or she can point to or adduce evidence that he or she made a relevant mistake of fact.  If that occurs, the prosecution bears the onus to prove beyond reasonable doubt that there was no mistake.

 

Item 46 - Subsection 32AK(2)

 

This item amends subsection 32AK(2) to omit the words without reasonable excuse .  The defence is now drafted as a separate subsection 32AK(3) at item 47.

 

Item 47 - At the end of section 32AK

 

This item is consequential upon the omission of the phrase without reasonable excuse from subsection 32AK(2) at item 46.  This amendment is necessary to ensure that the defence is not mistakenly interpreted to be an element of the offence that must be proved by the prosecution.

 

This item notes that the defendant bears an evidential burden of proof with regard to the matter in subsection 32AK(3).  Criminal Code policy is that the prosecution should prove every element of the offence relevant to the guilt of the person charged (see subsection 13.1(1) of the Criminal Code ).  However, there are some instances where it is appropriate for a defendant to bear a burden of proof, such as where a matter is peculiarly within the knowledge of the defendant.  In those instances, the Criminal Code policy is that the burden should be an evidential burden rather than a legal burden (see subsection 13.3(1) of the Criminal Code ).  An evidential burden is lighter than a legal burden.  Subsection 13.3(1) of the Criminal Code provides that, subject to section 13.4 , a burden of proof that a law imposes on a defendant is an evidential burden only .  An evidential burden is the burden of adducing or pointing to evidence that suggests a reasonable possibility that the matter exists or does not exist (see subsection 13.3(6) of the Criminal Code ), whereas a legal burden is the burden of proving the existence of the matter (see subsection 13.1(3) of the Criminal Code).

 

Subsection 13.3(3) of the Criminal Code provides that a defendant who wishes to rely on any exception, exemption, excuse, qualification or justification provided by law creating an offence bears an evidential burden in such circumstances.

 

This item also adds a new subsection 32AK(4) that provides that strict liability applies to the offence under subsection (2).  This amendment does not create a new offence of strict liability.  The use of the term fails in the existing offence under subsection (2) is interpreted as strict liability and therefore not requiring proof of fault.  The amendment is necessary to maintain the current operation of subsection 32AK(2).  Once the Criminal Code applies, in the absence of an express reference to the fact that an offence is a strict liability offence, a court will be required to interpret the offence as a fault offence rather than a strict liability offence.

 

The note to subsection 32AK(4) refers to section 6.1 of the Criminal Code .  Section 6.1 provides that if a law that creates an offence provides that the offence is an offence of strict liability:

 

(a)    there are no fault elements for any of the physical elements of the offence; and

(b)    the defence of mistake of fact under section 9.2 is available.

 

This means that the prosecution does not have to prove fault on the part of the defendant.  Fault includes intention if it is with regard to conduct , and recklessness where it is with regard to a circumstance in which conduct occurs or a result of conduct.  The defendant will be able to activate the defence of honest or reasonable mistake of fact if he or she can point to or adduce evidence that he or she made a relevant mistake of fact.  If that occurs, the prosecution bears the onus to prove beyond reasonable doubt that there was no mistake.

 

Item 48 - Paragraph 97A(9)(b)

 

This item omits the reference to sections 5, 6, 7, 7A and 86(1) of the Crimes Act 1914 in paragraph 97A(9)(b) of the Civil Aviation Act 1988 , and substitutes a reference to section 6 of the Crimes Act 1914.   

 

Section 5 is concerned with the offence of aiding and abetting.  Sections 7 and 7A are concerned with the offences of attempt and inciting or urging the commission of an offence.  Subsection 86(1) is concerned with the offence of conspiracy.  These sections were repealed by the Law and Justice Legislation Amendment (Application of Criminal Code) Act 2000 .  The equivalent provisions in the Criminal Code are sections 11.2, 11.1, 11.4 and 11.5 respectively.  These provisions are found in Part 2.4 of the Criminal Code and are substituted in the replacement paragraph 97A(9)(c) at item 5VG.

 

Item 49 - At the end of section 97A

 

This item adds a new paragraph 97A(9)(c) in the Civil Aviation Act 1988 , that substitutes Part 2.4 of the Criminal Code for the provisions of the Crimes Act 1914 omitted by the amendments at item 48.

 

Civil Aviation (Carriers’ Liability) Act 1959

 

Item 50 - After section 5

 

This item inserts a new section 5A that provides that Chapter 2 of the Criminal Code (except Part 2.5) applies to all offences against the Civil Aviation (Carriers’ Liability) Act 1959 .   It also inserts a note that says that Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.

 

Part 2.5 of the Criminal Code is the only Part of Chapter 2 that does not automatically apply to offences.  When the Criminal Code was introduced into the Senate on 30 June 1994, it was stated that Part 2.5 would be the basis of corporate criminal liability if no other basis were provided.  Section 41F of the Civil Aviation (Carriers’ Liability) Act 1988 deals with corporate criminal responsibility by vicariously establishing criminal responsibility for corporations as a result of the conduct of its directors, employees or agents.  The disapplication of Part 2.5 is necessary to prevent competing corporate criminal liability regimes operating in relation to the same criminal offences.

 

Item 51 - Subsection 41F(9)

 

This item omits the reference to section 6, 7 or 7A or subsection 86(1) of the Crimes Act 1914 in subsection 41F(9), and substitutes the reference to section 6 of the Crimes Act 1914 or section 11.1, 11.4 or 11.5 of the Criminal Code .  Sections 7 and 7A of the Crimes Act 1914 are concerned with the offences of attempt and inciting or urging the commission of an offence, while subsection 86(1) is concerned with the offence of conspiracy.  These sections were repealed by the Law and Justice Legislation Amendment (Application of Criminal Code) Act 2000 .  The equivalent provisions in the Criminal Code are sections 11.1, 11.4 and 11.5 respectively.

 

Explosives Act 1961

 

Item 52 - At the end of Part 1

 

This item inserts a new section 7A that provides that Chapter 2 of the Criminal Code applies to all offences against the Explosives Act 1961 .  It also inserts a note that says that Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.

 

International Air Services Commission Act 1992

 

Item 53 - At the end of Part 1

 

This item inserts a new section 5A that provides that Chapter 2 of the Criminal Code applies to all offences against the International Air Services Commission Act 1992 .  It also inserts a note that says that Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.

 

Item 54 - Subsection 33(3)

 

This item amends subsection 33(3) to delete the alternative fault elements of knowingly or recklessly that currently apply to the physical element of conduct in the offence.  Under the Criminal Code the fault elements of knowingly or recklessly can only apply to the physical elements of circumstances of conduct or result of conduct (see Division 5, Part 2.2, Chapter 2 of the Criminal Code ).  Once omitted, the fault element of intention will apply to the physical element of conduct in the offence.  The fault element of recklessness will apply to the physical element of circumstances in the offence (see section 5.6 of the Criminal Code ).  Section 5.4 of the Criminal Code provides that where recklessness is the fault element for a physical element of an offence, proof of intention , knowledge or recklessness will satisfy that fault element.  Thus, the actions of the defendant who either had the requisite knowledge or recklessness will be criminalised.

 

Item 55 - Section 35

 

This item amends section 35 to separate the defence of reasonable excuse .  The defence is now drafted as a separate subsection 35(2).  This amendment is necessary to ensure that the defence is not mistakenly interpreted to be an element of the offence that must be proved by the prosecution.

 

This item also notes that the defendant bears an evidential burden of proof with regard to the defence provided at subsection 35(2).  Criminal Code policy is that the prosecution should prove every element of the offence relevant to the guilt of the person charged (see subsection 13.1(1) of the Criminal Code ).  However, there are some instances where it is appropriate for a defendant to bear a burden of proof, such as where a matter is peculiarly within the knowledge of the defendant.  In those instances, the Criminal Code policy is that the burden should be an evidential burden rather than a legal burden (see subsection 13.3(1) of the Criminal Code ).  An evidential burden is lighter than a legal burden.  Subsection 13.3(1) of the Criminal Code provides that, subject to section 13.4 , a burden of proof that a law imposes on a defendant is an evidential burden only .  An evidential burden is the burden of adducing or pointing to evidence that suggests a reasonable possibility that the matter exists or does not exist (see subsection 13.3(6) of the Criminal Code ), whereas a legal burden is the burden of proving the existence of the matter (see subsection 13.1(3) of the Criminal Code).

 

Subsection 13.3(3) of the Criminal Code provides that a defendant who wishes to rely on any exception, exemption, excuse, qualification or justification provided by law creating an offence bears an evidential burden in such circumstances.

 

This item also adds a new subsection 35(3) that provides that strict liability applies to the offence under subsection (1)(a).  This amendment does not create a new offence of strict liability.  The use of the term fails in the existing offence under subsection (1)(a) is interpreted as strict liability and therefore not requiring proof of fault.  The amendment is necessary to maintain the current operation of subsection 35(1)(a).  Once the Criminal Code applies, in the absence of an express reference to the fact that an offence is a strict liability offence, a court will be required to interpret the offence as a fault offence rather than a strict liability offence.

 

The note to subsection 35(3) refers to section 6.1 of the Criminal Code .  Section 6.1 provides that if a law that creates an offence provides that the offence is an offence of strict liability:

 

(a)    there are no fault elements for any of the physical elements of the offence; and

(b)    the defence of mistake of fact under section 9.2 is available.

 

This means that the prosecution does not have to prove fault on the part of the defendant.  Fault includes intention if it is with regard to conduct , and recklessness where it is with regard to a circumstance in which conduct occurs or a result of conduct.  The defendant will be able to activate the defence of honest or reasonable mistake of fact if he or she can point to or adduce evidence that he or she made a relevant mistake of fact.  If that occurs, the prosecution bears the onus to prove beyond reasonable doubt that there was no mistake.

 

This item also amends paragraph 35(1)(b) to separate the defence to a new subsection (4).  This amendment is necessary to ensure that the defence is not mistakenly interpreted to be an element of the offence that must be proved by the prosecution.  The defendant also bears an evidential burden in relation to a matter in subsection (4).

 

Item 56 - Section 36

 

This item omits the term knowingly from section 36.  Following application of the Criminal Code it will not be possible to apply a fault element of knowledge (ie knowingly ) to a physical element of conduct (see Part 2.2, Division 5 of the Criminal Code ).  The fault element of knowledge can only be applied to the physical elements of circumstance or result.

 

Item 57 - Section 37

 

This item amends subsection 37 to omit the words without reasonable excuse, refuse or fail , and substitute fail .  The defence of reasonable excuse is now drafted as a separate subsection 37(2) at item 58.



Item 58 - At the end of section 37

 

This item is consequential upon the omission of the phrase without reasonable excuse from section 37 at item 57.  This amendment is necessary to ensure that the defence is not mistakenly interpreted to be an element of the offence that must be proved by the prosecution.

 

This item notes that the defendant bears an evidential burden of proof with regard to the matter in subsection 37(2).  Criminal Code policy is that the prosecution should prove every element of the offence relevant to the guilt of the person charged (see subsection 13.1(1) of the Criminal Code ).  However, there are some instances where it is appropriate for a defendant to bear a burden of proof, such as where a matter is peculiarly within the knowledge of the defendant.  In those instances, the Criminal Code policy is that the burden should be an evidential burden rather than a legal burden (see subsection 13.3(1) of the Criminal Code ).  An evidential burden is lighter than a legal burden.  Subsection 13.3(1) of the Criminal Code provides that, subject to section 13.4 , a burden of proof that a law imposes on a defendant is an evidential burden only .  An evidential burden is the burden of adducing or pointing to evidence that suggests a reasonable possibility that the matter exists or does not exist (see subsection 13.3(6) of the Criminal Code ), whereas a legal burden is the burden of proving the existence of the matter (see subsection 13.1(3) of the Criminal Code).

 

Subsection 13.3(3) of the Criminal Code provides that a defendant who wishes to rely on any exception, exemption, excuse, qualification or justification provided by law creating an offence bears an evidential burden in such circumstances.

 

This item also adds a new subsection (3) that provides that strict liability applies to the offence under subsection (1).  This amendment does not create a new offence of strict liability.  The use of the term fails in the existing offence under subsection (1) is interpreted as strict liability and therefore not requiring proof of fault.  The amendment is necessary to maintain the current operation of subsection 37(1).  Once the Criminal Code applies, in the absence of an express reference to the fact that an offence is a strict liability offence, a court will be required to interpret the offence as a fault offence rather than a strict liability offence.

 

The note to subsection 37(3) refers to section 6.1 of the Criminal Code .  Section 6.1 provides that if a law that creates an offence provides that the offence is an offence of strict liability:

 

(a)    there are no fault elements for any of the physical elements of the offence; and

(b)    the defence of mistake of fact under section 9.2 is available.

 

This means that the prosecution does not have to prove fault on the part of the defendant.  Fault includes intention if it is with regard to conduct , and recklessness where it is with regard to a circumstance in which conduct occurs or a result of conduct.  The defendant will be able to activate the defence of honest or reasonable mistake of fact if he or she can point to or adduce evidence that he or she made a relevant mistake of fact.  If that occurs, the prosecution bears the onus to prove beyond reasonable doubt that there was no mistake.



Interstate Road Transport Act 1985

 

Item 59 - At the end of Part 1

 

This item inserts a new section 7A that provides that Chapter 2 of the Criminal Code (except Part 2.5) applies to all offences against the Interstate Road Transport Act 1985 .   It also inserts a note that says that Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.

 

Part 2.5 of the Criminal Code is the only Part of Chapter 2 that does not automatically apply to offences.  When the Criminal Code was introduced into the Senate on 30 June 1994, it was stated that Part 2.5 would be the basis of corporate criminal liability if no other basis were provided.  Section  47A of the Interstate Road Transport Act 1985 deals with corporate criminal responsibility by vicariously establishing criminal responsibility for corporations as a result of the conduct of its directors, employees or agents.  The disapplication of Part 2.5 is necessary to prevent competing corporate criminal liability regimes operating in relation to the same criminal offences.

 

Item 60 - Subsection 8(1) (note)

 

This item is consequential upon the addition of a new Note 2 at item 61 and omits the word note and replaces it with the word Note 1 .

 

Item 61 - At the end of subsection 8(1) (after Note 1)

 

This item notes that the defendant bears an evidential burden of proof with regard to the matters in paragraphs (1)(d) and (e).  Criminal Code policy is that the prosecution should prove every element of the offence relevant to the guilt of the person charged (see subsection 13.1(1) of the Criminal Code ).  However, there are some instances where it is appropriate for a defendant to bear a burden of proof, such as where a matter is peculiarly within the knowledge of the defendant.  In those instances, the Criminal Code policy is that the burden should be an evidential burden rather than a legal burden (see subsection 13.3(1) of the Criminal Code ).  An evidential burden is lighter than a legal burden.  Subsection 13.3(1) of the Criminal Code provides that, subject to section 13.4 , a burden of proof that a law imposes on a defendant is an evidential burden only .  An evidential burden is the burden of adducing or pointing to evidence that suggests a reasonable possibility that the matter exists or does not exist (see subsection 13.3(6) of the Criminal Code ), whereas a legal burden is the burden of proving the existence of the matter (see subsection 13.1(3) of the Criminal Code).

 

Subsection 13.3(3) of the Criminal Code provides that a defendant who wishes to rely on any exception, exemption, excuse, qualification or justification provided by law creating an offence bears an evidential burden in such circumstances.

 

Item 62 - Before subsection 8(2)

 

This item adds a new subsection 8(1A) that provides that strict liability applies to the offence under subsection 8(1).  This amendment does not create a new offence of strict liability.  The nature of the offence and the low level penalty in the existing offence under subsection (1) indicates that the offence is strict liability and therefore not requiring proof of fault.  The amendment is necessary to maintain the current operation of subsection 8(1).  Once the Criminal Code applies, in the absence of an express reference to the fact that an offence is a strict liability offence, a court will be required to interpret the offence as a fault offence rather than a strict liability offence. 

 

The note to subsection 8(1A) refers to section 6.1 of the Criminal Code .  Section 6.1 provides that if a law that creates an offence provides that the offence is an offence of strict liability:

 

(a)     there are no fault elements for any of the physical elements of the offence; and

(b)    the defence of mistake of fact under section 9.2 is available.

 

This means that the prosecution does not have to prove fault on the part of the defendant.  Fault includes intention if it is with regard to conduct , and recklessness where it is with regard to a circumstance in which conduct occurs or a result of conduct.  The defendant will be able to activate the defence of honest or reasonable mistake of fact if he or she can point to or adduce evidence that he or she made a relevant mistake of fact.  If that occurs, the prosecution bears the onus to prove beyond reasonable doubt that there was no mistake.

 

Item 63 - Subsection 10(1)

 

This item amends subsection 10(1) to omit the words without reasonable excuse .  The defence is now drafted as a separate subsection 10(1A) at item 64.

 

Item 64 - After subsection 10(1)

 

This item is a consequential of item 63 and inserts a new subsection 10(1A) which provides the defence of reasonable excuse .  This amendment is necessary to ensure that the defence is not mistakenly interpreted to be an element of the offence that must be proved by the prosecution.

 

This item also notes that the defendant bears an evidential burden of proof with regard to the defence provided at subsection 10(1A).  Criminal Code policy is that the prosecution should prove every element of the offence relevant to the guilt of the person charged (see subsection 13.1(1) of the Criminal Code ).  However, there are some instances where it is appropriate for a defendant to bear a burden of proof, such as where a matter is peculiarly within the knowledge of the defendant.  In those instances, the Criminal Code policy is that the burden should be an evidential burden rather than a legal burden (see subsection 13.3(1) of the Criminal Code ).  An evidential burden is lighter than a legal burden.  Subsection 13.3(1) of the Criminal Code provides that, subject to section 13.4 , a burden of proof that a law imposes on a defendant is an evidential burden only .  An evidential burden is the burden of adducing or pointing to evidence that suggests a reasonable possibility that the matter exists or does not exist (see subsection 13.3(6) of the Criminal Code ), whereas a legal burden is the burden of proving the existence of the matter (see subsection 13.1(3) of the Criminal Code).

 

Subsection 13.3(3) of the Criminal Code provides that a defendant who wishes to rely on any exception, exemption, excuse, qualification or justification provided by law creating an offence bears an evidential burden in such circumstances.



Item 65 - Subsection 10(3)

 

This item amends subsection 10(3) to omit the words without reasonable excuse .  The defence is now drafted as a separate subsection 10(3A) at item 66.

 

Item 66 - After subsection 10(3)

 

This item is consequential to item 65 and inserts a new subsection 10(3A) which provides the defence of reasonable excuse .  This amendment is necessary to ensure that the defence is not mistakenly interpreted to be an element of the offence that must be proved by the prosecution.

 

This item also notes that the defendant bears an evidential burden of proof with regard to the defence provided at subsection 10(3A).  Criminal Code policy is that the prosecution should prove every element of the offence relevant to the guilt of the person charged (see subsection 13.1(1) of the Criminal Code ).  However, there are some instances where it is appropriate for a defendant to bear a burden of proof, such as where a matter is peculiarly within the knowledge of the defendant.  In those instances, the Criminal Code policy is that the burden should be an evidential burden rather than a legal burden (see subsection 13.3(1) of the Criminal Code ).  An evidential burden is lighter than a legal burden.  Subsection 13.3(1) of the Criminal Code provides that, subject to section 13.4 , a burden of proof that a law imposes on a defendant is an evidential burden only .  An evidential burden is the burden of adducing or pointing to evidence that suggests a reasonable possibility that the matter exists or does not exist (see subsection 13.3(6) of the Criminal Code ), whereas a legal burden is the burden of proving the existence of the matter (see subsection 13.1(3) of the Criminal Code).

 

Subsection 13.3(3) of the Criminal Code provides that a defendant who wishes to rely on any exception, exemption, excuse, qualification or justification provided by law creating an offence bears an evidential burden in such circumstances.

 

Item 67 - After subsection 12D(1)

 

This item adds a new subsection 12D(1A) that provides that strict liability applies to the offence under subsection 12D(1).  This amendment does not create a new offence of strict liability.  The nature of the offence and the low level penalty in the existing offence under subsection (1) indicates that the offence is strict liability and therefore not requiring proof of fault.  The amendment is necessary to maintain the current operation of subsection 12D(1).  Once the Criminal Code applies, in the absence of an express reference to the fact that an offence is a strict liability offence, a court will be required to interpret the offence as a fault offence rather than a strict liability offence. 

 

The note to subsection 12D(1A) refers to section 6.1 of the Criminal Code .  Section 6.1 provides that if a law that creates an offence provides that the offence is an offence of strict liability:

 

(a)     there are no fault elements for any of the physical elements of the offence; and

(b)    the defence of mistake of fact under section 9.2 is available.

 

This means that the prosecution does not have to prove fault on the part of the defendant.  Fault includes intention if it is with regard to conduct , and recklessness where it is with regard to a circumstance in which conduct occurs or a result of conduct.  The defendant will be able to activate the defence of honest or reasonable mistake of fact if he or she can point to or adduce evidence that he or she made a relevant mistake of fact.  If that occurs, the prosecution bears the onus to prove beyond reasonable doubt that there was no mistake.

 

Item 68 - At the end of section 12D

 

This item inserts a provision at subsection 12D(3) that strict liability applies to an offence under subsection 12D(2).  This amendment ensures that the provision is not interpreted as requiring the prosecution to prove, as part of the offence that the defendant had knowledge of regulations made for the purposes of paragraph 12B(2)(h) .  Subsection 9.3(1) of the Criminal Code provides that mistake or ignorance of statute law is no excuse.  Subsection 9.3(2) however provides that 9.3(1) does not apply if a particular Act is expressly or impliedly to the contrary effect.  This amendment does not create a new offence of strict liability.  The amendment is necessary to maintain the current operation of subsection 12D(2), and ensure that it is not interpreted to indicate a contrary intention for the purposes of section 9.3 of the Criminal Code .

 

Item 69 - Section 40

 

The item replaces section 40 with a provision that more accurately identifies the physical elements of result in the offence to which the default fault element of recklessness will be applied by the Criminal Code .

 

The amendment has also rephrased the offence to clarify that destroy, damage, injure, manipulate, tamper and interfere are physical elements of result of the defendant’s conduct to which the default fault element of recklessness will apply.

 

The rationale for the amendment is that an accused person does not destroy, damage, injure, manipulate, tamper or interfere .  Rather the destruction, damage or injury to, manipulation of, or tampering or interference are the result of the accused person’s conduct , and are physical elements of result rather than physical elements of conduct . Using destroy, damage, injure, manipulate, tamper or interfere as the active verb in the criminal offence may lead to difficulties in interpreting the offence following application of the Criminal Code .

