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House of Representatives

Treasury Legislation Amendment (Application of Criminal Code) Bill (No. 3) 2001

Treasury Legislation Amendment (Application of Criminal Code) Act (No. 3) 2001

Explanatory Memorandum

(Circulated by authority of the Minister for Financial Services and Regulation, the Hon Joe Hockey MP)

Chapter 1 - Abbreviations

ASIC	Australian Securities and Investments Commission
the Bill	Treasury Legislation Amendment (Application of Criminal Code) Bill (No.3) 2001
the Criminal Code	Criminal Code Act 1995 (Cth)

Chapter 2 - Outline

This Bill is the third Bill to introduce amendments to Treasury Portfolio legislation to comply with the requirements of the Criminal Code.

Application of the Criminal Code

The Criminal Code was enacted in 1995 to clarify criminal liability under Commonwealth statutes and commenced operation on 1 January 1997. The Criminal Code applies in two stages:

*: Any new offences created after 1 January 1997 must comply with the Criminal Code requirements, therefore, every offence must clearly set out the necessary physical and mental elements that constitute the offence; and
*: For existing offences, they must be amended to comply with the requirements by 15 December 2001. If offences are not amended by the required date, the Criminal Code will apply default mental element to the offences.

The staggered implementation was considered necessary in relation to existing offences to provide departments with sufficient time to assess the effect of the Criminal Code on portfolio legislation, and to introduce any necessary amendments.

The Criminal Code requires all Commonwealth offences to be amended to clearly set out the physical elements of an offence, and the necessary fault element for every physical element. If offences are not harmonised with the Criminal Code by 15 December, the Criminal Code will operate to apply default mental elements to all physical elements of an offence that do not otherwise contain a mental element.

The default mental elements of an offence under the Criminal Code are:

*: Where the physical element of the offence consists only of conduct, intention is the default mental element for that physical element; and
*: Where the physical element of the offence consists of a circumstance or a result, recklessness is the default mental element for that physical element.

Under the Criminal Code, all strict or absolute liability provisions must be specifically identified as such. As a result of the application of the default mental elements, without specific amendment, all offences that currently apply as strict liability or absolute liability will attract the default fault elements and shall cease to apply strictly or absolutely.

As part of the objective of the Criminal Code to clarify the operation of Commonwealth offences, all defences that are presently contained within the same provision as an offence will be extracted and relocated separately. This ensures that the elements that constitute an offence are clear, which (if any) defences are available and the standard of proof (either legal or evidential) applicable.

Amendments arising under this Bill

Schedule 1 of the Bill implements amendments to the Corporations Act 2001, Schedule 2 contains minor consequential amendments to the Treasury Legislation Amendment (Application of Criminal Code) Act (No. 1) 2001, and Schedule 3 implements amendments to the Financial Sector Shareholdings Act 1998, the Insurance Contracts Act 1984 and the Commonwealth Places (Mirror Taxes) Act 1998.

Amendments arise from:

*: Specifying the physical elements of an offence and corresponding fault elements (where they vary from those specified by the Criminal Code);
*: Specifying that an offence (or part of an offence) is one of strict or absolute liability; and
*: Clarifying the operation of defences by relocating them separately from the elements that constitute the offence itself.

Chapter 3 - Regulation Impact Statement and Financial Impact Statement

Regulation impact statement

The Bill will maintain the status quo of existing offences after the commencement of the Criminal Code. While the Bill makes a number of amendments to the relevant legislation, those amendments are of a minor or machinery nature and do not substantially alter existing arrangements.

On that basis, the Office of Regulation Review has advised that a Regulation Impact Statement is not required for the Bill.

Financial impact statement

The Bill does not have any financial impact.

Chapter 4 - Schedule 1

Amendment to the Corporations Act

Item 1 Section 9

This item inserts a new definition to expressly clarify that, where an element of an offence requires a person to engage in conduct, that element will be satisfied by the doing of an act as well as omitting to do an act.

Item 2 Section 9

This item inserts a new definition to facilitate the application of the Criminal Code to strict liability offences under the Corporations Act. Given the operation of the liability regime under the Corporations Act, it is necessary to refer to the source of the offence itself, which will either be the relevant provision, section 1311 or section 1314.

