Explanatory Memorandum
(Circulated by authority of the Treasurer, the Hon Peter Costello, MP)Schedules 9 and 10
Schedule 9 - Copyright Act 1968
Item 1 - Application of Criminal Code
150. This item inserts proposed section 9A which applies Chapter 2 of the Criminal Code to all offences against the Act. Chapter 2 establishes the codified general principles of criminal responsibility.
151. The standard note concerning Chapter 2 of the Criminal Code setting out the principles of criminal responsibility is also added after this provision.
Item 2 - Strict liability applied
152. This item inserts proposed subsection 47A(3A) which applies strict liability to the offence in subsection 47A(3) of the Act. Subsection 47A(3) provides that a person is guilty of an offence where, at any time before the expiration of the prescribed retention period after the making by a person of a sound broadcast of a literary or dramatic work in reliance on subsection (1), a record made for the purposes of paragraph (1)(b) in relation to the making of the sound broadcast is not retained by the person. The offence carries a penalty of $500. This is a regulatory obligation with a low penalty and is therefore the type of offence where strict liability is applied under the existing law. Further, a defendant can rely on the due diligence defence in subsection 47A(4). For more details on the operation of strict liability see the explanation at item 6 of Schedule 1.
153. The standard note referring to section 6.1 of the Criminal Code , which governs strict liability, is also added after this provision.
Item 3 - Deleting reasonable excuse defence
154. This item proposes to remove the defence of reasonable excuse from subsection 47A(7). The defence is recreated in a new subsection 47A(7A) (see item 4 below). The rationale for this amendment is to prevent future interpretation that the reasonable excuse element of this provision is an element of the offence, which would have to be disproved in the negative by the prosecution, and puts it beyond doubt that it is a defence to the offence.
Item 4 - Strict liability applied: recreating reasonable excuse defence
155. This item proposes two amendments to section 47A. First, it inserts proposed subsection 47A(7A) which applies strict liability to the offence in subsection 47A(7) of the Act. Subsection 47A(7) provides that a person who receives a notice of intended inspection under subsection (6) shall allow the owner or agent to inspect the records to which the notice relates during business hours on the day specified in the notice. The offence carries a fine of $500. The person can claim a defence if he or she has a reasonable excuse. This is an obligation provision of the type where strict liability is applied under the existing law. For more details on the operation of strict liability see the explanation at item 6 of Schedule 1.
156. The standard note referring to section 6.1 of the Criminal Code , which governs strict liability, is also added after this provision.
157. Second, consequent to item 3 above this item inserts proposed subsection 47A(7B) which recreates the defence of reasonable excuse in relation to an offence against subsection 47A(7).
158. This item also adds the standard note after proposed subsection 47A(7B) concerning the imposition of an evidential burden on a defendant by subsection 13.3(3) of the Criminal Code if a defendant relies on the reasonable excuse defence established by subsection 47A(7B).
Item 5 - Lawful excuse defence
159. This item proposes to remove the specific defence of lawful excuse from subsection 172(1). Reliance may instead be placed upon the general defence of lawful excuse, which is being inserted into the Criminal Code and will be applicable to this Act simultaneous with the amendment proposed by this item. For more details on the operation of the lawful excuse defence see the explanation at item 3 of Schedule 2.
160. This item is consequent upon the amendment being effected by item 5 above and proposes to insert the penalty presently applicable to an offence against subsection 172(1), namely $10 penalty units or 3 months imprisonment, after subsection 172(1). This is intended to assist the correct interpretation that subsection 172(1) creates a criminal offence and that the penalty applicable to an offence against this subsection is the penalty described.
Item 7 - Lawful excuse defence
161. This item proposes to remove the specific defence of lawful excuse from subsection 172(2). Reliance may instead be placed upon the general defence of lawful excuse, which is being inserted into the Criminal Code and will be applicable to this Act simultaneous with the amendment proposed by this item. For more details on the operation of the lawful excuse defence see the explanation at item 3 of Schedule 2.
162. This item is consequent upon the amendment being effected by item 7 above and proposes to insert and update the penalty applicable to an offence against subsection 172(2), namely $10 penalty units or 3 months imprisonment, after subsection 172(2). This is intended to assist the correct interpretation that subsection 172(2) creates a criminal offence and that the penalty applicable to an offence against this subsection is the penalty described.
Item 9 - Lawful excuse defence
163. This item proposes to remove the specific defence of lawful excuse from subsection 172(3). Reliance may instead be placed upon the general defence of lawful excuse, which is being inserted into the Criminal Code and will be applicable to this Act simultaneous with the amendment proposed by this item. For more details on the operation of the lawful excuse defence see the explanation at item 3 of Schedule 2.
164. This item is consequent upon the amendment being effected by item 9 above and proposes to update the penalty presently applicable to an offence against subsection 172(3), namely a fine of $1000, in the nearest equivalent penalty units.
Item 11 - Reasonable excuse defence
165. This item proposes to insert subsection 172(4) which provides a defence of reasonable excuse in relation to an offence against subsections 172(1), (2) and (3). This will replace the present defence of lawful excuse, which is being deleted by items 5, 7 and 9 of this Schedule.
166. The offences in subsection 172(1), (2) and (3) concern the failure to perform as required of a person who has been duly summonsed to appear before the Tribunal as a witness, to produce a specified document or article, to be sworn or make an affirmation, or to answer questions as the case may be. Under proposed section 10.5, which is being inserted into the Criminal Code by the Criminal Code Amendment (Theft, Fraud, Bribery and Related Offences) Act 2000 , there is to be a defence which provides a person is not criminally responsible for an offence if the conduct constituting the offence is justified or excused by a law. The proposed defence will cover the situation where a person is for some reason authorised by law to wear or possess AFP clothing or equipment, but it does not cover the situation where someone might have some other reasonable excuse for not performing as required. For example, it would be undesirable for the person not to be exempted from the offence if the person was prevented from compliance by factors beyond his or her control, such as suffering sudden illness. It is therefore appropriate to replace lawful excuse with a reasonable excuse exception. It is likely that those who originally drafted the offence expected it to apply to those circumstances.
167. This item also adds the standard note after proposed subsection 172(4) concerning the imposition of an evidential burden on a defendant by subsection 13.3(3) of the Criminal Code if a defendant relies on the reasonable excuse defence established by subsection 172(4).
Item 12 - Strict liability applied
168. This item inserts proposed subsection 203E(6A) which applies strict liability to the offence in subsection 203E(6) of the Act. Subsection 203E(6) provides that where a person who attends at the premises of a library or archives for the purpose of exercising the powers conferred on him or her by subsection (4) is not provided with all reasonable facilities and assistance for the effective exercise of those powers, the body administering the library or archives, as the case may be, and the officer in charge of the library or archives, as the case may be, are guilty of an offence. The offence carries a fine of $500, and the defendant can rely upon the broad defences in subsection 203E(8) and (9) as well as the general defence of mistake of fact. This is an obligation with a low penalty and is therefore the type of offence where strict liability is applied under the existing law. For more details on the operation of strict liability see the explanation at item 6 of Schedule 1.
The standard note referring to section 6.1 of the Criminal Code , which governs strict liability, is also added after this provision.
Item 13 - Clarifying a fault element
169. This item proposes that the phrase for the purpose of in subsection 203E(10) be replaced by the phrase with the intention of. For details on the reasons for replacing the phrase for the purpose of see the explanation at item 21 of Schedule 5. In the case of subsection 203E(10) the correct interpretation is that the defendant makes a record of, or divulges or communicates to a person, the prescribed information with the intention of effecting an outcome other than those described in paragraphs 203E(10(a)-(c), and this item proposes the appropriate amendment accordingly.
Item 14 - Strict liability applied
170. This item inserts proposed subsection 203E(10A) which applies strict liability to the offence in subsection 203E(10) of the Act. Subsection 203E(10) provides that a person who makes a record of, or divulges or communicates to a person, information in relation to which subsection 203E(11) applies is guilty of an offence. The offence carries a fine of $500. This is an administrative obligation with a low penalty and is therefore the type of offence where strict liability is applied under the existing law. For more details on the operation of strict liability see the explanation at item 6 of Schedule 1.
171. The standard note referring to section 6.1 of the Criminal Code , which governs strict liability, is also added after this provision.
Item 15 - Amendment of inappropriate fault element
172. Subsection 203F(2) uses the fault element wilfully in relation to the physical element of conduct, namely destroying or damaging or causing the disposal or destruction of any relevant declaration to which this subsection applies. This is akin to applying the fault element of intention, which is the equivalent used in the Criminal Code . The Criminal Code allows the use of new fault elements (subsection 5.1(2)) and the present offence would possibly still operate in the same manner following application of the Criminal Code . However it is also possible that future courts may attempt to distinguish wilfulness from intention on the basis that wilfulness appears to differ from the basic Criminal Code fault element. Accordingly this item proposes that wilfully be deleted from subsection 203F(2) and replaced with intentionally. It is considered that subsection 203F(2) will continue to operate in the same manner as at present following this amendment.
Schedule 10 - Crimes Act 1914
Item 1 - Replacing references to certain Crimes Act 1914 provisions
173. Certain Crimes Act 1914 provisions, including sections 7A and 86, are scheduled for progressive disapplication in relation to offence provisions to which the Criminal Code applies, and ultimately for repeal on 15 December 2001: see items 1 of Schedule 1 and 4 of Schedule 51. It will be necessary to replace references to these Crimes Act provisions with references to relevant Criminal Code provisions. This item proposes that the references in paragraph 3(1)(a) of the definition of associated offence to sections 7A and 86 of the Crimes Act 1914 , which concern incitement to commit primary offences and conspiring to commit primary offences, be replaced by reference to the Criminal Code ancillary provisions. These Criminal Code provisions will apply to this Act by virtue of this Bill: see item 4 of this Schedule.
Item 2 - Replacing references to certain Crimes Act 1914 provisions
174. Certain Crimes Act 1914 provisions, including sections 5, 7, 7A and 86, are scheduled for progressive disapplication in relation to offence provisions to which the Criminal Code applies, and ultimately for repeal on 15 December 2001: see items 1 of Schedule 1 and 4 of Schedule 51. It will be necessary to replace references to these Crimes Act provisions with references to relevant Criminal Code provisions. This item proposes that the references in paragraph 3(1)(b) of the definition of associated offence to sections 5, 7, 7A and 86 of the Crimes Act 1914 , which concern aiding or abetting the commission of primary offences, attempting to commit primary offences, incitement to commit primary offences, and conspiring to commit primary offences, be replaced by reference to the Criminal Code ancillary provisions. These Criminal Code provisions will apply to this Act by virtue of this Bill: see item 4 below.
Item 3 - Replacing references to certain Crimes Act 1914 provisions
175. Certain Crimes Act 1914 provisions, including sections 5, 7, 7A and 86, are scheduled for progressive disapplication in relation to offence provisions to which the Criminal Code applies, and ultimately for repeal on 15 December 2001: see items 1 of Schedule 1 and 4 of Schedule 51. It will be necessary to replace references to these Crimes Act provisions with references to relevant Criminal Code provisions. This item proposes that the references in subparagraph 3(1)(c)(i) of the definition of associated offence to sections 5, 7, 7A and 86 of the Crimes Act 1914 , which concern aiding or abetting the commission of primary offences, attempting to commit primary offences, incitement to commit primary offences, and conspiring to commit primary offences, be replaced by reference to the Criminal Code ancillary provisions. These Criminal Code provisions will apply to this Act by virtue of this Bill: see item 4 below.
Item 4 - Application of Criminal Code
176. This item inserts proposed section 3BA which applies Chapter 2 of the Criminal Code to all offences against the Act. Chapter 2 establishes the codified general principles of criminal responsibility.
177. The standard note concerning Chapter 2 of the Criminal Code setting out the principles of criminal responsibility is also added after this provision.
Item 5 - Deleting reasonable excuse defence
178. This item proposes to remove the defence of reasonable excuse from subsection 3V(2). The defence is recreated in a new subsection 3V(2A) (see item 6 below). The rationale for this amendment is to prevent future interpretation that the reasonable excuse element of this provision is an element of the offence, which would have to be disproved in the negative by the prosecution, and puts it beyond doubt that it is a defence to the offence.
Item 6 - Recreating reasonable excuse defence
179. This item is consequent upon item 5 above. It inserts proposed subsection 3V(2A) which recreates the defence of reasonable excuse in relation to an offence against subsection 3V(2).
180. This item also adds the standard note after proposed subsection 3V(2A) concerning the imposition of an evidential burden on a defendant by subsection 13.3(3) of the Criminal Code if a defendant relies on the reasonable excuse defence established by subsection 3V(2A).
Item 7- Clarifying reasonable excuse defence
181. This item proposes to repeal and substitute subsection 3ZL(2), the effect of which is to remove the defence of reasonable excuse from subsection 3ZL(2) and recreate it in a new subsection 3ZL(3). The rationale for this amendment is to prevent future interpretation that the reasonable excuse element of this provision is an element of the offence, which would have to be disproved in the negative by the prosecution, and puts it beyond doubt that it is a defence to the offence.
182. The standard note is added after proposed subsection 3ZL(3) concerning the imposition of an evidential burden on a defendant by subsection 13.3(3) of the Criminal Code if a defendant relies on the reasonable excuse defence established by subsection 3ZL(3).
