House of Representatives

Explanatory Memorandum

(Circulated by authority of the Treasurer, the Hon Peter Costello, MP)

Schedules 11 to 20

Schedule 11 - Crimes (Aviation) Act 1991

Item 1 - Removal of ancillary provision duplicating the Criminal Code

385. This item proposes to repeal and substitute section 9. The net effect is to repeal paragraphs 9(a) and (b) which respectively concern attempting to commit the primary offence in section 9 and being an accomplice to the commission of the primary offence in section 9. Reliance will instead be placed upon the relevant general ancillary provisions in the Criminal Code , namely section 11.1 (attempt) and 11.2 (complicity). These ancillary provisions are present in Chapter 2 of the Criminal Code , which is being applied to this Act by item 3 of this Schedule and thus will be made applicable to this Act simultaneous with the amendment proposed by this item.

Item 2 - Removal of ancillary provisions duplicating the Criminal Code

386. This item proposes to repeal and substitute section 10, the effect of which is to amend section 10 by removing the references to attempting to commit a primary unlawful act as defined by subsections 10(1) and (2) and references to a person being an accomplice to a person who commits, or attempts to commit, a primary unlawful act as defined by subsections 10(1) and (2). Reliance will instead be placed upon the relevant general ancillary provisions in the Criminal Code , namely section 11.1 (attempt) and section 11.2 (aiding, abetting, counselling or procuring the commission of a primary offence). These ancillary provisions are present in Chapter 2 of the Criminal Code , which is being applied to this Act by item 3 of this Schedule and thus will be made applicable to this Act simultaneous with the amendment proposed by this item.

387. The remainder of section 10 is reconstructed as a necessary consequence and substituted for the present section 10. Section 10, with the complimentary general ancillary Criminal Code provisions, will operate in the same manner following this amendment and the application of the Criminal Code .

Item 3 - Application of Criminal Code

388. This item inserts proposed section 12A in a new Division 4. Section 12A applies Chapter 2 of the Criminal Code to all offences against the Act. Chapter 2 establishes the codified general principles of criminal responsibility.

389. The standard note concerning Chapter 2 of the Criminal Code setting out the principles of criminal responsibility is also added after this provision.

Item 4 - Absolute liability applied

390. This item proposes to insert subsection 13(2A) which provides that absolute liability is applied to the physical elements of circumstance contained in paragraphs 13(1)(a), (b), (c) and (d), and in paragraphs 13(2)(a), (b) and (c). Subsection 13(1) provides that a person who hijacks an aircraft is guilty of an offence against subsection 13(1) if any of paragraphs (1)(a)-(d) apply, and subsection 13(2) provides that a person who hijacks an aircraft is guilty of an offence against subsection 13(2) if, amongst other matters, paragraph 13(2)(c) applies. Paragraphs (1)(a)-(d) respectively provide that the aircraft is in flight within the meaning of the Hague Convention for the Suppression of Unlawful Seizure of Aircraft (the Hague Convention), the aircraft is engaged in a prescribed flight, the aircraft is a Commonwealth aircraft, and the aircraft is a visiting government aircraft. Paragraphs 13(2)(a) and (b) provide that the hijacking is committed outside Australia and that the person who commits the hijacking is an Australian citizen. Paragraph 13(2)(c) provides that the aircraft would be considered to be in flight if the Hague Convention applied. Hague Convention, prescribed aircraft, Commonwealth aircraft and visiting government aircraft are all defined in subsection 3(1).

391. 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 Schedule 10.

392. The standard note referring to section 6.2 of the Criminal Code , which governs absolute liability, is also added after this provision.

Item 5 - Absolute liability applied

393. This item proposes to insert subsection 14(1A) which provides that absolute liability is applied to the physical elements of circumstance contained in paragraphs 14(1)(b)-(g). Subsection 14(1) provides that a person who commits an act of violence against all or any of the passengers or crew on board an aircraft is guilty of an offence against subsection 14(1) if paragraph (1)(b) applies and any of paragraphs (1)(c)-(g) apply. Paragraphs (1)(b)-(g) respectively provide that the act of violence would, if committed in the Jervis Bay Territory, be an offence against a law in force in that Territory; that Article 4 of the Hague Convention requires Australia to establish its jurisdiction over the act of violence; the aircraft is engaged in a prescribed flight; the aircraft is a Commonwealth aircraft; the aircraft is a visiting government aircraft; and the aircraft is outside Australia but the offender is an Australian citizen. Hague Convention, prescribed aircraft, Commonwealth aircraft and visiting government aircraft are all defined in subsection 3(1).

394. 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 Schedule 10.

395. The standard note referring to section 6.2 of the Criminal Code , which governs absolute liability, is also added after this provision.

Item 6 - Absolute liability applied

396. This item proposes to insert subsection 15(1A) which provide that, for the purposes of the offence in subsections 15(1) absolute liability is applied to the physical element of circumstance that the aircraft is a Division 3 aircraft, and subsection 15(1B), which provides that absolute liability applies to paragraph (1)(b). Division 3 aircraft is defined in subsection 3(1) to be either an Australian aircraft as described in paragraph (a) of the definition, a Commonwealth aircraft, a defence aircraft, a foreign aircraft that is in Australia, or a foreign aircraft that is outside Australia while engaged in a flight that started in Australia or was intended to end in Australia when the flight started. Each of these alternatives is in turn further defined in subsection 3(1). Paragraph 15(1)(b) concerns jurisdictional aspects of the offence in subsection 15(1).

397. 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 Schedule 10.

398. The standard note referring to section 6.2 of the Criminal Code , which governs absolute liability, is also added after each provision.

Item 7 - Lawful excuse defence

399. This item proposes to remove the specific defence of lawful excuse from subsections 16(1), (2) and (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.

400. The phrases (whether directly or through an accomplice) in subsections 16(1), (2) and (3) are also removed as they concerns complicity in the commission of the primary offences created by subsections 16(1), (2) and (3). Reliance will instead be placed upon the relevant general ancillary provision in the Criminal Code , namely section 11.2 (complicity). This ancillary provision is present in Chapter 2 of the Criminal Code , which is being applied to this Act by item 3 of this Schedule and thus will be made applicable to this Act simultaneous with the amendment proposed by this item.

Item 8 - Absolute liability applied

401. This item proposes to insert subsection 16(4) which provides that, for the purposes of an offence against subsections 16(1), (2) and (3), absolute liability is applied to the physical element of circumstance in each of those provisions that the aircraft is a Division 3 aircraft. Division 3 aircraft is defined in subsection 3(1) to be either an Australian aircraft as described in paragraph (a) of the definition, a Commonwealth aircraft, a defence aircraft, a foreign aircraft that is in Australia, or a foreign aircraft that is outside Australia while engaged in a flight that started in Australia or was intended to end in Australia when the flight started. Each of these alternatives is in turn further defined in subsection 3(1).

402. 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.

403. The standard note referring to section 6.2 of the Criminal Code , which governs absolute liability, is also added after this provision.

Item 9 - Amendment of inappropriate fault element: lawful excuse defence

404. This item proposes two amendments to section 17. First, section 17 uses the fault element wilfully in relation to the physical element of conduct, namely destroying a Division 3 aircraft. 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 section 17 by the appropriate and equivalent Criminal Code fault element, namely intention. It is considered that section 17 will continue to operate in the same manner as at present following this amendment.