There are many provisions in the Corporations Law that contain the elements of the offence, however, very few provision also contain the offence arising from a breach of the provision. In order to indicate the application of strict liability, it is necessary to specify correctly where the offence is actually created, which is usually section 1311.

The approach adopted minimises the extent of amendments required to specify that each offence provision applies strictly.

Item 3 Subsection 113(3)

The item inserts a new subsection (3A) to specify that the offence in subsection (3) is an offence of strict liability. The item also inserts a note to identify the relevant provision in the Criminal Code that deals with strict liability.

Item 4 Section 115

The item inserts a new subsection (3) to specify that the offence in subsection (1) is an offence of strict liability. The item also inserts a note to identify the relevant provision in the Criminal Code that deals with strict liability.

Item 5 Section 117

The item inserts a new subsection (6) to specify that the offence in subsection (5) is an offence of strict liability. The item also inserts a note to identify the relevant provision in the Criminal Code that deals with strict liability.

Item 6 Section 123

The item inserts a new subsection (4) to specify that the offence in subsection (3) is an offence of strict liability. The item also inserts a note to identify the relevant provision in the Criminal Code that deals with strict liability.

Item 7 Section 136

Item 8 Section 139

The item inserts a new subsection (2) to specify that the offence in subsection (1) is an offence of strict liability. The item also inserts a note to identify the relevant provision in the Criminal Code that deals with strict liability.

Item 9 Subsection 142(2)

The item inserts a new subsection (A) to specify that the offence in subsections (1) and (2) is an offence of strict liability. The item also inserts a note to identify the relevant provision in the Criminal Code that deals with strict liability.

Item 10 Subsection 143(1)

The item inserts a new subsection (1A) to specify that the offence in subsection (1) is an offence of strict liability. The item also inserts a note to identify the relevant provision in the Criminal Code that deals with strict liability.

Item 11 Section 144

The item inserts a new subsection (3) to specify that the offence in subsections (1) and (2) is an offence of strict liability. The item also inserts a note to identify the relevant provision in the Criminal Code that deals with strict liability.

Item 12 Section 145

The item inserts a new subsection (4) to specify that the offence in subsections (1) and (3) is an offence of strict liability. The item also inserts a note to identify the relevant provision in the Criminal Code that deals with strict liability.

Item 13 Section 146

Item 14 Section 148

The item inserts a new subsection (6) to specify that the offence in subsections (2), (3), (4) and (5) is an offence of strict liability. The item also inserts a note to identify the relevant provision in the Criminal Code that deals with strict liability.

Item 15 Section 150

The item inserts a new subsection (3) to specify that the offence in subsection (2) is an offence of strict liability. The item also inserts a note to identify the relevant provision in the Criminal Code that deals with strict liability.

Item 16 Subsection 151(2)

The item inserts a new subsection (2A) to specify that the offence in subsection (2) is an offence of strict liability. The item also inserts a note to identify the relevant provision in the Criminal Code that deals with strict liability.

Item 17 Section 153

Item 18 and 19 Section 156

Item 18 removes the defence which is relocated by item 19 into a new subsection (3) along with a note after the subsection identifying the relevant provision in the Criminal Code that deals with the evidential burden that a defendant bears an in relation to the matter in subsection (1).

Item 19 inserts a new subsection (2) to specify that the offence in subsection (1) is an offence of strict liability. The item also inserts a note to identify the relevant provision in the Criminal Code that deals with strict liability.

Item 20 Subsection 157(2)

Item 21 Subsection 158(2)

Item 22 Subsection 162(3)

Item 23 Section 163

Item 24 Subsection 165(2)

Item 25 Subsection 168(1)

Item 26 and 27 Subsection 170(3)

Item 25A removes the defence which is relocated by item 26 into a new subsection (3B) along with a note after the subsection identifying the relevant provision in the Criminal Code that deals with the evidential burden that a defendant bears an in relation to the matter in subsection (3).

Item 26 inserts a new subsection (3A) to specify that the offence in subsection (3) is an offence of strict liability. The item also inserts a note to identify the relevant provision in the Criminal Code that deals with strict liability.