183. This item inserts into subsection 15V(2) a definition of engage in conduct, which is defined to comprise doing an act and omitting to perform an act. The definition mirrors the same definition in the Criminal Code . The phrase engage in conduct is utilised in a number of provisions in this Act.
Item 9 - Amending references to ancillary conduct
184. This item repeals and substitutes subparagraph 15W(1)(b)(ii), the net effect of which is to update references to ancillary conduct by reference to the Criminal Code . The substituted provision refers to Part 2.4 of the Criminal Code , which governs ancillary offence provisions.
Item 10 - Amending references to ancillary conduct
185. This item amends section 15X, the net effect of which is to update references to ancillary conduct by reference to the Criminal Code . The substituted provision refers to Part 2.4 of the Criminal Code , which governs ancillary offence provisions.
Item 11 - Deleting reasonable excuse defence
186. This item proposes to remove the defence of reasonable excuse from subsection 19AZA(1). The defence is recreated in a new subsection 19AZA(4) (see item 16 below). The rationale for this amendment is to prevent future interpretation that the reasonable excuse element of this provision is an element of the offence, which would have to be disproved in the negative by the prosecution, and puts it beyond doubt that it is a defence to the offence.
187. This item is consequent upon the amendments being effected by item 11 above, and proposes to insert the penalty presently applicable to an offence against subsection 19AZA(1), namely 10 penalty units, after subsection 19AZA(1). This is intended to assist the correct interpretation that subsection 19AZA(1) creates a criminal offence and that the penalty applicable to an offence against this subsection is the penalty described.
Item 13 - Deleting reasonable excuse defence
188. This item proposes to remove the defence of reasonable excuse from subsection 19AZA(2). The defence is recreated in a new subsection 19AZA(4) (see item 16 below). The rationale for this amendment is to prevent future interpretation that the reasonable excuse element of this provision is an element of the offence, which would have to be disproved in the negative by the prosecution, and puts it beyond doubt that it is a defence to the offence.
189. This item is consequent upon the amendments being effected by item 13 above, and proposes to insert the penalty presently applicable to an offence against subsection 19AZA(2), namely 10 penalty units, after subsection 19AZA(2). This is intended to assist the correct interpretation that subsection 19AZA(2) creates a criminal offence and that the penalty applicable to an offence against this subsection is the penalty described.
Item 15 - Deleting reasonable excuse defence
190. This item proposes to remove the defence of reasonable excuse from subsection 19AZA(3). The defence is recreated in a new subsection 19AZA(4) (see item 16 below). The rationale for this amendment is to prevent future interpretation that the reasonable excuse element of this provision is an element of the offence, which would have to be disproved in the negative by the prosecution, and puts it beyond doubt that it is a defence to the offence.
Item 16 - Recreating reasonable excuse defence: strict liability applied
191. This item proposes two amendments to section 19AZA. First, this item is consequent upon items 11, 13 and 15 above. It inserts proposed subsection 19AZA(4) which recreates the defence of reasonable excuse in relation to an offence against subsections 19AZA(1), (2) and (3).
192. This item also adds the standard note after proposed subsection 19AZA(4) concerning the imposition of an evidential burden on a defendant by subsection 13.3(3) of the Criminal Code if a defendant relies on the reasonable excuse defence established by subsection 19AZA(4).
193. Second, this item inserts proposed subsection 19AZA(5) which applies strict liability to the offences in subsections 19AZA(1) and (2). Subsection 19AZA(1) provides that a person who is served with a summons to appear before a prescribed authority must not fail to appear in obedience to the summons. Subsection 19AZA(2) provides that a person who is served with a summons to produce a document or article to a prescribed authority must not fail to produce the document or article. Both offences attract a fine of 10 penalty units and the defendant can rely upon a defence of reasonable excuse. These are procedural obligations with a low penalty and therefore are the type of offences where strict liability is applied under the existing law. For more details on the operation of strict liability see the explanation at item 6 of Schedule 1.
194. The standard note referring to section 6.1 of the Criminal Code , which governs strict liability, is also added after this provision.
Item 17 - Amendment of inappropriate fault element
195. Subsection 23XG(2) applies the fault element of recklessness (or recklessly) in relation to the proscribed physical element of conduct, namely disclosing the results of the analysis to any person. Following application of the Criminal Code , the fault element of recklessness will be restricted to physical elements of circumstance or result, and intention will be the sole Criminal Code fault element that can be applied to a physical element of conduct: see sections 5.2 and 5.3 of the Criminal Code . Accordingly this item proposes the deletion of recklessly in subsection 23XG(2). Upon application of the Criminal Code , its default fault provision (section 5.6) will apply the fault element of recklessness to each physical element of circumstance in subsection 23XG(2). It is considered that subsection 23XG(2) will continue to operate in the same manner as at present following this amendment.
Item 18 - Amendment of inappropriate fault element
196. Section 23XH applies the fault element of recklessness (or recklessly) in relation to the proscribed physical element of conduct, namely publishing the prescribed information. Following application of the Criminal Code , the fault element of recklessness will be restricted to physical elements of circumstance or result, and intention will be the sole Criminal Code fault element that can be applied to a physical element of conduct: see sections 5.2 and 5.3 of the Criminal Code . Accordingly this item proposes the deletion of recklessly in section 23XH. Upon application of the Criminal Code , its default fault provision (section 5.6) will apply the fault element of recklessness to each physical element of circumstance in section 23XH. It is considered that section 23XH will continue to operate in the same manner as at present following this amendment.
Item 19 - Amendment of inappropriate fault element
197. This item proposes to delete or recklessly from the note in section 23YL. The reference to recklessness in the note is inconsistent with the offence in section 23YL, which does not apply the fault element of recklessness.
Item 20 - Amendment of inappropriate fault element
198. Subsection 23YP(2) applies the fault element of recklessness (or recklessly) in relation to the proscribed physical element of conduct, namely disclosing the prescribed information. Following application of the Criminal Code , the fault element of recklessness will be restricted to physical elements of circumstance or result, and intention will be the sole Criminal Code fault element that can be applied to a physical element of conduct: see sections 5.2 and 5.3 of the Criminal Code . Accordingly this item proposes the deletion of recklessly in subsection 23YP(2). Upon application of the Criminal Code , its default fault provision (section 5.6) will apply the fault element of recklessness to each physical element of circumstance in subsection 23YP(2). It is considered that subsection 23YP(2) will continue to operate in the same manner as at present following this amendment.
Item 21 - Deleting reasonable excuse defence
199. This item proposes to remove the defence of reasonable excuse from subsection 23YQ(7). The defence is recreated in a new subsection 23YQ(7A) (see item 22 below). The rationale for this amendment is to prevent future interpretation that the reasonable excuse element of this provision is an element of the offence, which would have to be disproved in the negative by the prosecution, and puts it beyond doubt that it is a defence to the offence.
Item 22 - Recreating reasonable excuse defence
200. This item is consequent upon item 21 above. It inserts proposed subsection 23YQ(7A) which recreates the defence of reasonable excuse in relation to an offence against subsection 23YQ(7).
201. This item also adds the standard note after proposed subsection 23YQ(7A) concerning the imposition of an evidential burden on a defendant by subsection 13.3(3) of the Criminal Code if a defendant relies on the reasonable excuse defence established by subsection 23YQ(7A).
Item 23 - Clarifying a fault element
202. This item proposes that the phrase for a purpose intended to be prejudicial to in the definition of act of sabotage in subsection 24AB(1) be replaced by the phrase with the intention of prejudicing. For details on the reasons for replacing the phrase for the purpose of (and like phrases) see the explanation at item 21 of Schedule 5. In the case of the definition of act of sabotage in subsection 24AB(1) the correct interpretation is the destruction, damage or impairment of any article to which paragraphs 24AB(1)(a)-(d) apply with the intention of prejudicing the safety or defence of the Commonwealth, and this item proposes the appropriate amendment accordingly.
Item 24 - Clarifying a fault element
203. This item proposes that the phrase a purpose intended to be prejudicial to in subsection 24AB(3) be replaced by the phrase an intention to prejudice. For details on the reasons for replacing the phrase for the purpose of (and like phrases) see the explanation at item 21 of Schedule 5. In the case of subsection 24AB(3) the correct interpretation is that the defendant intended to prejudice the safety or defence of the Commonwealth, and this item proposes the appropriate amendment accordingly.
Item 25 - Clarifying a fault element
204. This item proposes that the phrase purpose was a purpose intended to be prejudicial to in subsection 24AB(3) be replaced by the phrase intention was to prejudice. For details on the reasons for replacing the phrase for the purpose of (and like phrases) see the explanation at item 21 of Schedule 5. In the case of subsection 24AB(3) the correct interpretation is that the defendant intended to prejudice the safety or defence of the Commonwealth, and this item proposes the appropriate amendment accordingly.
Item 26 - Clarifying a fault element
205. This item proposes that the phrase purpose of the defendant was a purpose intended to be prejudicial to in paragraph 24AB(4)(a) be replaced by the phrase defendant intended to prejudice. For details on the reasons for replacing the phrase for the purpose of (and like phrases) see the explanation at item 21 of Schedule 5. In the case of paragraph 24AB(4)(a) the correct interpretation is that the defendant intended to prejudice the safety or defence of the Commonwealth, and this item proposes the appropriate amendment accordingly.
Item 27 - Clarifying a fault element
206. This item proposes that the phrase purpose of the defendant was a purpose intended to be prejudicial to in subsection 24AB(5) be replaced by the phrase defendant intended to prejudice. For details on the reasons for replacing the phrase for the purpose of (and like phrases) see the explanation at item 21 of Schedule 5. In the case of subsection 24AB(5) the correct interpretation is that the defendant intended to prejudice the safety or defence of the Commonwealth, and this item proposes the appropriate amendment accordingly.
Item 28 - Removal of ancillary provisions duplicating the Criminal Code
207. This item proposes the repeal and substitution of section 24C to effect the removal of the references in paragraphs 24C(a)-(c) to agreeing or undertaking to engage in a seditious enterprise, conspiring with any person to carry out a seditious enterprise and counselling, advising or attempting to procure the carrying out of a seditious enterprise. These matters are ancillary to the primary offence provided in section 24C, namely engaging in a seditious enterprise. Reliance will instead be placed upon the relevant general ancillary provision in the Criminal Code , namely sections 11.1 (attempt), 11.2 (aiding, abetting, counselling or procuring the commission of a primary offence) and 11.5 (conspiracy). These ancillary provisions are present in Chapter 2 of the Criminal Code , which is being applied to this Act by item 4 above and thus will be made applicable to this Act simultaneous with the amendment proposed by this item.
Item 29 - Amendment of inappropriate fault element
208. Subsection 25(1) applies the fault element of knowledge (or knowingly) in relation to the proscribed physical element of conduct, namely committing the various forms of mutiny set out in paragraphs (a), (b) and (c). Following application of the Criminal Code , the fault element of knowledge will be restricted to physical elements of circumstance or result, and intention will be the sole Criminal Code fault element that can be applied to a physical element of conduct: see sections 5.2 and 5.3 of the Criminal Code . Applying knowingly to a physical element of conduct in the pre- Criminal Code environment is equivalent to applying the Criminal Code fault element of intention. Accordingly this item proposes the replacement of knowingly in subsection 25(1) by the appropriate and equivalent fault element, namely intention. It is considered that subsection 25(1) will continue to operate in the same manner as at present following this amendment.
Item 30 - Amendment of inappropriate fault element
209. Section 26 applies the fault element of knowledge (or knowingly) in relation to the proscribed physical element of conduct, namely aiding an alien enemy who is a prisoner of war to escape, or in his or escape, from confinement. Following application of the Criminal Code , the fault element of knowledge will be restricted to physical elements of circumstance or result, and intention will be the sole Criminal Code fault element that can be applied to a physical element of conduct: see sections 5.2 and 5.3 of the Criminal Code . Applying knowingly to a physical element of conduct in the pre- Criminal Code environment is equivalent to applying the Criminal Code fault element of intention. Accordingly this item proposes the replacement of knowingly in section 26 by the appropriate and equivalent fault element, namely intention. It is considered that section 26 will continue to operate in the same manner as at present following this amendment.
Item 31 - Amendment of inappropriate fault element: lawful authority defence
210. This item proposes two amendments to section 29. First, section 29 uses the fault element wilfully in relation to the physical element of conduct, namely destroying or damaging any real or personal property belonging to the Commonwealth or to any public authority under the Commonwealth. This is akin to applying the fault element of intention, which is the equivalent used in the Criminal Code . The Criminal Code allows the use of new fault elements (subsection 5.1(2)) and the present offence would possibly still operate in the same manner following application of the Criminal Code . However it is also possible that future courts may attempt to distinguish wilfulness from intention on the basis that wilfulness appears to differ from the basic Criminal Code fault element. Accordingly this item proposes that wilfully be deleted from section 29 and replaced with intentionally.
211. The second amendment proposed by this item is to remove the fault element of unlawfully from section 29. Under proposed section 10.5, which is to be included in the Criminal Code as part of the Criminal Code Amendment (Theft, Fraud, Bribery and Related Offences) Bill 2000 , there is to be a general defence which provides that a person is not criminally responsible for an offence if the conduct constituting the offence is justified or excused by a law. The proposed general defence will apply to any situation where a person is presently authorised by Commonwealth law to destroy or damage property described by section 29. For more details on the operation of the lawful excuse defence see the explanation at item 3 of Schedule 2.