405. The second amendment proposed by this item is to remove the specific defence of lawful excuse from section 17. 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 10 - Absolute liability applied

406. This item proposes to insert subsection 17(2) which provides that, for the purposes of an offence against subsection 17(1), absolute liability is applied to the physical element of circumstance that the aircraft is a Division 3 aircraft. Division 3 aircraft is defined in subsection 3(1) to be either an Australian aircraft as described in paragraph (a) of the definition, a Commonwealth aircraft, a defence aircraft, a foreign aircraft that is in Australia, or a foreign aircraft that is outside Australia while engaged in a flight that started in Australia or was intended to end in Australia when the flight started. Each of these alternatives is in turn further defined in subsection 3(1).

407. 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.

408. The standard note referring to section 6.2 of the Criminal Code , which governs absolute liability, is also added after this provision.

Item 11 - Clarifying a fault element

409. This item proposes to amend section 18 by replacing the phrase with reckless indifference to with reckless as to. The substituted phrase, which invokes the Criminal Codes equivalent fault element of recklessness, better applies recklessness to the physical elements of circumstance in section 18. It will also bring the terminology of section 18 into harmony with the Criminal Code and obviate the unnecessary need for future courts to examine whether there is a difference between reckless indifference and recklessness.

Item 12 - Absolute liability applied

410. This item proposes to insert subsection 18(2) which provides that, for the purposes of an offence against subsection 18(1), absolute liability is applied to the physical element of circumstance that the aircraft is a Division 3 aircraft. Division 3 aircraft is defined in subsection 3(1) to be either an Australian aircraft as described in paragraph (a) of the definition, a Commonwealth aircraft, a defence aircraft, a foreign aircraft that is in Australia, or a foreign aircraft that is outside Australia while engaged in a flight that started in Australia or was intended to end in Australia when the flight started. Each of these alternatives is in turn further defined in subsection 3(1).

411. 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.

412. The standard note referring to section 6.2 of the Criminal Code , which governs absolute liability, is also added after this provision.

Item 13 - Absolute liability applied

413. This item proposes to insert subsection 19(2) which provides that, for the purposes of an offence against subsection 19(1), absolute liability is applied to the physical element of circumstance that the aircraft is a Division 3 aircraft. Division 3 aircraft is defined in subsection 3(1) to be either an Australian aircraft as described in paragraph (a) of the definition, a Commonwealth aircraft, a defence aircraft, a foreign aircraft that is in Australia, or a foreign aircraft that is outside Australia while engaged in a flight that started in Australia or was intended to end in Australia when the flight started. Each of these alternatives is in turn further defined in subsection 3(1).

414. 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.

415. The standard note referring to section 6.2 of the Criminal Code , which governs absolute liability, is also added after this provision.

Item 14 - Clarifying a fault element

416. This item proposes to amend paragraph 20(b) by replacing the phrase with reckless indifference to with reckless as to. The substituted phrase, which invokes the Criminal Codes equivalent fault element of recklessness, better applies recklessness to the physical elements of circumstance in paragraph 20(b). It will also bring the terminology of paragraph 20(b) into harmony with the Criminal Code and obviate the unnecessary need for future courts to examine whether there is a difference between reckless indifference and recklessness.

Item 15 - Absolute liability applied

417. This item proposes to insert subsection 20(2) which provides that, for the purposes of an offence against subsection 20(1), absolute liability is applied to the physical element of circumstance that the aircraft is a Division 3 aircraft. Division 3 aircraft is defined in subsection 3(1) to be either an Australian aircraft as described in paragraph (a) of the definition, a Commonwealth aircraft, a defence aircraft, a foreign aircraft that is in Australia, or a foreign aircraft that is outside Australia while engaged in a flight that started in Australia or was intended to end in Australia when the flight started. Each of these alternatives is in turn further defined in subsection 3(1).

418. 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.

419. The standard note referring to section 6.2 of the Criminal Code , which governs absolute liability, is also added after this provision.

Item 16 - Clarifying a fault element

420. This item proposes that the phrase so as to in section 21 be replaced by the phrase in a manner that results in. The phrase so as to creates the same interpretative difficulties as does the phrase for the purpose of, and is being amended for the same reasons. 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 section 21 the correct interpretation is that the defendant makes the false representation or commits fraud being reckless as to whether his or her conduct will result in an interference with the crew members performance of functions or duties connected with the operation of the aircraft or will result in a lessening of the crew members ability to perform those functions or duties, and this item proposes the appropriate amendment accordingly.

Item 17 - Consequential amendment

421. This item proposes that interfere in paragraph 21(a) be replaced by an interference. This amendment is consequential upon the amendment proposed by item 16 above.

Item 18 - Consequential amendment

422. This item proposes that lessen in paragraph 21(b) be replaced by a lessening of. This amendment is consequential upon the amendment proposed by item 16 above.

Item 19 - Absolute liability applied

423. This item proposes to insert subsection 21(2) which provides that, for the purposes of an offence against subsection 21(1), absolute liability is applied to the physical element of circumstance that the aircraft is a Division 3 aircraft. Division 3 aircraft is defined in subsection 3(1) to be either an Australian aircraft as described in paragraph (a) of the definition, a Commonwealth aircraft, a defence aircraft, a foreign aircraft that is in Australia, or a foreign aircraft that is outside Australia while engaged in a flight that started in Australia or was intended to end in Australia when the flight started. Each of these alternatives is in turn further defined in subsection 3(1).

424. 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.

425. The standard note referring to section 6.2 of the Criminal Code , which governs absolute liability, is also added after this provision.

Item 20 - Clarifying a fault element: absolute liability applied

426. This item proposes to repeal and substitute section 22, thereby achieving two amendments. First, section 22 is to be amended by replacing the phrase that, to the persons knowledge, is likely to with reckless as to. The substituted phrase, which invokes the Criminal Codes equivalent fault element of recklessness, better applies recklessness to the physical elements of circumstance in section 22. It will also bring the terminology of section 22 into harmony with the Criminal Code and obviate the unnecessary need for future courts to examine whether there is a difference between the old phrase and the fault element of recklessness.

427. This item further proposes to insert subsection 22(2) which provides that, for the purposes of an offence against subsection 22(1), absolute liability is applied to the physical element of circumstance that the aircraft is a Division 3 aircraft. Division 3 aircraft is defined in subsection 3(1) to be either an Australian aircraft as described in paragraph (a) of the definition, a Commonwealth aircraft, a defence aircraft, a foreign aircraft that is in Australia, or a foreign aircraft that is outside Australia while engaged in a flight that started in Australia or was intended to end in Australia when the flight started. Each of these alternatives is in turn further defined in subsection 3(1).

428. 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.

429. The standard note referring to section 6.2 of the Criminal Code , which governs absolute liability, is also added after this provision.

Item 21 - Clarifying a fault element

430. This item proposes that the phrase for a purpose of in paragraph 23(1)(b) 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 paragraph 23(1)(b) the correct interpretation is that the defendant delivers dangerous goods to anyone else with the intention of placing the goods on board a Division 3 aircraft, and this item proposes the appropriate amendment accordingly.

Item 22 - Absolute liability applied

431. This item proposes to insert subsection 23(3) which provides that, for the purposes of an offence against paragraphs 23(1)(a), (b) or (c), absolute liability is applied to the physical element of circumstance that the aircraft is a Division 3 aircraft. Division 3 aircraft is defined in subsection 3(1) to be either an Australian aircraft as described in paragraph (a) of the definition, a Commonwealth aircraft, a defence aircraft, a foreign aircraft that is in Australia, or a foreign aircraft that is outside Australia while engaged in a flight that started in Australia or was intended to end in Australia when the flight started. Each of these alternatives is in turn further defined in subsection 3(1).

432. 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.

433. The standard note referring to section 6.2 of the Criminal Code , which governs absolute liability, is also added after this provision.