Item 28 Section 172

The item inserts a new subsection (3) to specify that the offence in subsections (1), (1A) and (2) is an offence of strict liability. The item also inserts a note to identify the relevant provision in the Criminal Code that deals with strict liability.

Item 29 and 30 Subsection 173(1)

Item 29 removes the defence which is relocated by item 30 into a new subsection (1A) along with a note after the subsection identifying the relevant provision in the Criminal Code that deals with the evidential burden that a defendant bears an in relation to the matter in subsection (1A).

Item 31 Subsection 173(9)

The item inserts a new subsection (9A) to specify that the offence in subsections (1), (3) and (9) is an offence of strict liability. The item also inserts a note to identify the relevant provision in the Criminal Code that deals with strict liability.

Item 32 Section 174

Item 33 Subsection 177(1)

The item repeals the subsection and substitutes a new subsection (1) that contains the elements of the offence. The defence has been relocated to a new subsection (1A) along with a note identifying the relevant provision in the Criminal Code that deals with the evidential burden that a defendant bears an in relation to the matters in subsection (1A).

The item inserts a new subsection (1B) to specify that the offence in subsection (1) is an offence of strict liability. The item also inserts a note to identify the relevant provision in the Criminal Code that deals with strict liability.

Item 34 Subsection 188(2)

The item inserts a new subsection (2A) to specify that the offence in subsections (1) and (2) is an offence of strict liability. The item also inserts a note to identify the relevant provision in the Criminal Code that deals with strict liability.

Item 35 Subsection 188(3)

The item inserts a note identifying the relevant provision in the Criminal Code that deals with the evidential burden that a defendant bears in relation to the matter in subsection (3).

Item 36 Subsection 191(1)

The item inserts a new subsection (1A) to specify that for an offence under subsection (1) strict liability applies to the circumstance of whether a director has a material personal interest in a matter that relates to the affairs of the company. This has been done on the basis that, whether or not the director has that material personal interest is a matter peculiarly within the knowledge of the director, and thereby warrants the application of strict liability.

The item also inserts a note to identify the relevant provision in the Criminal Code that deals with strict liability.

Item 37 Subsection 195(1)

Item 38 Section 199B

Item 39 Subsection 200B(1)

The item inserts a new subsection (1A) to specify that for an offence under subsection (1) strict liability applies to the circumstance of whether the benefit is in connection with a persons retirement. This has been done on the basis that, whether or not the benefit is in connection with the persons retirement is a matter peculiarly within the knowledge of the giver of the benefit at the time of giving the gift, and thereby warrants the application of strict liability. If the gift was for some other purpose, there is no contravention.

The item also inserts a note to identify the relevant provision in the Criminal Code that deals with strict liability.

Items 40 and 41 Section 200C

Item 41 relocates the defence omitted in item 40 to a new subsection (3) along with a note identifying the relevant provision in the Criminal Code that deals with the evidential burden that a defendant bears an in relation to the matters in subsection (3).

Item 41 also inserts a new subsection (2) to specify that for an offence under subsection (1) strict liability applies to the relevant circumstances of the offence, for the same reasons expressed in relation to item 37 above. The item inserts a note to identify the relevant provision in the Criminal Code that deals with strict liability.

Item 42 Section 200D

Item 43 Section 201D

Item 44 Subsection 202B(1)

Item 45 Section 203D

The item inserts a new subsection (8) to specify that the offence in subsections (3) and (5) is an offence of strict liability. The item also inserts a note to identify the relevant provision in the Criminal Code that deals with strict liability.

Item 46 Section 204A

Item 47 Section 204C

Items 48 and 49 Section 205B

Item 49 relocates the defence omitted in item 48 to a new subsection (6) along with a note identifying the relevant provision in the Criminal Code that deals with the evidential burden that a defendant bears in relation to the matters in subsection (6).

Item 49 also inserts a new subsection (7) to specify that the offence in subsections (1), (2), (4) and (5) is an offence of strict liability. The item inserts a note to identify the relevant provision in the Criminal Code that deals with strict liability.