212. It is considered that section 29 will continue to operate in the same manner as at present following these amendments.
Item 32 - Absolute liability applied
213. This item proposes to insert subsection 29(2) which provides that absolute liability is applied to the physical elements of circumstance contained in the offence in subsection 29(1) that the property in question belonged to the Commonwealth or to any public authority under the Commonwealth. Subsection 29(1) provides that a person who destroys or damages any property, whether real or personal, belonging to the Commonwealth or to any public authority under the Commonwealth is guilty of an offence.
214. Section 6.2 of the Criminal Code provides that absolute liability means that the prosecution is not required to prove any fault element in relation to any offence or physical element of an offence which is expressly provided to be of absolute liability. This differs slightly from an application of strict liability to an offence or physical element of an offence, which similarly provides that the prosecution does not need to demonstrate a defendants fault element in relation to that offence or physical element but does leave the defence of mistake of fact available to the defendant (subsection 6.1(2) of the Criminal Code ). Where absolute liability applies to an element of an offence or the complete offence, the defence of mistake of fact under section 9.2 of the Criminal Code is not available to the defendant. Absolute liability is more appropriate in situations where it is not sensible to place on the prosecution the onus of demonstrating a fault element and where the mistake of fact defence should not be available to a defendant.
215. Section 6.2 provides that where an offence is intended to be one of absolute liability, then it should be identified as such in the statute.
216. The physical elements in proposed subsection 29(2) are appropriate candidates for the application of absolute liability because in most applicable instances the person concerned will not possess any fault element concerning these physical elements, and accordingly the offence would become almost unenforceable if the prosecution were obliged to demonstrate fault. Further, the persons degree of culpability under this offence is not materially affected by absence of the subject fault. The defence of mistake of fact should not be available to the defendant and accordingly absolute liability, and not strict liability, is the appropriate application.
217. The standard note referring to section 6.2 of the Criminal Code , which governs absolute liability, is also added after this provision.
218. This item repeals subsection 30AA(3) in consequence to the repeal of subsections 30R(1) to (4) inclusive by item 36 below.
Item 34 - Amendment of inappropriate fault element
219. Section 30F applies the fault element of knowledge (or knowingly) in relation to the proscribed physical element of conduct, namely printing, publishing, selling or exposing for sale, circulating or distributing any of the written materials prescribed by section 30F for or in the interests of any unlawful association. Following application of the Criminal Code , the fault element of knowledge will be restricted to physical elements of circumstance or result, and intention will be the sole Criminal Code fault element that can be applied to a physical element of conduct: see sections 5.2 and 5.3 of the Criminal Code . Applying knowingly to a physical element of conduct in the pre- Criminal Code environment is equivalent to applying the Criminal Code fault element of intention. Accordingly this item proposes the replacement of knowingly in section 30F by the appropriate and equivalent fault element, namely intention. It is considered that section 30F will continue to operate in the same manner as at present following this amendment.
Item 35 - Amendment of inappropriate fault element
220. Section 30FC applies the fault element of knowledge (or knowingly) in relation to the proscribed physical element of conduct, namely permitting any meeting of an unlawful association or any branch or committee thereof in any building, room, premises or place of which the defendant is the owner, lessee, agent or superintendent. Following application of the Criminal Code , the fault element of knowledge will be restricted to physical elements of circumstance or result, and intention will be the sole Criminal Code fault element that can be applied to a physical element of conduct: see sections 5.2 and 5.3 of the Criminal Code . Applying knowingly to a physical element of conduct in the pre- Criminal Code environment is equivalent to applying the Criminal Code fault element of intention. Accordingly this item proposes the replacement of knowingly in section 30FC by the appropriate and equivalent fault element, namely intention. It is considered that section 30FC will continue to operate in the same manner as at present following this amendment.
221. The heading to section 30FC is consequentially amended by deleting knowingly.
222. This item proposes to repeal subsections 30R(1) to (4) inclusive. These subsection provide for the prosecutor to aver matters in relation to the prosecution of certain offences in the Act. This provision will not operate in the same manner following application of the Criminal Code , which provides that the prosecution will be required to prove each element of an offence beyond reasonable doubt: sections 13.1 and 13.2. Further, section 13.6 of the Criminal Code provides that such a provision shall not be taken to allow the prosecution to aver any fault elements of an offence or to make an averment in prosecuting for an offence that is punishable by imprisonment.
223. The heading of section 30R is also consequentially amended to reflect the remaining function of this section, namely that contained in subsection 30R(5), which states that any book, periodical, pamphlet, handbill, poster or newspaper purporting to be issued by, or on behalf of, or in the interests of, an association, shall be deemed to be issued unless the contrary is proved.
Item 37 - Deleting reasonable excuse defence
224. This item proposes to remove the defence of reasonable excuse from paragraph 34(a). The defence is recreated in a new subsection 34(2) (see item 39 below). The rationale for this amendment is to prevent future interpretation that the reasonable excuse element of this provision is an element of the offence, which would have to be disproved in the negative by the prosecution, and puts it beyond doubt that it is a defence to the offence.
Item 38 - Amendment of inappropriate fault element
225. Paragraph 34(b) uses the fault element wilfully in relation to the physical element of conduct, namely exercising federal jurisdiction. This is equivalent to applying the Criminal Code fault element of intention. The Criminal Code allows the use of new fault elements (subsection 5.1(2)) and the present offence would possibly still operate in the same manner following application of the Criminal Code . However it is also possible that future courts may attempt to distinguish wilfulness from intention on the basis that wilfulness appears to differ from the basic Criminal Code fault element. Accordingly this item proposes the replacement of wilfully in paragraph 34(b) by the appropriate and equivalent Criminal Code fault element, namely intention. It is considered that paragraph 34(b) will continue to operate in the same manner as at present following this amendment.
Item 39 - Recreating reasonable excuse defence
226. This item is consequent upon item 37 above. It inserts proposed subsection 34(2) which recreates the defence of reasonable excuse in relation to an offence against paragraph 34(1)(b).
227. This item also adds the standard note after proposed subsection 34(2) concerning the imposition of an evidential burden on a defendant by subsection 13.3(3) of the Criminal Code if a defendant relies on the reasonable excuse defence established by subsection 34(2).
Item 40 - Clarifying a fault element
228. This item proposes that the phrase for the purpose in subsection 35(1) be replaced by the phrase with the intention. For details on the reasons for replacing the phrase for the purpose of see the explanation at item 21 of Schedule 5. In the case of subsection 35(1) the correct interpretation is that the defendant acted with the intention of instituting a judicial proceeding, and this item proposes the appropriate amendment accordingly.
Item 41 - Amendment of inappropriate fault element
229. Subsection 35(1) applies the fault element of knowledge (or knowingly) in relation to the proscribed physical element of conduct, namely giving false testimony. Following application of the Criminal Code , the fault element of knowledge will be restricted to physical elements of circumstance or result, and intention will be the sole Criminal Code fault element that can be applied to a physical element of conduct: see sections 5.2 and 5.3 of the Criminal Code . Applying knowingly to a physical element of conduct in the pre- Criminal Code environment is equivalent to applying the Criminal Code fault element of intention. Accordingly this item proposes the replacement of knowingly in subsection 35(1) by the appropriate and equivalent fault element, namely intention. It is considered that subsection 35(1) will continue to operate in the same manner as at present following this amendment.
Item 42 - Strict liability applied
230. This item inserts proposed subsection 35(1A) which applies strict liability to the physical element of circumstance in the offence contained in subsection 35(1) that the matter is material in the proceeding. Subsection 35(1) (as amended) provides that any person who, in any judicial proceeding, or with the intention of instituting any judicial proceeding, intentionally gives false testimony touching any matter, material in that proceeding, is guilty of an offence.
231. This physical element is an appropriate candidate for the application of strict liability because in most applicable instances the person concerned will not possess any fault element concerning this physical element, and accordingly the offence would become almost unenforceable if the prosecution were obliged to demonstrate fault. Further, the persons degree of culpability under this offence is not materially affected by absence of the subject fault. However the defence of mistake of fact should be available to the defendant, as this provision should not operate so as to criminalise the conduct of persons who made a reasonable mistake of fact in relation to materiality. Accordingly strict liability, and not absolute liability, is the appropriate application. For more details on the operation of strict liability see the explanation at item 6 of Schedule 1.
232. The standard note referring to section 6.1 of the Criminal Code , which governs strict liability, is also added after this provision.
Items 43 and 44 - Amendment of inappropriate fault element
233. Paragraph 36(b) applies the fault element of knowledge (or knowingly) in relation to the proscribed physical element of conduct, namely making use of fabricated evidence. Following application of the Criminal Code , the fault element of knowledge will be restricted to physical elements of circumstance or result, and intention will be the sole Criminal Code fault element that can be applied to a physical element of conduct: see sections 5.2 and 5.3 of the Criminal Code . Applying knowingly to a physical element of conduct in the pre- Criminal Code environment is equivalent to applying the Criminal Code fault element of intention. Accordingly these items propose the deletion of knowingly in paragraph 36(b) and its replacement in section 36 by the appropriate and equivalent fault element, namely intention. The application of intentionally in relation to paragraph 36(a) is uncontroversial because that is the existing fault element for paragraph 36(a) and the same fault element would be applied to paragraph 36(a) by Criminal Code section 5.6 in the absence of this amendment. It is considered that section 36 will continue to operate in the same manner as at present following this amendment.
Item 45 - Removal of ancillary provision duplicating the Criminal Code
234. This item proposes to amend paragraph 37(b) by removing the reference to attempting to commit the primary offence in paragraph 37(b) of doing an act with the intention of inducing a person called or to be called as a witness in any judicial proceeding to give false testimony, or to withhold true testimony. Reliance will instead be placed upon the relevant general ancillary provision in the Criminal Code , namely section 11.1 (attempt). This ancillary provision is present in Chapter 2 of the Criminal Code , which is being applied to this Act by item 4 of this Schedule and thus will be made applicable to this Act simultaneous with the amendment proposed by this item.
Item 46 - Removal of ancillary provision duplicating the Criminal Code
235. This item proposes to amend paragraph 37(c) by removing the reference to attempting to commit the primary offence of receiving or obtaining any property or benefit of any kind for himself, or any other person, upon any agreement or understanding that any person shall as a witness in any judicial proceeding give false testimony or withhold true testimony. Reliance will instead be placed upon the relevant general ancillary provision in the Criminal Code , namely section 11.1 (attempt). This ancillary provision is present in Chapter 2 of the Criminal Code , which is being applied to this Act by item 4 of this Schedule and thus will be made applicable to this Act simultaneous with the amendment proposed by this item.
Item 47 - Amendment of inappropriate fault element
236. Section 38 applies the fault element of knowledge (or knowingly) in relation to the proscribed physical element of conduct, namely making or exhibiting any false statement, representation, token or writing. Following application of the Criminal Code , the fault element of knowledge will be restricted to physical elements of circumstance or result, and intention will be the sole Criminal Code fault element that can be applied to a physical element of conduct: see sections 5.2 and 5.3 of the Criminal Code . Applying knowingly to a physical element of conduct in the pre- Criminal Code environment is equivalent to applying the Criminal Code fault element of intention. Accordingly this item proposes the replacement of knowingly in section 38 by the appropriate and equivalent fault element, namely intention. It is considered that section 38 will continue to operate in the same manner as at present following this amendment.
Item 48 - Amendment of inappropriate fault element
237. Section 39 uses the fault element wilfully in relation to the physical element of conduct, namely destroying or rendering illegible, undecipherable or incapable of identification any book, document or other thing of any kind which is subject to section 39. This is equivalent to applying the Criminal Code fault element of intention. The Criminal Code allows the use of new fault elements (subsection 5.1(2)) and the present offence would possibly still operate in the same manner following application of the Criminal Code . However it is also possible that future courts may attempt to distinguish wilfulness from intention on the basis that wilfulness appears to differ from the basic Criminal Code fault element. Accordingly this item proposes that wilfully be deleted from section 39 and replaced with intentionally. It is considered that section 39 will continue to operate in the same manner as at present following this amendment.
Item 49 - Amendment of inappropriate fault element: removal of ancillary provision duplicating the Criminal Code
238. This item proposes two amendments to section 40. First, section 40 uses the fault element wilfully in relation to the physical element of conduct, namely preventing another person who has been summoned to attend as a witness in a judicial proceeding from attending as a witness or from producing anything in evidence pursuant to a subpoena or summons. This is equivalent to applying the Criminal Code fault element of intention. The Criminal Code allows the use of new fault elements (subsection 5.1(2)) and the present offence would possibly still operate in the same manner following application of the Criminal Code . However it is also possible that future courts may attempt to distinguish wilfulness from intention on the basis that wilfulness appears to differ from the basic Criminal Code fault element. Accordingly this item proposes that wilfully be deleted from section 40 and replaced with intentionally. It is considered that section 40 will continue to operate in the same manner as at present following this amendment.