Item 23 - Absolute liability applied

434. This item proposes to insert subsection 24(3) which provides that, for the purposes of an offence against subsections 24(1) or (2), absolute liability is applied to the physical element of circumstance that the aircraft is a Division 3 aircraft. Division 3 aircraft is defined in subsection 3(1) to be either an Australian aircraft as described in paragraph (a) of the definition, a Commonwealth aircraft, a defence aircraft, a foreign aircraft that is in Australia, or a foreign aircraft that is outside Australia while engaged in a flight that started in Australia or was intended to end in Australia when the flight started. Each of these alternatives is in turn further defined in subsection 3(1).

435. 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.

436. The standard note referring to section 6.2 of the Criminal Code , which governs absolute liability, is also added after this provision.

Item 24 - Absolute liability applied

437. This item proposes to insert subsection 25(2A) which provides that absolute liability is applied to the physical elements of circumstance in paragraphs 25(1)(a)-(c) and 25(2)(a)-(d). Subsection 25(1) provides that a person who commits an unlawful act of the kind mentioned in subsection 10(1) is guilty of an offence if any of paragraphs 25(1)(a), (b) or (c) apply. Subsection 10(1), which is being amended by item 2 of this Schedule, provides that a person commits an unlawful act if he or she, without lawful excuse, commits an act of violence against anyone on board an aircraft in flight which is likely to endanger the safety of the aircraft, or destroys an aircraft in service or causes damage to such an aircraft which renders it incapable of flight or which is likely to endanger its safety in flight, or attempts to do any of these acts or is an accomplice of anyone who does such an act. Paragraphs 25(1)(a)-(c) respectively provide the physical elements of circumstance that the Montreal Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation requires Australia to make the act punishable, that the aircraft concerned is an aircraft in service in the course of, or in connection with, a prescribed flight, a Commonwealth aircraft, a defence aircraft, or a visiting government aircraft, or that the person is an Australian citizen who commits the act outside Australia.

438. Subsection 25(2) provides that a person who commits an unlawful act of the kind mentioned in subsection 10(2) is guilty of an offence if any of paragraphs 25(2)(a)-(d) apply. Subsection 10(2) defines various acts to be unlawful acts, including placing a substance or thing on board an aircraft that is likely to destroy the aircraft or damage the aircraft so as to render it incapable of flight or which is likely to endanger its safety in flight, destroying or damaging any navigational facilities or interfering with their operation being destruction, damage or interference that is likely to endanger the safety of an aircraft in flight, communication information that he or she knows to be false and thereby endangering the safety of an aircraft in flight, or attempting to do any such act or being an accomplice to anyone who does such an act. Paragraphs 25(2)(a)-(d) provide the same physical elements of circumstance as do paragraphs 25(1)(a)-(c) but additionally paragraph 25(2)(c) provides that in relation to an act connected with air navigation facilities, the facilities are used in connection with prescribed flights or flights of Commonwealth, defence or visiting government aircraft.

439. Many of the terms used in paragraphs 25(1)(a)-(c) and paragraphs 25(2)(a)-(d) are in turn further defined in subsection 3(1).

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 Schedule 10.

440. The standard note referring to section 6.2 of the Criminal Code , which governs absolute liability, is also added after this provision.

Item 25 - Lawful excuse defence: reconstruction to clarify physical elements of circumstance: absolute liability applied

441. This item proposes four amendments to section 26. First, it removes the specific defence of lawful excuse from paragraphs 26(1)(a) and 26(2)(a). 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.

442. Second, this item proposes to amend subsection 26(1) by converting two physical elements of circumstance into discrete paragraphs. The physical elements concerned are that the Montreal Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation, when read with the Protocol to the Convention, requires Australia to make an act described by paragraphs 26(1)(a)-(c) punishable as an offence and that Article 5 of the Convention, when so read, requires Australia to establish its jurisdiction over the offence.

443. The rationale for this amendment is to render the two physical elements into a form better placed for the application of absolute liability (see next paragraphs).

444. The third amendment proposed by this item is to insert subsection 26(2A) which provides that, for the purposes of an offence against subsections 26(1) or (2), absolute liability is applied to the physical element of circumstance that the airport is a prescribed airport. The term prescribed airport is not defined by the Act, but an airport may be prescribed by virtue of regulations made pursuant to section 52.

445. Finally, this item inserts subsection 26(2B) which provides that absolute liability applies to the physical elements of circumstance described by paragraphs 26(1)(c) and (d) and paragraphs 26(2)(c). Paragraphs 26(1)(c) and (d) are created by virtue of this item and provide that the Montreal Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation, when read with the Protocol to the Convention, requires Australia to make an act described by paragraph 26(1)(a) punishable as an offence and that Article 5 of the Convention, when so read, requires Australia to establish its jurisdiction over the offence. Paragraph 26(2)(c) provides that the Montreal Convention, when read with the Protocol to the Convention, requires Australia to make an act described by paragraphs 26(2)(a) punishable as an offence, and that if the act relates to an aircraft then the aircraft is in Australia, or is a Commonwealth aircraft or defence aircraft, or the act is committed by an Australian citizen whether in Australia or not.

446. 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 Schedule 10.

The standard note referring to section 6.2 of the Criminal Code , which governs absolute liability, is also added after subsections 26(2A) and (2B).

Item 26

448. The amendment proposed by this item is consequential upon the amendments made by item 25.

Item 27 - Clarifying a fault element

449. This item proposes to amend section 27 by replacing the phrase anything that he or she knows is likely to with an act, reckless as to whether the act will. The substituted phrase, which invokes the Criminal Codes equivalent fault element of recklessness, better applies recklessness to the physical elements of circumstance in section 27. It will also bring the terminology of section 27 into harmony with the Criminal Code and obviate the unnecessary need for future courts to examine whether there is a difference between the old phrase and recklessness.

Item 28 - Absolute liability applied

450. This item proposes to insert subsection 27(2) which provides that, for the purposes of an offence against subsection 27(1), absolute liability is applied to the physical element of circumstance that the aerodrome is a Commonwealth aerodrome or that the air navigation facilities are Commonwealth air navigation facilities, as the case may be. The terms Commonwealth aerodrome and Commonwealth air navigation facilities are defined in subsection 3(1).

451. 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 Schedule 10.

452. The standard note referring to section 6.2 of the Criminal Code , which governs absolute liability, is also added after this provision.

Item 29 - Penalty

453. This item is consequent upon the amendment being effected by item 30 below and proposes to insert the penalty presently applicable to an offence against subsection 28(1), namely imprisonment for 2 years, after subsection 28(1). This is intended to assist the correct interpretation that subsection 28(1) creates a criminal offence and that the penalty applicable to an offence against this subsection is the penalty described.

Item 30 - Absolute liability applied

454. This item proposes to insert subsection 28(3) which provides that, for the purposes of an offence against subsections 28(1) or (2), absolute liability is applied to the physical element of circumstance that the aerodrome is a Commonwealth aerodrome or that the air navigation facilities are Commonwealth air navigation facilities, as the case may be. The terms Commonwealth aerodrome and Commonwealth air navigation facilities are defined in subsection 3(1).

455. 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.

456. The standard note referring to section 6.2 of the Criminal Code , which governs absolute liability, is also added after this provision.

Schedule 12 - Crimes (Biological Weapons) Act 1976

Item 1 - Application of Criminal Code

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

458. 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 - Replacing references to certain Crimes Act 1914 provisions

459. Certain Crimes Act 1914 provisions, including sections 5, 7 and 7A, 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 subsection 10(1) to sections 5, 7 and 7A of the Crimes Act 1914 , which concern aiding, abetting, counselling and procuring the commission of primary offences, attempting to commit primary offences, and incitement to commit primary offences, be replaced by references to the Criminal Code provisions which deal with these matters (sections 11.1, 11.2 and 11.4). These Criminal Code provisions will apply to this Act by virtue of this Bill: see item 1 of this Schedule.