Item 50 Section 205C

Item 51 Section 205E

Item 52 Section 205F

Item 53 Section 205G

The item inserts a new subsection (9) to specify that the offence in subsections (1) and (2) is an offence of strict liability. The item also inserts a note to identify the relevant provision in the Criminal Code that deals with strict liability.

Items 54 and 55 Subsection 206A(1)

Item 55 relocates the defence omitted in item 54 to a new subsection (1B) along with a note identifying the relevant provision in the Criminal Code that deals with the evidential burden that a defendant bears in relation to the matters in subsection (1B).

Item 55 also inserts a new subsection (1A) to specify that for an offence under subsection (1) strict liability applies to the circumstance that the person is disqualified from managing corporations. This has been done because the existence of that circumstance is a matter peculiarly within the knowledge of the person, and thereby warrants the application of strict liability. The item inserts a note to identify the relevant provision in the Criminal Code that deals with strict liability.

Item 56 Section 225

The item inserts a new subsection (6) to specify that the offence in this section is an offence of strict liability. The item also inserts a note to identify the relevant provision in the Criminal Code that deals with strict liability.

Item 57 Section 235

Item 58 Section 246B

Item 59 Section 246D

The item inserts a new subsection (7) to specify that the offence in subsection (6) is an offence of strict liability. The item also inserts a note to identify the relevant provision in the Criminal Code that deals with strict liability.

Item 60 Subsection 246F(3)

The item inserts a new subsection (3A) to specify that the offence in subsections (1) and (3) is an offence of strict liability. The item also inserts a note to identify the relevant provision in the Criminal Code that deals with strict liability.

Item 61 Subsection 246G(1)

Items 62 and 63 Section 247C

Item 63 relocates the defence omitted in item 62 to a new subsection (2) along with a note identifying the relevant provision in the Criminal Code that deals with the evidential burden that a defendant bears an in relation to the matters in subsection (2).

Item 63 also inserts a new subsection (3) to specify that the offence in subsection (1) is an offence of strict liability. The item inserts a note to identify the relevant provision in the Criminal Code that deals with strict liability.

Item 64 Subsection 249E(4)

The item inserts a new subsection (4A) to specify that the offence in subsections (3) and (4) is an offence of strict liability. The item also inserts a note to identify the relevant provision in the Criminal Code that deals with strict liability.

Item 65 Section 249K

Item 66 Section 249Z

Item 67 Subsection 250A(5)

The item inserts a new subsection (5A) to specify that the offence in subsection (5) is an offence of strict liability. The item also inserts a note to identify the relevant provision in the Criminal Code that deals with strict liability.

Item 68 Subsection 250N(2)

Item 69 Section 250P

The item inserts a new subsection (5) to specify that the offence in subsections (3) and (4) is an offence of strict liability. The item also inserts a note to identify the relevant provision in the Criminal Code that deals with strict liability.

Item 70 Section 250S

Item 71 Section 250T

Item 72 Subsection 251A(5)

The item inserts a new subsection (5A) to specify that the offence in subsections (1), (2), (3), (4) and (5) is an offence of strict liability. The item also inserts a note to identify the relevant provision in the Criminal Code that deals with strict liability.

Item 73 Section 251B

The item inserts a new subsection (5) to specify that the offence in subsections (1), (3) and (4) is an offence of strict liability. The item also inserts a note to identify the relevant provision in the Criminal Code that deals with strict liability.

Item 74 Section 252C

Item 75 Section 252H

Item 76 Section 252X

Item 77 Subsection 252Y(5)

Item 78 Subsection 253M(3)

The item inserts a new subsection (3A) to specify that the offence in subsections (1), (2) and (3) is an offence of strict liability. The item also inserts a note to identify the relevant provision in the Criminal Code that deals with strict liability.

Item 79 Section 253N

Item 80 section 254H

The item inserts a new subsection (5) to specify that the offence in subsection (4) is an offence of strict liability. The item also inserts a note to identify the relevant provision in the Criminal Code that deals with strict liability.

Item 81 Section 254N

Item 82 Section 254Q

The item inserts a new subsection (14) to specify that the offence in subsection (13) is an offence of strict liability. The item also inserts a note to identify the relevant provision in the Criminal Code that deals with strict liability.