239. Second, this item proposes to amend section 40 by removing the reference to endeavouring to commit the primary offence of preventing another person who has been summoned to attend as a witness in a judicial proceeding from attending as a witness or from producing anything in evidence pursuant to the subpoena or summons. Endeavouring to commit an act is an equivalent phrase to attempting to commit that act. Reliance will instead be placed upon the relevant general ancillary provision in the Criminal Code , namely section 11.1 (attempt). This ancillary provision is present in Chapter 2 of the Criminal Code , which is being applied to this Act by item 4 of this Schedule and thus will be made applicable to this Act simultaneous with the amendment proposed by this item.
Item 50 - Application of conspiracy principles
240. This item inserts subsections 41(2) to (7) inclusive. These provisions are necessary in order to supply the principles governing conspiracy to section 41. At present, Crimes Act section 4 applies the common law principles of conspiracy in relation to section 41. However section 4 is being disapplied in relation to each offence to which the Criminal Code is applied, including section 41: see item 1 of Schedule 1.
241. The Criminal Code conspiracy principles, contained in section 11.5, will not apply to section 41 because of the wording of subsection 11.5(1). Subsection 11.5(1) provides that a person who conspires to commit an offence (ie, a primary offence) is guilty of the offence of conspiracy to commit that offence. However the primary offence in section 41 is entering into the proscribed conspiracy. If section 11.5 were to apply to section 41, the conduct would be conspiring to conspire. Such a construction offends common sense. Further, it is clear from the wording of subsection 11.5(1) that such a construction is not intended and that subsection 11.5(1) will not apply to primary offences of conspiracy. Because subsection 11.5(1) will not apply to section 41, the balance of section 11.5 will also not apply. The result is that without the amendment proposed by this item the offence of conspiracy in section 41 would be wholly isolated from the principles that courts have always used to describe conspiracy.
242. The proposed subsections 41(2) to (7) inclusive are drawn from section 11.5, with minor modifications where necessary. The effect of these subsections is that section 11.5 is effectively applied to section 41 as if a person who commits an offence against section 41 has committed an offence against subsection 11.5(1).
Item 51 - Application of principles governing conspiracy: absolute liability applied
243. This item inserts proposed subsections 42(3) to (8) inclusive. These provisions mirror the proposed subsection in item 50 above and apply the principles governing conspiracy to section 42 for the same reasons.
244. This item also proposes to insert subsection 42(2) which provides that absolute liability is applied to the physical element of circumstance contained in the offence in subsection 42(1) that the judicial power referred to in that subsection is the judicial power of the Commonwealth. Subsection 42(1) provides that a person who conspires with another to obstruct, prevent, pervert, or defeat, the course of justice in relation to the judicial power of the Commonwealth is guilty of an offence.
245. This physical element is an appropriate candidate for the application of absolute liability because in most applicable instances the person concerned will not possess any fault element concerning this physical element, and accordingly the offence would become almost unenforceable if the prosecution were obliged to demonstrate fault. Further, the persons degree of culpability under this offence is not materially affected by absence of the subject fault. The defence of mistake of fact should not be available to the defendant and accordingly absolute liability, and not strict liability, is the appropriate application. For more details on the operation of absolute liability see the explanation at item 32 of Schedule 10.
246. The standard note referring to section 6.2 of the Criminal Code , which governs absolute liability, is also added after this provision.
Item 52 - Application of principles governing attempt: absolute liability applied
247. This item proposes two amendments to section 43. First, it proposes to insert subsection 43(2) which provides that absolute liability is applied to the physical element of circumstance contained in the offence in subsection 43(1) that the judicial power referred to in that subsection is the judicial power of the Commonwealth. Subsection 43(1) provides that a person attempts, in any way not specially defined in this Act, to obstruct, prevent, pervert, or defeat, the course of justice in relation to the judicial power of the Commonwealth is guilty of an offence.
248. This physical element is an appropriate candidate for the application of absolute liability because in most applicable instances the person concerned will not possess any fault element concerning this physical element, and accordingly the offence would become almost unenforceable if the prosecution were obliged to demonstrate fault. Further, the persons degree of culpability under this offence is not materially affected by absence of the subject fault. The defence of mistake of fact should not be available to the defendant and accordingly absolute liability, and not strict liability, is the appropriate application. For more details on the operation of absolute liability see the explanation at item 32 of Schedule 10.
249. The standard note referring to section 6.2 of the Criminal Code , which governs absolute liability, is also added after this provision.
250. Second, this item creates subsections 43(3) and (4) which supply to the offence in section 43 the principles governing attempt. This amendment is necessary for the same reason given in item 50 above concerning conspiracy. In this instance, the wording of Criminal Code section 11.1, which contains the principles governing attempt, would result in those principles not being applied to section 43 in the absence of this amendment. Proposed subsections 43(3) and (4) are drawn from section 11.1, with minor modifications where necessary. The effect of these subsections is that section 11.1 is effectively applied to section 43 as if a person who commits an offence against section 43 has committed an offence against subsection 11.1.
Item 53 - Removal of ancillary provision duplicating the Criminal Code
251. This item proposes to amend section 44 by removing the references to attempting to commit the primary offence of asking, receiving or obtaining any property or benefit of any kind for himself or any other person upon any agreement or understanding that he will compound or conceal any indictable offence against the law of the Commonwealth or a Territory or will abstain from, discontinue or delay any prosecution for any such offence. Reliance will instead be placed upon the relevant general ancillary provision in the Criminal Code , namely section 11.1 (attempt). This ancillary provision is present in Chapter 2 of the Criminal Code , which is being applied to this Act by item 4 of this Schedule and thus will be made applicable to this Act simultaneous with the amendment proposed by this item.
Item 54 - Application of principles governing aiding the commission of an offence
252. This item creates subsections 46(1A) to (1D) inclusive which supply to the offence in paragraphs 46(1)(a), (aa) and (ab) the principles governing aiding another person in the commission of an offence. This amendment is necessary for the same reason given in item 50 concerning conspiracy. In this instance, the wording of Criminal Code section 11.2, which contains the principles governing aiding, abetting, counselling or procuring the commission by another person of an offence, would result in those principles not being applied to paragraphs 46(1)(a), (aa) and (ab) in the absence of this amendment.
253. Proposed subsections 46(1A) to (1D) inclusive are drawn from section 11.2, with minor modifications where necessary. The effect of these subsections is that section 11.2 is effectively applied to paragraphs 46(1)(a), (aa) and (ab) as if a person who commits an offence against paragraph 46(1)(a), (aa) or (ab) has committed an offence against subsection 11.2(1).
Item 55 - Deleting reasonable excuse defence
254. This item proposes to remove the defence of reasonable excuse from paragraph 47B(1)(b). The defence is recreated in a new subsection 47B(1A) (see item 56 below). The rationale for this amendment is to prevent future interpretation that the reasonable excuse element of this provision is an element of the offence, which would have to be disproved in the negative by the prosecution, and puts it beyond doubt that it is a defence to the offence.
Item 56 - Recreating reasonable excuse defence
255. This item is consequent upon item 55 above. It inserts proposed subsection 47B(1A) which recreates the defence of reasonable excuse in relation to an offence against paragraph 47B(1)(b).
256. the imposition of an evidential burden on a defendant by subsection 13.3(3) of the Criminal Code if a defendant relies on the reasonable excuse defence established by subsection 47B(1A).
Item 57 - Amendment of inappropriate fault element
257. Paragraph 47C(1)(c) uses the fault element wilfully in relation to the physical element of conduct, namely permitting another person to escape from lawful custody or detention as defined by paragraph 47C(1)(b). This is equivalent to applying the Criminal Code fault element of intention. The Criminal Code allows the use of new fault elements (subsection 5.1(2)) and the present offence would possibly still operate in the same manner following application of the Criminal Code . However it is also possible that future courts may attempt to distinguish wilfulness from intention on the basis that wilfulness appears to differ from the basic Criminal Code fault element. Accordingly this item proposes that wilfully be deleted from paragraph 47C(1)(c) and replaced with intentionally. It is considered that paragraph 47C(1)(c) will continue to operate in the same manner as at present following this amendment.
Item 58 - Amendment of inappropriate fault element
258. Subsection 47C(2) uses the fault element wilfully in relation to the physical element of conduct, namely permitting a person who has been lawfully arrested in respect of any offence against a law of the Commonwealth or of a Territory to escape from that arrest. This is equivalent to applying the Criminal Code fault element of intention. The Criminal Code allows the use of new fault elements (subsection 5.1(2)) and the present offence would possibly still operate in the same manner following application of the Criminal Code . However it is also possible that future courts may attempt to distinguish wilfulness from intention on the basis that wilfulness appears to differ from the basic Criminal Code fault element. Accordingly this item proposes that wilfully be deleted from subsection 47C(2) and replaced with intentionally. It is considered that subsection 47C(2) will continue to operate in the same manner as at present following this amendment.
Item 59 - Amendment of inappropriate fault element
259. Section 49 applies the fault element of knowledge (or knowingly) in relation to the proscribed physical element of conduct, namely receiving, removing, retaining, concealing or disposing of prescribed property. Following application of the Criminal Code , the fault element of knowledge will be restricted to physical elements of circumstance or result, and intention will be the sole Criminal Code fault element that can be applied to a physical element of conduct: see sections 5.2 and 5.3 of the Criminal Code . Applying knowingly to a physical element of conduct in the pre- Criminal Code environment is equivalent to applying the Criminal Code fault element of intention. Accordingly this item proposes the replacement of knowingly in section 49 by the appropriate and equivalent fault element, namely intention. It is considered that section 49 will continue to operate in the same manner as at present following this amendment.
260. This item also consequentially reconstructs section 49 in order to bring the bring the fault element of intention together with the relevant physical element of conduct, namely receiving, removing, retaining, concealing or disposing of prescribed property.
Items 60 to 64 - Update cross-references to ancillary provisions
261. Section 50AA is an interpretation provision for Part IIIA which concerns child sex tourism offences. It includes references to ancillary offences, including attempt (section 7), aiding and abetting (section 5) and conspiracy (subsection 86(1)) to make procedures relevant to Part IIIA to apply to them as well as the principal child sex tourism offences. These items update the references to refer to the relevant Criminal Code provisions - sections 11.1 (attempt), 11.2 and 11.3 (complicity and innocent agency) and 11.5 (conspiracy).
Item 65 - Absolute liability applied
262. Item 65 proposes that section 50BA be amended to apply absolute liability in relation to the circumstances that sex with the child occurred outside Australia and that the child was in fact under 16 years.
263. The first leg of this amendment (proposed paragraph 50BA(2)(a)) reflects the existing law that the prosecution is not required to prove the defendant knew jurisdictional elements. This issue was considered by the Parliament in the context of the Criminal Code Amendment (Theft, Fraud, Bribery and Related Offences) Act 2000 where it was recognised under the Criminal Code it was necessary to specifically apply absolute liability to jurisdictional elements such as Commonwealth ownership of property in the offence of theft of Commonwealth property (see subsection 131.1(3)).
264. The physical element of the crime being outside Australia describes the limits on Commonwealth jurisdiction in relation to sexual activity with children and is in no way concerned with the actual culpability of the defendant. Under the Criminal Code and as under the existing law, the prosecution still has to prove the defendant intended to have sex with a child.
265. The application of absolute liability to the age of the child (paragraph 50BA(2)(b)) is included for a different reason. Under section 6.2 of the Criminal Code which describes absolute liability, there is no defence of a mistaken but reasonable belief about facts (which exists where there is strict liability). This is appropriate because under section 50CA there is a specific defence in relation to belief about the age of the child. The defence will continue to have effect even though absolute liability applies. Subsection 6.2(3) of the Criminal Code provides absolute liability does not make any other defence unavailable.
Items 66 and 67 - Absolute liability applied
266. These items make the same amendments described in item 65 to other child sex offences in sections 50BB and 50BC (inducing a child to engage in sexual intercourse and indecent acts with a child).
267. Item 67 also deals with issue of whether the element that the conduct was an act of indecency should be known by the defendant. Proposed paragraph 50BC(2)(c) provides absolute liability applies to that circumstance. The definition of act of indecency in section 50AB makes it clear that it is meant to be an objective fact. Under the existing provisions the prosecution is not expected to prove the defendant knew the conduct was an act of indecency.
268. This is a technical amendment which simply moves the existing penalty in accordance with policy.
Items 69 and 70 - Absolute liability applied
269. These items make the same amendments described in item 67 to the child sex offence in section 50BD (inducing a child to be involved in an indecent act).
Items 71 and 72 - Notes concerning the evidential burden
270. These insert standard notes in relation to the standard of proof for defences in subsection 13.3(3) of the Criminal Code after the defences in relation to belief about age and genuine marriage in sections 50CA and 50CB. These do not change the law, they mere reflect the policy of the Code.
Items 73 and 74 - Absolute liability applied: standard of proof for defences: removal of requirement to demonstrate fault
271. Consistent with item 67, these items propose that the offences in section 50DA (benefiting from a child sex tourism offence) and 50DB (encouraging a child sex tourism offence) have absolute liability apply to the objective fact of the act or omission being reasonably capable of resulting in the person benefiting from such conduct. It was never intended that the prosecution to should prove the defendant knew this, it is enough, as required in paragraphs 50DA(1)(a) and 50DB(1)(a), it be proved that the act or omission was done with the intention of benefiting from such conduct. If that can be proved, the defendant is sufficiently culpable without a further requirement of proof.