 

This item inserts a new subsection 40(2) which provides the defence of where removal is permitted by the Regulations made for the purposes of section 39 .  This amendment is necessary to ensure that the defence is not mistakenly interpreted to be an element of the offence that must be proved by the prosecution.

 

This item also notes that the defendant bears an evidential burden of proof with regard to the defence provided at subsection 40(2).  Criminal Code policy is that the prosecution should prove every element of the offence relevant to the guilt of the person charged (see subsection 13.1(1) of the Criminal Code ).  However, there are some instances where it is appropriate for a defendant to bear a burden of proof, such as where a matter is peculiarly within the knowledge of the defendant.  In those instances, the Criminal Code policy is that the burden should be an evidential burden rather than a legal burden (see subsection 13.3(1) of the Criminal Code ).  An evidential burden is lighter than a legal burden.  Subsection 13.3(1) of the Criminal Code provides that, subject to section 13.4 , a burden of proof that a law imposes on a defendant is an evidential burden only .  An evidential burden is the burden of adducing or pointing to evidence that suggests a reasonable possibility that the matter exists or does not exist (see subsection 13.3(6) of the Criminal Code ), whereas a legal burden is the burden of proving the existence of the matter (see subsection 13.1(3) of the Criminal Code).

 

Subsection 13.3(3) of the Criminal Code provides that a defendant who wishes to rely on any exception, exemption, excuse, qualification or justification provided by law creating an offence bears an evidential burden in such circumstances.

 

This item adds a new subsection 40(3) that provides that strict liability applies to the offence under subsection 40(1).  This amendment does not create a new offence of strict liability.  The nature of the offence and the low level penalty in the existing offence under subsection (1) indicates that the offence is strict liability and therefore not requiring proof of fault.  The amendment is necessary to maintain the current operation of subsection 40(1).  Once the Criminal Code applies, in the absence of an express reference to the fact that an offence is a strict liability offence, a court will be required to interpret the offence as a fault offence rather than a strict liability offence. 

 

The note to subsection 40(3) refers to section 6.1 of the Criminal Code .  Section 6.1 provides that if a law that creates an offence provides that the offence is an offence of strict liability:

 

(a)    there are no fault elements for any of the physical elements of the offence; and

(b)    the defence of mistake of fact under section 9.2 is available.

 

This means that the prosecution does not have to prove fault on the part of the defendant.  Fault includes intention if it is with regard to conduct , and recklessness where it is with regard to a circumstance in which conduct occurs or a result of conduct.  The defendant will be able to activate the defence of honest or reasonable mistake of fact if he or she can point to or adduce evidence that he or she made a relevant mistake of fact.  If that occurs, the prosecution bears the onus to prove beyond reasonable doubt that there was no mistake.

 

Item 70 - Section 41

 

The item replaces section 41 with a provision that more accurately identifies the physical elements of result in the offence to which the default fault element of recklessness will be applied by the Criminal Code .

 

The amendment has also rephrased the offence to clarify that alter, deface, mutilate, falsify, damage, conceal or destroy are physical elements of result of the defendant’s conduct to which the default fault element of recklessness will apply.

 

The rationale for the amendment is that an accused person does not alter, deface, mutilate, falsify, damage, conceal or destroy .  Rather the damage to or alteration, defacing, mutilation, falsification, concealment or destruction are the result of the accused person’s conduct, and are physical elements of result rather than physical elements of conduct . Using alter, deface, mutilate, falsify, damage, conceal or destroy as the active verb in the criminal offence may lead to difficulties in interpreting the offence following application of the Criminal Code .

 

Item 71 - Subparagraph 43(1)(a)(ii)

 

This item repeals subparagraph 43(1)(a)(ii) that refers to sections 6, 7, 7A and 86(1) of the Crimes Act 1914 and substitutes a new subparagraph 43(1)(a)(ii) which refers to section 6 of the Crimes Act 1914 or an offence against section 11.1, 11.4 or 11.5 of the Criminal Code.  Sections 7 and 7A of the Crimes Act 1914 are concerned with the offences of attempt and inciting or urging the commission of an offence.  Subsection 86(1) is concerned with the offence of conspiracy.  These sections were repealed by the Law and Justice Legislation Amendment (Application of Criminal Code) Act 2000 .  The equivalent provisions in the Criminal Code are sections 11.1, 11.4 and 11.5.

 

Item 72 - Subsection 44(2)

 

This item repeals section 44(2) and substitutes a new section 44(2) that more accurately identifies the physical elements in the offence to which the fault elements are applied by the Criminal Code .

 

The maximum penalty for this subsection is 10 penalty units.

 

This item also inserts a new subparagraph (2)(a) that sets out a defence to subsection (2).  The defence is drafted as a separate subsection to ensure that the defence is not mistakenly interpreted to be an element of the offence that must be proved by the prosecution.  This item inserts a note that the defendant bears an evidential burden in relation to the matter in subsection (2A).

 

This item also notes that the defendant bears an evidential burden of proof with regard to the defence provided at subsection 44(2A).  Criminal Code policy is that the prosecution should prove every element of the offence relevant to the guilt of the person charged (see subsection 13.1(1) of the Criminal Code ).  However, there are some instances where it is appropriate for a defendant to bear a burden of proof, such as where a matter is peculiarly within the knowledge of the defendant.  In those instances, the Criminal Code policy is that the burden should be an evidential burden rather than a legal burden (see subsection 13.3(1) of the Criminal Code ).  An evidential burden is lighter than a legal burden.  Subsection 13.3(1) of the Criminal Code provides that, subject to section 13.4 , a burden of proof that a law imposes on a defendant is an evidential burden only .  An evidential burden is the burden of adducing or pointing to evidence that suggests a reasonable possibility that the matter exists or does not exist (see subsection 13.3(6) of the Criminal Code ), whereas a legal burden is the burden of proving the existence of the matter (see subsection 13.1(3) of the Criminal Code).

 

Subsection 13.3(3) of the Criminal Code provides that a defendant who wishes to rely on any exception, exemption, excuse, qualification or justification provided by law creating an offence bears an evidential burden in such circumstances.

 

This item also adds a new subsection 44(2B) that provides that strict liability applies to the offence under subsection (2).  This amendment does not create a new offence of strict liability.  The use of the term fails in the existing offence under subsection 44(2) is interpreted as strict liability and therefore not requiring proof of fault.  The amendment is necessary to maintain the current operation of subsection 44(2).  Once the Criminal Code applies, in the absence of an express reference to the fact that an offence is a strict liability offence, a court will be required to interpret the offence as a fault offence rather than a strict liability offence.

 

The note to subsection (2B) refers to section 6.1 of the Criminal Code .  Section 6.1 provides that if a law that creates an offence provides that the offence is an offence of strict liability:

(a)    there are no fault elements for any of the physical elements of the offence; and

(b)    the defence of mistake of fact under section 9.2 is available.

 

This means that the prosecution does not have to prove fault on the part of the defendant.  Fault includes intention if it is in regards to conduct , and recklessness where it is with regard to a circumstance in which conduct occurs or a result of conduct.  The defendant will be able to activate the defence of honest and reasonable mistake of fact if he or she can point to or adduce evidence that he or she made a relevant mistake of fact.  If that occurs, the prosecution bears the onus to prove beyond reasonable doubt that there was no mistake.

 

Item 73 - Subsection 45(2)

 

This item repeals section 45(2) and substitutes a new section 45(2) that sets out the offence.

 

The maximum penalty for this subsection is 10 penalty units.

This item also inserts new subparagraphs (2A) and (2B) that set defences to subsection (2).  The defences are drafted as separate subsections to ensure that the defences are not mistakenly interpreted to be elements of the offence that must be proved by the prosecution.

 

This item also notes that the defendant bears an evidential burden of proof with regard to the defence provided at subsection 44(2A) and (2B).  Criminal Code policy is that the prosecution should prove every element of the offence relevant to the guilt of the person charged (see subsection 13.1(1) of the Criminal Code ).  However, there are some instances where it is appropriate for a defendant to bear a burden of proof, such as where a matter is peculiarly within the knowledge of the defendant.  In those instances, the Criminal Code policy is that the burden should be an evidential burden rather than a legal burden (see subsection 13.3(1) of the Criminal Code ).  An evidential burden is lighter than a legal burden.  Subsection 13.3(1) of the Criminal Code provides that, subject to section 13.4 , a burden of proof that a law imposes on a defendant is an evidential burden only .  An evidential burden is the burden of adducing or pointing to evidence that suggests a reasonable possibility that the matter exists or does not exist (see subsection 13.3(6) of the Criminal Code ), whereas a legal burden is the burden of proving the existence of the matter (see subsection 13.1(3) of the Criminal Code).

 

Subsection 13.3(3) of the Criminal Code provides that a defendant who wishes to rely on any exception, exemption, excuse, qualification or justification provided by law creating an offence bears an evidential burden in such circumstances.

 

This item also adds a new subsection 45(2C) that provides that strict liability applies to the offence under subsection (2).  This amendment does not create a new offence of strict liability.  The use of the term fails in the existing offence under subsection 45(2) is interpreted as strict liability and therefore not requiring proof of fault.  The amendment is necessary to maintain the current operation of subsection 45(2).  Once the Criminal Code applies, in the absence of an express reference to the fact that an offence is a strict liability offence, a court will be required to interpret the offence as a fault offence rather than a strict liability offence.

 

The note to subsection (2C) refers to section 6.1 of the Criminal Code .  Section 6.1 provides that if a law that creates an offence provides that the offence is an offence of strict liability:

(a)    there are no fault elements for any of the physical elements of the offence; and

(b)    the defence of mistake of fact under section 9.2 is available.

 

This means that the prosecution does not have to prove fault on the part of the defendant.  Fault includes intention if it is in regards to conduct , and recklessness where it is with regard to a circumstance in which conduct occurs or a result of conduct.  The defendant will be able to activate the defence of honest and reasonable mistake of fact if he or she can point to or adduce evidence that he or she made a relevant mistake of fact.  If that occurs, the prosecution bears the onus to prove beyond reasonable doubt that there was no mistake.

 

Item 74 - Subsection 45(6)

 

This item repeals subsection 45(6) that refers to sections 6, 7, 7A and 86(1) of the Crimes Act 1914 and substitutes a new subsection 45(6) which refers to section 6 of the Crimes Act 1914 or an offence against section 11.1, 11.4 or 11.5 of the Criminal Code.  Sections 7 and 7A of the Crimes Act 1914 are concerned with the offences of attempt and inciting or urging the commission of an offence.  Subsection 86(1) is concerned with the offence of conspiracy.  These sections were repealed by the Law and Justice Legislation Amendment (Application of Criminal Code) Act 2000 .  The equivalent provisions in the Criminal Code are sections 11.1, 11.4 and 11.5.

 

Item 75 - Subsection 47A(9)

 

This item repeals subsection 47A(9) that refers to sections 6, 7A and 86(1) of the Crimes Act 1914 and substitutes a new subsection 47A(9) which refers to section 6 of the Crimes Act 1914 or an offence against section 11.4 or 11.5 of the Criminal Code.  Sections 7A of the Crimes Act 1914 are concerned with the offences of inciting or urging the commission of an offence.  Subsection 86(1) is concerned with the offence of conspiracy.  These sections were repealed by the Law and Justice Legislation Amendment (Application of Criminal Code) Act 2000 .  The equivalent provisions in the Criminal Code are sections 11.4 and 11.5.

 

Lighthouses Act 1911

 

Item 76 - After section 4

 

This item inserts a new section 4A that provides that Chapter 2 of the Criminal Code applies to all offences against the Lighthouses Act 1911 .  It also inserts a note that says that Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.

 

Item 77 - Subsection 8(2)

 

This item omits the offence of hindering or obstructing the Authority or authorised person in exercising powers under the section from subsection 8(2).  A general offence of hindering, obstructing or resisting a Commonwealth public official in the performance of his or her functions is at section 149.1 of the Criminal Code .

 

Item 78 - Subsection 10(5)

 

This item amends subsection 10(5) to omit the words without reasonable cause (proof whereof shall lie upon him) .  The defence is now drafted as a separate subsection at item 79.  This amendment is necessary to ensure that the defence is not mistakenly interpreted to be an element of the offence that must be proved by the prosecution.



Item 79 - After subsection 10(5)

 

This item is consequential upon item 78.  New subsection (5A) provides a defence if the person has reasonable cause . Subsection (5A) also notes that the defendant bears a legal burden of proof with regard to the matter in subsection (5A).

 

Criminal Code policy is that the prosecution should prove every element of the offence relevant to the guilt of the person charged (see subsection 13.1(1) of the Criminal Code ).  However, there are some instances where it is appropriate for a defendant to bear a burden of proof, such as where a matter is peculiarly within the knowledge of the defendant.  In those instances, the Criminal Code policy is that the burden should be an evidential burden rather than a legal burden (see subsection 13.3(1) of the Criminal Code ).  An evidential burden is lighter than a legal burden.  Subsection 13.3(1) of the Criminal Code provides that, subject to section 13.4 , a burden of proof that a law imposes on a defendant is an evidential burden only .  An evidential burden is the burden of adducing or pointing to evidence that suggests a reasonable possibility that the matter exists or does not exist (see subsection 13.3(6) of the Criminal Code ), whereas a legal burden is the burden of proving the existence of the matter (see subsection 13.1(3) of the Criminal Code).

 

Section 13.4 of the Criminal Code outlines the instances that would result in the imposition of a legal burden on a defendant.  A legal burden may be imposed on a defendant if and only if the relevant legislation expressly:

 

·          specifies that the burden of proof in relation to the matter in question is a legal burden;

·          requires the defendant to prove the matter; or

·          creates a presumption that the matter exists unless the contrary is proved.

 

Subsection 10(5) currently requires that no person shall without reasonable cause (proof whereof shall lie upon him) fail to comply with a notice under this section .  The provision therefore currently requires the defendant to bear a legal burden of proof in relation to the defences in the subsection.  The amendment is necessary to maintain the current operation of subsection (5).  The defence currently places a legal burden on the defendant.  This is clear by the use of the phrase proof whereof shall lie upon him .

 

This item also adds a new subsection 10(5B) that provides that strict liability applies to the offence under subsection (5).  This amendment does not create a new offence of strict liability.  The use of the term fails in the existing offence under subsection 10(5) is interpreted as strict liability and therefore not requiring proof of fault.  The amendment is necessary to maintain the current operation of subsection 10(5).  Once the Criminal Code applies, in the absence of an express reference to the fact that an offence is a strict liability offence, a court will be required to interpret the offence as a fault offence rather than a strict liability offence.

 

The note to subsection (5B) refers to section 6.1 of the Criminal Code .  Section 6.1 provides that if a law that creates an offence provides that the offence is an offence of strict liability:

(a)    there are no fault elements for any of the physical elements of the offence; and

(b)    the defence of mistake of fact under section 9.2 is available.

 

This means that the prosecution does not have to prove fault on the part of the defendant.  Fault includes intention if it is in regards to conduct , and recklessness where it is with regard to a circumstance in which conduct occurs or a result of conduct.  The defendant will be able to activate the defence of honest and reasonable mistake of fact if he or she can point to or adduce evidence that he or she made a relevant mistake of fact.  If that occurs, the prosecution bears the onus to prove beyond reasonable doubt that there was no mistake.

 

Item 80 - Subsection 19(1)

 

This item repeals subsection 19(1) and substitutes a new subsection 19(1) which redrafts the existing paragraphs (1)(a), (b) and (ba).  The new subsection 19(1A) redrafts the existing paragraph (1)(c).  The new subsection 19(1B) redrafts the existing paragraph (1)(d).  The redrafted offence provisions omit the term wilfully from the subsection.  The use of the word wilfully in relation to the physical element of conduct is akin to the use of intentionally .  The fault element of intention is the equivalent used in the Criminal Code .  The omission of the term wilfully ensures that future courts do not attempt to distinguish wilfullness from intention on the basis that it appears to differ from the Criminal Code fault element.

 

This amendment has also rephrased the offence to clarify that the injury, destruction, running foul of, or damage to; removal, altering, riding by or making fast is a physical element of the result of the defendant’s conduct to which the default fault element of recklessness will apply.

 

The rationale for the amendment is that an accused person does injure, destroy, run foul of, or damage; remove, alter, ride by or make fast.   Rather the injury, destruction, running foul of, or damage to; removal, altering, riding by or making fast is the result of the accused person’s conduct, and is a physical element of result rather than a physical element of conduct .  It follows that using injure, destroy, run foul of, or damage; remove, alter, ride by or make fast as the active verb in a criminal offence may lead to difficulties in interpreting the offence following application of the Criminal Code

 

The maximum penalty under this subsection is $200.

 

Item 81 - At the end of section 19B

 

This item adds a new subsection 19B(2) that provides that strict liability applies to the offence under subsection 19B(1).  This amendment does not create a new offence of strict liability.  The nature of the offence and the low level penalty in the existing offence under subsection (1) indicates that the offence is strict liability and therefore not requiring proof of fault.  The amendment is necessary to maintain the current operation of subsection 19B(1).  Once the Criminal Code applies, in the absence of an express reference to the fact that an offence is a strict liability offence, a court will be required to interpret the offence as a fault offence rather than a strict liability offence. 

 

The note to subsection 19B(2) refers to section 6.1 of the Criminal Code .  Section 6.1 provides that if a law that creates an offence provides that the offence is an offence of strict liability:

 

(a)     there are no fault elements for any of the physical elements of the offence; and

(b)    the defence of mistake of fact under section 9.2 is available.

 

This means that the prosecution does not have to prove fault on the part of the defendant.  Fault includes intention if it is with regard to conduct , and recklessness where it is with regard to a circumstance in which conduct occurs or a result of conduct.  The defendant will be able to activate the defence of honest or reasonable mistake of fact if he or she can point to or adduce evidence that he or she made a relevant mistake of fact.  If that occurs, the prosecution bears the onus to prove beyond reasonable doubt that there was no mistake.

 

Maritime College Act 1978

 

Item 82 - After section 4

 

This item inserts a new section 4A that provides that Chapter 2 of the Criminal Code applies to all offences against the Maritime College Act 1978 .   It also inserts a note that says that Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.

 

Motor Vehicle Standards Act 1989

 

Item 83 - After section 4

 

This item inserts a new section 4A that provides that Chapter 2 of the Criminal Code (except Part 2.5) applies to all offences against the Motor Vehicle Standards Act 1989 .   It also inserts a note that says that Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.

 

Part 2.5 of the Criminal Code is the only Part of Chapter 2 that does not automatically apply to offences.  When the Criminal Code was introduced into the Senate on 30 June 1994, it was stated that Part 2.5 would be the basis of corporate criminal liability if no other basis were provided.  Section 36 of the Motor Vehicle Standards Act 1989 deals with corporate criminal responsibility by vicariously establishing criminal responsibility for corporations as a result of the conduct of its directors, employees or agents. The disapplication of Part 2.5 is necessary to prevent competing corporate criminal liability regimes operating in relation to the same criminal offences.

 

Item 84 - Subsection 5(1)

 

This item defines “engage in conduct” to mean:

 

(a)     do an act; or

(b)    omit to perform an act.

 

This definition is consistent with the definition at subsection 4.1(2) of the Criminal Code.

 

Item 85 - Paragraph 12(a)

 

This item omits the offence of providing false or misleading information from subsection 12(a).  A general offence provision of providing false or misleading information is at section 137.1 of the Criminal Code .

 

Item 86 - Paragraph 12(b)

 

This item amends subsection 12(b) to delete the alternative fault elements of knowingly or recklessly that currently apply to the physical element of conduct in the offence.  Under the Criminal Code the fault elements of knowingly or recklessly can only apply to the physical elements of circumstances of conduct or result of conduct (see Division 5, Part 2.2, Chapter2 of the Criminal Code ).  Once omitted, the fault element of intention will apply to the physical element of conduct in the offence.  The fault element of recklessness will apply to the physical element of circumstances in the offence (see section 5.6 of the Criminal Code ).  Section 5.4 of the Criminal Code provides that where recklessness is the fault element for a physical element of an offence, proof of intention , knowledge or recklessness will satisfy that fault element.  Thus, the actions of the defendant who either had the requisite knowledge or recklessness will be criminalised.

 

The amendment also omits the reference to the defence of without lawful authority .  A general lawful authority defence provision is at section 10.5 of the Criminal Code .

 

Item 87 - Paragraph 12(d)

 

This item amends subsection 12(d) to delete the alternative fault elements of knowingly or recklessly that currently apply to the physical element of conduct in the offence.  Under the Criminal Code the fault elements of knowingly or recklessly can only apply to the physical elements of circumstances of conduct or result of conduct (see Division 5, Part 2.2, Chapter2 of the Criminal Code ).  Once omitted, the fault element of intention will apply to the physical element of conduct in the offence.  The fault element of recklessness will apply to the physical element of circumstances in the offence (see section 5.6 of the Criminal Code ).  Section 5.4 of the Criminal Code provides that where recklessness is the fault element for a physical element of an offence, proof of intention , knowledge or recklessness will satisfy that fault element.  Thus, the actions of the defendant who either had the requisite knowledge or recklessness will be criminalised.

 

Item 88 - Paragraph 12(d)

 

The amendment also omits the reference to in relation to which no authority for the placement of that plate has been given.   A general lawful authority defence provision is at section 10.5 of the Criminal Code .

 

Item 89 - Subsection 13A(1)

 

This item amends subsection 13A(1) to delete the alternative fault elements of knowingly or recklessly that currently apply to the physical element of conduct in the offence.  Under the Criminal Code the fault elements of knowingly or recklessly can only apply to the physical elements of circumstances of conduct or result of conduct (see Division 5, Part 2.2, Chapter2 of the Criminal Code ).  Once omitted, the fault element of intention will apply to the physical element of conduct in the offence.  The fault element of recklessness will apply to the physical element of circumstances in the offence (see section 5.6 of the Criminal Code ).  Section 5.4 of the Criminal Code provides that where recklessness is the fault element for a physical element of an offence, proof of intention , knowledge or recklessness will satisfy that fault element.  Thus, the actions of the defendant who either had the requisite knowledge or recklessness will be criminalised.

 

This amendment has also rephrased the offence to clarify that the modification is a physical element of the result of the defendant’s conduct to which the default fault element of recklessness will apply.

 

The rationale for the amendment is that an accused person does modify .  Rather the modification is the result of the accused person’s conduct, and is a physical element of result rather than a physical element of conduct.  It follows that using modify as the active verb in a criminal offence may lead to difficulties in interpreting the offence following application of the Criminal Code

 

The maximum penalty under this subsection is 120 penalty units.