Schedule 13 - Crimes (Currency) Act 1981

Item 1 - Application of Criminal Code

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

461. The standard note concerning Chapter 2 of the Criminal Code setting out the principles of criminal responsibility is also added after this provision.

Items 2 and 3 - Clarifying reasonable excuse defence

462. These items propose to remove the defence of reasonable excuse from subsection 8(1) and recreate it in a new subsection 8(1A). 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.

463. The standard note is added after proposed subsection 8(1A) 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 8(1A).

Items 4 and 5 - Lawful authority defence: clarifying reasonable excuse defence

464. These items proposes two amendments to subsection 9(1). First, it removes the specific defence of lawful authority from subsection 9(1). 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.

465. Secondly, these items propose to remove the defence of reasonable excuse from subsection 9(1) and recreate it in a new subsection 9(1A). 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.

466. The standard note is added after proposed subsection 9(1A) 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 9(1A).

Items 6, 8 and 9 - Clarifying reasonable excuse defence

467. These items propose to remove the defences of reasonable excuse from subsections 11(1) and (2) and recreate them in a new subsection 11(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.

468. The standard note is added after proposed subsection 11(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 11(3).

Item 7 - Penalty

469. This item is consequent upon the amendments being effected by items 6, 8 and 9, and proposes to insert the penalties presently applicable to an offence against subsection 11(1), namely imprisonment for 10 years (natural person) and 500 penalty units (corporate), after subsection 11(1). This is intended to assist the correct interpretation that subsection 11(1) creates a criminal offence and that the penalty applicable to an offence against this subsection is the penalty described.

Items 10 and 11 - Amendment of inappropriate fault element: lawful authority defence: reasonable excuse defence

470. This item proposes three amendments to section 13. First, section 13 applies the fault element of knowledge (knowingly) in relation to the physical elements of conduct, namely conveying any of the items described in paragraphs 13(a)-(g) out of any premises. 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 13 by the appropriate and equivalent fault element, namely intention. It is considered that section 13 will continue to operate in the same manner as at present following this amendment.

471. The second amendment proposed by these items is to remove the specific defence of lawful authority from section 13. 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.

472. Finally, these items propose to remove the defence of reasonable excuse from section 13 and recreate it in a new subsection 13(2). 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.

473. The standard note is added after proposed subsection 13(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 13(2).

Items 12 and 13 - Clarifying reasonable excuse defence

474. These items propose to remove the defence of reasonable excuse from section 14 and recreate it in a new subsection 14(2). 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.

475. The standard note is added after proposed subsection 14(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 14(2).

Items 14 and 15 - Clarifying reasonable excuse defence

476. These items propose to remove the defence of reasonable excuse from section 15 and recreate it in a new subsection 15(2). 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.

477. The standard note is added after proposed subsection 15(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 15(2).

Item 16 - Amendment of inappropriate fault element

478. Section 16 uses the fault element wilfully in relation to the physical element of conduct, namely defacing, disfiguring, mutilating or destroying coin or paper money. 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 section 16 by the appropriate and equivalent Criminal Code fault element, namely intention. It is considered that section 16 will continue to operate in the same manner as at present following this amendment.

Items 17 and 19 - Clarifying reasonable excuse defence

479. These items propose to remove the defence of reasonable excuse from subsection 21(1) and recreate it in a new subsection 21(1A). 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.

480. The standard note is added after proposed subsection 21(1A) 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 21(1A).

Item 18 - Clarifying a fault element

481. This item proposes that the phrase the purpose of in subsection 21(1) be deleted. The rationale is to prevent incorrect interpretation to the effect that the phrase for the purpose of imports an element of intention. In the case of subsection 21(1) the correct interpretation is that the defendant makes or sells an article with the intention that it be used in substitution for currency to operate a machine that is designed to receive currency, and this item proposes the appropriate amendment accordingly.

Item 20 - Clarifying a fault element

482. This item proposes that the phrase the purpose of in subsection 21(2) be deleted. The rationale is to prevent incorrect interpretation to the effect that the phrase for the purpose of imports an element of intention. In the case of subsection 21(2) the correct interpretation is that the defendant imports or exports an article that, to his knowledge, has been made for use in substitution for a current coin or current paper money to operate a machine that is designed to receive current coins or current paper money, and this item proposes the appropriate amendment accordingly.

Items 21 and 23- Clarifying reasonable excuse defence

483. These items propose to remove the defence of reasonable excuse from subsection 21(3) and recreate it in a new subsection 21(3A). 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.

484. The standard note is added after proposed subsection 21(3A) 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 21(3A).

Item 22 - Clarifying a fault element

485. This item proposes that the phrase the purpose of in subsection 21(3) be deleted. The rationale is to prevent incorrect interpretation to the effect that the phrase for the purpose of imports an element of intention. In the case of subsection 21(3) the correct interpretation is that the defendant possesses an article with the intention that the article be used (whether by himself or by another person), in substitution for a current coin or current paper money, to operating a machine that is designed to receive current coins or current paper money.

Item 24 - Clarifying a fault element

486. This item proposes that the phrase for the purpose of in subsection 21(4) 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 21(4) the correct interpretation is that the defendant uses the article, in substitution for a current coin or current paper money, with the intention of operating a machine that is designed to receive current coins or current paper money, and this item proposes the appropriate amendment accordingly.

Item 25 - Replacing references to certain Crimes Act 1914 provisions

487. Certain Crimes Act 1914 provisions, including sections 7 and 7A, 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 section 22 to sections 7 and 7A of the Crimes Act 1914 , which concern attempt and incitement to commit primary offences, be replaced by references to the Criminal Code provisions which deal with these matters (sections 11.1 and 11.4). These Criminal Code provisions will apply to this Act by virtue of this Bill: see item 1 of this Schedule.

Item 26 - Amendment of inappropriate fault element

488. Subparagraphs 29(1)(b)(ii) and 29(1)(c)(ii) apply the fault element of knowledge (or knowingly) in relation to their respective physical elements of conduct. 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 subparagraphs 29(1)(b)(ii) and 29(1)(c)(ii) by the appropriate and equivalent fault element, namely intention. It is considered that subparagraphs 29(1)(b)(ii) and 29(1)(c)(ii) will continue to operate in the same manner as at present following this amendment.

Schedule 14 - Crimes (Foreign Incursions and Recruitment) Act 1978

Item 1 - Application of Criminal Code

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

490. 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 - Clarifying a fault element

491. This item proposes that the phrase for the purpose in subsection 6(3) 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 6(3) the correct interpretation is that engaging in a hostile activity in a foreign State consists of doing an act with the intention of achieving any one or more of the objectives described in paragraphs 6(3)(a)-(d), and this item proposes the appropriate amendment accordingly.

492. The heading of this section is also amended by replacing for purpose with intention to reflect the change.

Item 3 - Clarifying a fault element

493. This item proposes that the phrase for the purpose of the commission of in paragraph 7(1)(b) be replaced by the phrase with the intention of committing. 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 paragraph 7(1)(b) the correct interpretation is that the defendant accumulates, stockpiles or otherwise keeps arms, explosives, munitions, poisons or weapons with the intention of committing an offence against section 6 (whether by the defendant or by another person), and this item proposes the appropriate amendment accordingly.

Item 4 - Clarifying a fault element

494. This item proposes that the phrase for the purpose in paragraph 7(1)(c) 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 paragraph 7(1)(c) the correct interpretation is that the defendant trains or drills or participates in training or drilling, or is present at a meeting or assembly of persons with intent to train or drill or to participate in training or drilling, any other person in the use of arms or explosives, or the practice of military exercises, movements or evolutions, with the intention of preparing that other person to commit an offence against section 6, and this item proposes the appropriate amendment accordingly.