272. Item 73 inserts subsection 50DA(1B), which removes any requirement upon the prosecution to demonstrate, in a prosecution for an offence against subsection 50DA(1), that the defendant knew that the conduct mentioned in paragraph (1)(a) would be of a kind that would constitute an offence against this Part.
273. Item 74 inserts subsection 50DB(1B), which removes any requirement upon the prosecution to demonstrate, in a prosecution for an offence against subsection 50DB(1), that the defendant knew that the conduct mentioned in paragraph (1)(a) would be of a kind that would constitute an offence against this Part (other than this section).
274. This item proposes to simplify the language which imposes the penalty for an offence against subsection 76B(3).
Item 76 - Absolute liability applied
275. This item proposes to insert subsection 76B(4) which provides that absolute liability is applied to the physical elements of circumstance contained in the offence in subsections 76B(1), (2) and (3) that the computer in question is a Commonwealth computer or is not a Commonwealth computer, as the case may be. Subsections 76B(1), (2) and (3) variously proscribe a person obtaining access to data stored in a Commonwealth computer or that is stored in a non-Commonwealth computer on behalf of the Commonwealth.
276. These physical elements are appropriate candidates for the application of absolute liability because in most applicable instances the person concerned will not possess any fault element concerning these physical elements, and accordingly the offence would become almost unenforceable if the prosecution were obliged to demonstrate fault. Further, the persons degree of culpability under this offence is not materially affected by absence of the subject fault. The defence of mistake of fact should not be available to the defendant and accordingly absolute liability, and not strict liability, is the appropriate application. For more details on the operation of absolute liability see the explanation at item 32 of this Schedule.
277. The standard note referring to section 6.2 of the Criminal Code , which governs absolute liability, is also added after this provision.
Item 77 - Lawful excuse defence
278. This item proposes to remove the specific defence of lawful excuse from section 76C. Reliance may instead be placed upon the general defence of lawful excuse, which is being inserted into the Criminal Code and will be applicable to this Act simultaneous with the amendment proposed by this item. For more details on the operation of the lawful excuse defence see the explanation at item 3 of Schedule 2.
Item 78 - Absolute liability applied
279. This item proposes to insert subsection 76C(2) which provides that absolute liability is applied to the physical elements of circumstance contained in the offence in subsection 76C(1) that the computer in question is a Commonwealth computer or is not a Commonwealth computer, as the case may be. Subsection 76C(1) variously proscribes a person altering data stored in a Commonwealth computer or that is stored in a non-Commonwealth computer on behalf of the Commonwealth, interfering with the lawful use of a Commonwealth computer, or impeding or preventing the access to or impairing the use or effectiveness of data stored in a Commonwealth computer or that is stored in a non-Commonwealth computer on behalf of the Commonwealth.
280. These physical elements are appropriate candidates for the application of absolute liability because in most applicable instances the person concerned will not possess any fault element concerning these physical elements, and accordingly the offence would become almost unenforceable if the prosecution were obliged to demonstrate fault. Further, the persons degree of culpability under this offence is not materially affected by absence of the subject fault. The defence of mistake of fact should not be available to the defendant and accordingly absolute liability, and not strict liability, is the appropriate application. For more details on the operation of absolute liability see the explanation at item 32 of this Schedule.
281. The standard note referring to section 6.2 of the Criminal Code , which governs absolute liability, is also added after this provision.
282. This item proposes to simplify the language which imposes the penalty for an offence against subsection 76D(3).
Item 80 - Absolute liability applied
283. This item proposes to insert subsection 76D(4) which provides that absolute liability is applied to the physical element of circumstance contained in the offence in subsection 76D(1) that the facility is operated or provided by the Commonwealth or by a carrier. Subsection 76D(1) variously proscribes unlawful access to data in Commonwealth and other computers by means of Commonwealth facility.
284. This physical element is an appropriate candidate for the application of absolute liability because in most applicable instances the person concerned will not possess any fault element concerning this physical element, and accordingly the offence would become almost unenforceable if the prosecution were obliged to demonstrate fault. Further, the persons degree of culpability under this offence is not materially affected by absence of the subject fault. The defence of mistake of fact should not be available to the defendant and accordingly absolute liability, and not strict liability, is the appropriate application. For more details on the operation of absolute liability see the explanation at item 32 of this Schedule.
285. The standard note referring to section 6.2 of the Criminal Code , which governs absolute liability, is also added after this provision.
Item 81 - Lawful excuse defence
286. This item proposes to remove the specific defence of lawful excuse from section 76E. Reliance may instead be placed upon the general defence of lawful excuse, which is being inserted into the Criminal Code and will be applicable to this Act simultaneous with the amendment proposed by this item. For more details on the operation of the lawful excuse defence see the explanation at item 3 of Schedule 2.
Item 82 - Absolute liability applied
287. This item proposes to insert subsection 76E(2) which provides that absolute liability is applied to the physical element of circumstance contained in the offence in subsection 76E(1) that the facility is operated or provided by the Commonwealth or by a carrier. Subsection 76E(1) variously proscribes damaging data in Commonwealth and other computers by means of Commonwealth facility.
288. This physical element is an appropriate candidate for the application of absolute liability because in most applicable instances the person concerned will not possess any fault element concerning this physical element, and accordingly the offence would become almost unenforceable if the prosecution were obliged to demonstrate fault. Further, the persons degree of culpability under this offence is not materially affected by absence of the subject fault. The defence of mistake of fact should not be available to the defendant and accordingly absolute liability, and not strict liability, is the appropriate application. For more details on the operation of absolute liability see the explanation at item 32 of this Schedule.
289. The standard note referring to section 6.2 of the Criminal Code , which governs absolute liability, is also added after this provision.
Item 83 - Clarifying a fault element
290. This item proposes that the phrase for a purpose intended to be prejudicial to in subsection 78(1) be replaced by the phrase with the intention of prejudicing. For details on the reasons for replacing the phrase for the purpose of (and like phrases) see the explanation at item 21 of Schedule 5. In the case of subsection 78(1) the correct interpretation is that the defendant commits any of the conduct described in paragraphs 78(1)(a)-(c) with the intention of prejudicing the safety or defence of the Commonwealth or a part of the Queens dominions, and this item proposes the appropriate amendment accordingly.
Item 84 - Clarifying a fault element
291. This item proposes that the phrase show a purpose intended to be prejudicial to in paragraph 78(2)(a) be replaced by the phrase show an intention to prejudice. For details on the reasons for replacing the phrase for the purpose of (and like phrases) see the explanation at item 21 of Schedule 5. In the case of paragraph 78(2)(a) the correct interpretation is that the defendant commits any of the conduct described in paragraphs 78(1)(a)-(c) with the intention of prejudicing the safety or defence of the Commonwealth or a part of the Queens dominions, and this item proposes the appropriate amendment accordingly.
Item 85 - Clarifying a fault element
292. This item proposes that the phrase purpose was a purpose intended to be prejudicial to in paragraph 78(2)(a) be replaced by the phrase intention was to prejudice. For details on the reasons for replacing the phrase for the purpose of (and like phrases) see the explanation at item 21 of Schedule 5. In the case of paragraph 78(2)(a) the correct interpretation is that the defendant commits any of the conduct described in paragraphs 78(1)(a)-(c) with the intention of prejudicing the safety or defence of the Commonwealth or a part of the Queens dominions, and this item proposes the appropriate amendment accordingly.
Item 86 - Clarifying a fault element
293. This item proposes that the phrase for a purpose intended to be prejudicial to in paragraph 78(2)(b) be replaced by the phrase with the intention of prejudicing. For details on the reasons for replacing the phrase for the purpose of (and like phrases) see the explanation at item 21 of Schedule 5. In the case of paragraph 78(2)(b) the correct interpretation is that the defendant commits any of the conduct described in paragraphs 78(2)(b) with the intention of prejudicing the safety or defence of the Commonwealth or a part of the Queens dominions, and this item proposes the appropriate amendment accordingly.
Item 87 - Clarifying a fault element
294. This item proposes that the phrase purpose of the defendant was a purpose intended to be prejudicial to in paragraph 78(3)(a) be replaced by the phrase defendant intended to prejudice. For details on the reasons for replacing the phrase for the purpose of (and like phrases) see the explanation at item 21 of Schedule 5. In the case of paragraph 78(3)(a) the correct interpretation is that the defendant commits any of the conduct described in paragraphs 78(1)(a)-(c) with the intention of prejudicing the safety or defence of the Commonwealth or a part of the Queens dominions, and this item proposes the appropriate amendment accordingly.
Item 88 - Clarifying a fault element
295. This item proposes that the phrase purpose of the defendant was a purpose intended to be prejudicial to in subsection 78(4) be replaced by the phrase defendant intended to prejudice. For details on the reasons for replacing the phrase for the purpose of (and like phrases) see the explanation at item 21 of Schedule 5. In the case of paragraph 78(4) the correct interpretation is that the defendant commits any of the conduct described in paragraphs 78(1)(a)-(c) with the intention of prejudicing the safety or defence of the Commonwealth or a part of the Queens dominions, and this item proposes the appropriate amendment accordingly.
Item 89 - Clarifying a fault element
296. This item proposes that the phrase for a purpose intended to be prejudicial to in subsection 79(2) be replaced by with the intention of prejudicing. For details on the reasons for replacing the phrase for the purpose of (and like phrases) see the explanation at item 21 of Schedule 5. In the case of subsection 79(2) the correct interpretation is that the defendant commits any of the conduct described in paragraphs 79(2)(a)-(c) with the intention of prejudicing the safety or defence of the Commonwealth or a part of the Queens dominions, and this item proposes the appropriate amendment accordingly.
Item 90 - Clarifying a fault element
297. This item proposes that the phrase show a purpose intended to be prejudicial to in subsection 79(7) be replaced by show an intention to prejudice. For details on the reasons for replacing the phrase for the purpose of (and like phrases) see the explanation at item 21 of Schedule 5. In the case of subsection 79(7) the correct interpretation is that the defendant commits any of the conduct described in paragraphs 79(2)(a)-(c) with the intention of prejudicing the safety or defence of the Commonwealth or a part of the Queens dominions, and this item proposes the appropriate amendment accordingly.
Item 91 - Clarifying a fault element
298. This item proposes that the phrase purpose was a purpose intended to be prejudicial to in subsection 79(7) be replaced by intention was to prejudice. For details on the reasons for replacing the phrase for the purpose of (and like phrases) see the explanation at item 21 of Schedule 5. In the case of subsection 79(7) the correct interpretation is that the defendant commits any of the conduct described in paragraphs 79(2)(a)-(c) with the intention of prejudicing the safety or defence of the Commonwealth or a part of the Queens dominions, and this item proposes the appropriate amendment accordingly.
Item 92 - Clarifying a fault element
299. This item proposes that the phrase purpose of the defendant was a purpose intended to be prejudicial to in paragraph 79(8)(a) be replaced by defendant intended to prejudice. For details on the reasons for replacing the phrase for the purpose of (and like phrases) see the explanation at item 21 of Schedule 5. In the case of paragraph 79(8)(a) the correct interpretation is that the defendant commits any of the conduct described in paragraphs 79(2)(a)-(c) with the intention of prejudicing the safety or defence of the Commonwealth or a part of the Queens dominions, and this item proposes the appropriate amendment accordingly.
Item 93 - Clarifying a fault element
300. This item proposes that the phrase purpose of the defendant was a purpose intended to be prejudicial to in subsection 79(9) be replaced by defendant intended to prejudice. For details on the reasons for replacing the phrase for the purpose of (and like phrases) see the explanation at item 21 of Schedule 5. In the case of subsection 79(9) the correct interpretation is that the defendant commits any of the conduct described in paragraphs 79(2)(a)-(c) with the intention of prejudicing the safety or defence of the Commonwealth or a part of the Queens dominions, and this item proposes the appropriate amendment accordingly.
Item 94 - Amendment of inappropriate fault element
301. Paragraphs 81(1)(a) and (b) apply the fault element of knowledge (or knowingly) in relation to the respective proscribed physical elements of conduct, namely harbouring any person and permitting any persons to assemble where he or she knows, or has reasonable grounds for supposing, that the person or persons are spies. Following application of the Criminal Code , the fault element of knowledge will be restricted to physical elements of circumstance or result, and intention will be the sole Criminal Code fault element that can be applied to a physical element of conduct: see sections 5.2 and 5.3 of the Criminal Code . Applying knowingly to a physical element of conduct in the pre- Criminal Code environment is equivalent to applying the Criminal Code fault element of intention. Accordingly this item proposes the replacement of knowingly in paragraphs 81(1)(a) and (b) by the appropriate and equivalent fault element, namely intention. It is considered that paragraphs 81(1)(a) and (b) will continue to operate in the same manner as at present following this amendment.
Item 95 - Amendment of inappropriate fault element
302. Paragraph 83(1)(c) applies the fault element of knowledge (or knowingly) in relation to the respective proscribed physical element of conduct, namely having in possession any record of unlawful soundings. Following application of the Criminal Code , the fault element of knowledge will be restricted to physical elements of circumstance or result, and intention will be the sole Criminal Code fault element that can be applied to a physical element of conduct: see sections 5.2 and 5.3 of the Criminal Code . Applying knowingly to a physical element of conduct in the pre- Criminal Code environment is equivalent to applying the Criminal Code fault element of intention. Accordingly this item proposes the replacement of knowingly in paragraph 83(1)(c) by the appropriate and equivalent fault element, namely intention. It is considered that paragraph 83(1)(c) will continue to operate in the same manner as at present following this amendment.