 

Item 90 - Subsection 13A(2)

 

This item amends subsection 13A(2) to delete the alternative fault elements of knowingly or recklessly that currently apply to the physical element of conduct in the offence.  Under the Criminal Code the fault elements of knowingly or recklessly can only apply to the physical elements of circumstances of conduct or result of conduct (see Division 5, Part 2.2, Chapter2 of the Criminal Code ).  Once omitted, the fault element of intention will apply to the physical element of conduct in the offence.  The fault element of recklessness will apply to the physical element of circumstances in the offence (see section 5.6 of the Criminal Code ).  Section 5.4 of the Criminal Code provides that where recklessness is the fault element for a physical element of an offence, proof of intention , knowledge or recklessness will satisfy that fault element.  Thus, the actions of the defendant who either had the requisite knowledge or recklessness will be criminalised.

 

Item 91 - Subsection 14(1)

 

This item amends subsection 14(1) to delete the alternative fault elements of knowingly or recklessly that currently apply to the physical element of conduct in the offence.  Under the Criminal Code the fault elements of knowingly or recklessly can only apply to the physical elements of circumstances of conduct or result of conduct (see Division 5, Part 2.2, Chapter2 of the Criminal Code ).  Once omitted, the fault element of intention will apply to the physical element of conduct in the offence.  The fault element of recklessness will apply to the physical element of circumstances in the offence (see section 5.6 of the Criminal Code ).  Section 5.4 of the Criminal Code provides that where recklessness is the fault element for a physical element of an offence, proof of intention , knowledge or recklessness will satisfy that fault element.  Thus, the actions of the defendant who either had the requisite knowledge or recklessness will be criminalised.

 

Item 92 - Subsection 15(1)

 

This item amends subsection 15(1) to delete the alternative fault elements of knowingly or recklessly that currently apply to the physical element of conduct in the offence.  Under the Criminal Code the fault elements of knowingly or recklessly can only apply to the physical elements of circumstances of conduct or result of conduct (see Division 5, Part 2.2, Chapter2 of the Criminal Code ).  Once omitted, the fault element of intention will apply to the physical element of conduct in the offence.  The fault element of recklessness will apply to the physical element of circumstances in the offence (see section 5.6 of the Criminal Code ).  Section 5.4 of the Criminal Code provides that where recklessness is the fault element for a physical element of an offence, proof of intention , knowledge or recklessness will satisfy that fault element.  Thus, the actions of the defendant who either had the requisite knowledge or recklessness will be criminalised.

 

Item 93 - Subsection 17(2)

 

This item amends subsection 17(2) to delete the alternative fault elements of knowingly or recklessly that currently apply to the physical element of conduct in the offence.  Under the Criminal Code the fault elements of knowingly or recklessly can only apply to the physical elements of circumstances of conduct or result of conduct (see Division 5, Part 2.2, Chapter2 of the Criminal Code ).  Once omitted, the fault element of intention will apply to the physical element of conduct in the offence.  The fault element of recklessness will apply to the physical element of circumstances in the offence (see section 5.6 of the Criminal Code ).  Section 5.4 of the Criminal Code provides that where recklessness is the fault element for a physical element of an offence, proof of intention , knowledge or recklessness will satisfy that fault element.  Thus, the actions of the defendant who either had the requisite knowledge or recklessness will be criminalised.

 

This item also replaces subsection 17(2) with a provision that more accurately identifies the physical elements of circumstance, conduct and result in the offence, to which the default fault elements of recklessness and intention, will be applied by the Criminal Code .

 

This item also inserts a provision at subsection 17(3) that strict liability applies to the physical element of result at subparagraph (2)(a).  This amendment ensures that the provision is not interpreted as requiring the prosecution to prove, as part of the offence, that the defendant had knowledge of a condition under subsection (1) .

 

Subsection 9.3(1) of the Criminal Code provides that mistake or ignorance of statute law is no excuse.  Subsection 9.3(2) provides that subsection 9.3(1) does not apply if the particular Act is expressly or impliedly to the contrary effect.  This amendment does not create a new offence of strict liability.  The amendment is necessary to maintain the current operation of subsection 17(2), and ensure that it is not interpreted to indicate a contrary intention for the purposes of section 9.3 of the Criminal Code

 

Item 94 - Subsections 18(1) and (2)

 

This item amends subsections 18(1) and (2) to delete the alternative fault elements of knowingly or recklessly that currently apply to the physical elements of conduct in the offence.  Under the Criminal Code the fault elements of knowingly or recklessly can only apply to the physical elements of circumstances of conduct or result of conduct (see Division 5, Part 2.2, Chapter2 of the Criminal Code ).  Once omitted, the fault element of intention will apply to the physical element of conduct in the offence.  The fault element of recklessness will apply to the physical element of circumstances in the offence (see section 5.6 of the Criminal Code ).  Section 5.4 of the Criminal Code provides that where recklessness is the fault element for a physical element of an offence, proof of intention , knowledge or recklessness will satisfy that fault element.  Thus, the actions of the defendant who either had the requisite knowledge or recklessness will be criminalised.

 

Item 95 - Subsection 19(3)

 

This item repeals subsection 19(3) and renumbers it section 19(2).  The amendment deletes the alternative fault elements of knowingly or recklessly that currently apply to the physical element of conduct in the offence.  Under the Criminal Code the fault elements of knowingly or recklessly can only apply to the physical elements of circumstances of conduct or result of conduct (see Division 5, Part 2.2, Chapter2 of the Criminal Code ).  Once omitted, the fault element of intention will apply to the physical element of conduct in the offence.  The fault element of recklessness will apply to the physical element of circumstances in the offence (see section 5.6 of the Criminal Code ).  Section 5.4 of the Criminal Code provides that where recklessness is the fault element for a physical element of an offence, proof of intention , knowledge or recklessness will satisfy that fault element.  Thus, the actions of the defendant who either had the requisite knowledge or recklessness will be criminalised.

 

This item also replaces subsection 19(2) with a provision that more accurately identifies the physical elements of circumstance, conduct and result in the offence, to which the default fault elements of recklessness and intention, will be applied by the Criminal Code .

 

Item 96 - Subsection 20(4)

 

This item amends subsection 20(4) to delete the alternative fault elements of knowingly or recklessly that currently apply to the physical element of conduct in the offence.  Under the Criminal Code the fault elements of knowingly or recklessly can only apply to the physical elements of circumstances of conduct or result of conduct (see Division 5, Part 2.2, Chapter2 of the Criminal Code ).  Once omitted, the fault element of intention will apply to the physical element of conduct in the offence.  The fault element of recklessness will apply to the physical element of circumstances in the offence (see section 5.6 of the Criminal Code ).  Section 5.4 of the Criminal Code provides that where recklessness is the fault element for a physical element of an offence, proof of intention , knowledge or recklessness will satisfy that fault element.  Thus, the actions of the defendant who either had the requisite knowledge or recklessness will be criminalised.

 

This item also replaces subsection 20(4) with a provision that more accurately identifies the physical elements of circumstance, conduct and result in the offence, to which the default fault elements of recklessness and intention, will be applied by the Criminal Code .

 

Item 97 - At the end of section 26

 

This item adds a new subsection 26(3) that provides that strict liability applies to the offence under subsection 26(2).  This amendment does not create a new offence of strict liability.  The nature of the offence and the low level penalty in the existing offence under subsection (2) indicates that the offence is strict liability and therefore not requiring proof of fault.  The amendment is necessary to maintain the current operation of subsection 26(2).  Once the Criminal Code applies, in the absence of an express reference to the fact that an offence is a strict liability offence, a court will be required to interpret the offence as a fault offence rather than a strict liability offence. 

 

The note to subsection 26(3) refers to section 6.1 of the Criminal Code .  Section 6.1 provides that if a law that creates an offence provides that the offence is an offence of strict liability:

 

(a)    there are no fault elements for any of the physical elements of the offence; and

(b)    the defence of mistake of fact under section 9.2 is available.

 

This means that the prosecution does not have to prove fault on the part of the defendant.  Fault includes intention if it is with regard to conduct , and recklessness where it is with regard to a circumstance in which conduct occurs or a result of conduct.  The defendant will be able to activate the defence of honest or reasonable mistake of fact if he or she can point to or adduce evidence that he or she made a relevant mistake of fact.  If that occurs, the prosecution bears the onus to prove beyond reasonable doubt that there was no mistake.

 

Item 98 - Section 32

 

This item amends section 32 to remove the defence of reasonable excuse .  The defence is now drafted as a separate subsection 32(2) at item 99.

 

Item 99 - At the end of section 32

 

This item inserts a new subsection 32(2) which provides the defence of reasonable excuse .  This amendment is necessary to ensure that the defence is not mistakenly interpreted to be an element of the offence that must be proved by the prosecution.

 

This item also notes that the defendant bears an evidential burden of proof with regard to the defence provided at subsection 32(2).  Criminal Code policy is that the prosecution should prove every element of the offence relevant to the guilt of the person charged (see subsection 13.1(1) of the Criminal Code ).  However, there are some instances where it is appropriate for a defendant to bear a burden of proof, such as where a matter is peculiarly within the knowledge of the defendant.  In those instances, the Criminal Code policy is that the burden should be an evidential burden rather than a legal burden (see subsection 13.3(1) of the Criminal Code ).  An evidential burden is lighter than a legal burden.  Subsection 13.3(1) of the Criminal Code provides that, subject to section 13.4 , a burden of proof that a law imposes on a defendant is an evidential burden only .  An evidential burden is the burden of adducing or pointing to evidence that suggests a reasonable possibility that the matter exists or does not exist (see subsection 13.3(6) of the Criminal Code ), whereas a legal burden is the burden of proving the existence of the matter (see subsection 13.1(3) of the Criminal Code).

 

Subsection 13.3(3) of the Criminal Code provides that a defendant who wishes to rely on any exception, exemption, excuse, qualification or justification provided by law creating an offence bears an evidential burden in such circumstances.

 

This item also adds a new subsection 32(3) that provides that strict liability applies to the offence under subsection (1).  This amendment does not create a new offence of strict liability.  The use of the term fails in the existing offence under subsection 32(1) is interpreted as strict liability and therefore not requiring proof of fault.  The amendment is necessary to maintain the current operation of subsection 32(1).  Once the Criminal Code applies, in the absence of an express reference to the fact that an offence is a strict liability offence, a court will be required to interpret the offence as a fault offence rather than a strict liability offence.

 

The note to subsection 32(3) refers to section 6.1 of the Criminal Code .  Section 6.1 provides that if a law that creates an offence provides that the offence is an offence of strict liability:

 

(a)    there are no fault elements for any of the physical elements of the offence; and

(b)    the defence of mistake of fact under section 9.2 is available.

 

This means that the prosecution does not have to prove fault on the part of the defendant.  Fault includes intention if it is with regard to conduct , and recklessness where it is with regard to a circumstance in which conduct occurs or a result of conduct.  The defendant will be able to activate the defence of honest or reasonable mistake of fact if he or she can point to or adduce evidence that he or she made a relevant mistake of fact.  If that occurs, the prosecution bears the onus to prove beyond reasonable doubt that there was no mistake.

 

Item 100 - Paragraph 36(8)(b)

 

This item omits the reference to sections 5, 6, 7, 7A and 86(1) of the Crimes Act 1914 in paragraph 36(8)(b), and substitutes a reference to section 6 of the Crimes Act 1914.   

 

Section 5 is concerned with the offence of aiding and abetting.  Sections 7 and 7A are concerned with the offences of attempt and inciting or urging the commission of an offence.  Subsection 86(1) is concerned with the offence of conspiracy.  These sections were repealed by the Law and Justice Legislation Amendment (Application of Criminal Code) Act 2000 .  The equivalent provisions in the Criminal Code are sections 11.2, 11.1, 11.4 and 11.5 respectively.  These provisions are found in Part 2.4 of the Criminal Code and are substituted in the replacement paragraph 36(8)(c) at item 101.

 

Item 101 - At the end of subsection 36(8)

 

This item adds a new paragraph 36(8)(c) that substitutes Part 2.4 of the Criminal Code for the relevant provisions of the Crimes Act 1914 omitted by the amendments at item 100.

 

Port Statistics Act 1977

 

Item 102 - After section 3

 

This item inserts a new section 3A that provides that Chapter 2 of the Criminal Code applies to all offences against the Port Statistics Act 1977 .  It also inserts a note that says that Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.

 

Item 103 - Subsections 5(3) and (4)

 

This item amends subsection 5(3) to omit the words to the extent which he or she is capable .  The defence is now drafted as a separate subsection 5(4).   This amendment is necessary to ensure that the defence is not mistakenly interpreted to be an element of the offence that must be proved by the prosecution.

 

This item also notes that the defendant bears an evidential burden of proof with regard to the defence provided at subsection 5(4).  Criminal Code policy is that the prosecution should prove every element of the offence relevant to the guilt of the person charged (see subsection 13.1(1) of the Criminal Code ).  However, there are some instances where it is appropriate for a defendant to bear a burden of proof, such as where a matter is peculiarly within the knowledge of the defendant.  In those instances, the Criminal Code policy is that the burden should be an evidential burden rather than a legal burden (see subsection 13.3(1) of the Criminal Code ).  An evidential burden is lighter than a legal burden.  Subsection 13.3(1) of the Criminal Code provides that, subject to section 13.4 , a burden of proof that a law imposes on a defendant is an evidential burden only .  An evidential burden is the burden of adducing or pointing to evidence that suggests a reasonable possibility that the matter exists or does not exist (see subsection 13.3(6) of the Criminal Code ), whereas a legal burden is the burden of proving the existence of the matter (see subsection 13.1(3) of the Criminal Code).

 

Subsection 13.3(3) of the Criminal Code provides that a defendant who wishes to rely on any exception, exemption, excuse, qualification or justification provided by law creating an offence bears an evidential burden in such circumstances.

 

This item also adds a new subsection 5(5) that provides that strict liability applies to the offence under subsection (3).  This amendment does not create a new offence of strict liability.  The use of the term fails in the existing offence under subsection 5(3) is interpreted as strict liability and therefore not requiring proof of fault.  The amendment is necessary to maintain the current operation of subsection 5(3).  Once the Criminal Code applies, in the absence of an express reference to the fact that an offence is a strict liability offence, a court will be required to interpret the offence as a fault offence rather than a strict liability offence.

 

The note to subsection 5(5) refers to section 6.1 of the Criminal Code .  Section 6.1 provides that if a law that creates an offence provides that the offence is an offence of strict liability:

 

(a)     there are no fault elements for any of the physical elements of the offence; and

(b)    the defence of mistake of fact under section 9.2 is available.

 

This means that the prosecution does not have to prove fault on the part of the defendant.  Fault includes intention if it is with regard to conduct , and recklessness where it is with regard to a circumstance in which conduct occurs or a result of conduct.  The defendant will be able to activate the defence of honest or reasonable mistake of fact if he or she can point to or adduce evidence that he or she made a relevant mistake of fact.  If that occurs, the prosecution bears the onus to prove beyond reasonable doubt that there was no mistake.

 

This item also creates a new subsection (6) with a provision that more accurately identifies the physical elements of circumstance, conduct and result in the offence, to which the default fault elements of recklessness and intention, will be applied by the Criminal Code .

 

This amendment has also rephrased the offence to clarify that destroy, mutilate, deface, conceal or remove is a physical element of the result of the defendant’s conduct to which the default fault element of recklessness will apply.

 

The rationale for the amendment is that an accused person does not destroy, mutilate, deface, conceal or remove .  Rather, the destruction, mutilation, defacing, concealment or removal is the result of the accused person’s conduct, and is a physical element of result rather than a physical element of conduct .  It follows that using destroy, mutilate, deface, conceal or remove as the active verb in a criminal offence may lead to difficulties in interpreting the offence following application of the Criminal Code

 

The maximum penalty under this subsection is $500.

 

Protection of the Sea (Civil Liability) Act 1981

 

Item 104 - At the end of Part 1

 

This item inserts a new section 6A that provides that Chapter 2 of the Criminal Code (except Part 2.5) applies to all offences against the Protection of the Sea (Civil Liability) Act 1981 .  It also inserts a note that says that Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.

 

Part 2.5 of the Criminal Code is the only Part of Chapter 2 that does not automatically apply to offences.  When the Criminal Code was introduced into the Senate on 30 June 1994, it was stated that Part 2.5 would be the basis of corporate criminal liability if no other basis were provided.  Subsections 23(4), (5) and (6) of the Protection of the Sea ( Civil Liability) Act 1981 deal with corporate criminal responsibility by vicariously establishing criminal responsibility for corporations as a result of the conduct of its directors, employees or agents. The disapplication of Part 2.5 is necessary to prevent competing corporate criminal liability regimes operating in relation to the same criminal offences.

 

Item 105 - After subsection 15(3)

 

This item adds a new subsection 15(3A) that provides that strict liability applies to the offences under subsections 15(1), (2) and (3).  This amendment does not create a new offences of strict liability.  The existing offences under subsections 15(1), (2) and (3) make the master and owner of the ship vicariously liable for any contravention of requirements under subsections (1), (2) and (3).  Vicarious liability is interpreted as giving rise to strict liability and therefore not requiring proof of fault.  The amendment is necessary to maintain the current operation of subsections 15(1), (2) and (3).  Once the Criminal Code applies, in the absence of an express reference to the fact that an offence is a strict liability offence, a court will be required to interpret the offence as a fault offence rather than a strict liability offence.

 

The note to subsection 15(3A) refers to section 6.1 of the Criminal Code .  Section 6.1 provides that if a law that creates an offence provides that the offence is an offence of strict liability:

 

(a)     there are no fault elements for any of the physical elements of the offence; and

(b)    the defence of mistake of fact under section 9.2 is available.

 

This means that the prosecution does not have to prove fault on the part of the defendant.  Fault includes intention if it is with regard to conduct , and recklessness where it is with regard to a circumstance in which conduct occurs or a result of conduct.  The defendant will be able to activate the defence of honest or reasonable mistake of fact if he or she can point to or adduce evidence that he or she made a relevant mistake of fact.  If that occurs, the prosecution bears the onus to prove beyond reasonable doubt that there was no mistake.

 

The maximum penalties under subsections (1) and (2) are 500 penalty units for a natural person and 1,000 penalty units for a body corporate.

 

The Protection of the Sea (Civil Liability) Act 1981 gives effect to the International Convention on Civil Liability for Oil Pollution Damage 1922 (The Convention) that provides that adequate compensation must be available to persons who suffer damage caused by pollution resulting from the escape or discharge of oil from ships.  Subsections 15(1) and (2) of the Act are key enforcement provisions.

 

Significant penalties are required to serve as a deterrent and to ensure that there is an incentive to obey the requirements and standards prescribed and that the incentive outweighs any economic advantage that may present in breaching the offence provisions.

 

Item 106 - Subsection 15(4)

 

This item omits refuses or from subsection 15(4).

 

Item 107 - After subsection 15(4)

 

This item adds a new subsection 15(4A) that provides that strict liability applies to the offence under subsection (4).  This amendment does not create a new offence of strict liability.  The use of the term fails in the existing offence under subsection 15(4) is interpreted as strict liability and therefore not requiring proof of fault.  The amendment is necessary to maintain the current operation of subsection 15(4).  Once the Criminal Code applies, in the absence of an express reference to the fact that an offence is a strict liability offence, a court will be required to interpret the offence as a fault offence rather than a strict liability offence.

 

The note to subsection 15(4A) refers to section 6.1 of the Criminal Code .  Section 6.1 provides that if a law that creates an offence provides that the offence is an offence of strict liability:

 

(a)    there are no fault elements for any of the physical elements of the offence; and

(b)    the defence of mistake of fact under section 9.2 is available.

 

This means that the prosecution does not have to prove fault on the part of the defendant.  Fault includes intention if it is with regard to conduct , and recklessness where it is with regard to a circumstance in which conduct occurs or a result of conduct.  The defendant will be able to activate the defence of honest or reasonable mistake of fact if he or she can point to or adduce evidence that he or she made a relevant mistake of fact.  If that occurs, the prosecution bears the onus to prove beyond reasonable doubt that there was no mistake.

 

Item 108 - After subsection 22(3)

 

This item adds a new subsection 22(3A) that provides that strict liability applies to the offences under subsections 22(3).  This amendment does not create a new offence of strict liability.  The existing offence under subsection 22(3) makes the master and owner of the ship vicariously liable for any contravention of requirements under subsection 22(3).  Vicarious liability is interpreted as giving rise to strict liability and therefore not requiring proof of fault.  The amendment is necessary to maintain the current operation of subsection 22(3).  Once the Criminal Code applies, in the absence of an express reference to the fact that an offence is a strict liability offence, a court will be required to interpret the offence as a fault offence rather than a strict liability offence.

 

The note to subsection 22(3A) refers to section 6.1 of the Criminal Code .  Section 6.1 provides that if a law that creates an offence provides that the offence is an offence of strict liability:

 

(a)    there are no fault elements for any of the physical elements of the offence; and

(b)    the defence of mistake of fact under section 9.2 is available.

 

This means that the prosecution does not have to prove fault on the part of the defendant.  Fault includes intention if it is with regard to conduct , and recklessness where it is with regard to a circumstance in which conduct occurs or a result of conduct.  The defendant will be able to activate the defence of honest or reasonable mistake of fact if he or she can point to or adduce evidence that he or she made a relevant mistake of fact.  If that occurs, the prosecution bears the onus to prove beyond reasonable doubt that there was no mistake.

 

The maximum penalty for this subsection is 50 penalty units for a natural person or 100 penalty units for a body corporate.

 

The Protection of the Sea (Civil Liability) Act 1981 gives effect to the International Convention on Civil Liability for Oil Pollution Damage 1922 (The Convention) that provides that adequate compensation must be available to persons who suffer damage caused by pollution resulting from the escape or discharge of oil from ships.  Subsection 22(3) prohibits a ship from going to sea where it has been detained for failing to have the necessary certificate on board.

 

Significant penalties are required to serve as a deterrent and to ensure that there is an incentive to obey the requirements and standards prescribed and that the incentive outweighs any economic advantage that may present in breaching the offence provisions.

 

Protection of the Sea (Oil Pollution Compensation Fund) Act 1993

 

Item 109 - At the end of Chapter 1

 

This item inserts a new section 5A that provides that Chapter 2 of the Criminal Code applies to all offences against the Protection of the Sea (Oil Pollution Compensation Fund) Act 1993 .  It also inserts a note that says that Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.

 

Item 110 - Section 24

 

This item replaces section 24 with a provision that more accurately identifies the physical elements of circumstance, conduct and result in the offence, to which the default fault elements of recklessness and intention, will be applied by the Criminal Code .