Item 5 - Clarifying a fault element

495. This item proposes that the phrase for the purpose of the commission of in paragraph 7(1)(d) be replaced by the phrase with the intention of committing. For details on the reasons for replacing the phrase for the purpose of (or like phrases) see the explanation at item 21 of Schedule 5. In the case of paragraph 7(1)(d) the correct interpretation is that the defendant allows himself or herself to be trained or drilled, or be present at a meeting or assembly of persons with intent to allow himself or herself to be trained or drilled, in the use of arms or explosives, or the practice of military exercises, movements or evolutions, with the intention of committing an offence against section 6, and this item proposes the appropriate amendment accordingly.

Item 6 - Clarifying a fault element

496. This item proposes that the phrase for the purpose in paragraphs 7(1)(e) and (f) 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 paragraph 7(1)(e) the correct interpretation is that the defendant gives money or goods to, or performs services for, any other person or any body or persons or association of persons, with the intention of supporting or promoting the commission of an offence against section 6. In the instance of paragraph 7(1)(f) the correct interpretation is that the defendant receives or solicits money or goods, or the performance of services, with the intention of supporting or promoting the commission of an offence against section 6. This item proposes the appropriate amendments accordingly.

Item 7 - Amendment of inappropriate fault element: clarifying a fault element

497. This item proposes two amendments to paragraph 7(1)(g). First, paragraph 7(1)(g) applies the fault element of knowledge (or knowingly) in relation to the proscribed physical element of conduct, namely permitting a meeting or assembly of persons to be held in any building, room, premises or place of which the defendant is the owner, lessee, occupier, agent or superintendent, for the purpose of committing, or supporting or promoting the commission of, an offence against paragraphs 7(1)(a)-(f). Paragraphs 7(1)(a)-(f) proscribe various conduct related to preparation for incursions into foreign States for the purposes of engaging in hostile activities in those States. 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 7(1)(g) by the appropriate and equivalent fault element, namely intention. It is considered that subsection paragraph 7(1)(g) will continue to operate in the same manner as at present following this amendment.

498. The second amendment proposed by this item is that the phrase for a purpose of in paragraph 7(1)(g) 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 paragraph 7(1)(g) the correct interpretation is that the defendant permits any building, room, premises or place of which he or she is the owner, lessee, occupier, agent or superintendent to be used with the intention of committing, or supporting or promoting the commission of, an offence against paragraph 7(1)(a), (b), (c), (d), (e) or (f). This item proposes the appropriate amendment accordingly.

Item 8 - Amendment of inappropriate fault element

499. This item proposes two amendments to paragraph 7(1)(h). First, paragraph 7(1)(h) applies the fault element of knowledge (or knowingly) in relation to the proscribed physical element of conduct, namely permitting a vessel of which the defendant is the owner, charterer, lessee, operator, agent or master, or an aircraft of which the defendant is the owner, charterer, lessee, operator or pilot to be used for the purpose of committing, or supporting or promoting the commission of, an offence against paragraphs 7(1)(a)-(f). Paragraphs 7(1)(a)-(f) proscribe various conduct related to preparation for incursions into foreign States for the purposes of engaging in hostile activities in those States. 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 7(1)(h) by the appropriate and equivalent fault element, namely intention. It is considered that subsection paragraph 7(1)(h) will continue to operate in the same manner as at present following this amendment.

500. The second amendment proposed by this item is that the phrase for a purpose of in paragraph 7(1)(h) 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 paragraph 7(1)(h) the correct interpretation is that the defendant permits a vessel of which he or she is the owner, charterer, lessee, operator, agent or master, or an aircraft of which he or she is the owner, charterer, lessee, operator or pilot, to be used with the intention of committing, or supporting or promoting the commission of, an offence against paragraph 7(1)(a), (b), (c), (d), (e) or (f). This item proposes the appropriate amendment accordingly.

Item 9 - Clarifying a fault element

501. This item proposes that the phrase reckless as to whether the advertisement is be inserted before for the purpose in paragraph 9(1)(b). This is designed to clarify the fault element that will apply to the physical element of circumstance following for the purpose of, namely recruiting persons to serve in any capacity in or with an armed force. 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 9(1)(b) the correct interpretation is that the defendant publishes an advertisement being reckless whether the advertisement will result in persons being recruited. This item proposes the appropriate amendment accordingly.

Item 10 - Clarifying a fault element

502. This item proposes that the phrase for the purpose in paragraphs 9(1)(d) 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 instance of paragraph 7(1)(d) the correct interpretation is that the defendant does any other act or thing with the intention of facilitating or promoting the recruitment of persons to serve in any capacity in such an armed force. This item proposes the appropriate amendments accordingly.

Items 11 and 12 - Replacing references to certain Crimes Act 1914 provisions

503. Certain Crimes Act 1914 provisions, including sections 7 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 subparagraphs 9A(3)(a) and (b) to sections 7 and 86 of the Crimes Act 1914 , which concern attempting 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 1 of this Schedule.

Item 13 - Replacing references to certain Crimes Act 1914 provisions

504. Certain Crimes Act 1914 provisions, including sections 7, 7A and 86, are scheduled for progressive disapplication in relation to offence provisions to which the Criminal Code applies, and ultimately for repeal on 15 December 2001: 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 subsection 10(4) to sections 7, 7A and 86 of the Crimes Act 1914 , which concern attempting to commit primary offences, incitement to commit primary offences, and conspiring to commit primary offences, be replaced by references to the Criminal Code provisions which deal with these matters (sections 11.1, 11.4 and 11.5). These Criminal Code provisions will apply to this Act by virtue of this Bill: see item 1 of this Schedule.

Item 14 - Replacing references to certain Crimes Act 1914 provisions

505. Certain Crimes Act 1914 provisions, including sections 7, 7A and 86, are scheduled for progressive disapplication in relation to offence provisions to which the Criminal Code applies, and ultimately for repeal on 15 December 2001: 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 subsection 11(4) to sections 7, 7A and 86 of the Crimes Act 1914 , which concern attempting to commit primary offences, incitement to commit primary offences, and conspiring to commit primary offences, be replaced by references to the Criminal Code provisions which deal with these matters (sections 11.1, 11.4 and 11.5). These Criminal Code provisions will apply to this Act by virtue of this Bill: see item 1 of this Schedule.

Schedule 15 - Crimes (Hostages) Act 1989

Item 1 - Replacing references to certain Crimes Act 1914 provisions

506. Certain Crimes Act 1914 provisions, including sections 7 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 (b) of the definition of offence against this Act in subsection 3(1) to sections 7 and 86 of the Crimes Act 1914 , which concern attempting and conspiring to commit primary offences, be replaced by references to the Criminal Code provisions which deal with these matters (sections 11.1 and 11.5). These Criminal Code provisions will apply to this Act by virtue of this Bill: see item 3 of this Schedule.

Item 2 - Replacing references to certain Crimes Act 1914 provisions

507. Certain Crimes Act 1914 provisions, including section 7A, 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 reference in subsection 3(3) to section 7A of the Crimes Act 1914 , which concerns incitement to commit primary offences, be replaced by a reference to the Criminal Code provision which deals with this matter (section 11.4). This Criminal Code provision will apply to this Act by virtue of this Bill: see item 3 of this Schedule.

Item 3 - Application of Criminal Code

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

509. The standard note concerning Chapter 2 of the Criminal Code setting out the principles of criminal responsibility is also added after this provision.