Item 96 - Clarifying a fault element
303. This item proposes that the phrase for the purpose of in subsection 83A(1) be replaced by the phrase with the intention of. For details on the reasons for replacing the phrase for the purpose of see the explanation at item 21 of Schedule 5. In the case of subsection 83A(1) the correct interpretation is that the defendant commits any of the conduct described in paragraphs 83A(1)(a)-(f) with the intention of contravening or assisting another person to contravene a provision of Part VII of the Act, and this item proposes the appropriate amendment accordingly.
Item 97 - Lawful authority defence
304. This item proposes to remove the specific defence of lawful authority from paragraph 83A(1)(a). Reliance may instead be placed upon the general defence of lawful authority, which is being inserted into the Criminal Code and will be applicable to this Act simultaneous with the amendment proposed by this item. For more details on the operation of the lawful authority defence see the explanation at item 3 of Schedule 2.
Item 98 - Amendment of inappropriate fault element
305. Paragraphs 83A(1)(b) and (c) apply the fault element of knowledge (or knowingly) in relation to the relevant proscribed physical elements of conduct, namely the defendant concealing his or her identity or nationality or using or possessing a forged, altered or irregular official permit or paper or anything so closely resembling an official permit or paper as to be likely to deceive, with the intention of contravening or assisting another person to contravene a provision of Part VII (Espionage and Official Secrets) or with the intention of gaining admission or assisting another person to gain admission to a prohibited place. Following application of the Criminal Code , the fault element of knowledge will be restricted to physical elements of circumstance or result, and intention will be the sole Criminal Code fault element that can be applied to a physical element of conduct: see sections 5.2 and 5.3 of the Criminal Code . Applying knowingly to a physical element of conduct in the pre- Criminal Code environment is equivalent to applying the Criminal Code fault element of intention. Accordingly this item proposes the replacement of knowingly in paragraphs 83A(1)(b) and (c) by the appropriate and equivalent fault element, namely intention. It is considered that paragraphs 83A(1)(b) and (c) will continue to operate in the same manner as at present following this amendment.
Item 99 - Lawful authority and lawful excuse defences
306. This item proposes to remove the specific defences of lawful authority and lawful excuse from paragraph 83A(1)(e). Reliance may instead be placed upon the general defences of lawful authority and lawful excuse, which are being inserted into the Criminal Code and will be applicable to this Act simultaneous with the amendment proposed by this item. For more details on the operation of the lawful authority and lawful excuse defences see the explanation at item 3 of Schedule 2.
Item 100 - Lawful authority and lawful excuse defences
307. This item proposes to remove the specific defences of lawful authority and lawful excuse from subsection 83A(2). Reliance may instead be placed upon the general defences of lawful authority and lawful excuse, which are being inserted into the Criminal Code and will be applicable to this Act simultaneous with the amendment proposed by this item. For more details on the operation of the lawful authority and lawful excuse defences see the explanation at item 3 of Schedule 2.
Item 101 - Lawful authority and lawful excuse defences
308. This item proposes to remove the specific defences of lawful authority and lawful excuse from subsections 85G(3), (4) and (5). Reliance may instead be placed upon the general defences of lawful authority and lawful excuse, which are being inserted into the Criminal Code and will be applicable to this Act simultaneous with the amendment proposed by this item. For more details on the operation of the lawful authority and lawful excuse defences see the explanation at item 3 of Schedule 2.
Item 102 - Reasonable excuse defence
309. This item proposes to insert subsection 85G(5A) which provides a defence of reasonable excuse in relation to an offence against subsections 85G(3), (4) and (5). This will replace the present defence of lawful excuse in these subsections, which is being deleted by item 101 above.
310. The offences in subsections 85G(3), (4) and (5) prohibit people, without lawful excuse, making, using, possessing, selling or otherwise disposing of various items which might be used to commit fraud against Australia Post. Under proposed section 10.5, which is being inserted into the Criminal Code by the Criminal Code Amendment (Theft, Fraud, Bribery and Related Offences) Act 2000 , there is to be a defence which provides a person is not criminally responsible for an offence if the conduct constituting the offence is justified or excused by a law. The proposed defence will cover the situation where a person is for some reason authorised by law to possess etc the proscribed articles, but it does not cover the situation where someone might have some other reasonable excuse for possessing etc those articles. For example, a member of the public might find a paper or article that has affixed to it a mark apparently intended to pass for a postage stamp, knowing it is not a postage stamp. It would be undesirable in those circumstances for the person not to be exempted from the offence if the person merely picked up the paper or article with the intention of handing it to the AFP or to Australia for appropriate action. It is therefore appropriate to replace lawful excuse with a reasonable excuse exception. It is likely that those who originally drafted the offence expected it to apply to those circumstances.
311. This item also adds the standard note after proposed subsection 85G(5) concerning the imposition of an evidential burden on a defendant by subsection 13.3(3) of the Criminal Code if a defendant relies on the reasonable excuse defence established by subsection 85G(5).
312. The amendment proposed by this item is consequential to the amendment effected by item 81B 104 below.
Item 104 - Removal of ancillary provision duplicating the Criminal Code
313. This item proposes to repeal paragraph 85G(6)(b) to remove the reference to attempting to commit the primary offence in paragraph 85G(6)(a) of tendering or putting off a forged postal stamp. Reliance will instead be placed upon the relevant general ancillary provision in the Criminal Code , namely section 11.1 (attempt). This ancillary provision is present in Chapter 2 of the Criminal Code , which is being applied to this Act by item 4 of this Schedule and thus will be made applicable to this Act simultaneous with the amendment proposed by this item.
314. The amendment proposed by this item is consequential to the amendments effected by items 104 and 106.
Item 106 - Removal of ancillary provision duplicating the Criminal Code
315. This item proposes to repeal paragraph 85G(6)(d) to remove the reference to attempting to commit the primary offence in paragraph 85G(6)(c) of using or dealing with a forged postal stamp. Reliance will instead be placed upon the relevant general ancillary provision in the Criminal Code , namely section 11.1 (attempt). This ancillary provision is present in Chapter 2 of the Criminal Code , which is being applied to this Act by item 4 of this Schedule and thus will be made applicable to this Act simultaneous with the amendment proposed by this item.
Item 107 - Lawful authority and lawful excuse defences
316. This item proposes to remove the specific defences of lawful authority and lawful excuse from section 85H. Reliance may instead be placed upon the general defences of lawful authority and lawful excuse, which are being inserted into the Criminal Code and will be applicable to this Act simultaneous with the amendment proposed by this item. For more details on the operation of the lawful authority and lawful excuse defences see the explanation at item 3 of Schedule 2.
Item 108 - Amendment of inappropriate fault elements
317. Paragraphs 85H(a), (b) and (c) apply the fault elements of knowledge and recklessness (knowingly or recklessly) in relation to the physical elements of conduct, namely making, using, possessing, selling or otherwise disposing of any of the items prescribed by paragraphs 85H(a)-(c). Following application of the Criminal Code , the fault elements of knowledge and recklessness will be restricted to physical elements of circumstance or result, and intention will be the sole Criminal Code fault element that can be applied to a physical element of conduct: see sections 5.2 and 5.3 of the Criminal Code . Accordingly this item proposes the replacement of knowingly or recklessly in paragraphs 85H(a), (b) and (c) with the appropriate fault element, namely intention. The fault element of intention is the direct Criminal Code equivalent of pre- Criminal Code knowingly where the latter has been applied to physical elements of conduct, and the fault element of recklessness will apply by default to each physical element of circumstance or result in paragraphs 85H(a), (b) and (c): Criminal Code section 5.6. It is considered that paragraphs 85H(a), (b) and (c) will continue to operate in the same manner as at present following this amendment.
Item 109 - Reasonable excuse defence
318. This item proposes to insert subsection 85H(2) which provides a defence of reasonable excuse in relation to an offence against subsection 85H(1). This will replace the present defences of lawful authority and lawful excuse, which are being deleted by item 107 above.
319. The offences in subsection 85H variously proscribe the making, use, supply or possession of paper and other materials that could be used to perpetrate fraud against Australia Post. There are existing defences of lawful authority and lawful excuse. Under proposed section 10.5, which is being inserted into the Criminal Code by the Criminal Code Amendment (Theft, Fraud, Bribery and Related Offences) Act 2000 , there is to be a defence which provides a person is not criminally responsible for an offence if the conduct constituting the offence is justified or excused by a law. The proposed defence will cover the situation where a person is for some reason authorised by law to commit the conduct described in section 85H, but it does not cover the situation where someone might have some other reasonable excuse for doing so. For example, a member of the public might find some paper that has been supplied by Australia Post for the purpose of printing postage stamps but which has been lost. It would be undesirable in those circumstances for the person not to be exempted from the offence if the person merely picked up the paper with the intention of returning it to the appropriate authorities. It is therefore appropriate to replace lawful excuse with a reasonable excuse exception. It is likely that those who originally drafted the offence expected it to apply to those circumstances.
320. This item also adds the standard note after proposed subsection 85H(2) concerning the imposition of an evidential burden on a defendant by subsection 13.3(3) of the Criminal Code if a defendant relies on the reasonable excuse defence established by subsection 85H(2).
Item 110 - Amendment of inappropriate fault elements
321. Section 85N applies the fault elements of knowledge and recklessness (knowingly or recklessly) in relation to the physical element of conduct, namely causing an article in the post to be delivered to or received by a person. Following application of the Criminal Code , the fault elements of knowledge and recklessness will be restricted to physical elements of circumstance or result, and intention will be the sole Criminal Code fault element that can be applied to a physical element of conduct: see sections 5.2 and 5.3 of the Criminal Code . Accordingly this item proposes the replacement of knowingly or recklessly in section 85N with the appropriate fault element, namely intention. The fault element of intention is the direct Criminal Code equivalent of pre- Criminal Code knowingly where the latter has been applied to physical elements of conduct, and the fault element of recklessness will apply by default to each physical element of circumstance or result in section 85N: Criminal Code section 5.6. It is considered that section 85N will continue to operate in the same manner as at present following this amendment.
322. The amendment proposed by this item is consequential to the amendment effected by item 112 below.
Item 112 - Removal of ancillary provision duplicating the Criminal Code
323. This item proposes to repeal paragraph 85Q(3)(b) to remove the reference to attempting to commit the primary offence in paragraph 85Q(3)(a) of tendering or putting off a forged postal message. Reliance will instead be placed upon the relevant general ancillary provision in the Criminal Code , namely section 11.1 (attempt). This ancillary provision is present in Chapter 2 of the Criminal Code , which is being applied to this Act by item 4 of this Schedule and thus will be made applicable to this Act simultaneous with the amendment proposed by this item.
324. The amendment proposed by this item is consequential to the amendments effected by items 112 and 114.
Item 114 - Removal of ancillary provision duplicating the Criminal Code
325. This item proposes to repeal paragraph 85Q(3)(d) to remove the reference to attempting to commit the primary offence in paragraph 85Q(3)(c) of using or dealing with a forged postal message. Reliance will instead be placed upon the relevant general ancillary provision in the Criminal Code , namely section 11.1 (attempt). This ancillary provision is present in Chapter 2 of the Criminal Code , which is being applied to this Act by item 4 of this Schedule and thus will be made applicable to this Act simultaneous with the amendment proposed by this item.
Item 115 - Amendment of inappropriate fault elements
326. Section 85R applies the fault elements of knowledge and recklessness (knowingly or recklessly) in relation to the physical element of conduct, namely causing a postal message to be delivered to or received by a person. Following application of the Criminal Code , the fault elements of knowledge and recklessness will be restricted to physical elements of circumstance or result, and intention will be the sole Criminal Code fault element that can be applied to a physical element of conduct: see sections 5.2 and 5.3 of the Criminal Code . Accordingly this item proposes the replacement of knowingly or recklessly in section 85R with the appropriate fault element, namely intention. The fault element of intention is the direct Criminal Code equivalent of pre- Criminal Code knowingly where the latter has been applied to physical elements of conduct, and the fault element of recklessness will apply by default to each physical element of circumstance or result in section 85R: Criminal Code section 5.6. It is considered that section 85R will continue to operate in the same manner as at present following this amendment.
Item 116 - Clarification of physical element of result: amendment of inappropriate fault elements: application of absolute liability
327. This item proposes several amendments to subsection 85S(1), these being effected by the repeal and substitution of the subsection. First, the item amends paragraph 85S(1)(a) by replacing to menace or harass another person with the result that another person is menaced or harassed. This amendment is desirable in order to confirm that the outcome of a person using a postal or carriage service as proscribed by section 85S, namely that a person is menaced or harassed, is a physical element of result. The fault element of recklessness will attach to this physical element by operation of the Criminal Codes default fault provision (section 5.6).