 

This amendment has rephrased the offence to clarify that:

 

·          paragraph 24(1)(a) is the physical element of the circumstances of the defendant’s conduct to which the default fault element of recklessness will apply;

·          paragraph 24(1)(b) is the physical element of conduct to which the default fault element of intention will apply; and

·          paragraph 24(1)(c) is the physical element of result to which the default element of recklessness will apply.

 

The maximum penalty under this subsection is 300 penalty units.

 

This item also inserts a provision at subsection (2) that strict liability applies to the physical element of result at paragraph (1)(a).  This amendment ensures that the provision is not interpreted as requiring the prosecution to prove, as part of the offence, that the defendant had knowledge of regulations made for the purposes of this Division .

 

Subsection 9.3(1) of the Criminal Code provides that mistake or ignorance of statute law is no excuse.  Subsection 9.3(2) provides that subsection 9.3(1) does not apply if the particular Act is expressly or impliedly to the contrary effect.  This amendment does not create a new offence of strict liability.  The amendment is necessary to maintain the current operation of section 24, and ensure that it is not interpreted to indicate a contrary intention for the purposes of section 9.3 of the Criminal Code

 

This item defines “engage in conduct” to mean:

 

            (a) do an act; or

            (b) omit to perform an act.

 

This definition is consistent with the definition at subsection 4.1(2) of the Criminal Code.

 

Item 111 - Section 45

 

This item replaces section 45 with a provision that more accurately identifies the physical elements of circumstance, conduct and result in the offence, to which the default fault elements of recklessness and intention, will be applied by the Criminal Code .

 

This amendment has rephrased the offence to clarify that:

 

·          paragraph 45(1)(a) is the physical element of the circumstances of the defendant’s conduct to which the default fault element of recklessness will apply;

·          paragraph 45(1)(b) is the physical element of conduct to which the default fault element of intention will apply; and

·          paragraph 45(1)(c) is the physical element of result to which the default element of recklessness will apply.

 

The maximum penalty under this subsection is 300 penalty units.

 

This item also inserts a provision at subsection (2) that strict liability applies to the physical element of circumstance at paragraph (1)(a).  This amendment ensures that the provision is not interpreted as requiring the prosecution to prove, as part of the offence, that the defendant had knowledge of regulations made for the purposes of this Division .

 

Subsection 9.3(1) of the Criminal Code provides that mistake or ignorance of statute law is no excuse.  Subsection 9.3(2) provides that subsection 9.3(1) does not apply if the particular Act is expressly or impliedly to the contrary effect.  This amendment does not create a new offence of strict liability.  The amendment is necessary to maintain the current operation of section 45, and ensure that it is not interpreted to indicate a contrary intention for the purposes of section 9.3 of the Criminal Code .

 

This item defines “engage in conduct” to mean:

 

(a)     do an act; or

(b)    omit to perform an act.

 

This definition is consistent with the definition at subsection 4.1(2) of the Criminal Code.

 

Protection of the Sea (Powers of Intervention) Act 1981

 

Item 112 - After section 3

 

This item inserts a new section 3A that provides that Chapter 2 of the Criminal Code applies to all offences against the Protection of the Sea (Powers of Intervention) Act 1981 .  It also inserts a note that says that Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.

 

Item 113 - At the end of subsection 21(2)

 

Subsection 21(2) also notes that the defendant bears a legal burden of proof with regard to the matter in subsection 21(2).

 

Criminal Code policy is that the prosecution should prove every element of the offence relevant to the guilt of the person charged (see subsection 13.1(1) of the Criminal Code ).  However, there are some instances where it is appropriate for a defendant to bear a burden of proof, such as where a matter is peculiarly within the knowledge of the defendant.  In those instances, the Criminal Code policy is that the burden should be an evidential burden rather than a legal burden (see subsection 13.3(1) of the Criminal Code ).  An evidential burden is lighter than a legal burden.  Subsection 13.3(1) of the Criminal Code provides that, subject to section 13.4 , a burden of proof that a law imposes on a defendant is an evidential burden only .  An evidential burden is the burden of adducing or pointing to evidence that suggests a reasonable possibility that the matter exists or does not exist (see subsection 13.3(6) of the Criminal Code ), whereas a legal burden is the burden of proving the existence of the matter (see subsection 13.1(3) of the Criminal Code).

 

Section 13.4 of the Criminal Code outlines the instances that would result in the imposition of  a legal burden on a defendant.  A legal burden may be imposed on a defendant if and only if the relevant legislation expressly:

 

·          specifies that the burden of proof in relation to the matter in question is a legal burden;

·          requires the defendant to prove the matter; or

·          creates a presumption that the matter exists unless the contrary is proved.

 

Subsection 21(2) currently requires that the defendant to bear a legal burden of proof in relation to the defences in the subsection .   This amendment ensures that the provision operate in this way following application of the Criminal Code .  The provision therefore currently requires the defendant to bear a legal burden of proof in relation to the defences in the subsection.  The defences currently place a legal burden on the defendant.  This is clear by the use of the phrase unless the contrary is proved .



Protection of the Sea (Prevention of Pollution from Ships) Act 1983

 

Item 114 - At the end of Part 1

 

This item inserts a new section 7 that provides that Chapter 2 of the Criminal Code (except Part 2.5) applies to all offences against the Protection of the Sea (Prevention of Pollution from Ships) Act 1983 .   It also inserts a note that says that Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.

 

Part 2.5 of the Criminal Code is the only Part of Chapter 2 that does not automatically apply to offences.  When the Criminal Code was introduced into the Senate on 30 June 1994, it was stated that Part 2.5 would be the basis of corporate criminal liability if no other basis were provided.  Subsections 28(5), (6) and (7) of the Protection of the Sea (Prevention of Pollution from Ships) Act 1983 deals with corporate criminal responsibility by vicariously establishing criminal responsibility for corporations as a result of the conduct of its directors, employees or agents. The disapplication of Part 2.5 is necessary to prevent competing corporate criminal liability regimes operating in relation to the same criminal offences.

 

Item 115 - After subsection 11(3)

 

This item adds a new subsection 11(3A) that provides that strict liability applies to an offence under subsection 11(3).  This amendment does not create a new offences of strict liability.  The existing offence under subsection 11(3) makes the master, owner, charterer, manager or operator, or an agent of the ship vicariously liable for any contravention of requirements under subsections (3).  Vicarious liability is interpreted as giving rise to strict liability and therefore not requiring proof of fault.  The amendment is necessary to maintain the current operation of subsection (3).  Once the Criminal Code applies, in the absence of an express reference to the fact that an offence is a strict liability offence, a court will be required to interpret the offence as a fault offence rather than a strict liability offence.

 

The note to subsection 11(3A) refers to section 6.1 of the Criminal Code .  Section 6.1 provides that if a law that creates an offence provides that the offence is an offence of strict liability:

 

(a)    there are no fault elements for any of the physical elements of the offence; and

(b)    the defence of mistake of fact under section 9.2 is available.

 

This means that the prosecution does not have to prove fault on the part of the defendant.  Fault includes intention if it is with regard to conduct , and recklessness where it is with regard to a circumstance in which conduct occurs or a result of conduct.  The defendant will be able to activate the defence of honest or reasonable mistake of fact if he or she can point to or adduce evidence that he or she made a relevant mistake of fact.  If that occurs, the prosecution bears the onus to prove beyond reasonable doubt that there was no mistake.

 

Current penalty : Fine not exceeding $50,000.

The Protection of the Sea (Prevention of Pollution from Ships) Act 1983 implements the operational provisions of the International Convention for the Prevention of Pollution from Ships known as MARPOL 73/78.  This Convention is in force in 114 countries and covers 94% of world shipping tonnage.

The Convention places an obligation on parties to prohibit any violation of the Convention and to establish sanctions under national laws.  To provide adequate deterrent for shipowners, the Protection of the Sea (Prevention of Pollution from Ships) Act 1983 therefore needs to provide for the maximum available financial penalty, in accordance with Commonwealth policy for environmental offences.

The running of a ship is an expensive business enterprise, and unless there is provision for significant penalties, there will be little incentive for owners to do more than the minimum to avoid discharge of pollutants.

 

Item 116 - Subsection 11(8)

 

This item amends subsection 11(8) to delete the alternative fault elements of knowingly or recklessly that currently apply to the physical element of conduct in the offence.  Under the Criminal Code the fault elements of knowingly or recklessly can only apply to the physical elements of circumstances of conduct or result of conduct (see Division 5, Part 2.2, Chapter2 of the Criminal Code ).  Once omitted, the fault element of intention will apply to the physical element of conduct in the offence.  The fault element of recklessness will apply to the physical element of circumstances in the offence (see section 5.6 of the Criminal Code ).  Section 5.4 of the Criminal Code provides that where recklessness is the fault element for a physical element of an offence, proof of intention , knowledge or recklessness will satisfy that fault element.  Thus, the actions of the defendant who either had the requisite knowledge or recklessness will be criminalised.

 

Item 117 - At the end of section 11A

 

This item adds a new subsection 11A(8) that provides that strict liability applies to an offence under subsection 11A(7).  This amendment does not create a new offences of strict liability.  The existing offence under subsection 11A(7) makes the master and owner of the ship vicariously liable for any contravention of requirements under subsections (7).  Vicarious liability is interpreted as giving rise to strict liability and therefore not requiring proof of fault.  The amendment is necessary to maintain the current operation of subsection (7).  Once the Criminal Code applies, in the absence of an express reference to the fact that an offence is a strict liability offence, a court will be required to interpret the offence as a fault offence rather than a strict liability offence.

 

The note to subsection 11A(8) refers to section 6.1 of the Criminal Code .  Section 6.1 provides that if a law that creates an offence provides that the offence is an offence of strict liability:

 

(a)    there are no fault elements for any of the physical elements of the offence; and

(b)    the defence of mistake of fact under section 9.2 is available.

 

This means that the prosecution does not have to prove fault on the part of the defendant.  Fault includes intention if it is with regard to conduct , and recklessness where it is with regard to a circumstance in which conduct occurs or a result of conduct.  The defendant will be able to activate the defence of honest or reasonable mistake of fact if he or she can point to or adduce evidence that he or she made a relevant mistake of fact.  If that occurs, the prosecution bears the onus to prove beyond reasonable doubt that there was no mistake.

 

Current penalty : Fine not exceeding $50,000.

The Protection of the Sea (Prevention of Pollution from Ships) Act 1983 implements the operational provisions of the International Convention for the Prevention of Pollution from Ships known as MARPOL 73/78.  This Convention is in force in 114 countries and covers 94% of world shipping tonnage.

The Convention places an obligation on parties to prohibit any violation of the Convention and to establish sanctions under national laws.  To provide adequate deterrent for shipowners, the Protection of the Sea (Prevention of Pollution from Ships) Act 1983 therefore needs to provide for the maximum available financial penalty, in accordance with Commonwealth policy for environmental offences.

 

The running of a ship is an expensive business enterprise, and unless there is provision for significant penalties, there will be little incentive for owners to do more than the minimum to avoid discharge of pollutants.

 

Item 118 - After subsection 12(4)

 

This item adds a new subsection 12(4A) that provides that strict liability applies to an offence under subsection 12(4).  This amendment does not create a new offences of strict liability.  The existing offence under subsection 12(4) makes the master and owner of the ship vicariously liable for any contravention of requirements under subsections (4).  Vicarious liability is interpreted as giving rise to strict liability and therefore not requiring proof of fault.  The amendment is necessary to maintain the current operation of subsection (4).  Once the Criminal Code applies, in the absence of an express reference to the fact that an offence is a strict liability offence, a court will be required to interpret the offence as a fault offence rather than a strict liability offence.

 

The note to subsection 12(4A) refers to section 6.1 of the Criminal Code .  Section 6.1 provides that if a law that creates an offence provides that the offence is an offence of strict liability:

 

(a)    there are no fault elements for any of the physical elements of the offence; and

(b)    the defence of mistake of fact under section 9.2 is available.

 

This means that the prosecution does not have to prove fault on the part of the defendant.  Fault includes intention if it is with regard to conduct , and recklessness where it is with regard to a circumstance in which conduct occurs or a result of conduct.  The defendant will be able to activate the defence of honest or reasonable mistake of fact if he or she can point to or adduce evidence that he or she made a relevant mistake of fact.  If that occurs, the prosecution bears the onus to prove beyond reasonable doubt that there was no mistake.

 

Current penalty : Fine not exceeding $20,000.

The Protection of the Sea (Prevention of Pollution from Ships) Act 1983 implements the operational provisions of the International Convention for the Prevention of Pollution from Ships known as MARPOL 73/78.  This Convention is in force in 114 countries and covers 94% of world shipping tonnage.

The Convention places an obligation on parties to prohibit any violation of the Convention and to establish sanctions under national laws.  To provide adequate deterrent for shipowners, the Protection of the Sea (Prevention of Pollution from Ships) Act 1983 therefore needs to provide for the maximum available financial penalty, in accordance with Commonwealth policy for environmental offences.

 

The running of a ship is an expensive business enterprise, and unless there is provision for significant penalties, there will be little incentive for owners to do more than the minimum to avoid discharge of pollutants.

 

Item 119 - After subsection 14(2)

 

This item adds a new subsection 14(2A) that provides that strict liability applies to an offence under subsection 14(2).  This amendment does not create a new offence of strict liability.  The existing offence under subsection 14(2) makes the master and owner of the ship vicariously liable for any contravention of requirements under subsection (2).  Vicarious liability is interpreted as giving rise to strict liability and therefore not requiring proof of fault.  The amendment is necessary to maintain the current operation of subsection (2).  Once the Criminal Code applies, in the absence of an express reference to the fact that an offence is a strict liability offence, a court will be required to interpret the offence as a fault offence rather than a strict liability offence.

 

The note to subsection 14(2A) refers to section 6.1 of the Criminal Code .  Section 6.1 provides that if a law that creates an offence provides that the offence is an offence of strict liability:

 

(a)    there are no fault elements for any of the physical elements of the offence; and

(b)    the defence of mistake of fact under section 9.2 is available.

 

This means that the prosecution does not have to prove fault on the part of the defendant.  Fault includes intention if it is with regard to conduct , and recklessness where it is with regard to a circumstance in which conduct occurs or a result of conduct.  The defendant will be able to activate the defence of honest or reasonable mistake of fact if he or she can point to or adduce evidence that he or she made a relevant mistake of fact.  If that occurs, the prosecution bears the onus to prove beyond reasonable doubt that there was no mistake.

 

Current penalty : Fine not exceeding $20,000.

The Protection of the Sea (Prevention of Pollution from Ships) Act 1983 implements the operational provisions of the International Convention for the Prevention of Pollution from Ships known as MARPOL 73/78.  This Convention is in force in 114 countries and covers 94% of world shipping tonnage.

The Convention places an obligation on parties to prohibit any violation of the Convention and to establish sanctions under national laws.  To provide adequate deterrent for shipowners, the Protection of the Sea (Prevention of Pollution from Ships) Act 1983 therefore needs to provide for the maximum available financial penalty, in accordance with Commonwealth policy for environmental offences.

 

The running of a ship is an expensive business enterprise, and unless there is provision for significant penalties, there will be little incentive for owners to do more than the minimum to avoid discharge of pollutants.

 

Item 120 - After subsection 22(3)

 

This item adds a new subsection 22(3A) that provides that strict liability applies to an offence under subsection 22(3).  This amendment does not create a new offences of strict liability.  The existing offence under subsection 22(3) makes the master, owner, charterer, manager or operator, or an agent of the ship vicariously liable for any contravention of requirements under subsection (3).  Vicarious liability is interpreted as giving rise to strict liability and therefore not requiring proof of fault.  The amendment is necessary to maintain the current operation of subsection (3).  Once the Criminal Code applies, in the absence of an express reference to the fact that an offence is a strict liability offence, a court will be required to interpret the offence as a fault offence rather than a strict liability offence.

 

The note to subsection 22(3A) refers to section 6.1 of the Criminal Code .  Section 6.1 provides that if a law that creates an offence provides that the offence is an offence of strict liability:

 

(a)    there are no fault elements for any of the physical elements of the offence; and

(b)    the defence of mistake of fact under section 9.2 is available.

 

This means that the prosecution does not have to prove fault on the part of the defendant.  Fault includes intention if it is with regard to conduct , and recklessness where it is with regard to a circumstance in which conduct occurs or a result of conduct.  The defendant will be able to activate the defence of honest or reasonable mistake of fact if he or she can point to or adduce evidence that he or she made a relevant mistake of fact.  If that occurs, the prosecution bears the onus to prove beyond reasonable doubt that there was no mistake.

 

Current penalty : Fine not exceeding $50,000.

The Protection of the Sea (Prevention of Pollution from Ships) Act 1983 implements the operational provisions of the International Convention for the Prevention of Pollution from Ships known as MARPOL 73/78.  This Convention is in force in 114 countries and covers 94% of world shipping tonnage.

The Convention places an obligation on parties to prohibit any violation of the Convention and to establish sanctions under national laws.  To provide adequate deterrent for shipowners, the Protection of the Sea (Prevention of Pollution from Ships) Act 1983 therefore needs to provide for the maximum available financial penalty, in accordance with Commonwealth policy for environmental offences.

 

The running of a ship is an expensive business enterprise, and unless there is provision for significant penalties, there will be little incentive for owners to do more than the minimum to avoid discharge of pollutants.



Item 121 - Subsection 22(8)

 

This item amends subsection 22(8) to delete the alternative fault elements of knowingly or recklessly that currently apply to the physical element of conduct in the offence.  Under the Criminal Code the fault elements of knowingly or recklessly can only apply to the physical elements of circumstances of conduct or result of conduct (see Division 5, Part 2.2, Chapter2 of the Criminal Code ).  Once omitted, the fault element of intention will apply to the physical element of conduct in the offence.  The fault element of recklessness will apply to the physical element of circumstances in the offence (see section 5.6 of the Criminal Code ).  Section 5.4 of the Criminal Code provides that where recklessness is the fault element for a physical element of an offence, proof of intention , knowledge or recklessness will satisfy that fault element.  Thus, the actions of the defendant who either had the requisite knowledge or recklessness will be criminalised.

 

Item 122 - After subsection 23(4)

 

This item adds a new subsection 23(4A) that provides that strict liability applies to an offence under subsection 23(4).  This amendment does not create a new offence of strict liability.  The existing offence under subsection 23(4) makes the master and owner of the ship vicariously liable for any contravention of requirements under subsection (4).  Vicarious liability is interpreted as giving rise to strict liability and therefore not requiring proof of fault.  The amendment is necessary to maintain the current operation of subsection (4).  Once the Criminal Code applies, in the absence of an express reference to the fact that an offence is a strict liability offence, a court will be required to interpret the offence as a fault offence rather than a strict liability offence.

 

The note to subsection 23(4A) refers to section 6.1 of the Criminal Code .  Section 6.1 provides that if a law that creates an offence provides that the offence is an offence of strict liability:

 

(a)    there are no fault elements for any of the physical elements of the offence; and

(b)    the defence of mistake of fact under section 9.2 is available.

 

This means that the prosecution does not have to prove fault on the part of the defendant.  Fault includes intention if it is with regard to conduct , and recklessness where it is with regard to a circumstance in which conduct occurs or a result of conduct.  The defendant will be able to activate the defence of honest or reasonable mistake of fact if he or she can point to or adduce evidence that he or she made a relevant mistake of fact.  If that occurs, the prosecution bears the onus to prove beyond reasonable doubt that there was no mistake.

 

Current penalty : Fine not exceeding $20,000.

The Protection of the Sea (Prevention of Pollution from Ships) Act 1983 implements the operational provisions of the International Convention for the Prevention of Pollution from Ships known as MARPOL 73/78.  This Convention is in force in 114 countries and covers 94% of world shipping tonnage.

The Convention places an obligation on parties to prohibit any violation of the Convention and to establish sanctions under national laws.  To provide adequate deterrent for shipowners, the Protection of the Sea (Prevention of Pollution from Ships) Act 1983 therefore needs to provide for the maximum available financial penalty, in accordance with Commonwealth policy for environmental offences.

 

The running of a ship is an expensive business enterprise, and unless there is provision for significant penalties, there will be little incentive for owners to do more than the minimum to avoid discharge of pollutants.

 

Item 123 - After subsection 25(2)

 

This item adds a new subsection 25(2A) that provides that strict liability applies to an offence under subsection 25(2).  This amendment does not create a new offence of strict liability.  The existing offence under subsection 25(2) makes the master and owner of the ship vicariously liable for any contravention of requirements under subsection (2).  Vicarious liability is interpreted as giving rise to strict liability and therefore not requiring proof of fault.  The amendment is necessary to maintain the current operation of subsection (2).  Once the Criminal Code applies, in the absence of an express reference to the fact that an offence is a strict liability offence, a court will be required to interpret the offence as a fault offence rather than a strict liability offence.

 

The note to subsection 25(2A) refers to section 6.1 of the Criminal Code .  Section 6.1 provides that if a law that creates an offence provides that the offence is an offence of strict liability:

 

(a)    there are no fault elements for any of the physical elements of the offence; and

(b)    the defence of mistake of fact under section 9.2 is available.

 

This means that the prosecution does not have to prove fault on the part of the defendant.  Fault includes intention if it is with regard to conduct , and recklessness where it is with regard to a circumstance in which conduct occurs or a result of conduct.  The defendant will be able to activate the defence of honest or reasonable mistake of fact if he or she can point to or adduce evidence that he or she made a relevant mistake of fact.  If that occurs, the prosecution bears the onus to prove beyond reasonable doubt that there was no mistake.

 

Current penalty : Fine not exceeding $20,000.

The Protection of the Sea (Prevention of Pollution from Ships) Act 1983 implements the operational provisions of the International Convention for the Prevention of Pollution from Ships known as MARPOL 73/78.  This Convention is in force in 114 countries and covers 94% of world shipping tonnage.

The Convention places an obligation on parties to prohibit any violation of the Convention and to establish sanctions under national laws.  To provide adequate deterrent for shipowners, the Protection of the Sea (Prevention of Pollution from Ships) Act 1983 therefore needs to provide for the maximum available financial penalty, in accordance with Commonwealth policy for environmental offences.

 

The running of a ship is an expensive business enterprise, and unless there is provision for significant penalties, there will be little incentive for owners to do more than the minimum to avoid discharge of pollutants.