Item 83 Subsection 254X(2)

Item 84 Section 254Y

Item 85 Section 259B

Item 86 Subsection 259D(4)

The item inserts a new subsection (4A) to specify that the offence in subsection (4) is an offence of strict liability. The item also inserts a note to identify the relevant provision in the Criminal Code that deals with strict liability.

Item 87 Subsection 283AA(1)

Item 88 Section 283AB

Item 89 Section 283AC

Item 90 Section 283BH(1)

This item inserts a new subsection (1A) to clarify the offence created by subsection (1). Part of the rationale of the Code is to make it clear, where possible, on the face of the provision that the provision is in fact an offence. The amendment in subsection (1A) remedies the fact that at present, it is unclear on the face of section 283BH(1) that it is an offence.

Item 91 Section 286

Item 92 Section 287

Item 93 Section 288

Item 94 Subsection 289(2)

Item 95 Subsection 294(1)

Item 96 Subsection 308(1)

Item 97 Section 311

The item inserts a new subsection (1A) to specify that for the offence in subsection (1) strict liability applies to the conduct of notifying ASIC in writing. This has been done because the objective of the provision is to require auditors to notify ASIC if the circumstances in paragraph 311(1)(a) and (b) arise. To additionally require that an auditor acted intentionally in relation to the conduct of failing to notify ASIC in the circumstances would be a distortion of the objective of the provision that being to require auditors to notify ASIC in the circumstances. The item also inserts a note to identify the relevant provision in the Criminal Code that deals with strict liability.

Item 98 Section 312

Item 99 Section 313

Item 100 Section 314(1)

Item 101 Section 316

The item inserts a new subsection (4) to specify that the offence in subsections (2) and (3) is an offence of strict liability. The item also inserts a note to identify the relevant provision in the Criminal Code that deals with strict liability.

Item 102 Section 317

Item 103 Section 318

Item 104 Subsection 319(1)

Item 105 Subsection 319(5)

Item 106 Section 320

Item 107 Subsection 321(1)

Item 108 Section 322

Item 109 Section 323

Item 110 Section 323B

Item 111 Subsection 323D(3)

Item 112 Subsection 345(3)

Item 113 Subsection 346(1)

Item 114 Section 428

Items 115 and 116 Subsection 437C(1)

Item 116 relocates the defence omitted in item 115 to a new subsection (1A) along with a note identifying the relevant provision in the Criminal Code that deals with the evidential burden that a defendant bears in relation to the matters in subsection (1A).

Item 116 also inserts a new subsection (1B) to specify that the offence in subsection (1) is an offence of strict liability. The item inserts a note to identify the relevant provision in the Criminal Code that deals with strict liability.

Items 117 and 118 Subsection 438B(4)

Item 118 relocates the defence omitted in item 117 to a new subsection (6) along with a note identifying the relevant provision in the Criminal Code that deals with the evidential burden that a defendant bears in relation to the matters in subsection (6).

Item 118 also inserts a new subsection (5) to specify that the offence in subsection (4) is an offence of strict liability. The item inserts a note to identify the relevant provision in the Criminal Code that deals with strict liability.

Items 119 and 120 Subsection 438C(5)

Item 120 relocates the defence omitted in item 119 to a new subsection (6) along with a note identifying the relevant provision in the Criminal Code that deals with the evidential burden that a defendant bears in relation to the matters in subsection (6).

Item 120 also inserts a new subsection (7) to specify that the offence in subsection (5) is an offence of strict liability. The item inserts a note to identify the relevant provision in the Criminal Code that deals with strict liability.

Items 121 and 122 Section 448B

Item 122 relocates the defence omitted in item 121 to a new subsection (2) along with a note identifying the relevant provision in the Criminal Code that deals with the evidential burden that a defendant bears in relation to the matters in subsection (2).

Item 122 also inserts a new subsection (3) to specify that the offence in subsection (1) is an offence of strict liability. The item inserts a note to identify the relevant provision in the Criminal Code that deals with strict liability.