328. Second, subsection 85S(1) applies the fault elements of knowledge and recklessness (knowingly or recklessly) in relation to the physical element of conduct, namely using a postal or carriage service. Following application of the Criminal Code , the fault elements of knowledge and recklessness will be restricted to physical elements of circumstance or result, and intention will be the sole Criminal Code fault element that can be applied to a physical element of conduct: see sections 5.2 and 5.3 of the Criminal Code . Accordingly this item proposes the replacement of knowingly or recklessly in subsection 85S(1) with the appropriate fault element, namely intention. The fault element of intention is the direct Criminal Code equivalent of pre- Criminal Code knowingly where the latter has been applied to physical elements of conduct, and the fault element of recklessness will apply by default to each physical element of circumstance or result in subsection 85S(1): Criminal Code section 5.6. It is considered that subsection 85S(1) will continue to operate in the same manner as at present following this amendment.
Finally, this item proposes to insert subsection 85S(1A) which provides that absolute liability is applied to the physical element of circumstance contained in the offence in subsection 85S(1) that the postal or carriage service is supplied by Australia Post.
330. This physical element is an appropriate candidate for the application of absolute liability because in most applicable instances the person concerned will not possess any fault element concerning this physical element, and accordingly the offence would become almost unenforceable if the prosecution were obliged to demonstrate fault. Further, the persons degree of culpability under this offence is not materially affected by absence of the subject fault. The defence of mistake of fact should not be available to the defendant and accordingly absolute liability, and not strict liability, is the appropriate application. For more details on the operation of absolute liability see the explanation at item 32 of this Schedule.
331. The standard note referring to section 6.2 of the Criminal Code , which governs absolute liability, is also added after this provision.
Item 117 - Amendment of inappropriate fault elements
332. Paragraphs 85T(b) and (d) apply the fault elements of knowledge and recklessness (knowingly or recklessly) in relation to the physical elements of conduct, namely submitting or causing to be submitted a postal message and writing, issuing or delivering a document purporting to be a postal message. Following application of the Criminal Code , the fault elements of knowledge and recklessness will be restricted to physical elements of circumstance or result, and intention will be the sole Criminal Code fault element that can be applied to a physical element of conduct: see sections 5.2 and 5.3 of the Criminal Code . Accordingly this item proposes the replacement of knowingly or recklessly in paragraphs 85T(b) and (d) with the appropriate fault element, namely intention. The fault element of intention is the direct Criminal Code equivalent of pre- Criminal Code knowingly where the latter has been applied to physical elements of conduct, and the fault element of recklessness will apply by default to each physical element of circumstance or result in paragraphs 85T(b) and (d): Criminal Code section 5.6. It is considered that paragraphs 85T(b) and (d) will continue to operate in the same manner as at present following this amendment.
Item 118 - Amendment of inappropriate fault elements
333. Section 85U applies the fault elements of knowledge and recklessness (knowingly or recklessly) in relation to the physical element of conduct, namely obstructing or hindering the carriage of any article. Following application of the Criminal Code , the fault elements of knowledge and recklessness will be restricted to physical elements of circumstance or result, and intention will be the sole Criminal Code fault element that can be applied to a physical element of conduct: see sections 5.2 and 5.3 of the Criminal Code . Accordingly this item proposes the replacement of knowingly or recklessly in section 85U with the appropriate fault element, namely intention. The fault element of intention is the direct Criminal Code equivalent of pre- Criminal Code knowingly where the latter has been applied to physical elements of conduct, and the fault element of recklessness will apply by default to each physical element of circumstance or result in section 85U: Criminal Code section 5.6. It is considered that section 85U will continue to operate in the same manner as at present following this amendment.
Item 119 - Amendment of inappropriate fault elements
334. Subsections 85V(1) and (2) apply the fault elements of knowledge and recklessness (knowingly or recklessly) in relation to the physical elements of conduct, namely tampering or interfering with a post-box or stamp vending machine or tampering, interfering with or obliterating any notice, writing or other marking. Following application of the Criminal Code , the fault elements of knowledge and recklessness will be restricted to physical elements of circumstance or result, and intention will be the sole Criminal Code fault element that can be applied to a physical element of conduct: see sections 5.2 and 5.3 of the Criminal Code . Accordingly this item proposes the replacement of knowingly or recklessly in subsections 85V(1) and (2) with the appropriate fault element, namely intention. The fault element of intention is the direct Criminal Code equivalent of pre- Criminal Code knowingly where the latter has been applied to physical elements of conduct, and the fault element of recklessness will apply by default to each physical element of circumstance or result in subsections 85V(1) and (2): Criminal Code section 5.6. It is considered that subsections 85V(1) and (2) will continue to operate in the same manner as at present following this amendment.
Item 120 - Absolute liability applied
335. This item proposes to insert subsection 85V(1A) which provides that absolute liability is applied to the physical elements of circumstance contained in the offence in subsection 85V(1) that the post-box or stamp vending machine is erected by Australia Post, or that the property belongs to Australia Post, as the case may be.
336. These physical elements are appropriate candidates for the application of absolute liability because in most applicable instances the person concerned will not possess any fault element concerning these physical elements, and accordingly the offence would become almost unenforceable if the prosecution were obliged to demonstrate fault. Further, the persons degree of culpability under this offence is not materially affected by absence of the subject fault. The defence of mistake of fact should not be available to the defendant and accordingly absolute liability, and not strict liability, is the appropriate application. For more details on the operation of absolute liability see the explanation at item 32 of this Schedule.
337. The standard note referring to section 6.2 of the Criminal Code , which governs absolute liability, is also added after this provision.
Item 121 - Amendment of inappropriate fault elements
338. Subsection 85V(2) applies the fault elements of knowledge and recklessness (knowingly or recklessly) in relation to the physical element of conduct, namely altering, tampering or interfering with, or obliterating any notice, writing or other marking on or attached to property belonging to Australia Post. Following application of the Criminal Code , the fault elements of knowledge and recklessness will be restricted to physical elements of circumstance or result, and intention will be the sole Criminal Code fault element that can be applied to a physical element of conduct: see sections 5.2 and 5.3 of the Criminal Code . Accordingly this item proposes the replacement of knowingly or recklessly in subsection 85V(2) with the appropriate fault element, namely intention. The fault element of intention is the direct Criminal Code equivalent of pre- Criminal Code knowingly where the latter has been applied to physical elements of conduct, and the fault element of recklessness will apply by default to each physical element of circumstance or result in subsection 85V(2): Criminal Code section 5.6. It is considered that subsection 85V(2) will continue to operate in the same manner as at present following this amendment.
Item 122 - Absolute liability applied
339. This item proposes to insert subsection 85V(3) which provides that absolute liability is applied to the physical element of circumstance contained in the offence in subsection 85V(2) that the notice, writing or other marking is on or attached to property belonging to Australia Post.
340. This physical element is an appropriate candidate for the application of absolute liability because in most applicable instances the person concerned will not possess any fault element concerning this physical element, and accordingly the offence would become almost unenforceable if the prosecution were obliged to demonstrate fault. Further, the persons degree of culpability under this offence is not materially affected by absence of the subject fault. The defence of mistake of fact should not be available to the defendant and accordingly absolute liability, and not strict liability, is the appropriate application. For more details on the operation of absolute liability see the explanation at item 32 of this Schedule.
341. The standard note referring to section 6.2 of the Criminal Code , which governs absolute liability, is also added after this provision.
Item 123 - Amendment of inappropriate fault elements: lawful authority and lawful excuse defences
342. This item proposes two amendments to subsection 85W(1). First, subsection 85W(1) applies the fault elements of knowledge and recklessness (knowingly or recklessly) in relation to the physical elements of conduct, namely causing to be carried by post an article. Following application of the Criminal Code , the fault element of knowledge will be restricted to physical elements of circumstance or result, and intention will be the sole Criminal Code fault element that can be applied to a physical element of conduct: see sections 5.2 and 5.3 of the Criminal Code . Applying knowingly to a physical element of conduct in the pre- Criminal Code environment is equivalent to applying the Criminal Code fault element of intention. Accordingly this item proposes the replacement of knowingly or recklessly in subsection 85W(1) by the appropriate and equivalent fault element, namely intention. The fault element of intention is the direct Criminal Code equivalent of knowingly where the latter has been applied to physical elements of conduct, and the fault element of recklessness will apply by default to each physical element of circumstance or result in subsection 85W(1). It is considered that subsection 85W(1) will continue to operate in the same manner as at present following this amendment.
343. The second amendment proposed by this item is to remove the specific defences of lawful authority and lawful excuse from subsection 85W(1). Reliance may instead be placed upon the general defences of lawful authority and lawful excuse, which are being inserted into the Criminal Code and will be applicable to this Act simultaneous with the amendment proposed by this item. For more details on the operation of the lawful authority and lawful excuse defences see the explanation at item 3 of Schedule 2.
Item 124 - Amendment of inappropriate fault elements
344. Subsections 85X(2) and (3) apply the fault elements of knowledge and recklessness (knowingly or recklessly) in relation to the physical elements of conduct, namely causing an article to be carried by the post. Following application of the Criminal Code , the fault elements of knowledge and recklessness will be restricted to physical elements of circumstance or result, and intention will be the sole Criminal Code fault element that can be applied to a physical element of conduct: see sections 5.2 and 5.3 of the Criminal Code . Accordingly this item proposes the replacement of knowingly or recklessly in subsections 85X(2) and (3) by the appropriate and equivalent fault element, namely intention. The fault element of intention is the direct Criminal Code equivalent of knowingly where the latter has been applied to physical elements of conduct, and the fault element of recklessness will apply by default to each physical element of circumstance or result in subsections 85X(2) and (3). It is considered that subsections 85X(2) and (3) will continue to operate in the same manner as at present following this amendment.
Item 125 - Strict liability applied
345. This item proposes to insert subsection 85X(3A) which provides that strict liability is applied to the physical element of circumstance of the offence in subsection 85X(3) that the carriage of the article by post is otherwise than in accordance with the terms and conditions mentioned in paragraph (1)(b). Subsection 85X(3) provides that a person shall not cause to be carried by post, otherwise than in accordance with the terms and conditions mentioned in paragraph (1)(b), an article that consists of, encloses or contains a standard regulated substance or thing.
346. This physical element is an appropriate candidate for the application of strict liability because in most applicable instances the person concerned will not possess any fault element concerning this physical element, and accordingly the offence would become almost unenforceable if the prosecution were obliged to demonstrate fault. Further, the persons degree of culpability under this offence is not materially affected by absence of the subject fault. However the defence of mistake of fact should be available to the defendant, as this provision should not operate so as to criminalise the conduct of persons who made a reasonable mistake of fact in relation to the identified physical element of circumstance. Accordingly strict liability, and not absolute liability, is the appropriate application. For more details on the operation of strict liability see the explanation at item 6 of Schedule 1.
347. The standard note referring to section 6.1 of the Criminal Code , which governs strict liability, is also added after this provision.
Item 126 - Amendment of inappropriate fault elements
348. Subsection 85X(4) applies the fault elements of knowledge and recklessness (knowingly or recklessly) in relation to the physical elements of conduct, namely causing an article to be carried by the post. Following application of the Criminal Code , the fault elements of knowledge and recklessness will be restricted to physical elements of circumstance or result, and intention will be the sole Criminal Code fault element that can be applied to a physical element of conduct: see sections 5.2 and 5.3 of the Criminal Code . Accordingly this item proposes the replacement of knowingly or recklessly in subsection 85X(4) by the appropriate and equivalent fault element, namely intention. The fault element of intention is the direct Criminal Code equivalent of knowingly where the latter has been applied to physical elements of conduct, and the fault element of recklessness will apply by default to each physical element of circumstance or result in subsection 85X(4). It is considered that subsection 85X(4) will continue to operate in the same manner as at present following this amendment.
Item 127 - Strict liability applied
349. This item proposes to insert subsection 85X(6) which provides that strict liability is applied to the physical element of circumstance of the offence in subsection 85X(4) that the carriage of the article by post is otherwise than in accordance with the requirements mentioned in subsection (5). Subsection 85X(4) provides that a person shall not cause to be carried by post, otherwise than in accordance with the requirements mentioned in subsection (5), an article that consists of, encloses or contains a specially regulated substance or thing.
350. This physical element is an appropriate candidate for the application of strict liability because in most applicable instances the person concerned will not possess any fault element concerning this physical element, and accordingly the offence would become almost unenforceable if the prosecution were obliged to demonstrate fault. Further, the persons degree of culpability under this offence is not materially affected by absence of the subject fault. However the defence of mistake of fact should be available to the defendant, as this provision should not operate so as to criminalise the conduct of persons who made a reasonable mistake of fact in relation to the identified physical element of circumstance. Accordingly strict liability, and not absolute liability, is the appropriate application. For more details on the operation of strict liability see the explanation at item 6 of Schedule 1.
351. The standard note referring to section 6.1 of the Criminal Code , which governs strict liability, is also added after this provision.
Item 128 - Amendment of inappropriate fault elements
352. Section 85ZD applies the fault elements of knowledge and recklessness (knowingly or recklessly) in relation to the physical elements of conduct, namely cause a communication in the course of telecommunications carriage to be received by a person or carriage service. Following application of the Criminal Code , the fault elements of knowledge and recklessness will be restricted to physical elements of circumstance or result, and intention will be the sole Criminal Code fault element that can be applied to a physical element of conduct: see sections 5.2 and 5.3 of the Criminal Code . Accordingly this item proposes the replacement of knowingly or recklessly in section 85ZD by the appropriate and equivalent fault element, namely intention. The fault element of intention is the direct Criminal Code equivalent of knowingly where the latter has been applied to physical elements of conduct, and the fault element of recklessness will apply by default to each physical element of circumstance or result in subsection 85ZD. It is considered that subsection 85ZD will continue to operate in the same manner as at present following this amendment.