 

Item 124 - After subsection 26B(5)

 

This item adds a new subsection 26B(5A) that provides that strict liability applies to an offence under subsection 26B(5).  This amendment does not create a new offence of strict liability.  The existing offence under subsection 26B(5) makes the master, owner, charterer, manager or operator, or an agent of the ship vicariously liable for any contravention of requirements under subsection (5).  Vicarious liability is interpreted as giving rise to strict liability and therefore not requiring proof of fault.  The amendment is necessary to maintain the current operation of subsection (5).  Once the Criminal Code applies, in the absence of an express reference to the fact that an offence is a strict liability offence, a court will be required to interpret the offence as a fault offence rather than a strict liability offence.

 

The note to subsection 26B(5A) refers to section 6.1 of the Criminal Code .  Section 6.1 provides that if a law that creates an offence provides that the offence is an offence of strict liability:

 

(a)    there are no fault elements for any of the physical elements of the offence; and

(b)    the defence of mistake of fact under section 9.2 is available.

 

This means that the prosecution does not have to prove fault on the part of the defendant.  Fault includes intention if it is with regard to conduct , and recklessness where it is with regard to a circumstance in which conduct occurs or a result of conduct.  The defendant will be able to activate the defence of honest or reasonable mistake of fact if he or she can point to or adduce evidence that he or she made a relevant mistake of fact.  If that occurs, the prosecution bears the onus to prove beyond reasonable doubt that there was no mistake.

 

Current penalty : Fine not exceeding $50,000.

The Protection of the Sea (Prevention of Pollution from Ships) Act 1983 implements the operational provisions of the International Convention for the Prevention of Pollution from Ships known as MARPOL 73/78.  This Convention is in force in 114 countries and covers 94% of world shipping tonnage.

The Convention places an obligation on parties to prohibit any violation of the Convention and to establish sanctions under national laws.  To provide adequate deterrent for shipowners, the Protection of the Sea (Prevention of Pollution from Ships) Act 1983 therefore needs to provide for the maximum available financial penalty, in accordance with Commonwealth policy for environmental offences.

 

The running of a ship is an expensive business enterprise, and unless there is provision for significant penalties, there will be little incentive for owners to do more than the minimum to avoid discharge of pollutants.

 

Item 125 - Subsection 26B(10)

 

This item amends subsection 26B(10) to delete the alternative fault elements of knowingly or recklessly that currently apply to the physical element of conduct in the offence.  Under the Criminal Code the fault elements of knowingly or recklessly can only apply to the physical elements of circumstances of conduct or result of conduct (see Division 5, Part 2.2, Chapter2 of the Criminal Code ).  Once omitted, the fault element of intention will apply to the physical element of conduct in the offence.  The fault element of recklessness will apply to the physical element of circumstances in the offence (see section 5.6 of the Criminal Code ).  Section 5.4 of the Criminal Code provides that where recklessness is the fault element for a physical element of an offence, proof of intention , knowledge or recklessness will satisfy that fault element.  Thus, the actions of the defendant who either had the requisite knowledge or recklessness will be criminalised.

 

Item 126 - Subsection 27(2)

 

This item amends subsection 27(2) to omit the words without reasonable excuse, refuse or .  The defence is now drafted as a separate subsection 27(5) at item 127.

 

Item 127 - At the end of section 27

 

This item also adds a new subsection 27(4) that provides that strict liability applies to the offence under subsection (2).  This amendment does not create a new offence of strict liability.  The use of the term fails in the existing offence under subsection 27(2) is interpreted as strict liability and therefore not requiring proof of fault.  The amendment is necessary to maintain the current operation of subsection 27(2).  Once the Criminal Code applies, in the absence of an express reference to the fact that an offence is a strict liability offence, a court will be required to interpret the offence as a fault offence rather than a strict liability offence.

 

The note to subsection 27(4) refers to section 6.1 of the Criminal Code .  Section 6.1 provides that if a law that creates an offence provides that the offence is an offence of strict liability:

 

(a)    there are no fault elements for any of the physical elements of the offence; and

(b)    the defence of mistake of fact under section 9.2 is available.

 

This means that the prosecution does not have to prove fault on the part of the defendant.  Fault includes intention if it is with regard to conduct , and recklessness where it is with regard to a circumstance in which conduct occurs or a result of conduct.  The defendant will be able to activate the defence of honest or reasonable mistake of fact if he or she can point to or adduce evidence that he or she made a relevant mistake of fact.  If that occurs, the prosecution bears the onus to prove beyond reasonable doubt that there was no mistake.

 

Current penalty : Fine not exceeding $8,000.

The Protection of the Sea (Prevention of Pollution from Ships) Act 1983 implements the operational provisions of the International Convention for the Prevention of Pollution from Ships known as MARPOL 73/78.  This Convention is in force in 114 countries and covers 94% of world shipping tonnage.

The Convention places an obligation on parties to prohibit any violation of the Convention and to establish sanctions under national laws.  To provide adequate deterrent for shipowners, the Protection of the Sea (Prevention of Pollution from Ships) Act 1983 therefore needs to provide for the maximum available financial penalty, in accordance with Commonwealth policy for environmental offences.

 

The running of a ship is an expensive business enterprise, and unless there is provision for significant penalties, there will be little incentive for owners to do more than the minimum to avoid discharge of pollutants.

 

This item is consequential upon the omission of the phrase without reasonable excuse, refuses or from subsection 27(2) at item 126.  This amendment is necessary to ensure that the defence is not mistakenly interpreted to be an element of the offence that must be proved by the prosecution.

 

This item notes that the defendant bears an evidential burden of proof with regard to the matter in subsection (5).  Criminal Code policy is that the prosecution should prove every element of the offence relevant to the guilt of the person charged (see subsection 13.1(1) of the Criminal Code ).  However, there are some instances where it is appropriate for a defendant to bear a burden of proof, such as where a matter is peculiarly within the knowledge of the defendant.  In those instances, the Criminal Code policy is that the burden should be an evidential burden rather than a legal burden (see subsection 13.3(1) of the Criminal Code ).  An evidential burden is lighter than a legal burden.  Subsection 13.3(1) of the Criminal Code provides that, subject to section 13.4 , a burden of proof that a law imposes on a defendant is an evidential burden only .  An evidential burden is the burden of adducing or pointing to evidence that suggests a reasonable possibility that the matter exists or does not exist (see subsection 13.3(6) of the Criminal Code ), whereas a legal burden is the burden of proving the existence of the matter (see subsection 13.1(3) of the Criminal Code).

 

Subsection 13.3(3) of the Criminal Code provides that a defendant who wishes to rely on any exception, exemption, excuse, qualification or justification provided by law creating an offence bears an evidential burden in such circumstances.

 

Item 128 - After subsection 27A(5)

 

This item adds a new subsection 27A(5A) that provides that strict liability applies to an offence under subsection 27A(5).  This amendment does not create a new offence of strict liability.  The existing offence under subsection 27A(5) makes the master and owner of the ship vicariously liable for any contravention of requirements under subsection (5).  Vicarious liability is interpreted as giving rise to strict liability and therefore not requiring proof of fault.  The amendment is necessary to maintain the current operation of subsection (5).  Once the Criminal Code applies, in the absence of an express reference to the fact that an offence is a strict liability offence, a court will be required to interpret the offence as a fault offence rather than a strict liability offence.

 

The note to subsection 27A(5A) refers to section 6.1 of the Criminal Code .  Section 6.1 provides that if a law that creates an offence provides that the offence is an offence of strict liability:

 

(a)    there are no fault elements for any of the physical elements of the offence; and

(b)    the defence of mistake of fact under section 9.2 is available.

 

This means that the prosecution does not have to prove fault on the part of the defendant.  Fault includes intention if it is with regard to conduct , and recklessness where it is with regard to a circumstance in which conduct occurs or a result of conduct.  The defendant will be able to activate the defence of honest or reasonable mistake of fact if he or she can point to or adduce evidence that he or she made a relevant mistake of fact.  If that occurs, the prosecution bears the onus to prove beyond reasonable doubt that there was no mistake.

 

Current penalty : 2,000 penalty units.

The Protection of the Sea (Prevention of Pollution from Ships) Act 1983 implements the operational provisions of the International Convention for the Prevention of Pollution from Ships known as MARPOL 73/78.  This Convention is in force in 114 countries and covers 94% of world shipping tonnage.

The Convention places an obligation on parties to prohibit any violation of the Convention and to establish sanctions under national laws.  To provide adequate deterrent for shipowners, the Protection of the Sea (Prevention of Pollution from Ships) Act 1983 therefore needs to provide for the maximum available financial penalty, in accordance with Commonwealth policy for environmental offences.

 

The running of a ship is an expensive business enterprise, and unless there is provision for significant penalties, there will be little incentive for owners to do more than the minimum to avoid discharge of pollutants.

 

Item 129 - At the end of section 27C

 

This item adds a new subsection 27C(2) that provides that strict liability applies to an offence under subsection 27C(1).  This amendment does not create a new offence of strict liability.  The existing offence under subsection 27C(1) makes the master and owner of the ship vicariously liable for any contravention of requirements under subsection (1).  Vicarious liability is interpreted as giving rise to strict liability and therefore not requiring proof of fault.  The amendment is necessary to maintain the current operation of subsection (1).  Once the Criminal Code applies, in the absence of an express reference to the fact that an offence is a strict liability offence, a court will be required to interpret the offence as a fault offence rather than a strict liability offence.

 

The note to subsection 27C(2) refers to section 6.1 of the Criminal Code .  Section 6.1 provides that if a law that creates an offence provides that the offence is an offence of strict liability:

 

(a)    there are no fault elements for any of the physical elements of the offence; and

(b)    the defence of mistake of fact under section 9.2 is available.

 

This means that the prosecution does not have to prove fault on the part of the defendant.  Fault includes intention if it is with regard to conduct , and recklessness where it is with regard to a circumstance in which conduct occurs or a result of conduct.  The defendant will be able to activate the defence of honest or reasonable mistake of fact if he or she can point to or adduce evidence that he or she made a relevant mistake of fact.  If that occurs, the prosecution bears the onus to prove beyond reasonable doubt that there was no mistake.

 

Current penalty : 500 penalty units.

The Protection of the Sea (Prevention of Pollution from Ships) Act 1983 implements the operational provisions of the International Convention for the Prevention of Pollution from Ships known as MARPOL 73/78.  This Convention is in force in 114 countries and covers 94% of world shipping tonnage.

The Convention places an obligation on parties to prohibit any violation of the Convention and to establish sanctions under national laws.  To provide adequate deterrent for shipowners, the Protection of the Sea (Prevention of Pollution from Ships) Act 1983 therefore needs to provide for the maximum available financial penalty, in accordance with Commonwealth policy for environmental offences.

 

The running of a ship is an expensive business enterprise, and unless there is provision for significant penalties, there will be little incentive for owners to do more than the minimum to avoid discharge of pollutants.

 

Protection of the Sea (Shipping Levy Collection) Act 1981

 

Item 130 - After section 4

 

This item inserts a new section 4A that provides that Chapter 2 of the Criminal Code applies to all offences against the Protection of the Sea (Shipping Levy Collection) Act 1981 .  It also inserts a note that says that Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.

 

Item 131 - After subsection 12(2)

 

This item adds a new subsection 12(2A) that provides that strict liability applies to the offence under subsection 12(2).  This amendment does not create a new offence of strict liability.  The nature of the offence and the low level penalty in the existing offence under subsection (2) indicates that the offence is strict liability and therefore not requiring proof of fault.  The amendment is necessary to maintain the current operation of subsection 12(2).  Once the Criminal Code applies, in the absence of an express reference to the fact that an offence is a strict liability offence, a court will be required to interpret the offence as a fault offence rather than a strict liability offence. 

 

The note to subsection 12(2A) refers to section 6.1 of the Criminal Code .  Section 6.1 provides that if a law that creates an offence provides that the offence is an offence of strict liability:

 

(a)    there are no fault elements for any of the physical elements of the offence; and

(b)    the defence of mistake of fact under section 9.2 is available.

 

This means that the prosecution does not have to prove fault on the part of the defendant.  Fault includes intention if it is with regard to conduct , and recklessness where it is with regard to a circumstance in which conduct occurs or a result of conduct.  The defendant will be able to activate the defence of honest or reasonable mistake of fact if he or she can point to or adduce evidence that he or she made a relevant mistake of fact.  If that occurs, the prosecution bears the onus to prove beyond reasonable doubt that there was no mistake.



Shipping Registration Act 1981

 

Item 132 - Subsection 3(1)

 

This item inserts a definition of offence based on into subsection 3(1).

 

Item 133 - After section 11

 

This item inserts a new section 11A that provides that Chapter 2 of the Criminal Code applies to all offences against the Shipping Registration Act 1981 .  It also inserts a note that says that Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.

 

Item 134 - After subsection 12(3)

 

This item adds a new subsection 12(3A) that provides that strict liability applies to the offence under subsection 12(3).  This amendment does not create a new offence of strict liability.  The nature of the offence in the existing offence under subsection (3) indicates that the offence is strict liability and therefore not requiring proof of fault.  The amendment is necessary to maintain the current operation of subsection 12(3).  Once the Criminal Code applies, in the absence of an express reference to the fact that an offence is a strict liability offence, a court will be required to interpret the offence as a fault offence rather than a strict liability offence. 

 

The note to subsection 12(3A) refers to section 6.1 of the Criminal Code .  Section 6.1 provides that if a law that creates an offence provides that the offence is an offence of strict liability:

 

(a)    there are no fault elements for any of the physical elements of the offence; and

(b)    the defence of mistake of fact under section 9.2 is available.

 

This means that the prosecution does not have to prove fault on the part of the defendant.  Fault includes intention if it is with regard to conduct , and recklessness where it is with regard to a circumstance in which conduct occurs or a result of conduct.  The defendant will be able to activate the defence of honest or reasonable mistake of fact if he or she can point to or adduce evidence that he or she made a relevant mistake of fact.  If that occurs, the prosecution bears the onus to prove beyond reasonable doubt that there was no mistake.

 

Item 135 - Subsection 20(2)

 

This item amends subsection 20(2) to omit the defence of reasonable excuse .  The defence is now drafted as a separate subsection 20(2A) at item 136. This amendment is necessary to ensure that the defence is not mistakenly interpreted to be an element of the offence that must be proved by the prosecution.

 

Item 136 - After subsection 20(2)

 

This item inserts a new subsection 20(2A) which provides the defence of reasonable excuse .  This amendment is necessary to ensure that the defence is not mistakenly interpreted to be an element of the offence that must be proved by the prosecution.

 

This item also notes that the defendant bears an evidential burden of proof with regard to the defence provided at subsection 20(2A).  Criminal Code policy is that the prosecution should prove every element of the offence relevant to the guilt of the person charged (see subsection 13.1(1) of the Criminal Code ).  However, there are some instances where it is appropriate for a defendant to bear a burden of proof, such as where a matter is peculiarly within the knowledge of the defendant.  In those instances, the Criminal Code policy is that the burden should be an evidential burden rather than a legal burden (see subsection 13.3(1) of the Criminal Code ).  An evidential burden is lighter than a legal burden.  Subsection 13.3(1) of the Criminal Code provides that, subject to section 13.4 , a burden of proof that a law imposes on a defendant is an evidential burden only .  An evidential burden is the burden of adducing or pointing to evidence that suggests a reasonable possibility that the matter exists or does not exist (see subsection 13.3(6) of the Criminal Code ), whereas a legal burden is the burden of proving the existence of the matter (see subsection 13.1(3) of the Criminal Code).

 

Subsection 13.3(3) of the Criminal Code provides that a defendant who wishes to rely on any exception, exemption, excuse, qualification or justification provided by law creating an offence bears an evidential burden in such circumstances.

 

This item also adds a new subsection 20(2B) that provides that strict liability applies to the offence under subsection (2).  This amendment does not create a new offence of strict liability.  The use of the term fails in the existing offence under subsection 20(2) is interpreted as strict liability and therefore not requiring proof of fault.  The amendment is necessary to maintain the current operation of subsection 20(2).  Once the Criminal Code applies, in the absence of an express reference to the fact that an offence is a strict liability offence, a court will be required to interpret the offence as a fault offence rather than a strict liability offence.

 

The note to subsection 20(2B) refers to section 6.1 of the Criminal Code .  Section 6.1 provides that if a law that creates an offence provides that the offence is an offence of strict liability:

 

(a)    there are no fault elements for any of the physical elements of the offence; and

(b)    the defence of mistake of fact under section 9.2 is available.

 

This means that the prosecution does not have to prove fault on the part of the defendant.  Fault includes intention if it is with regard to conduct , and recklessness where it is with regard to a circumstance in which conduct occurs or a result of conduct.  The defendant will be able to activate the defence of honest or reasonable mistake of fact if he or she can point to or adduce evidence that he or she made a relevant mistake of fact.  If that occurs, the prosecution bears the onus to prove beyond reasonable doubt that there was no mistake.

 

Current penalty :         fine not exceeding $2,000 or imprisonment for a period not exceeding 12 months, or both

 

Failure to deliver a registration certificate either, to the person entitled to the custody of it for lawful navigation of the ship, or to the Registrar, Deputy Registrar, a proper officer or any other person entitled by law to require its delivery, has two serious consequences :

 

a)       interference with the efficient operation of the Register; and

b)       interference with the operation of the vessel.

 

Significant penalties are required to ensure compliance.

 

Item 137 - After subsection 26(2)

 

This item adds a new subsection 26(2A) that provides that strict liability applies to an offence under subsection 26(2).  This amendment does not create a new offence of strict liability.  The existing offence under subsection 26(2) makes the master and owner of the ship vicariously liable for any contravention of requirements under subsection (2).  Vicarious liability is interpreted as giving rise to strict liability and therefore not requiring proof of fault.  The amendment is necessary to maintain the current operation of subsection (2).  Once the Criminal Code applies, in the absence of an express reference to the fact that an offence is a strict liability offence, a court will be required to interpret the offence as a fault offence rather than a strict liability offence.

 

The note to subsection 26(2A) refers to section 6.1 of the Criminal Code .  Section 6.1 provides that if a law that creates an offence provides that the offence is an offence of strict liability:

 

(a)    there are no fault elements for any of the physical elements of the offence; and

(b)    the defence of mistake of fact under section 9.2 is available.

 

This means that the prosecution does not have to prove fault on the part of the defendant.  Fault includes intention if it is with regard to conduct , and recklessness where it is with regard to a circumstance in which conduct occurs or a result of conduct.  The defendant will be able to activate the defence of honest or reasonable mistake of fact if he or she can point to or adduce evidence that he or she made a relevant mistake of fact.  If that occurs, the prosecution bears the onus to prove beyond reasonable doubt that there was no mistake.

 

Item 138 - Subsection 26(3)

 

This item replaces subsection 26(3) with a provision that more accurately identifies the physical elements of result in the offence to which the default fault element of recklessness will be applied by the Criminal Code .

 

This amendment has rephrased the offence to clarify that the terms conceal, alter, deface or obliterate are physical elements of the result of the defendant’s conduct to which the default fault element of recklessness will apply.

 

The rationale for the amendment is that an accused person does not conceal, remove, alter, deface or obliterate .  Rather, the concealment, removal, alteration, defacing or obliteration is the result of the accused person’s conduct, and is a physical element of result rather than a physical element of conduct.  It follows that using concealment, removal, alteration, defacing or obliteration as the active verb in a criminal offence may lead to difficulties in interpreting the offence following application of the Criminal Code .  Reconstructing the offence enables the physical elements of conduct and result to be better identified.

 

This item also inserts a provision at subsection 26(3A) that strict liability applies to an offence under subsection (3).  This amendment ensures that the provision is not interpreted as requiring the prosecution to prove, as part of the offence, that the defendant had knowledge of the requirements of subsection (1) .

 

Subsection 9.3(1) of the Criminal Code provides that mistake or ignorance of statute law is no excuse.  Subsection 9.3(2) provides that subsection 9.3(1) does not apply if the particular Act is expressly or impliedly to the contrary effect.  This amendment does not create a new offence of strict liability.  The amendment is necessary to maintain the current operation of section 29, and ensure that it is not interpreted to indicate a contrary intention for the purposes of section 9.3 of the Criminal Code

 

Item 139 - At the end of section 26

 

This item defines “engage in conduct” to mean:

 

(a)     do an act; or

(b)    omit to perform an act.

 

This definition is consistent with the definition at subsection 4.1(2) of the Criminal Code.

 

Item 140 - After subsection 30(2)

 

This item adds a new subsection 30(2A) that provides that strict liability applies to the offence under subsection 30(2).  This amendment does not create a new offence of strict liability.  The nature of the offence in the existing offence under subsection (2) indicates that the offence is strict liability and therefore not requiring proof of fault.  The amendment is necessary to maintain the current operation of subsection 30(2).  Once the Criminal Code applies, in the absence of an express reference to the fact that an offence is a strict liability offence, a court will be required to interpret the offence as a fault offence rather than a strict liability offence. 

 

The note to subsection 30(2A) refers to section 6.1 of the Criminal Code .  Section 6.1 provides that if a law that creates an offence provides that the offence is an offence of strict liability:

 

(a)    there are no fault elements for any of the physical elements of the offence; and

(b)    the defence of mistake of fact under section 9.2 is available.

 

This means that the prosecution does not have to prove fault on the part of the defendant.  Fault includes intention if it is with regard to conduct , and recklessness where it is with regard to a circumstance in which conduct occurs or a result of conduct.  The defendant will be able to activate the defence of honest or reasonable mistake of fact if he or she can point to or adduce evidence that he or she made a relevant mistake of fact.  If that occurs, the prosecution bears the onus to prove beyond reasonable doubt that there was no mistake.

 

Item 141 - After subsection 30(3)

 

This item adds a new subsection 30(3A) that provides that strict liability applies to the offence under subsection 30(3).  This amendment does not create a new offence of strict liability.  The nature of the offence in the existing offence under subsection (3) indicates that the offence is strict liability and therefore not requiring proof of fault.  The amendment is necessary to maintain the current operation of subsection 30(3).  Once the Criminal Code applies, in the absence of an express reference to the fact that an offence is a strict liability offence, a court will be required to interpret the offence as a fault offence rather than a strict liability offence. 

 

The note to subsection 30(3A) refers to section 6.1 of the Criminal Code .  Section 6.1 provides that if a law that creates an offence provides that the offence is an offence of strict liability:

 

(a)    there are no fault elements for any of the physical elements of the offence; and

(b)    the defence of mistake of fact under section 9.2 is available.

 

This means that the prosecution does not have to prove fault on the part of the defendant.  Fault includes intention if it is with regard to conduct , and recklessness where it is with regard to a circumstance in which conduct occurs or a result of conduct.  The defendant will be able to activate the defence of honest or reasonable mistake of fact if he or she can point to or adduce evidence that he or she made a relevant mistake of fact.  If that occurs, the prosecution bears the onus to prove beyond reasonable doubt that there was no mistake.