Item 123 Subsection 448C(1)

Item 124 Section 450E

Items 125 and 126 Subsection 471A(1)

Item 126 relocates the defence omitted in item 125 to a new subsection (1A) along with a note identifying the relevant provision in the Criminal Code that deals with the evidential burden that a defendant bears in relation to the matters in subsection (1A).

Items 127 and 128 Subsection 471A(2)

Item 128 relocates the defence omitted in item 127 to a new subsection (2A) along with a note identifying the relevant provision in the Criminal Code that deals with the evidential burden that a defendant bears in relation to the matters in subsection (2A).

Item 128 also inserts a new subsection (2B) to specify that the offence in subsection (1) and (2) is an offence of strict liability. The item inserts a note to identify the relevant provision in the Criminal Code that deals with strict liability.

Item 129 Subsections 475(9) and (10)

The practical effect of subsections 475(9) and (10) when read together is that they provide that a person shall not contravene any of the provisions in section 475. The penalty in Schedule 3 refers to section 475 generally, so there is no reason for the separate operation of subsections (9) and (10). For this reason, item 129 consolidates the two subsections into a single subsection (9), provides in subsection (10) that the offence in subsection (9) is an offence of strict liability and inserts a note to identify the relevant provision in the Criminal Code that deals with strict liability.

Item 129 also relocates the defence of reasonable excuse to a new subsection (11) along with a note identifying the relevant provision in the Criminal Code that deals with the evidential burden that a defendant bears an in relation to the matters in subsection (11).

Item 130 Subsection 486A(8)

The item amends subsection 486A(8) to insert the words intentionally or recklessly to clarify the operation of the Criminal Code. It was considered necessary to insert to insert the words because of the uncertainty surrounding how the word contravene would be interpreted after the application of the Criminal Code. On one hand, to contravene is a physical element consisting of conduct, and therefore the applicable fault element is intention. However, on the other hand, contravene may be construed as referring to a result, that being, for example, the person did an act prohibited by the relevant order which resulted in the contravention of that order.

The words intentionally or recklessly have been inserted to indicate clearly that there are two possible approaches to interpreting this provision.

Item 131 Section 496

The item inserts a new subsection (9) to specify that the offence in subsections (2), (3), (4), (5), (6), (7) and (8) is an offence of strict liability. The item also inserts a note to identify the relevant provision in the Criminal Code that deals with strict liability.

Item 132 Subsection 497(7)

The item inserts a new subsection (7A) to specify that the offence in subsections (3), (4), (5), (6) and (7) is an offence of strict liability. The item also inserts a note to identify the relevant provision in the Criminal Code that deals with strict liability.

Items 133 and 134 Subsection 530A(6)

Item 134 relocates the defence omitted in item 133 to a new subsection (6B) along with a note identifying the relevant provision in the Criminal Code that deals with the evidential burden that a defendant bears in relation to the matters in subsection (6B).

Item 134 also inserts a new subsection (6A) to specify that the offence in subsection (2) and (6) is an offence of strict liability. The item inserts a note to identify the relevant provision in the Criminal Code that deals with strict liability.

Item 135 Subsection 530B(3)

The item removes the words hinder or obstruct and replaces them with engage in conduct that results in the hindering or obstruction of to clarify the operation of the provision. There was concern that after the Criminal Code the words hinder or obstruct would be construed as conduct elements, which would be an unintended outcome of the application of the Criminal Code to the Corporations Law.

The provision is intended to prevent more than conduct that is intentionally aimed at hindering or obstructing a liquidator. It is also intended to capture a wider class of conduct, such as conduct that is reckless as to whether a liquidator is hindered or obstructed.

The redraft ensures that the intended operation of the provision is not altered after the commencement of the Criminal Code.

Item 136 and 137 Subsection 530B(3)

Item 137 relocates the defence omitted in item 136 to a new subsection (3A) along with a note identifying the relevant provision in the Criminal Code that deals with the evidential burden that a defendant bears in relation to the matters in subsection (3A).

Items 138 and 139 Subsection 530B(6)

Item 139 relocates the defence omitted in item 138 to a new subsection (6A) along with a note identifying the relevant provision in the Criminal Code that deals with the evidential burden that a defendant bears in relation to the matters in subsection (6A).