Item 4 - Clarifying a fault element

510. This item proposes that the phrase in order to compel in section 7 be replaced by the phrase with the intention of compelling. For details on the reasons for replacing the phrase for the purpose of (and like phrases, which includes in order to) see the explanation at item 21 of Schedule 5. In the case of section 7 the correct interpretation is that the defendant commits an act of hostage-taking if the person commits the acts described in paragraphs 7(a) and (b) with the intention of compelling any of the matters described in paragraphs 7(c), (d) or (e), and this item proposes the appropriate amendment accordingly.

Schedule 16 - Crimes (Internationally Protected Persons) Act 1976

Item 1 - Application of Criminal Code

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

512. 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 - Absolute liability applied

513. This item proposes to insert subsection 8(4A) which provides that, for the purposes of an offence against subsections 8(1), (2), (3), (3A), (3B), (3C) or (4), absolute liability is applied to the physical elements of circumstance that the person who is murdered or kidnapped or whose person or liberty is otherwise attacked is an internationally protected person, that the premises or property are official premises or private accommodation or means of transport of an internationally protected person, that the premises or property are premises or property in or upon which an internationally protected person is present or likely to be present, and that the person whose life is intended to be endangered by destruction or damage is an internationally protected person, as each is relevant to the offence in point. The term internationally protected person is defined by subsection 3(3) to be the term used in the Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons, which forms the Schedule to the Act. Subsection 3(2) refines the definition used in the Convention by providing that the reference in the definition to a Head of State included, in relation to Australia, the Governor-General.

514. 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 Schedule 10.

515. The standard note referring to section 6.2 of the Criminal Code , which governs absolute liability, is also added after this provision.

Item 3 - Replacing references to certain Crimes Act 1914 provisions

516. Certain Crimes Act 1914 provisions, including sections 5 and 7, 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 subsection 8(5) to sections 5 and 7 of the Crimes Act 1914 , which concern aiding, abetting, counselling and procuring the commission of primary offences and attempting to commit primary offences, be replaced by references to the Criminal Code provisions which deal with these matters (sections 11.1 and 11.2). These Criminal Code provisions will apply to this Act by virtue of this Bill: see item 1 of this Schedule.

Item 4 - Replacing references to certain Crimes Act 1914 provisions

517. Certain Crimes Act 1914 provisions, including section 7, 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 reference in subsection 8(6) to section 7 of the Crimes Act 1914 , which concerns attempting to commit primary offences, be replaced by reference to the Criminal Code provision which deals with attempt (section 11.1). Section 11.1 will apply to this Act by virtue of this Bill: see item 1 of this Schedule.

Schedule 17 - Crimes (Ships and Fixed Platforms) Act 1992

Item 1 - Definition

518. This item inserts into subsection 3(1) 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 2 - Application of Criminal Code

519. This item inserts proposed section 5A. Subsection 5A(1) provides that Chapter 2 of the Criminal Code applies to all offences against the Act. Chapter 2 establishes the codified general principles of criminal responsibility.

520. The standard note concerning Chapter 2 of the Criminal Code setting out the principles of criminal responsibility is also added after this provision.

521. Subsection 5A(2) provides that section 10.5 of the Criminal Code applies to an offence against subsections 10(1) or 11(1) or sections 21, 23 or 24 as if it covered conduct that is justified or excused by a law of the Commonwealth, a State or a Territory. This is consequent upon the amendments proposed by items 18, 19 and 20 of this Schedule which remove the defence of lawful excuse from these sections and subsections and place reliance upon section 10.5 of the Criminal Code . Section 10.5, which is being inserted into the Criminal Code by virtue of the Criminal Code Amendment (Theft, Fraud, Bribery and Related Offences) Bill 1999, creates a general defence of lawful excuse which will be applicable to all offences against Commonwealth law. However the defence established by section 10.5 is limited to instances where the offence is justified or excused by a law. The Criminal Codes Dictionary defines law to be a law of the Commonwealth, and includes this Code. It follows that it is necessary to expand the scope of section 10.5 in relation to those offence provisions where a lawful excuse may arise under State or Territory law, and this is achieved by subsection 3A(2) in relation to subsections 10(1) and 11(1) and sections 21, 23 and 24. An example of where this situation might arise is in relation to the destruction of a private ship contrary to subsection 10(1) by an officer of a State agency, which was necessitated by the discovery of unsecured Ebola bacillus on board.

522. Proposed subsection 5A(3) amends and replaces subsection 6(2). See item 112A below.

Item 3

523. The amendment made by this item is consequential upon the amendments made by items 2 and 4 of this Schedule.

Item 4 - Replacing references to certain Crimes Act 1914 provisions

524. Certain Crimes Act 1914 provisions, including sections 5 and 7, 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 subsection 6(2) be repealed and re-enacted as subsection 5A(3), and that the references in subsection 6(2) to sections 5 and 7 of the Crimes Act 1914 , which concern aiding, abetting, counselling and procuring the commission of primary offences and attempting to commit primary offences, be replaced by references to the Criminal Code provisions which deal with these matters (sections 11.1 and 11.2). These Criminal Code provisions will apply to this Act by virtue of this Bill: see item 2 of this Schedule.

Item 5 - Lawful excuse defence

525. This item proposes to remove the specific defence of lawful excuse from section 8. 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 6 - Amendment of inappropriate physical element of conduct: lawful excuse defence

526. This item proposes to repeal and replace subsection 10(1) in order to achieve two amendments. First, subsection 10(1) is being amended to remove the word destroy as the active verb and rephrased to proscribe the actions of a person who engages in conduct that causes the destruction of the prescribed property. The rationale for this amendment is that a person does not destroy something - rather the destruction is the result of the persons conduct and is not in itself a physical element of conduct. It follows that retaining destroy as the active verb in a criminal offence may lead to real difficulties in interpreting the offence following application of the Criminal Code . Constructing the offence in the amended form will better identify the physical elements of conduct and result, and the fault elements that attach to these physical elements. The fault element of intention will still apply to the physical element of conduct by virtue of the Criminal Codes default fault provision (section 5.6). Similarly, the fault element of recklessness will attach to the result of the persons conduct, namely the resultant destruction, and it will be necessary for the prosecution to demonstrate that the person was reckless as to whether his or her conduct would cause the resultant destruction.

527. The second amendment proposed by this item is to remove the specific defence of lawful excuse from subsection 10(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.

Item 7 - Amendment of inappropriate physical element of conduct

528. This item proposes to amend subsection 10(2) in order to remove the word damage as the active verb and rephrase it to proscribe the actions of a person who engages in conduct that causes damage to the prescribed property. The rationale for this amendment is that a person does not damage something - rather the damage is the result of the persons conduct and is not in itself a physical element of conduct. It follows that retaining damage as the active verb in a criminal offence may lead to real difficulties in interpreting the offence following application of the Criminal Code . Constructing the offence in the amended form will better identify the physical elements of conduct and result, and the fault elements that attach to these physical elements. The fault element of intention will still apply to the physical element of conduct by virtue of the Criminal Codes default fault provision (section 5.6). Similarly, the fault element of recklessness will attach to the result of the persons conduct, namely the resultant damage, and it will be necessary for the prosecution to demonstrate that the person was reckless as to whether his or her conduct would cause the resultant damage.

Item 8 - Lawful excuse defence

529. This item proposes to remove the specific defence of lawful excuse from subsection 11(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.