 

Item 142 - After subsection 30(8)

 

This item adds a new subsection 30(8A) that provides that strict liability applies to the offence under subsections 30(6), (7) or (8).  This amendment does not create new offences of strict liability.  The nature of the offences under subsection (6), (7) or (8) indicate that the offence is strict liability and therefore not requiring proof of fault.  The amendment is necessary to maintain the current operation of subsection 30(6), (7) or (8).  Once the Criminal Code applies, in the absence of an express reference to the fact that an offence is a strict liability offence, a court will be required to interpret the offence as a fault offence rather than a strict liability offence. 

 

The note to subsection 30(8A) refers to section 6.1 of the Criminal Code .  Section 6.1 provides that if a law that creates an offence provides that the offence is an offence of strict liability:

 

(a)    there are no fault elements for any of the physical elements of the offence; and

(b)    the defence of mistake of fact under section 9.2 is available.

 

This means that the prosecution does not have to prove fault on the part of the defendant.  Fault includes intention if it is with regard to conduct , and recklessness where it is with regard to a circumstance in which conduct occurs or a result of conduct.  The defendant will be able to activate the defence of honest or reasonable mistake of fact if he or she can point to or adduce evidence that he or she made a relevant mistake of fact.  If that occurs, the prosecution bears the onus to prove beyond reasonable doubt that there was no mistake.

 

Item 143 - Section 32

 

This item amends subsection 32(1) to omit the words for the purpose of escaping the capture by an enemy .  The defence is now drafted as a separate subsection 32(2).   This amendment is necessary to ensure that the defence is not mistakenly interpreted to be an element of the offence that must be proved by the prosecution.

 

This item also notes that the defendant bears an evidential burden of proof with regard to the defence provided at subsection 32(2).  Criminal Code policy is that the prosecution should prove every element of the offence relevant to the guilt of the person charged (see subsection 13.1(1) of the Criminal Code ).  However, there are some instances where it is appropriate for a defendant to bear a burden of proof, such as where a matter is peculiarly within the knowledge of the defendant.  In those instances, the Criminal Code policy is that the burden should be an evidential burden rather than a legal burden (see subsection 13.3(1) of the Criminal Code ).  An evidential burden is lighter than a legal burden.  Subsection 13.3(1) of the Criminal Code provides that, subject to section 13.4 , a burden of proof that a law imposes on a defendant is an evidential burden only .  An evidential burden is the burden of adducing or pointing to evidence that suggests a reasonable possibility that the matter exists or does not exist (see subsection 13.3(6) of the Criminal Code ), whereas a legal burden is the burden of proving the existence of the matter (see subsection 13.1(3) of the Criminal Code).

 

Subsection 13.3(3) of the Criminal Code provides that a defendant who wishes to rely on any exception, exemption, excuse, qualification or justification provided by law creating an offence bears an evidential burden in such circumstances.

 

This item also adds a new subsection 32(3) that provides that strict liability applies to an offence under subsection 32(1).  This amendment does not create a new offence of strict liability.  The existing offence under subsection 32(1) makes the master and owner of the ship vicariously liable for any contravention of requirements under subsection (1).  Vicarious liability is interpreted as giving rise to strict liability and therefore not requiring proof of fault.  The amendment is necessary to maintain the current operation of subsection (1).  Once the Criminal Code applies, in the absence of an express reference to the fact that an offence is a strict liability offence, a court will be required to interpret the offence as a fault offence rather than a strict liability offence.

 

The note to subsection 32(3) refers to section 6.1 of the Criminal Code .  Section 6.1 provides that if a law that creates an offence provides that the offence is an offence of strict liability:

 

(a)    there are no fault elements for any of the physical elements of the offence; and

(b)    the defence of mistake of fact under section 9.2 is available.

 

This means that the prosecution does not have to prove fault on the part of the defendant.  Fault includes intention if it is with regard to conduct , and recklessness where it is with regard to a circumstance in which conduct occurs or a result of conduct.  The defendant will be able to activate the defence of honest or reasonable mistake of fact if he or she can point to or adduce evidence that he or she made a relevant mistake of fact.  If that occurs, the prosecution bears the onus to prove beyond reasonable doubt that there was no mistake.

 

Item 144 - Section 33

 

This item amends section 33 to omit the words for the purpose of escaping the capture by an enemy .  The defence is now drafted as a separate subsection 33(2).   This amendment is necessary to ensure that the defence is not mistakenly interpreted to be an element of the offence that must be proved by the prosecution.

 

This item also notes that the defendant bears an evidential burden of proof with regard to the defence provided at subsection 33(2).  Criminal Code policy is that the prosecution should prove every element of the offence relevant to the guilt of the person charged (see subsection 13.1(1) of the Criminal Code ).  However, there are some instances where it is appropriate for a defendant to bear a burden of proof, such as where a matter is peculiarly within the knowledge of the defendant.  In those instances, the Criminal Code policy is that the burden should be an evidential burden rather than a legal burden (see subsection 13.3(1) of the Criminal Code ).  An evidential burden is lighter than a legal burden.  Subsection 13.3(1) of the Criminal Code provides that, subject to section 13.4 , a burden of proof that a law imposes on a defendant is an evidential burden only .  An evidential burden is the burden of adducing or pointing to evidence that suggests a reasonable possibility that the matter exists or does not exist (see subsection 13.3(6) of the Criminal Code ), whereas a legal burden is the burden of proving the existence of the matter (see subsection 13.1(3) of the Criminal Code).

 

Subsection 13.3(3) of the Criminal Code provides that a defendant who wishes to rely on any exception, exemption, excuse, qualification or justification provided by law creating an offence bears an evidential burden in such circumstances.

 

This item also adds a new subsection 33(3) that provides that strict liability applies to an offence under subsection 33(1).  This amendment does not create a new offence of strict liability.  The existing offence under subsection 33(1) makes the master and owner of the ship vicariously liable for any contravention of requirements under subsection (1).  Vicarious liability is interpreted as giving rise to strict liability and therefore not requiring proof of fault.  The amendment is necessary to maintain the current operation of subsection (1).  Once the Criminal Code applies, in the absence of an express reference to the fact that an offence is a strict liability offence, a court will be required to interpret the offence as a fault offence rather than a strict liability offence.

 

The note to subsection 33(3) refers to section 6.1 of the Criminal Code .  Section 6.1 provides that if a law that creates an offence provides that the offence is an offence of strict liability:

 

(a)    there are no fault elements for any of the physical elements of the offence; and

(b)    the defence of mistake of fact under section 9.2 is available.

 

This means that the prosecution does not have to prove fault on the part of the defendant.  Fault includes intention if it is with regard to conduct , and recklessness where it is with regard to a circumstance in which conduct occurs or a result of conduct.  The defendant will be able to activate the defence of honest or reasonable mistake of fact if he or she can point to or adduce evidence that he or she made a relevant mistake of fact.  If that occurs, the prosecution bears the onus to prove beyond reasonable doubt that there was no mistake.

 

Item 145 - After subsection 37A(1)

 

This item adds a new subsection 37A(1A) that provides that strict liability applies to the offence under subsection 37A(1).  This amendment does not create a new offence of strict liability.  The nature of the offence in the existing offence under subsection (1) indicates that the offence is strict liability and therefore not requiring proof of fault.  The amendment is necessary to maintain the current operation of subsection 37A(1).  Once the Criminal Code applies, in the absence of an express reference to the fact that an offence is a strict liability offence, a court will be required to interpret the offence as a fault offence rather than a strict liability offence. 

 

The note to subsection 37A(1A) refers to section 6.1 of the Criminal Code .  Section 6.1 provides that if a law that creates an offence provides that the offence is an offence of strict liability:

 

(a)    there are no fault elements for any of the physical elements of the offence; and

(b)    the defence of mistake of fact under section 9.2 is available.

 

This means that the prosecution does not have to prove fault on the part of the defendant.  Fault includes intention if it is with regard to conduct , and recklessness where it is with regard to a circumstance in which conduct occurs or a result of conduct.  The defendant will be able to activate the defence of honest or reasonable mistake of fact if he or she can point to or adduce evidence that he or she made a relevant mistake of fact.  If that occurs, the prosecution bears the onus to prove beyond reasonable doubt that there was no mistake.

 

Item 146 - After subsection 37A(2)

 

This item adds a new subsection 37A(2A) that provides that strict liability applies to the offence under subsection 37A(2).  This amendment does not create a new offence of strict liability.  The nature of the offence in the existing offence under subsection (2) indicates that the offence is strict liability and therefore not requiring proof of fault.  The amendment is necessary to maintain the current operation of subsection 37A(2).  Once the Criminal Code applies, in the absence of an express reference to the fact that an offence is a strict liability offence, a court will be required to interpret the offence as a fault offence rather than a strict liability offence. 

 

The note to subsection 37(2A) refers to section 6.1 of the Criminal Code .  Section 6.1 provides that if a law that creates an offence provides that the offence is an offence of strict liability:

 

(a)    there are no fault elements for any of the physical elements of the offence; and

(b)    the defence of mistake of fact under section 9.2 is available.

 

This means that the prosecution does not have to prove fault on the part of the defendant.  Fault includes intention if it is with regard to conduct , and recklessness where it is with regard to a circumstance in which conduct occurs or a result of conduct.  The defendant will be able to activate the defence of honest or reasonable mistake of fact if he or she can point to or adduce evidence that he or she made a relevant mistake of fact.  If that occurs, the prosecution bears the onus to prove beyond reasonable doubt that there was no mistake.

 

Item 147 - Section 61

 

This item omits the term wilfully from section 61.  The use of the word wilfully in relation to the physical element of conduct , is akin to the use of intentionally .  The fault element of intention is the equivalent used in the Criminal Code .  The omission of the term wilfully ensures that future courts do not attempt to distinguish wilfulness from intention on the basis that it appears to differ from the basic Criminal Code fault element.

 

Item 148 - After subsection 64(2)

 

This item adds a new subsection 64(2A) that provides that strict liability applies to the offence under subsection 64(2).  This amendment does not create a new offence of strict liability.  The nature of the offence in the existing offence under subsection (2) indicates that the offence is strict liability and therefore not requiring proof of fault.  The amendment is necessary to maintain the current operation of subsection 64(2).  Once the Criminal Code applies, in the absence of an express reference to the fact that an offence is a strict liability offence, a court will be required to interpret the offence as a fault offence rather than a strict liability offence. 

 

The note to subsection 64(2A) refers to section 6.1 of the Criminal Code .  Section 6.1 provides that if a law that creates an offence provides that the offence is an offence of strict liability:

 

(a)    there are no fault elements for any of the physical elements of the offence; and

(b)    the defence of mistake of fact under section 9.2 is available.

 

This means that the prosecution does not have to prove fault on the part of the defendant.  Fault includes intention if it is with regard to conduct , and recklessness where it is with regard to a circumstance in which conduct occurs or a result of conduct.  The defendant will be able to activate the defence of honest or reasonable mistake of fact if he or she can point to or adduce evidence that he or she made a relevant mistake of fact.  If that occurs, the prosecution bears the onus to prove beyond reasonable doubt that there was no mistake.

 

Item 149 - Subsection 66(1)

 

This item redrafts subsection 66(1) to make clear that knowledge is the fault element for the physical element of circumstance .

 

Item 150 - After subsection 68(2)

 

This item also adds a new subsection 68(2A) that provides that strict liability applies to the offence under subsection (2).  This amendment does not create a new offence of strict liability.  The use of the term fails in the existing offence under subsection 68(2) is interpreted as strict liability and therefore not requiring proof of fault.  The amendment is necessary to maintain the current operation of subsection 68(2).  Once the Criminal Code applies, in the absence of an express reference to the fact that an offence is a strict liability offence, a court will be required to interpret the offence as a fault offence rather than a strict liability offence.

 

The note to subsection 68(2A) refers to section 6.1 of the Criminal Code .  Section 6.1 provides that if a law that creates an offence provides that the offence is an offence of strict liability:

 

(a)    there are no fault elements for any of the physical elements of the offence; and

(b)    the defence of mistake of fact under section 9.2 is available.

 

This means that the prosecution does not have to prove fault on the part of the defendant.  Fault includes intention if it is with regard to conduct , and recklessness where it is with regard to a circumstance in which conduct occurs or a result of conduct.  The defendant will be able to activate the defence of honest or reasonable mistake of fact if he or she can point to or adduce evidence that he or she made a relevant mistake of fact.  If that occurs, the prosecution bears the onus to prove beyond reasonable doubt that there was no mistake.



Item 151 - After subsection 69(2)

 

This item adds a new subsection 69(2A) that provides that strict liability applies to an offence under subsection 69(2).  This amendment does not create a new offence of strict liability.  The existing offence under subsection 69(2) makes the master and owner of the ship vicariously liable for any contravention of requirements under subsection (2).  Vicarious liability is interpreted as giving rise to strict liability and therefore not requiring proof of fault.  The amendment is necessary to maintain the current operation of subsection (2).  Once the Criminal Code applies, in the absence of an express reference to the fact that an offence is a strict liability offence, a court will be required to interpret the offence as a fault offence rather than a strict liability offence.

 

The note to subsection 69(2A) refers to section 6.1 of the Criminal Code .  Section 6.1 provides that if a law that creates an offence provides that the offence is an offence of strict liability:

 

(a)    there are no fault elements for any of the physical elements of the offence; and

(b)    the defence of mistake of fact under section 9.2 is available.

 

This means that the prosecution does not have to prove fault on the part of the defendant.  Fault includes intention if it is with regard to conduct , and recklessness where it is with regard to a circumstance in which conduct occurs or a result of conduct.  The defendant will be able to activate the defence of honest or reasonable mistake of fact if he or she can point to or adduce evidence that he or she made a relevant mistake of fact.  If that occurs, the prosecution bears the onus to prove beyond reasonable doubt that there was no mistake.

 

Item 152 - After subsection 71(2)

 

This item adds a new subsection 71(2A) that provides that strict liability applies to an offence under subsection 71(2).  This amendment does not create a new offence of strict liability.  The existing offence under subsection 71(2) makes the master and owner of the ship vicariously liable for any contravention of requirements under subsection (2).  Vicarious liability is interpreted as giving rise to strict liability and therefore not requiring proof of fault.  The amendment is necessary to maintain the current operation of subsection (2).  Once the Criminal Code applies, in the absence of an express reference to the fact that an offence is a strict liability offence, a court will be required to interpret the offence as a fault offence rather than a strict liability offence.

 

The note to subsection 71(2A) refers to section 6.1 of the Criminal Code .  Section 6.1 provides that if a law that creates an offence provides that the offence is an offence of strict liability:

 

(a)    there are no fault elements for any of the physical elements of the offence; and

(b)    the defence of mistake of fact under section 9.2 is available.

 

This means that the prosecution does not have to prove fault on the part of the defendant.  Fault includes intention if it is with regard to conduct , and recklessness where it is with regard to a circumstance in which conduct occurs or a result of conduct.  The defendant will be able to activate the defence of honest or reasonable mistake of fact if he or she can point to or adduce evidence that he or she made a relevant mistake of fact.  If that occurs, the prosecution bears the onus to prove beyond reasonable doubt that there was no mistake.

 

Item 153 - Subsection 73(1)

 

This item omits or attempts to cause from subsection 73(1).  Ancillary offences of attempting to commit proscribed conduct will be superfluous following application of the Criminal Code .  Section 11.1 of the Criminal Code creates a general offence of attempt and will be applicable to all offences against the Commonwealth.

 

Item 154 - Subsection 74(1)

 

This item is consequential upon item 156.

 

Item 155 - Subsection 74(2)

 

This item is consequential upon item 156.

 

Item 156 - After subsection 74(4B)

 

This item inserts a new subsection 74(4C) to reduce the current term of imprisonment from 12 months to 6 months in line with Criminal Code policy on term of imprisonment for strict liability offences.

 
Ships (Capital Grants) Act 1987

 

Item 157 - At the end of Part 1

 

This item inserts a new section 7A that provides that Chapter 2 of the Criminal Code applies to all offences against the Ships (Capital Grants) Act 1987 .  It also inserts a note that says that Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.

 

Item 158 - Subsection 17(1)

 

This item omits the term becomes aware from subsection 17(1) of the Ships (Capital Grants) Act 1987 .  The term is used in relation to the physical element of circumstance .  Under the Criminal Code , the physical element of circumstance will attract the default element of recklessness and will change the way the offence currently operates.  That fault element is therefore inappropriate and the fault element of knowledge is specified.

 

Item 159 - Subsection 30(3)

 

This item amends subsection 30(3) to omit the words without reasonable excuse .  The defence is now drafted as a separate subsection 30(5) at item 160.

 

Item 160 - After subsection 30(3)

 

This item also adds a new subsection 30(4) that provides that strict liability applies to the offence under subsection (3).  This amendment does not create a new offence of strict liability.  The use of the term fails in the existing offence under subsection 30(3) is interpreted as strict liability and therefore not requiring proof of fault.  The amendment is necessary to maintain the current operation of subsection 30(3).  Once the Criminal Code applies, in the absence of an express reference to the fact that an offence is a strict liability offence, a court will be required to interpret the offence as a fault offence rather than a strict liability offence.

 

The note to subsection 30(4) refers to section 6.1 of the Criminal Code .  Section 6.1 provides that if a law that creates an offence provides that the offence is an offence of strict liability:

 

(a)    there are no fault elements for any of the physical elements of the offence; and

(b)    the defence of mistake of fact under section 9.2 is available.

 

This means that the prosecution does not have to prove fault on the part of the defendant.  Fault includes intention if it is with regard to conduct , and recklessness where it is with regard to a circumstance in which conduct occurs or a result of conduct.  The defendant will be able to activate the defence of honest or reasonable mistake of fact if he or she can point to or adduce evidence that he or she made a relevant mistake of fact.  If that occurs, the prosecution bears the onus to prove beyond reasonable doubt that there was no mistake.

 

This item also notes that the defendant bears an evidential burden of proof with regard to the defence provided at subsection 30(5).  Criminal Code policy is that the prosecution should prove every element of the offence relevant to the guilt of the person charged (see subsection 13.1(1) of the Criminal Code ).  However, there are some instances where it is appropriate for a defendant to bear a burden of proof, such as where a matter is peculiarly within the knowledge of the defendant.  In those instances, the Criminal Code policy is that the burden should be an evidential burden rather than a legal burden (see subsection 13.3(1) of the Criminal Code ).  An evidential burden is lighter than a legal burden.  Subsection 13.3(1) of the Criminal Code provides that, subject to section 13.4 , a burden of proof that a law imposes on a defendant is an evidential burden only .  An evidential burden is the burden of adducing or pointing to evidence that suggests a reasonable possibility that the matter exists or does not exist (see subsection 13.3(6) of the Criminal Code ), whereas a legal burden is the burden of proving the existence of the matter (see subsection 13.1(3) of the Criminal Code).

 

Subsection 13.3(3) of the Criminal Code provides that a defendant who wishes to rely on any exception, exemption, excuse, qualification or justification provided by law creating an offence bears an evidential burden in such circumstances.

 
Submarine Cables and Pipelines Protection Act 1963

 

Item 161 - After section 5

 

This item inserts a new section 5A that provides that Chapter 2 of the Criminal Code applies to all offences against the Submarine Cables and Pipelines Protection Act 1963 .  It also inserts a note that says that Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.

 

Item 162 - Subsection 7(1)

 

This item repeals subsection 7(1) and substitutes new subsection 7(1) and 7(1A).  The redrafted offence provisions omit the term wilfully from the subsection.  The use of the word wilfully in relation to the physical element of conduct is akin to the use of intentionally .  The fault element of intention is the equivalent used in the Criminal Code .  The omission of the term wilfully ensures that future courts do not attempt to distinguish wilfulness from intention on the basis that it appears to differ from the Criminal Code fault element.

 

This amendment has also rephrased the offence to clarify that interrupt, obstruct, break or injure are physical elements of the result of the defendant’s conduct to which the default fault element of recklessness will apply.

 

The rationale for the amendment is that an accused person does not interrupt, obstruct, break or injure .  Rather, the interrupting, obstructing, breaking or injuring is the result of the accused person’s conduct, and is a physical element of result rather than a physical element of conduct.  It follows that using interrupt, obstruct, break or injure as the active verb in a criminal offence may lead to difficulties in interpreting the offence following application of the Criminal Code

 

The maximum penalty under this subsection is $200.

 

This item also replaces subsection 7(1) with a provision (1A) that more accurately identifies the physical elements of result in the pre-existing offence to which the alternative fault element of negligence applies.

 

This amendment has rephrased the offence to clarify that the interrupting, breaking, injuring or obstructing is a physical element of the result of the defendant’s conduct to which the alternative fault element of negligence applies.

 

The maximum penalty under this subsection is $1,000, or imprisonment for 3 months.

 

Item 163 - At the end of section 7

 

This item defines “engage in conduct” to mean:

 

(a)     do an act; or

(b)    omit to perform an act.

 

This definition is consistent with the definition at subsection 4.1(2) of the Criminal Code.

 

Sydney Airport Curfew Act 1995

 

Item 164 - Section 3

 

This item defines “engage in conduct” to mean:

 

(a)     do an act; or

(b)    omit to perform an act.

 

This definition is consistent with the definition at subsection 4.1(2) of the Criminal Code.



Item 165 - After section 3

 

This item inserts a new section 3A that provides that Chapter 2 of the Criminal Code (except Part 2.5) applies to all offences against the Sydney Airport Curfew Act 1995 .   It also inserts a note that says that Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.

 

Part 2.5 of the Criminal Code is the only Part of Chapter 2 that does not automatically apply to offences.  When the Criminal Code was introduced into the Senate on 30 June 1994, it was stated that Part 2.5 would be the basis of corporate criminal liability if no other basis were provided.  Section ? of the Sydney Airport Curfew Act 1995 deals with corporate criminal responsibility by vicariously establishing criminal responsibility for corporations as a result of the conduct of its directors, employees or agents. The disapplication of Part 2.5 is necessary to prevent competing corporate criminal liability regimes operating in relation to the same criminal offences.

 

Item 166 - Subsection 7(2)

 

This item amends subsection 7(2) to delete the alternative fault elements of knowingly or recklessly that currently apply to the physical element of conduct in the offence.  Under the Criminal Code the fault elements of knowingly or recklessly can only apply to the physical elements of circumstances of conduct or result of conduct (see Division 5, Part 2.2, Chapter2 of the Criminal Code ).  Once omitted, the fault element of intention will apply to the physical element of conduct in the offence.  The fault element of recklessness will apply to the physical element of circumstances in the offence (see section 5.6 of the Criminal Code ).  Section 5.4 of the Criminal Code provides that where recklessness is the fault element for a physical element of an offence, proof of intention , knowledge or recklessness will satisfy that fault element.  Thus, the actions of the defendant who either had the requisite knowledge or recklessness will be criminalised.