Item 139 also inserts a new subsection (6B) to specify that the offence in subsection (6) is an offence of strict liability. The item inserts a note to identify the relevant provision in the Criminal Code that deals with strict liability.

Item 140 Section 532

The item inserts a new subsection (10) to specify that the offence in subsections (1), (2), (7), (8) and (9) is an offence of strict liability. The item also inserts a note to identify the relevant provision in the Criminal Code that deals with strict liability.

Item 141 Section 541

Item 142 Paragraph 588G(3)(a)

The item amends paragraph 588G(3)(a) to individually identify the relevant elements of the provision by separating the two physical elements in paragraph (a) into separate paragraphs. This effects no change on the operation of the provision, it merely clarifies its operation.

Item 143 Subsection 588G(3)

The item inserts a new subsection (3A) to specify that for the offence in subsection (3), absolute liability applies to the matters in paragraph (3)(a) and strict liability applies to the matters in paragraphs (3)(aa) and (b). The item also inserts notes to identify the relevant provisions in the Criminal Code that deal with absolute liability and strict liability.

Items 146, 147, 148, 149 and 151 Section 590(1)

These items amend the operation of subsection 590(1) in the same manner as discussed in item 135 above.

Items 144, 145, 150 and 152 Subsection 590(1)

Item 152 inserts new subsections (2), (3), (4), (4A) and (4B) into section 590 to clarify the operation of subsection 590(1).

New subsection (2) provides that, in relation to an offence under paragraph 590(1)(c), (g) or (h), absolute liability applies to that part of the offence that requires an event to occur within 10 years next before the relevant day or at a time on or after that day. This has been done because, whether or not the conduct constituting the contravention occurred before or after the relevant day is a matter irrelevant to the objective of the offence. The existence of the relevant day in relation to the time of the offence is an issue of jurisdiction; ie whether or not there is a relevant offence for the purpose of the provision, and it is not a physical element of the offence. For this reason, those matters have been made to apply absolutely.

New subsection (3) contains the defence omitted in item 144 along with a note identifying the relevant provision in the Criminal Code that deals with the evidential burden that a defendant bears in relation to the matters in subsection (3). New subsections (4) and (4A) are a rewrite of paragraphs (b) and (e), which were repealed by items 145 and 150, respectively. Subsection (4B) contains the fault elements for a contravention of subsections (4) and (4A).

Item 153 Subsection 592(1)

Item 154 Subsection 592(2)

The item inserts a note to identify the relevant provision in the Criminal Code that deals with the legal burden that a defendant bears in relation to the matters in subsection 592(2).

Item 155 Subsection 592(6)

The item inserts a new subsection (6A) to specify that for the offence in subsection (6), absolute liability applies to the elements in paragraph (b). As discussed in relation to the amendment in item 152 above, the matter in paragraph 592(6)(b) refers to a jurisdictional issue for the offence, not a physical element of the offence. The item also inserts a note to identify the relevant provision in the Criminal Code that deals with absolute liability.

Item 156 Section 595

Item 157 Paragraph 596(c)

The item amends paragraph 596(c) to replace the words conceals or removes with engages in conduct that results in the concealing or removing of, for the same purpose as discussed at item 135 above. The redraft ensures that the intended operation of the provision is not altered after the commencement of the Criminal Code.

Item 158 Section 596

The item inserts a new subsection (2) to specify that for the offence in paragraph (1)(c), absolute liability applies to the elements relating to the existence of an unsatisfied judgment within the specified time period. As discussed in relation to the amendment at item 152 above, that matter in paragraph 596(1)(c) refers to a jurisdictional issue for the offence, not a physical element of the offence. The item also inserts a note to identify the relevant provision in the Criminal Code that deals with absolute liability.

Items 159 and 160 Subsection 597(6)

Item 159 omits the defence of without reasonable excuse, which item 160 relocates to a new subsection (6A) along with a note identifying the relevant provision in the Criminal Code that deals with the evidential burden that a defendant bears in relation to the matters in subsection (6A).