Item 9 - Amendment of inappropriate physical element of conduct

530. This item proposes to repeal and substitute section 12 in order to remove the words destroy and damage as the active verbs and rephrase them to proscribe the actions of a person who engages in conduct that causes the destruction or damage as the case may be to the prescribed property. The rationale for this amendment is that a person does not destroy or damage something - rather the destruction or damage is the result of the persons conduct and is not in itself a physical element of conduct. It follows that retaining destroy or damage as the active verbs in a criminal offence may lead to real difficulties in interpreting the offence following application of the Criminal Code . Constructing the offence in the amended form will better identify the physical elements of conduct and result, and the fault elements that attach to these physical elements. The fault element of intention will still apply to the physical element of conduct by virtue of the Criminal Codes default fault provision (section 5.6). Similarly, the fault element of recklessness will attach to the result of the persons conduct, namely the resultant destruction or damage, and it will be necessary for the prosecution to demonstrate that the person was reckless as to whether his or her conduct would cause the resultant destruction or damage.

Item 10 - Clarifying physical elements of conduct and result

531. This item proposes the repeal and substitution of section 13 in order to clarify the physical elements of conduct and result. Following application of the Criminal Code , it is possible that future courts may variously interpret endanger the safe navigation of a private ship or communicate false information respectively as the physical elements of conduct and result, or as the reverse. This variation would have a profound effect on the future prosecution of offences against section 13 because physical elements of conduct and result attract different fault elements, namely intention and recklessness respectively. It follows that the provision must be reconstructed in order to clarify these matters. The correct interpretation of section 13 is that the physical element of conduct is communicating false information and the physical element of result is that the communication will endanger the safe navigation of a private ship (with a prescribed fault element of knowledge), and the substituted section 13 puts this beyond doubt.

Item 11 - Amendment of inappropriate physical element of conduct

532. This item proposes to amend section 14 by removing the word kill as the active verb and instead proscribing the actions of a person who engages in conduct that causes the death of another person. The rationale for this amendment is that a person does not kill another - rather the death is the result of the persons conduct and is not in itself a physical element of conduct. It follows that retaining kill as the active verb in a criminal offence may lead to real difficulties in interpreting the offence following application of the Criminal Code . Constructing the offence in the amended form will better identify the physical elements of conduct and result, and the fault elements that attach to these physical elements. The fault element of intention will still apply to the physical element of conduct by virtue of the Criminal Codes default fault provision (section 5.6). Similarly, the fault element of recklessness will attach to the result of the persons conduct, namely the resultant death, and it will be necessary for the prosecution to demonstrate that the person was reckless as to whether his or her conduct would cause the resultant death.

Item 12 - Amendment of inappropriate physical element of conduct

533. This item proposes to amend section 15 by clarifying that the offence proscribes the actions of a person who engages in conduct that causes grievous bodily harm to another person. The rationale for this amendment is that a person does not grievously harm another person - rather the grievous bodily harm is the result of the persons conduct and is not in itself a physical element of conduct. It follows that retaining the present phraseology of this provision may lead to real difficulties in interpreting the offence following application of the Criminal Code . Constructing the offence in the amended form will better identify the physical elements of conduct and result, and the fault elements that attach to these physical elements. The fault element of intention will still apply to the physical element of conduct by virtue of the Criminal Codes default fault provision (section 5.6). Similarly, the fault element of recklessness will attach to the result of the persons conduct, namely the resultant grievous bodily harm, and it will be necessary for the prosecution to demonstrate that the person was reckless as to whether his or her conduct would cause the resultant grievous bodily harm.

Item 13 - Amendment of inappropriate physical element of conduct

534. This item proposes to amend section 16 by removing the word injures as the active verb and instead proscribing the actions of a person who engages in conduct that causes injury to another person. The rationale for this amendment is that a person does not injure another person - rather the injury is the result of the persons conduct and is not in itself a physical element of conduct. It follows that retaining injure as the active verb in a criminal offence may lead to real difficulties in interpreting the offence following application of the Criminal Code . Constructing the offence in the amended form will better identify the physical elements of conduct and result, and the fault elements that attach to these physical elements. The fault element of intention will still apply to the physical element of conduct by virtue of the Criminal Codes default fault provision (section 5.6). Similarly, the fault element of recklessness will attach to the result of the persons conduct, namely the resultant injury, and it will be necessary for the prosecution to demonstrate that the person was reckless as to whether his or her conduct would cause the resultant injury.

Item 14 - Replacing references to certain Crimes Act 1914 provisions

535. Certain Crimes Act 1914 provisions, including sections 5 and 7, 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 the definition of offence against this Division in subsection 18(5) to sections 5 and 7 of the Crimes Act 1914 , which concern aiding, abetting, counselling and procuring the commission of primary offences and attempting to commit primary offences, be replaced by references to the Criminal Code provisions which deal with these matters (sections 11.1 and 11.2). These Criminal Code provisions will apply to this Act by virtue of this Bill: see item 2 of this Schedule.

Items 15 and 16 - Clarifying reasonable excuse defence

536. These items propose to remove the defence of reasonable excuse from subsection 20(5) and recreate it in a new subsection 20(5A). 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.

537. The standard note is added after proposed subsection 20(5A) 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 20(5A).

Item 17 - Replacing references to certain Crimes Act 1914 provisions

538. Certain Crimes Act 1914 provisions, including sections 5 and 7, 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 the definition of offence against Division 1 in subsection 20(6) to sections 5 and 7 of the Crimes Act 1914 , which concern aiding, abetting, counselling and procuring the commission of primary offences and attempting to commit primary offences, be replaced by references to the Criminal Code provisions which deal with these matters (sections 11.1 and 11.2). These Criminal Code provisions will apply to this Act by virtue of this Bill: see item 2 of this Schedule.

Item 18 - Lawful excuse defence

539. This item proposes to remove the specific defence of lawful excuse from section 21. 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 19 - Lawful excuse defence: amendment of inappropriate physical element of conduct

540. This item proposes two amendments to section 23. First, it removes the specific defence of lawful excuse from section 23. 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.

541. Secondly, this item amends section 23 in order to remove the words destroy and damage as the active verbs and rephrase them to proscribe the actions of a person who engages in conduct that the destruction or damage as the case may be to the prescribed property. The rationale for this amendment is that a person does not destroy or damage something - rather the destruction or damage is the result of the persons conduct and is not in itself a physical element of conduct. It follows that retaining destroy or damage as the active verbs in a criminal offence may lead to real difficulties in interpreting the offence following application of the Criminal Code . Constructing the offence in the amended form will better identify the physical elements of conduct and result, and the fault elements that attach to these physical elements. The fault element of intention will still apply to the physical element of conduct by virtue of the Criminal Codes default fault provision (section 5.6). Similarly, the fault element of recklessness will attach to the result of the persons conduct, namely the resultant destruction or damage, and it will be necessary for the prosecution to demonstrate that the person was reckless as to whether his or her conduct would cause the resultant destruction or damage.

Item 20 - Lawful excuse defence

542. This item proposes to remove the specific defence of lawful excuse from section 24. 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 21 - Amendment of inappropriate physical element of conduct

543. This item proposes to amend section 25 by removing the word kill as the active verb and instead proscribing the actions of a person who engages in conduct that causes the death of another person. For more details on the rationale for this amendment see the explanation at item 11 above.

Item 22 - Amendment of inappropriate physical element of conduct

544. This item proposes to amend section 26 by clarifying that the offence proscribes the actions of a person who engages in conduct that causes grievous bodily harm to another person. For more details on the rationale for this amendment see the explanation at item 12 above.

Item 23 - Amendment of inappropriate physical element of conduct

545. This item proposes to amend section 27 by removing the word injures as the active verb and instead proscribing the actions of a person who engages in conduct that causes injury to another person. For more details on the rationale for this amendment see the explanation at item 13 above.