 

This item also inserts a provision at subsection 7(3) that strict liability applies to an offence under subsection (2)(b).  This amendment ensures that the provision is not interpreted as requiring the prosecution to prove, as part of the offence, that the defendant had knowledge of the requirements of subsection (1) .

 

Subsection 9.3(1) of the Criminal Code provides that mistake or ignorance of statute law is no excuse.  Subsection 9.3(2) provides that subsection 9.3(1) does not apply if the particular Act is expressly or impliedly to the contrary effect.  This amendment does not create a new offence of strict liability.  The amendment is necessary to maintain the current operation of section 29, and ensure that it is not interpreted to indicate a contrary intention for the purposes of section 9.3 of the Criminal Code

 

Item 167 - Subsection 8(2)

 

This item replaces subsection 8(2) with a provision that more accurately identifies the physical elements of conduct and result in the offence, to which the default fault elements of intention and recklessness, will be applied by the Criminal Code .

 

This amendment has rephrased the offence to clarify that:

 

·          paragraph 8(2)(a) is the physical element of conduct to which the default fault element of intention will apply; and

·          paragraph 8(2)(b) is the physical element of result to which the default element of recklessness will apply.

 

The maximum penalty under this subsection is 50 penalty units.

 

This item also adds a new subsection 8(2A) that provides that strict liability applies to the offence under subsection (2)(b).  This amendment does not create a new offence of strict liability.  The use of the term fails in the existing offence under paragraph 8(2)(b) is interpreted as strict liability and therefore not requiring proof of fault.  The amendment is necessary to maintain the current operation of paragraph (2)(b).  Once the Criminal Code applies, in the absence of an express reference to the fact that an offence is a strict liability offence, a court will be required to interpret the offence as a fault offence rather than a strict liability offence.

 

The note to subsection 8(2A) refers to section 6.1 of the Criminal Code .  Section 6.1 provides that if a law that creates an offence provides that the offence is an offence of strict liability:

 

(e)     there are no fault elements for the any of the physical elements of the offence; and

(f)     the defence of mistake of fact under section 9.2 is available.

 

This means that the prosecution does not have to prove fault on the part of the defendant.  Fault includes intention if it is with regard to conduct , and recklessness where it is with regard to a circumstance in which conduct occurs or a result of conduct.  The defendant will be able to activate the defence of honest or reasonable mistake of fact if he or she can point to or adduce evidence that he or she made a relevant mistake of fact.  If that occurs, the prosecution bears the onus to prove beyond reasonable doubt that there was no mistake.

 

Item 168 - Subsection 9(2)

 

This item replaces subsection 9(2) with a provision that more accurately identifies the physical elements of conduct and result in the offence, to which the default fault elements of intention and recklessness, will be applied by the Criminal Code .

 

This amendment has rephrased the offence to clarify that:

 

·          paragraph 9(2)(a) is the physical element of conduct to which the default fault element of intention will apply; and

·          paragraph 9(2)(b) is the physical element of result to which the default element of recklessness will apply.

 

The maximum penalty under this subsection is 50 penalty units.

 

This item also adds a new subsection 9(2A) that provides that strict liability applies to the offence under subsection (2)(b).  This amendment does not create a new offence of strict liability.  The use of the term fails in the existing offence under paragraph 9(2)(b) is interpreted as strict liability and therefore not requiring proof of fault.  The amendment is necessary to maintain the current operation of paragraph (2)(b).  Once the Criminal Code applies, in the absence of an express reference to the fact that an offence is a strict liability offence, a court will be required to interpret the offence as a fault offence rather than a strict liability offence.

 

The note to subsection 9(2A) refers to section 6.1 of the Criminal Code .  Section 6.1 provides that if a law that creates an offence provides that the offence is an offence of strict liability:

 

(g)    there are no fault elements for the any of the physical elements of the offence; and

(h)    the defence of mistake of fact under section 9.2 is available.

 

This means that the prosecution does not have to prove fault on the part of the defendant.  Fault includes intention if it is with regard to conduct , and recklessness where it is with regard to a circumstance in which conduct occurs or a result of conduct.  The defendant will be able to activate the defence of honest or reasonable mistake of fact if he or she can point to or adduce evidence that he or she made a relevant mistake of fact.  If that occurs, the prosecution bears the onus to prove beyond reasonable doubt that there was no mistake.

 

Item 169 - Subsection 10(2)

 

This item amends subsection 10(2) to delete the alternative fault elements of knowingly or recklessly that currently apply to the physical element of conduct in the offence.  Under the Criminal Code the fault elements of knowingly or recklessly can only apply to the physical elements of circumstances of conduct or result of conduct (see Division 5, Part 2.2, Chapter2 of the Criminal Code ).  Once omitted, the fault element of intention will apply to the physical element of conduct in the offence.  The fault element of recklessness will apply to the physical element of circumstances in the offence (see section 5.6 of the Criminal Code ).  Section 5.4 of the Criminal Code provides that where recklessness is the fault element for a physical element of an offence, proof of intention , knowledge or recklessness will satisfy that fault element.  Thus, the actions of the defendant who either had the requisite knowledge or recklessness will be criminalised.

 

This item also inserts a provision at subsection 10(3) that strict liability applies to an offence under subsection (2)(b).  This amendment ensures that the provision is not interpreted as requiring the prosecution to prove, as part of the offence, that the defendant had knowledge of the requirements of subsection (1) .

 

Subsection 9.3(1) of the Criminal Code provides that mistake or ignorance of statute law is no excuse.  Subsection 9.3(2) provides that subsection 9.3(1) does not apply if the particular Act is expressly or impliedly to the contrary effect.  This amendment does not create a new offence of strict liability.  The amendment is necessary to maintain the current operation of section 29, and ensure that it is not interpreted to indicate a contrary intention for the purposes of section 9.3 of the Criminal Code .

 

Item 170 - Subsection 11(3)

 

This item amends subsection 11(3) to delete the alternative fault elements of knowingly or recklessly that currently apply to the physical element of conduct in the offence.  Under the Criminal Code the fault elements of knowingly or recklessly can only apply to the physical elements of circumstances of conduct or result of conduct (see Division 5, Part 2.2, Chapter2 of the Criminal Code ).  Once omitted, the fault element of intention will apply to the physical element of conduct in the offence.  The fault element of recklessness will apply to the physical element of circumstances in the offence (see section 5.6 of the Criminal Code ).  Section 5.4 of the Criminal Code provides that where recklessness is the fault element for a physical element of an offence, proof of intention , knowledge or recklessness will satisfy that fault element.  Thus, the actions of the defendant who either had the requisite knowledge or recklessness will be criminalised.

 

This item also inserts a provision at subsection 11(3A) that strict liability applies to an offence under subsection (3)(b).  This amendment ensures that the provision is not interpreted as requiring the prosecution to prove, as part of the offence, that the defendant had knowledge of the requirements of subsection (1) or (2) .

 

Subsection 9.3(1) of the Criminal Code provides that mistake or ignorance of statute law is no excuse.  Subsection 9.3(2) provides that subsection 9.3(1) does not apply if the particular Act is expressly or impliedly to the contrary effect.  This amendment does not create a new offence of strict liability.  The amendment is necessary to maintain the current operation of section 29, and ensure that it is not interpreted to indicate a contrary intention for the purposes of section 9.3 of the Criminal Code .

 

Item 171 - Subsection 21(2)

 

This item amends subsection 21(2) to delete the alternative fault elements of knowingly or recklessly that currently apply to the physical element of conduct in the offence.  Under the Criminal Code the fault elements of knowingly or recklessly can only apply to the physical elements of circumstances of conduct or result of conduct (see Division 5, Part 2.2, Chapter2 of the Criminal Code ).  Once omitted, the fault element of intention will apply to the physical element of conduct in the offence.  The fault element of recklessness will apply to the physical element of circumstances in the offence (see section 5.6 of the Criminal Code ).  Section 5.4 of the Criminal Code provides that where recklessness is the fault element for a physical element of an offence, proof of intention , knowledge or recklessness will satisfy that fault element.  Thus, the actions of the defendant who either had the requisite knowledge or recklessness will be criminalised.

 

Item 172 - Section 22

 

This item amends section 22 to delete the alternative fault elements of knowingly or recklessly that currently apply to the physical element of conduct in the offence.  Under the Criminal Code the fault elements of knowingly or recklessly can only apply to the physical elements of circumstances of conduct or result of conduct (see Division 5, Part 2.2, Chapter2 of the Criminal Code ).  Once omitted, the fault element of intention will apply to the physical element of conduct in the offence.  The fault element of recklessness will apply to the physical element of circumstances in the offence (see section 5.6 of the Criminal Code ).  Section 5.4 of the Criminal Code provides that where recklessness is the fault element for a physical element of an offence, proof of intention , knowledge or recklessness will satisfy that fault element.  Thus, the actions of the defendant who either had the requisite knowledge or recklessness will be criminalised.



Item 173 - Subsection 25(5) (definition of offence against this Act )

 

This item omits the reference to section 6, 7 or 7A or subsection 86(1) of the Crimes Act 1914 in subsection 41F(9), and substitutes the reference to section 6 of the Crimes Act 1914 or section 11.1, 11.4 or 11.5 of the Criminal Code .  Sections 7 and 7A of the Crimes Act 1914 are concerned with the offences of attempt and inciting or urging the commission of an offence, while subsection 86(1) is concerned with the offence of conspiracy.  These sections were repealed by the Law and Justice Legislation Amendment (Application of Criminal Code) Act 2000 .  The equivalent provisions in the Criminal Code are sections 11.1, 11.4 and 11.5 respectively.



SCHEDULE 4 - Amendment of territories and regional services legislation
 
Albury-Wodonga Development Act 1973

 

Item 1 - At the end of Part 1

 

This item inserts a new section 5A that provides that Chapter 2 of the Criminal Code applies to all offences against the Albury-Wodonga Development Act 1973 .  It also inserts a note that says that Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.

 

Item 2 - At the end of section 16

 

This item adds a new subsection 16(4) that provides that strict liability applies to the offence under section 16.  This amendment does not create a new offence of strict liability.  The use of the term fails in the existing offence under section 16 is interpreted as strict liability and therefore not requiring proof of fault.  The amendment is necessary to maintain the current operation of section16.  Once the Criminal Code applies, in the absence of an express reference to the fact that an offence is a strict liability offence, a court will be required to interpret the offence as a fault offence rather than a strict liability offence. 

 

The note to subsection 16(4) refers to section 6.1 of the Criminal Code .  Section 6.1 provides that if a law that creates an offence provides that the offence is an offence of strict liability:

 

(c)     there are no fault elements for any of the physical elements of the offence; and

(d)    the defence of mistake of fact under section 9.2 is available.

 

This means that the prosecution does not have to prove fault on the part of the defendant.  Fault includes intention if it is with regard to conduct , and recklessness where it is with regard to a circumstance in which conduct occurs or a result of conduct.  The defendant will be able to activate the defence of honest or reasonable mistake of fact if he or she can point to or adduce evidence that he or she made a relevant mistake of fact.  If that occurs, the prosecution bears the onus to prove beyond reasonable doubt that there was no mistake.

 

Item 3 - At the end of section 30

 

This item adds a new subsection 30(9) that provides that strict liability applies to the offence under subsection 30(8).  This amendment does not create a new offence of strict liability.  The nature of the offence and the low level penalty in the existing offence under subsection 30(8) indicates that the offence is strict liability and therefore not requiring proof of fault.  The amendment is necessary to maintain the current operation of subsection 30(8).  Once the Criminal Code applies, in the absence of an express reference to the fact that an offence is a strict liability offence, a court will be required to interpret the offence as a fault offence rather than a strict liability offence. 

 

The note to subsection 30(9) refers to section 6.1 of the Criminal Code .  Section 6.1 provides that if a law that creates an offence provides that the offence is an offence of strict liability:

 

(a)     there are no fault elements for any of the physical elements of the offence; and

(b)    the defence of mistake of fact under section 9.2 is available.

 

This means that the prosecution does not have to prove fault on the part of the defendant.  Fault includes intention if it is with regard to conduct , and recklessness where it is with regard to a circumstance in which conduct occurs or a result of conduct.  The defendant will be able to activate the defence of honest or reasonable mistake of fact if he or she can point to or adduce evidence that he or she made a relevant mistake of fact.  If that occurs, the prosecution bears the onus to prove beyond reasonable doubt that there was no mistake.

 

Ashmore and Cartier Islands Acceptance Act 1933

 

Item 4 - After section 6

 

This item inserts a new section 6A to specifically disapply Chapter 2 of the Criminal Code to the criminal law of the Northern Territory that is applied to the Commonwealth non-self-governing Territory of Ashmore and Cartier Islands, by virtue of section 6 of the Ashmore and Cartier Islands Acceptance Act 1933

 

Chapter 2 of the Criminal Code will apply to all offences created by or under the authority of a Commonwealth Act (see Schedule, Section 1.1, Criminal Code Act 1995 ).  The Criminal Code is also expressly applied to all of the external territories (section 3A Criminal Code Act 1995 ).  Therefore, if this amendment is not made, the Chapter 2 principles will apply to Northern Territory offences applied under the Commonwealth Act.  As the Commonwealth cannot harmonise State or Territory offences, this may result in the Ashmore and Cartier Islands Territory having unworkable criminal offences.

 

This amendment specifically disapplies Chapter 2 of the Criminal Code to the Northern Territory offences that are applied by the above Commonwealth Act.  This has also been done in relation to the Commonwealth Places (Application of Laws) Act 1970 (see the Criminal Code Amendment (Theft, Fraud, Bribery and Related Offences) Act 2000 , Schedule 2, Item 143).

 

Australian Antarctic Territory Act 1954

 

Item 5 - After subsection 6(2)

 

This item inserts a new subsection 6 (2A) to specifically disapply Chapter 2 of the Criminal Code to the criminal law of the Jervis Bay Territory that is applied to the Commonwealth non-self-governing Australian Antarctic Territory, by virtue of section 6 of the Australian Antarctic Territory Act 1954

 

Chapter 2 of the Criminal Code will apply to all offences created by or under the authority of a Commonwealth Act (see Schedule, Section 1.1, Criminal Code Act 1995 ).  The Criminal Code is also expressly applied to all of the external territories (section 3A Criminal Code Act 1995 ).  Therefore, if this amendment is not made, the Chapter 2 principles will apply to Jervis Bay Territory offences applied under the Commonwealth Act.  As the Commonwealth cannot harmonise State or Territory offences, this may result in the Australian Antarctic Territory having unworkable criminal offences.

 

This amendment specifically disapplies Chapter 2 of the Criminal Code to the Jervis Bay Territory offences that are applied by the above Commonwealth Act.  This has also been done in relation to the Commonwealth Places (Application of Laws) Act 1970 (see the Criminal Code Amendment (Theft, Fraud, Bribery and Related Offences) Act 2000 , Schedule 2, Item 143).

 

Australian Capital Territory Taxation (Administration) Act 1969

 

Item 6 - At the end of Part 1

 

This item inserts a new section 4A that provides that Chapter 2 of the Criminal Code applies to all offences against the Australian Capital Territory Taxation (Administration) Act 1969.   It also inserts a note that says that Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.

 

Item 7 - Subsection 8(2)

 

This item omits the defence of lawful authority from subsection 8(2).  The defence of lawful authority is included in the Criminal Code (see section 10.5 of the Criminal Code ).  The defence applies to all offence provisions under Commonwealth law, and the specific mention in subsection 8(2) is redundant.

 

Item 8 - Paragraph 21(1)(a)

 

This item omits the term deface and substitutes do an act that results in the defacing of .  This amendment has reconstructed the offence to clarify that defacing is a physical result of the accused person’s conduct to which the fault element of recklessness will apply.

 

The rationale behind the amendment is that an accused person does not deface .  Rather, the defacing is the result of the accused person’s conduct , and is a physical element of result rather than a physical element of conduct .  Using deface as the active verb in a criminal offence may lead to difficulties in interpreting the offence following application of the Criminal Code .  Reconstructing the offence enables the physical elements of conduct and result to be better identified.

 

Item 9 - Subsection 17(4)

 

This item omits the defence of lawful authority from subsection 17(4).  The defence of lawful authority is included in the Criminal Code (see section 10.5 of the Criminal Code ).  The defence applies to all offence provisions under Commonwealth law, and the specific mention in subsection 17(4) is redundant.

 

Item 10 - At the end of section 19

 

This item adds a new subsection 19(2) that provides that strict liability applies to the offence under paragraph 19(1)(a) or (b).  This amendment does not create a new offence of strict liability.  The use of the term shall, the nature of the offence and the low level penalty in the existing offences under paragraphs 19(1) (a) and (b) indicates that the offence is strict liability and therefore not requiring proof of fault.  The amendment is necessary to maintain the current operation of paragraphs 19(1) (a) and (b).  Once the Criminal Code applies, in the absence of an express reference to the fact that an offence is a strict liability offence, a court will be required to interpret the offence as a fault offence rather than a strict liability offence. 

 

The note to subsection 19(2) refers to section 6.1 of the Criminal Code .  Section 6.1 provides that if a law that creates an offence provides that the offence is an offence of strict liability:

 

(a)     there are no fault elements for any of the physical elements of the offence; and

(b)    the defence of mistake of fact under section 9.2 is available.

 

This means that the prosecution does not have to prove fault on the part of the defendant.  Fault includes intention if it is with regard to conduct , and recklessness where it is with regard to a circumstance in which conduct occurs or a result of conduct.  The defendant will be able to activate the defence of honest or reasonable mistake of fact if he or she can point to or adduce evidence that he or she made a relevant mistake of fact.  If that occurs, the prosecution bears the onus to prove beyond reasonable doubt that there was no mistake.

 

Item 11 - After subsection 39(1)

 

This item adds a new subsection 39(1A) that provides that strict liability applies to the offence under subsection 39(1).  This amendment does not create a new offence of strict liability.  The nature of the offence and the low penalty in the existing offence under subsection 39(1) indicates that the offence is strict liability and therefore not requiring proof of fault.  The amendment is necessary to maintain the current operation of subsection 39(1).  Once the Criminal Code applies, in the absence of an express reference to the fact that an offence is a strict liability offence, a court will be required to interpret the offence as a fault offence rather than a strict liability offence. 

 

The note to subsection 39(1A) refers to section 6.1 of the Criminal Code .  Section 6.1 provides that if a law that creates an offence provides that the offence is an offence of strict liability:

 

(c)     there are no fault elements for any of the physical elements of the offence; and

(d)    the defence of mistake of fact under section 9.2 is available.

 

This means that the prosecution does not have to prove fault on the part of the defendant.  Fault includes intention if it is with regard to conduct , and recklessness where it is with regard to a circumstance in which conduct occurs or a result of conduct.  The defendant will be able to activate the defence of honest or reasonable mistake of fact if he or she can point to or adduce evidence that he or she made a relevant mistake of fact.  If that occurs, the prosecution bears the onus to prove beyond reasonable doubt that there was no mistake.

 

Item 12 - After subsection 44B(1)

 

This item adds a new subsection 44B(1A) that provides that strict liability applies to the offence under subsection 44B(1).  This amendment does not create a new offence of strict liability.  The nature of the offence and the low level penalty in the existing offence under subsection 44B(1) indicates that the offence is strict liability and therefore not requiring proof of fault.  The amendment is necessary to maintain the current operation of subsection 44B(1).  Once the Criminal Code applies, in the absence of an express reference to the fact that an offence is a strict liability offence, a court will be required to interpret the offence as a fault offence rather than a strict liability offence. 

 

The note to subsection 44B(1A) refers to section 6.1 of the Criminal Code .  Section 6.1 provides that if a law that creates an offence provides that the offence is an offence of strict liability:

 

(a)     there are no fault elements for any of the physical elements of the offence; and

(b)    the defence of mistake of fact under section 9.2 is available.

 

This means that the prosecution does not have to prove fault on the part of the defendant.  Fault includes intention if it is with regard to conduct , and recklessness where it is with regard to a circumstance in which conduct occurs or a result of conduct.  The defendant will be able to activate the defence of honest or reasonable mistake of fact if he or she can point to or adduce evidence that he or she made a relevant mistake of fact.  If that occurs, the prosecution bears the onus to prove beyond reasonable doubt that there was no mistake.

 

Item 13 - Subsection 52(3)

 

This item omits the defence of lawful authority from subsection 52(3).  The defence of lawful authority is included in the Criminal Code (see section 10.5 of the Criminal Code ).  The defence applies to all offence provisions under Commonwealth law, and the specific mention in subsection 52(3) is redundant.

 

Item 14 - Subsection 84(2)

 

This item omits the phrase refuses or from subsection 84(2).

 

Item 15 - After subsection 84(2)

 

This item adds a new subsection 84(2AA) that provides that strict liability applies to the offence under subsection 84(2).  This amendment does not create a new offence of strict liability.  The use of the term fails in the existing offence under subsection 84(2) indicates that the offence is strict liability and therefore not requiring proof of fault.  The amendment is necessary to maintain the current operation of subsection 84(2).  Once the Criminal Code applies, in the absence of an express reference to the fact that an offence is a strict liability offence, a court will be required to interpret the offence as a fault offence rather than a strict liability offence. 

 

The note to subsection 84(2AA) refers to section 6.1 of the Criminal Code .  Section 6.1 provides that if a law that creates an offence provides that the offence is an offence of strict liability:

 

(a)     there are no fault elements for any of the physical elements of the offence; and

(b)    the defence of mistake of fact under section 9.2 is available.

 

This means that the prosecution does not have to prove fault on the part of the defendant.  Fault includes intention if it is with regard to conduct , and recklessness where it is with regard to a circumstance in which conduct occurs or a result of conduct.  The defendant will be able to activate the defence of honest or reasonable mistake of fact if he or she can point to or adduce evidence that he or she made a relevant mistake of fact.  If that occurs, the prosecution bears the onus to prove beyond reasonable doubt that there was no mistake.

 

Canberra Water Supply (Googong Dam) Act 1974

 

Item 16 - After section 3

 

This item inserts a new section 3A that provides that Chapter 2 of the Criminal Code applies to all offences against the Canberra Water Supply (Googong Dam) Act 1974.   It also inserts a note that says that Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.