Item 129 - Amendment of inappropriate fault elements: clarification of physical elements: absolute liability applied
353. This item proposes three amendments to section 85ZE(1), which are achieved by the repeal and substitution of subsection 85ZE(1) and adding a new subsection 85ZE(1A).
354. First, subsection 85ZE(1) applies the fault elements of knowledge and recklessness (knowingly or recklessly) in relation to the physical elements of conduct, namely using a carriage service. Following application of the Criminal Code , the fault elements of knowledge and recklessness will be restricted to physical elements of circumstance or result, and intention will be the sole Criminal Code fault element that can be applied to a physical element of conduct: see sections 5.2 and 5.3 of the Criminal Code . Accordingly this item proposes the replacement of knowingly or recklessly in subsection 85ZE(1) by the appropriate and equivalent fault element, namely intention. The fault element of intention is the direct Criminal Code equivalent of knowingly where the latter has been applied to physical elements of conduct, and the fault element of recklessness will apply by default to each physical element of circumstance or result in subsection 85ZD. It is considered that subsection 85ZD will continue to operate in the same manner as at present following this amendment.
355. Second, this item proposes to amend paragraph 85ZE(1) by replacing to menace or harass another person with the result that another person is menaced or harassed. This amendment is desirable in order to confirm that the outcome of a person using a postal or carriage service as proscribed by subsection 85ZE(1), namely that a person is menaced or harassed, is a physical element of result. The fault element of recklessness will attach to this physical element by operation of the Criminal Codes default fault provision (section 5.6).
356. Finally, this item proposes to insert subsection 85ZE(1A) which provides that absolute liability is applied to the physical element of circumstance contained in the offence in subsection 85ZE(1) that the carriage service is supplied by Australia Post.
357. This physical element is an appropriate candidate for the application of absolute liability because in most applicable instances the person concerned will not possess any fault element concerning this physical element, and accordingly the offence would become almost unenforceable if the prosecution were obliged to demonstrate fault. Further, the persons degree of culpability under this offence is not materially affected by absence of the subject fault. The defence of mistake of fact should not be available to the defendant and accordingly absolute liability, and not strict liability, is the appropriate application. For more details on the operation of absolute liability see the explanation at item 32 of this Schedule.
358. The standard note referring to section 6.2 of the Criminal Code , which governs absolute liability, is also added after this provision.
Item 130 - Amendment of inappropriate fault elements
359. Subsection 85ZG(1) applies the fault elements of knowledge and recklessness (knowingly or recklessly) in relation to the physical elements of conduct, namely cause a communication in the course of telecommunications carriage to be received by a person or carriage service. Following application of the Criminal Code , the fault elements of knowledge and recklessness will be restricted to physical elements of circumstance or result, and intention will be the sole Criminal Code fault element that can be applied to a physical element of conduct: see sections 5.2 and 5.3 of the Criminal Code . Accordingly this item proposes the replacement of knowingly or recklessly in subsection 85ZG(1) by the appropriate and equivalent fault element, namely intention. The fault element of intention is the direct Criminal Code equivalent of knowingly where the latter has been applied to physical elements of conduct, and the fault element of recklessness will apply by default to each physical element of circumstance or result in subsection 85ZG(1). It is considered that subsection 85ZG(1) will continue to operate in the same manner as at present following this amendment.
Item 131 - Clarifying a physical element
360. This item amends subsection 85ZG(1) in order to clarify that the normal operation of a carriage service is hindered as a result of the defendants conduct, and accordingly is a physical element of result, to which the fault element of recklessness will apply by operation of the Criminal Codes default fault provision (section 5.6).
361. This item is consequent upon the amendment being effected by item 131 and proposes to insert the penalty presently applicable to an offence against subsection 85ZG(1), namely 2 years imprisonment, after subsection 85ZG(1). This is intended to assist the correct interpretation that subsection 85ZG(1) creates a criminal offence and that the penalty applicable to an offence against this subsection is the penalty described.
Item 133 - Absolute liability applied
362. This item proposes to insert subsection 85ZG(1A) which provides that, for the purposes of an offence against subsection 85ZG(1), absolute liability is applied to the physical element of circumstance that the facility is operated by a carrier and that the carriage service is supplied by the carrier.
363. This physical element is an appropriate candidate for the application of absolute liability because in most applicable instances the person concerned will not possess any fault element concerning this physical element, and accordingly the offence would become almost unenforceable if the prosecution were obliged to demonstrate fault. Further, the persons degree of culpability under this offence is not materially affected by absence of the subject fault. The defence of mistake of fact should not be available to the defendant and accordingly absolute liability, and not strict liability, is the appropriate application. For more details on the operation of absolute liability see the explanation at item 32 of this Schedule.
364. The standard note referring to section 6.2 of the Criminal Code , which governs absolute liability, is also added after this provision.
Item 134 - Amendment of inappropriate fault elements
365. Subsection 85ZG(2) applies the fault elements of knowledge and recklessness (knowingly or recklessly) in relation to the physical elements of conduct, namely using or operating an apparatus or device in such a way as to hinder the normal operation of a carriage service. Following application of the Criminal Code , the fault elements of knowledge and recklessness will be restricted to physical elements of circumstance or result, and intention will be the sole Criminal Code fault element that can be applied to a physical element of conduct: see sections 5.2 and 5.3 of the Criminal Code . Accordingly this item proposes the replacement of knowingly or recklessly in subsection 85ZG(2) by the appropriate and equivalent fault element, namely intention. The fault element of intention is the direct Criminal Code equivalent of knowingly where the latter has been applied to physical elements of conduct, and the fault element of recklessness will apply by default to each physical element of circumstance or result in subsection 85ZG(2). It is considered that subsection 85ZG(2) will continue to operate in the same manner as at present following this amendment.
Item 135 - Clarifying a physical element
366. This item amends subsection 85ZG(2) in order to clarify that the normal operation of a carriage service is hindered as a result of the defendants conduct, and accordingly is a physical element of result, to which the fault element of recklessness will apply by operation of the Criminal Codes default fault provision (section 5.6).
Item 136 - Absolute liability applied
367. This item proposes to insert subsection 85ZG(3) which provides that, for the purposes of an offence against subsection 85ZG(2), absolute liability is applied to the physical element of circumstance that the carriage service is supplied by the carrier.
368. This physical element is an appropriate candidate for the application of absolute liability because in most applicable instances the person concerned will not possess any fault element concerning this physical element, and accordingly the offence would become almost unenforceable if the prosecution were obliged to demonstrate fault. Further, the persons degree of culpability under this offence is not materially affected by absence of the subject fault. The defence of mistake of fact should not be available to the defendant and accordingly absolute liability, and not strict liability, is the appropriate application. For more details on the operation of absolute liability see the explanation at item 32 of this Schedule.
369. The standard note referring to section 6.2 of the Criminal Code , which governs absolute liability, is also added after this provision.
Item 137 - Amendment of inappropriate fault elements: lawful authority and lawful excuse defences
370. This item proposes two amendments to section 85ZH. First, section 85ZH applies the fault elements of knowledge and recklessness (knowingly or recklessly) in relation to the physical elements of conduct, namely transmitting a signal to a satellite. Following application of the Criminal Code , the fault elements of knowledge and recklessness will be restricted to physical elements of circumstance or result, and intention will be the sole Criminal Code fault element that can be applied to a physical element of conduct: see sections 5.2 and 5.3 of the Criminal Code . Applying knowingly to a physical element of conduct in the pre- Criminal Code environment is equivalent to applying the Criminal Code fault element of intention. Accordingly this item proposes the replacement of knowingly or recklessly in section 85ZH by the appropriate fault element, namely intention. The existing fault element of recklessness will apply by operation of the Criminal Codes default fault provision (section 5.6) to each physical element of circumstance or result in section 85ZH. It is considered that section 85ZH will continue to operate in the same manner as at present following this amendment.
371. The second amendment proposed by this item is to remove the specific defences of lawful authority and lawful excuse from section 85ZH. Reliance may instead be placed upon the general defences of lawful authority and lawful excuse, which are being inserted into the Criminal Code and will be applicable to this Act simultaneous with the amendment proposed by this item. For more details on the operation of the lawful authority and lawful excuse defences see the explanation at item 3 of Schedule 2.
Item 138 - Absolute liability applied
372. This item proposes to insert subsection 85ZH(2) which provides that, for the purposes of an offence against subsection 85ZH(1), absolute liability is applied to the physical element of circumstance that the satellite is operated by a carrier.
373. This physical element is an appropriate candidate for the application of absolute liability because in most applicable instances the person concerned will not possess any fault element concerning this physical element, and accordingly the offence would become almost unenforceable if the prosecution were obliged to demonstrate fault. Further, the persons degree of culpability under this offence is not materially affected by absence of the subject fault. The defence of mistake of fact should not be available to the defendant and accordingly absolute liability, and not strict liability, is the appropriate application. For more details on the operation of absolute liability see the explanation at item 32 of this Schedule.
374. The standard note referring to section 6.2 of the Criminal Code , which governs absolute liability, is also added after this provision.
Item 139 - Amendment of inappropriate fault elements
375. Section 85ZJ applies the fault elements of knowledge and recklessness (knowingly or recklessly) in relation to the physical elements of conduct, namely tampering or interfering with a facility. Following application of the Criminal Code , the fault elements of knowledge and recklessness will be restricted to physical elements of circumstance or result, and intention will be the sole Criminal Code fault element that can be applied to a physical element of conduct: see sections 5.2 and 5.3 of the Criminal Code . Accordingly this item proposes the replacement of knowingly or recklessly in section 85ZJ by the appropriate and equivalent fault element, namely intention. The fault element of intention is the direct Criminal Code equivalent of knowingly where the latter has been applied to physical elements of conduct, and the fault element of recklessness will apply by default to each physical element of circumstance or result in section 85ZJ. It is considered that section 85ZJ will continue to operate in the same manner as at present following this amendment.
Item 140 - Absolute liability applied
376. This item proposes to insert subsection 85ZJ(2) which provides that, for the purposes of an offence against subsection 85ZJ(1), absolute liability is applied to the physical element of circumstance that the facility belongs to a carrier.
377. This physical element is an appropriate candidate for the application of absolute liability because in most applicable instances the person concerned will not possess any fault element concerning this physical element, and accordingly the offence would become almost unenforceable if the prosecution were obliged to demonstrate fault. Further, the persons degree of culpability under this offence is not materially affected by absence of the subject fault. The defence of mistake of fact should not be available to the defendant and accordingly absolute liability, and not strict liability, is the appropriate application. For more details on the operation of absolute liability see the explanation at item 32 of this Schedule.
378. The standard note referring to section 6.2 of the Criminal Code , which governs absolute liability, is also added after this provision.
Item 141 - removal of requirement to demonstrate fault
379. This item inserts subsection 85ZK(1A), which removes any requirement upon the prosecution to demonstrate, in a prosecution for an offence against subsection 85ZK(1), that the defendant knew that the offence mentioned in paragraph (1)(a) or (b) would be against a law of the Commonwealth or of a State or Territory.
Item 142 - Evidential burden note
380. This item proposes the insertion of a note after subsection 85ZK(2) which makes it clear that the defendant bears an evidential burden in relation to a defence raised under subsection 85ZK(2). Subsection 13.3(6) of the Criminal Code provides that an evidential burden, in relation to a matter, means the burden of adducing or pointing to evidence that suggests a reasonable possibility that the matters exists or does not exist (as the case may be).
Item 143 - Evidential burden note
381. This item proposes the insertion of a note after subsection 85ZKA(2) which makes it clear that the defendant bears an evidential burden in relation to a defence raised under subsection 85ZKA(2). Subsection 13.3(6) of the Criminal Code provides that an evidential burden, in relation to a matter, means the burden of adducing or pointing to evidence that suggests a reasonable possibility that the matters exists or does not exist (as the case may be).
Item 144 - Amendment of inappropriate fault element: clarification of fault element
382. This item proposes two amendments to section 90B. First, section 90B applies the fault element of knowledge (or knowingly) in relation to the proscribed physical element of conduct, namely making a statement. Following application of the Criminal Code , the fault element of knowledge will be restricted to physical elements of circumstance or result, and intention will be the sole Criminal Code fault element that can be applied to a physical element of conduct: see sections 5.2 and 5.3 of the Criminal Code . Applying knowingly to a physical element of conduct in the pre- Criminal Code environment is equivalent to applying the Criminal Code fault element of intention. Accordingly this item proposes the replacement of knowingly in section 90B by the appropriate and equivalent fault element, namely intention. It is considered that section 90B will continue to operate in the same manner as at present following this amendment.
383. Second, this item proposes the amendment of section 90B to clarify that the fault element of knowledge applies to the physical elements of circumstance that the statement referred to in section 90B is false.
384. If this amendment were not made, it is possible that the incorrect interpretation could be made that the relevant fault element is intention. The proposed amendment puts it beyond doubt that knowledge is the appropriate fault element.