Item 24 - Replacing references to certain Crimes Act 1914 provisions

546. Certain Crimes Act 1914 provisions, including sections 5 and 7, 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 the definition of offence against this Part in subsection 29(5) to sections 5 and 7 of the Crimes Act 1914 , which concern aiding, abetting, counselling and procuring the commission of primary offences and attempting to commit primary offences, be replaced by references to the Criminal Code provisions which deal with these matters (sections 11.1 and 11.2). These Criminal Code provisions will apply to this Act by virtue of this Bill: see item 2 of this Schedule.

Item 25 - Replacing references to certain Crimes Act 1914 provisions

547. Certain Crimes Act 1914 provisions, including sections 5 and 7, 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 30(1)(b) to sections 5 and 7 of the Crimes Act 1914 , which concern aiding, abetting, counselling and procuring the commission of primary offences and attempting to commit primary offences, be replaced by references to the Criminal Code provisions which deal with these matters (sections 11.1 and 11.2). These Criminal Code provisions will apply to this Act by virtue of this Bill: see item 2 of this Schedule.

Item 26 - Replacing references to certain Crimes Act 1914 provisions

548. Certain Crimes Act 1914 provisions, including sections 5 and 7, 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 31(b) to sections 5 and 7 of the Crimes Act 1914 , which concern aiding, abetting, counselling and procuring the commission of primary offences and attempting to commit primary offences, be replaced by references to the Criminal Code provisions which deal with these matters (sections 11.1 and 11.2). These Criminal Code provisions will apply to this Act by virtue of this Bill: see item 2 of this Schedule.

Schedule 18 - Crimes (Superannuation Benefits) Act 1989

Item 1 - Application of Criminal Code

549. This item inserts proposed section 12A which applies Chapter 2 of the Criminal Code to all offences against the Act. Chapter 2 establishes the codified general principles of criminal responsibility.

550. 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 - Amendment of inappropriate fault element

551. Subsection 35(1) applies the fault element of knowledge (or knowingly) in relation to the proscribed physical element of conduct, namely contravening a restraining order by disposing of, or otherwise dealing with, 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 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.

Schedule 19 - Crimes (Torture) Act 1988

Item 1 - Application of Criminal Code

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

553. 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 - Absolute liability applied

554. This item proposes to insert subsection 6(1A) which provides that absolute liability is applied to the physical elements of circumstance contained in the offence in subsection 6(1) that the act of torture is done outside Australia and that the act of torture, if done by the person at the relevant time in a part of Australia, would constitute an offence against a law then in force in that part of Australia.

555. 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 Schedule 10.

556. The standard note referring to section 6.2 of the Criminal Code , which governs absolute liability, is also added after this provision.

Schedule 20 - Crimes (Traffic in Narcotic Drugs and Psychotropic Substances) Act 1990

Item 1 - Definition

557. This item inserts into section 3 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 2 - Application of Criminal Code

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

559. The standard note concerning Chapter 2 of the Criminal Code setting out the principles of criminal responsibility is also added after this provision.

Item 3 - Clarifying a fault element

560. This item proposes that the phrase for the purpose of in subsections 6(1)(a), (d), (e) and (f) 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 6(1)(a) the correct interpretation is that the defendant cultivates the opium poppy, coca bush or cannabis plant with the intention of producing narcotic drugs. Paragraphs 6(1)(d), (e) and (f) have the same construction, and this item proposes the appropriate amendments accordingly.

Item 4 - Absolute liability applied

561. This item proposes to insert subsection 9(2) which provides that, for the purposes of an offence against section 9, absolute liability is applied to the physical elements of circumstance listed in proposed paragraphs 9(2)(a), (b) and (c).

562. 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 Schedule 10.

563. The standard note referring to section 6.2 of the Criminal Code , which governs absolute liability, is also added after this provision.

Item 5 - Absolute liability applied

564. This item proposes to insert subsection 10(3) which provides that, for the purposes of an offence against section 10, absolute liability is applied to the physical elements of circumstance listed in proposed paragraphs 10(3)(a), (b), (c) and (d).

565. 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 Schedule 10.

566. The standard note referring to section 6.2 of the Criminal Code , which governs absolute liability, is also added after this provision.

Item 6 - Absolute liability applied

567. This item proposes to insert subsection 11(2) which provides that, for the purposes of an offence against section 11, absolute liability is applied to the physical elements of circumstance listed in proposed paragraphs 11(2)(a), (b), (c) and (d).

568. 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 Schedule 10.

569. The standard note referring to section 6.2 of the Criminal Code , which governs absolute liability, is also added after this provision.

Item 7 - Absolute liability applied

570. This item proposes to insert subsection 12(3) which provides that, for the purposes of an offence against section 12, absolute liability is applied to the physical elements of circumstance listed in proposed paragraphs 12(3)(a), (b), (c), (d) and (e).

571. 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 Schedule 10.

572. The standard note referring to section 6.2 of the Criminal Code , which governs absolute liability, is also added after this provision.

Item 8 - Absolute liability applied

573. This item proposes to insert subsection 13(2) which provides that, for the purposes of an offence against section 13, absolute liability is applied to the physical elements of circumstance listed in proposed paragraphs 13(2)(a), (b), (c) and (d).

574. 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 Schedule 10.

575. The standard note referring to section 6.2 of the Criminal Code , which governs absolute liability, is also added after this provision.

Item 9 - Absolute liability applied

576. This item proposes to insert subsection 14(2) which provides that, for the purposes of an offence against section 14, absolute liability is applied to the physical elements of circumstance listed in proposed paragraphs 14(2)(a), (b), (c), (d) and (e).

577. 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 Schedule 10.

578. The standard note referring to section 6.2 of the Criminal Code , which governs absolute liability, is also added after this provision.

Item 10 - Clarifying a fault element

579. This item proposes that the phrase for the purpose (wherever occurring) in paragraph 15(6)(a) 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.

Item 11 - Clarifying a fault element

580. This item proposes that the phrase for the purpose in section 15A 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 section 15A the correct interpretation is that the defendant converts or transfers the property with the intention of concealing or disguising that the property was derived from the offence or assisting another person involved in the commission of the offence to evade the legal consequences of that involvement, and this item proposes the appropriate amendment accordingly.

Item 12 - Absolute liability applied

581. This item proposes to insert subsection 15A(2) which provides that, for the purposes of an offence against section 15A, absolute liability is applied to the physical elements of circumstance that the relevant conversion or transfer of property takes place in a State other than a prescribed State or a Territory other than a prescribed Territory.

582. 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.

583. The standard note referring to section 6.2 of the Criminal Code , which governs absolute liability, is also added after this provision.

584. The heading of this section is also amended by replacing Knowingly with Intentionally to reflect the appropriate fault element.

Item 13 - Absolute liability applied

585. This item proposes to insert subsection 15B(2) which provides that, for the purposes of an offence against section 15B, absolute liability is applied to the physical elements of circumstance that the relevant concealing or disguising takes place in a State other than a prescribed State or a Territory other than a prescribed Territory.

586. 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.

587. The standard note referring to section 6.2 of the Criminal Code , which governs absolute liability, is also added after this provision.

588. The heading of this section is also amended by replacing Knowingly with Intentionally to reflect the appropriate fault element.

Item 14 - Absolute liability applied

589. This item proposes to insert subsection 15C(2) which provides that, for the purposes of an offence against section 15C, absolute liability is applied to the physical elements of circumstance that the relevant possession is, or the relevant acquisition or use takes place in, a State other than a prescribed State or a Territory other than a prescribed Territory.

590. 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.

591. The standard note referring to section 6.2 of the Criminal Code , which governs absolute liability, is also added after this provision.

592. The heading of this section is also amended by replacing Knowingly with Intentionally to reflect the appropriate fault element.

Item 15 - Clarifying a fault element

593. This item proposes that the phrase for the purpose (wherever occurring) in section 17 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.