 

Item 17 - At the end of section 7

 

This item adds a new subsection 7(4) that provides that strict liability applies to the offence under subsection 7(3).  This amendment does not create a new offence of strict liability.  The nature of the offence and the low level penalty in the existing offence under subsection 7(3) indicates that the offence is strict liability and therefore not requiring proof of fault.  The amendment is necessary to maintain the current operation of subsection 7(3).  Once the Criminal Code applies, in the absence of an express reference to the fact that an offence is a strict liability offence, a court will be required to interpret the offence as a fault offence rather than a strict liability offence. 

 

The note to subsection 7(4) refers to section 6.1 of the Criminal Code .  Section 6.1 provides that if a law that creates an offence provides that the offence is an offence of strict liability:

 

(a)     there are no fault elements for any of the physical elements of the offence; and

(b)    the defence of mistake of fact under section 9.2 is available.

 

This means that the prosecution does not have to prove fault on the part of the defendant.  Fault includes intention if it is with regard to conduct , and recklessness where it is with regard to a circumstance in which conduct occurs or a result of conduct.  The defendant will be able to activate the defence of honest or reasonable mistake of fact if he or she can point to or adduce evidence that he or she made a relevant mistake of fact.  If that occurs, the prosecution bears the onus to prove beyond reasonable doubt that there was no mistake.

 

Item 18 - Subsection 8(3)

 

This item omits the words without reasonable excuse from subsection 8(3).  The defence is drafted as a new subsection 8(3A) at item 19.

 

Item 19 - After subsection 8(3)

 

This item is consequential upon item 18, and provides a defence of reasonable excuse in relation to the offence at subsection 8(3).  This amendment is necessary to ensure that the defence is not mistakenly interpreted to be an element of the offence that must be proved by the prosecution.

 

This item also notes that the defendant bears an evidential burden of proof with regard to the matter in subsection 8(3).  Criminal Code policy is that the prosecution should prove every element of the offence relevant to the guilt of the person charged (see subsection 13.1(1) of the Criminal Code ).  However, there are some instances where it is appropriate for a defendant to bear a burden of proof, such as where a matter is peculiarly within the knowledge of the defendant.  In those instances, the Criminal Code policy is that the burden should be an evidential burden rather than a legal burden (see subsection 13.3(1) of the Criminal Code ).  An evidential burden is lighter than a legal burden.  An evidential burden is the burden of adducing or pointing to evidence that suggests a reasonable possibility that the matter exists or does not exist (see subsection 13.3(6) of the Criminal Code ), whereas a legal burden is the burden of proving the existence of the matter (see subsection 13.3(3) of the Criminal Code ).

 

Item 20 - Section 14

 

This amendment reconstructs the offence at section 14 to clarify that damage is a physical result of the accused person’s conduct to which the fault element of recklessness will apply.

 

The rationale behind the amendment is that an accused person does not damage .  Rather, the damage is the result of the accused person’s conduct , and is a physical element of result rather than a physical element of conduct .  Using damage as the active verb in a criminal offence may lead to difficulties in interpreting the offence following application of the Criminal Code .  Reconstructing the offence enables the physical elements of conduct and result to be better identified.

 

Item 21 - Section 15

 

This item omits the terms maliciously or fraudulently from section 15.  Following application of the Criminal Code it will not be possible to apply a fault element of maliciously or fraudulently to a physical element of conduct (see Part 2.2, Division 5 of the Criminal Code ).  The Criminal Code will apply intention as the fault element for the physical element of conduct .

 

Item 22 - Section 19

 

This item omits the defence of lawful authority from section 19.  The defence of lawful authority is included in the Criminal Code (see section 10.5 of the Criminal Code ).  The defence applies to all offence provisions under Commonwealth law, and the specific mention in section 19 is redundant.

 

Item 23 - Section 21

 

This item removes the phrase remove, move, damage, deface, obscure, cover up or otherwise interfere with a sign erected, placed or displayed under section 17 or 19 and substitutes do an act that results in the removal, moving, defacing, damaging, obscuring or covering up of a sign erected, placed or displayed under section 17 or 19, or otherwise interfere with such a sign .

 

This amendment reconstructs the offence at section 21 to clarify that remove, move, damage, deface, obscure, cover up or otherwise interfere is a physical result of the accused person’s conduct to which the fault element of recklessness will apply.

 

The rationale behind the amendment is that an accused person does not remove, move, damage, deface, obscure, cover up or otherwise interfere.   Rather, remove, move, damage, deface, obscure, cover up or otherwise interfere is the result of the accused person’s conduct , and is a physical element of result rather than a physical element of conduct .  Using remove, move, damage, deface, obscure, cover up or otherwise interfere as the active verb in a criminal offence may lead to difficulties in interpreting the offence following application of the Criminal Code .  Reconstructing the offence enables the physical elements of conduct and result to be better identified.

 

Item 24 - At the end of section 21

 

This item adds a new subsection 21(2) that provides that strict liability applies to the offence under subsection 21(1).  This amendment does not create a new offence of strict liability.  The nature of the offence and the low level penalty in the existing offence under subsection 21(1) indicates that the offence is strict liability and therefore not requiring proof of fault.  The amendment is necessary to maintain the current operation of subsection 21(1).  Once the Criminal Code applies, in the absence of an express reference to the fact that an offence is a strict liability offence, a court will be required to interpret the offence as a fault offence rather than a strict liability offence. 

 

The note to subsection 21(2) refers to section 6.1 of the Criminal Code .  Section 6.1 provides that if a law that creates an offence provides that the offence is an offence of strict liability:

 

(a)     there are no fault elements for any of the physical elements of the offence; and

(b)    the defence of mistake of fact under section 9.2 is available.

 

This means that the prosecution does not have to prove fault on the part of the defendant.  Fault includes intention if it is with regard to conduct , and recklessness where it is with regard to a circumstance in which conduct occurs or a result of conduct.  The defendant will be able to activate the defence of honest or reasonable mistake of fact if he or she can point to or adduce evidence that he or she made a relevant mistake of fact.  If that occurs, the prosecution bears the onus to prove beyond reasonable doubt that there was no mistake.

 

Christmas Island Act 1958

 

Item 25 - At the end of Part 1

 

This item inserts a new subsection 4A(1) that provides that Chapter 2 of the Criminal Code applies to all offences that are created by the Christmas Island Act 1958 .  It also inserts a note that Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.

 

This item also inserts a new subsection 4A (2) to specifically disapply Chapter 2 of the Criminal Code to the criminal law of Western Australia that is applied to the Commonwealth non-self-governing Territory of Christmas Island, by virtue of Section 8A of the Christmas Island Act 1958 .

 

Chapter 2 of the Criminal Code will apply to all offences created by or under the authority of a Commonwealth Act (see Schedule, Section 1.1, Criminal Code Act 1995 ).  The Criminal Code is also expressly applied to all of the external territories (section 3A Criminal Code Act 1995 ).  Therefore, if this amendment is not made, the Chapter 2 principles will apply to Western Australian offences applied under the Commonwealth Act.  As the Commonwealth cannot harmonise State or Territory offences, this may result in the Territory of Christmas Island having unworkable criminal offences.

 

This amendment specifically disapplies Chapter 2 of the Criminal Code to the Western Australian offences that are applied by the above Commonwealth Act.  This has also been done in relation to the Commonwealth Places (Application of Laws) Act 1970 (see the Criminal Code Amendment (Theft, Fraud, Bribery and Related Offences) Act 2000 , Schedule 2, Item 143).

 

Item 26 - Subsection 12B(1)

 

This item omits the words without reasonable excuse from subsection 12B(1).  The defence is drafted as a new subsection 12B(1A) at item 27.

 

Item 27 - After subsection 12B(1)

 

This item is consequential upon item 26, and provides a defence of reasonable excuse in relation to the offence at subsection 12B(1).  This amendment is necessary to ensure that the defence is not mistakenly interpreted to be an element of the offence that must be proved by the prosecution.

 

This item also notes that the defendant bears an evidential burden of proof with regard to the matter in subsection 12B(1A).  Criminal Code policy is that the prosecution should prove every element of the offence relevant to the guilt of the person charged (see subsection 13.1(1) of the Criminal Code ).  However, there are some instances where it is appropriate for a defendant to bear a burden of proof, such as where a matter is peculiarly within the knowledge of the defendant.  In those instances, the Criminal Code policy is that the burden should be an evidential burden rather than a legal burden (see subsection 13.3(1) of the Criminal Code ).  An evidential burden is lighter than a legal burden.  An evidential burden is the burden of adducing or pointing to evidence that suggests a reasonable possibility that the matter exists or does not exist (see subsection 13.3(6) of the Criminal Code ), whereas a legal burden is the burden of proving the existence of the matter (see subsection 13.3(3) of the Criminal Code ).

 

Item 28 - Subsection 12B(2)

 

This item omits the phrase or attempt to personate, a person who is a juror for the purpose and substitutes a person who is a juror with the intention

 

The offence of attempt is provided at section 11.1 of the Criminal Code and specific mention at subsection 12B(2) is redundant.

 

The phrase for the purpose should no longer be used as part of a physical element of an offence because of the potential confusion as to the applicable fault element.  The confusion could arise because most offences do not specify the fault element and because the phrase for the purpose is sometimes used to mean with the intention of and is sometimes used to mean to achieve the result of .  Where it is used to mean with the intention of it will be an additional fault element for a physical element of conduct, but where it is used to mean to achieve the result of it will be part of a physical element of result and will thereby attract the fault element of recklessness .

 

Substituting the phrase with the intention, makes clear that it is the fault element for the physical element of conduct.

 

Item 29 - Paragraph 12B(3)(a)

 

This amendment reconstructs the offence at paragraph 12B(3)(a) to clarify that corrupt is a physical result of the accused person’s conduct to which the fault element of recklessness will apply.

 

The rationale behind the amendment is that an accused person does not corrupt.   Rather, corrupt is the result of the accused person’s conduct , and is a physical element of result rather than a physical element of conduct .  Using corrupt as the active verb in a criminal offence may lead to difficulties in interpreting the offence following application of the Criminal Code .  Reconstructing the offence enables the physical elements of conduct and result to be better identified.

 

This item also omits the phrase or attempt to corrupt .  The offence of attempt is provided at section 11.1 of the Criminal Code and specific mention at subsection 12B(3)(a) is redundant.

 

Item 30 - Paragraph 12B(3)(b)

 

This item omits the phrase except as provided by law from paragraph 12B(3)(b).  The defence of lawful authority is included in the Criminal Code (see section 10.5 of the Criminal Code ).  The defence applies to all offence provisions under Commonwealth law, and the specific mention in paragraph 12B(3)(b) is redundant.

 

Item 31 - Subsection 12B(4)

 

This item defines engage in conduct to mean:

 

(a)     do an act; or

(b)    omit to perform an act.

 

This definition is consistent with the definition at subsection 4.1 of the Criminal Code .

 

Cocos (Keeling) Islands Act 1955

 

Item 32 - At the end of Part 1

 

This item inserts a new subsection 4A(1) that provides that Chapter 2 of the Criminal Code applies to all offences that are created by the Cocos (Keeling) Islands Act 1955 .  It also inserts a note that Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.

 

This item inserts a new subsection 4A (2) to specifically disapply Chapter 2 of the Criminal Code to the criminal law of Western Australia that is applied to the Commonwealth non-self-governing Territory of Cocos (Keeling) Islands, by virtue of section 8A of the Cocos (Keeling) Islands Act 1955

 

Chapter 2 of the Criminal Code will apply to all offences created by or under the authority of a Commonwealth Act (see Schedule, Section 1.1, Criminal Code Act 1995 ).  The Criminal Code is also expressly applied to all of the external territories (section 3A Criminal Code Act 1995 ).  Therefore, if this amendment is not made, the Chapter 2 principles will apply to Western Australian offences applied under the Commonwealth Act.  As the Commonwealth cannot harmonise State or Territory offences, this may result in the Territory of Cocos (Keeling) Islands having unworkable criminal offences.

 

This amendment specifically disapplies Chapter 2 of the Criminal Code to the Western Australian offences that are applied by the above Commonwealth Act.  This has also been done in relation to the Commonwealth Places (Application of Laws) Act 1970 (see the Criminal Code Amendment (Theft, Fraud, Bribery and Related Offences) Act 2000 , Schedule 2, Item 143).

 

Item 33 - Subsection 15AE(2)

 

This item omits the words without reasonable excuse from subsection 15AE(2).  The defence is drafted as a new subsection 15AE(2A) at item 34.

 

Item 34 - After subsection 15AE(2)

 

This item is consequential upon item 33, and provides a defence of reasonable excuse in relation to the offence at subsection 15AE(2).  This amendment is necessary to ensure that the defence is not mistakenly interpreted to be an element of the offence that must be proved by the prosecution.

 

This item also notes that the defendant bears an evidential burden of proof with regard to the matter in subsection 12AE(2A).  Criminal Code policy is that the prosecution should prove every element of the offence relevant to the guilt of the person charged (see subsection 13.1(1) of the Criminal Code ).  However, there are some instances where it is appropriate for a defendant to bear a burden of proof, such as where a matter is peculiarly within the knowledge of the defendant.  In those instances, the Criminal Code policy is that the burden should be an evidential burden rather than a legal burden (see subsection 13.3(1) of the Criminal Code ).  An evidential burden is lighter than a legal burden.  An evidential burden is the burden of adducing or pointing to evidence that suggests a reasonable possibility that the matter exists or does not exist (see subsection 13.3(6) of the Criminal Code ), whereas a legal burden is the burden of proving the existence of the matter (see subsection 13.3(3) of the Criminal Code ).

 

Item 35 - Subsection 15AE(3)

 

This item omits the phrase or attempt to personate, a person who is a juror for the purpose , and substitutes the phrase a person who is a juror with the intention .

 

The offence of attempt is provided at section 11.1 of the Criminal Code and specific mention at subsection 12AE(3) is redundant.

 

The phrase for the purpose should no longer be used as part of a physical element of an offence because of the potential confusion as to the applicable fault element.  The confusion could arise because most offences do not specify the fault element and because the phrase for the purpose is sometimes used to mean with the intention of and is sometimes used to mean to achieve the result of .  Where it is used to mean with the intention of it will be an additional fault element for a physical element of conduct, but where it is used to mean to achieve the result of it will be part of a physical element of result and will thereby attract the fault element of recklessness .

 

Substituting the phrase with the intention, makes clear that it is the fault element for the physical element of conduct.

 

Item 36 - Paragraph 15AE(4)(a)

 

This amendment reconstructs the offence at paragraph 15AE(4)(a) to clarify that corrupt is a physical result of the accused person’s conduct to which the fault element of recklessness will apply.

 

The rationale behind the amendment is that an accused person does not corrupt.   Rather, corrupt is the result of the accused person’s conduct , and is a physical element of result rather than a physical element of conduct .  Using corrupt as the active verb in a criminal offence may lead to difficulties in interpreting the offence following application of the Criminal Code .  Reconstructing the offence enables the physical elements of conduct and result to be better identified.

 

This item also omits the phrase or attempt to corrupt .  The offence of attempt is provided at section 11.1 of the Criminal Code and specific mention at subsection 15AE(4)(a) is redundant.

 

Item 37 - Paragraph 15AE(4)(b)

 

This item omits the phrase except as provided by law from paragraph 15AE(4)(b).  The defence of lawful authority is included in the Criminal Code (see section 10.5 of the Criminal Code ).  The defence applies to all offence provisions under Commonwealth law, and the specific mention in paragraph 12AE(4)(b) is redundant.

 

Item 38 - At the end of section 15AE

 

This item defines engage in conduct to mean:

 

(c)     do an act; or

(d)    omit to perform an act.

 

This definition is consistent with the definition at subsection 4.1 of the Criminal Code .

 

Heard Island and McDonald Islands Act 1953

 

Item 39 - After subsection 5(2)

 

This item inserts a new subsection 5(2A) to specifically disapply Chapter 2 of the Criminal Code to the criminal law of the Jervis Bay Territory that is applied to the Commonwealth non-self-governing Territory of Heard Island and McDonald Islands, by virtue of section 5 of the Heard Island and McDonald Islands Act 1953

 

Chapter 2 of the Criminal Code will apply to all offences created by or under the authority of a Commonwealth Act (see Schedule, Section 1.1, Criminal Code Act 1995 ).  The Criminal Code is also expressly applied to all of the external territories (section 3A Criminal Code Act 1995 ).  Therefore, if this amendment is not made, the Chapter 2 principles will apply to Jervis Bay Territory offences applied under the Commonwealth Act.  As the Commonwealth cannot harmonise State or Territory offences, this may result in the Territory of Heard Island and McDonald Islands having unworkable criminal offences.

 

This amendment specifically disapplies Chapter 2 of the Criminal Code to the Jervis Bay Territory offences that are applied by the above Commonwealth Act.  This has also been done in relation to the Commonwealth Places (Application of Laws) Act 1970 (see the Criminal Code Amendment (Theft, Fraud, Bribery and Related Offences) Act 2000 , Schedule 2, Item 143).

 

Jervis Bay Territory Acceptance Act 1915

 

Item 40 - After section 4A

 

This item inserts a new section 4AA to specifically disapply Chapter 2 of the Criminal Code to the criminal law of the Australian Capital Territory that is applied to the Commonwealth non-self-governing Jervis Bay Territory, by virtue of section 4A of the Jervis Bay Territory Acceptance Act 1915.

 

Chapter 2 of the Criminal Code will apply to all offences created by or under the authority of a Commonwealth Act (see Schedule, Section 1.1, Criminal Code Act 1995 ).  The Criminal Code is also expressly applied to all of the external territories (section 3A Criminal Code Act 1995 ).  Therefore, if this amendment is not made, the Chapter 2 principles will apply to Australian Capital Territory offences applied under the Commonwealth Act.  As the Commonwealth cannot harmonise State or Territory offences, this may result in the Jervis Bay Territory having unworkable criminal offences.

 

This amendment specifically disapplies Chapter 2 of the Criminal Code to the Australian Capital Territory offences that are applied by the above Commonwealth Act.  This has also been done in relation to the Commonwealth Places (Application of Laws) Act 1970 (see the Criminal Code Amendment (Theft, Fraud, Bribery and Related Offences) Act 2000 , Schedule 2, Item 143).

 

Norfolk Island Act 1979

 

Item 41 - At the end of Part 1

 

This item inserts a new section 4A that provides that Chapter 2 of the Criminal Code applies to all offences against the Norfolk Island Act 1979.   It also inserts a note that says that Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.

 

Item 42- After subsection 51E(4)

 

This item adds a new subsection 51E(4A) that provides that strict liability applies to the offence under subsection 51E(4).  This amendment does not create a new offence of strict liability.  The nature of the offence and the low level penalty in the existing offence under subsection 51E(4) indicates that the offence is strict liability and therefore not requiring proof of fault.  The amendment is necessary to maintain the current operation of subsection 51E(4).  Once the Criminal Code applies, in the absence of an express reference to the fact that an offence is a strict liability offence, a court will be required to interpret the offence as a fault offence rather than a strict liability offence. 

 

The note to subsection 51E(4A) refers to section 6.1 of the Criminal Code .  Section 6.1 provides that if a law that creates an offence provides that the offence is an offence of strict liability:

 

(a)     there are no fault elements for any of the physical elements of the offence; and

(b)    the defence of mistake of fact under section 9.2 is available.

 

This means that the prosecution does not have to prove fault on the part of the defendant.  Fault includes intention if it is with regard to conduct , and recklessness where it is with regard to a circumstance in which conduct occurs or a result of conduct.  The defendant will be able to activate the defence of honest or reasonable mistake of fact if he or she can point to or adduce evidence that he or she made a relevant mistake of fact.  If that occurs, the prosecution bears the onus to prove beyond reasonable doubt that there was no mistake.

 

Payroll Tax (Territories) Assessment Act 1971

 

Item 43 - At the end of Part 1

 

This item inserts a new section 4A that provides that Chapter 2 of the Criminal Code applies to all offences against the Payroll Tax (Territories) Assessment Act 1971.   It also inserts a note that says that Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.

 



SCHEDULE 5 - Amendment of transport legislation

 

Road Transport Reform (Dangerous Goods) Act 1995

 

Item 1 - At the end of Part 1

 

This provision exempts the Road Transport Reform (Dangerous Goods) Act 1995 from

the application of the Criminal Code .  The Act has been exempted because it was passed under a cooperative scheme relating to road transport existing between the Commonwealth and the States and Territories.  As a consequence of the terms of the scheme the Legislation can only be amended on the basis of a recommendation from the National Road Transport Commission (NRTC) and subsequent approval from the Australian Transport Council (ATC).  The Act is template legislation which is referenced or mirrored in other jurisdictions.  Although the Act is a Commonwealth Act it only operates in the Australian Capital Territory and the Jervis Bay Territory.  The exemption is not to be permanent.  The Commonwealth will refer the question of amending the Act so that it is Criminal Code compliant to the NRTC immediately to be pursued though the workings of the ATC.

 

Road Transport Reform (Heavy Vehicles Registration) Act 1997
 
Item 2 - At the end of Part 1

 

This provision exempts the Road Transport Reform (Heavy Vehicles Registration) Act 1997 from the application of the Criminal Code .  The Act has been exempted because it was passed under a cooperative scheme relating to road transport existing between the Commonwealth and the States and Territories.  As a consequence of the terms of the scheme the Legislation can only be amended on the basis of a recommendation from the National Road Transport Commission (NRTC) and subsequent approval from the Australian Transport Council (ATC).  The Act is template legislation which is referenced or mirrored in other jurisdictions.  Although the Act is a Commonwealth Act it only operates in the Australian Capital Territory and the Jervis Bay Territory.  The exemption is not to be permanent.  The Commonwealth will refer the question of amending the Act so that it is Criminal Code compliant to the NRTC immediately to be pursued though the workings of the ATC.

 

Road Transport Reform (Vehicles and Traffic) Act 1993
 
Item 3 - At the end of Part 1

 

This provision exempts the Road Transport Reform (Vehicles and Traffic) Act 1993 from

the application of the Criminal Code .  The Act has been exempted because it was passed under a cooperative scheme relating to road transport existing between the Commonwealth and the States and Territories.  As a consequence of the terms of the scheme the Legislation can only be amended on the basis of a recommendation from the National Road Transport Commission (NRTC) and subsequent approval from the Australian Transport Council (ATC).  The Act is template legislation which is referenced or mirrored in other jurisdictions.  Although the Act is a Commonwealth Act it only operates in the Australian Capital Territory and the Jervis Bay Territory.  The exemption is not to be permanent.  The Commonwealth will refer the question of amending the Act so that it is Criminal Code compliant to the NRTC immediately to be pursued though the workings of the ATC.