Item 159 also inserts the words intentionally or recklessly in subsection (6) to clarify the operation of the provision. Should the Criminal Code default elements be applied without modification, the fail to attend in paragraphs (a) and (b) would be interpreted as conduct elements, and therefore attract the default fault element of intention. However, this is not considered the correct interpretation of the provision. Requiring proof of an intentional failure in some circumstances would, in effect, enable a defence of forgetfulness to be raised which would provide an inappropriate means of avoiding prosecution. The insertion of the words provides a clear indication to the Court that recklessness is also considered an appropriate fault element.

Items 161 and 162 Subsection 597(10A)

Item 161 omits the defence of without reasonable excuse, which item 162 relocates to a new subsection (10B) along with a note identifying the relevant provision in the Criminal Code that deals with the evidential burden that a defendant bears in relation to the matters in subsection (10B).

Item 161 also inserts the words intentionally or recklessly in subsection (10A) to clarify the operation of the provision. The reasons for this amendment are outlined in item 159 above.

Items 163 and 164 Subsection 597A(3)

Item 163 omits the defence of without reasonable excuse, which item 164 relocates to a new subsection (3A) along with a note identifying the relevant provision in the Criminal Code that deals with the evidential burden that a defendant bears in relation to the matters in subsection (3A).

Item 163 also inserts the words intentionally or recklessly in subsection (3) to clarify the operation of the provision. The reasons for this amendment are outlined in item 143 above.

Items 165 and 166 Subsection 601AD(5)

Item 166 relocates the defence omitted in item 165 to a new subsection (6) along with a note identifying the relevant provision in the Criminal Code that deals with the evidential burden that a defendant bears in relation to the matters in subsection (6).

Item 166 also inserts a new subsection (7) to specify that the offence in subsection (5) is an offence of strict liability. The item inserts a note to identify the relevant provision in the Criminal Code that deals with strict liability.

Item 167 Subsection 601BC(5)

Item 168 Subsection 601BH(2)

Item 169 Section 601BJ

Item 170 Subsection 601BK(1)

Item 171 Subsection 601BP(1)

Item 172 Section 601BR

Item 173 Section 601CW

The item inserts a new subsection (11) to specify that the offence in subsections (9) and (10) is an offence of strict liability. The item also inserts a note to identify the relevant provision in the Criminal Code that deals with strict liability.

Item 174 Subsection 601CZB(1)

Item 175 Section 601 CZC

Item 176 Subsection 601DD(1)

Item 177 Subsection 601DE(1)

Item 178 Subsection 601DH(1)

Items 179 to 182 Sections 601FC and s601FD

These items repeal subsections 601FC(7)&(8) and 601FD(5)&(6), respectively, to remove a non-Criminal Code definition of recklessness that was inserted by the Treasury Legislation Amendment (Application of Criminal Code) Act (No. 1) 2001 (the No.1 Act).

Certain unintended consequences of the non-Code definition of recklessness have since come to light. In particular, the definition may be interpreted as requiring proof that a person is aware of the elements of the offence in question, which means that ignorance of the law could be used as an excuse when the prosecution is trying to prove recklessness. For this reason, the non-Code definition of recklessness will be removed.

Item 183 Section 601FF

The item inserts a new subsection (3) to provide that a person must not intentionally or recklessly fail to comply with subsection (2). This has been done to clarify the operation of the provision. At present, the provision would be contravened where a person failed to take all reasonable steps to assist ASIC, which after the commencement of the Criminal Code, will attract the default fault element of intention.

To require proof of intentional conduct in all circumstance does not achieve the objective of the provision. The provision is designed to facilitate the inquiry by ASIC as provided in subsection (1), but the sole reliance on establishing intentional non-compliance provides, in some instances, scope for not assisting ASIC. The provision is intended to capture conduct that is either intentional or reckless, and the amendment in subsection (3) makes this clear.

Item 184 Section 601HD

Item 185 Subsection 601HG(7)

The item inserts a new subsection (7A) to specify that the offence in subsections (1), (3), (4), (6) and (7) is an offence of strict liability. The item also inserts a note to identify the relevant provision in the Criminal Code that deals with strict liability.

Item 186 Subsection 601JA(3)

The item amends section 601JA in the same form as item 183. Schedule 3 has also been amended to rectify the inconsistent application of the offence penalties to clarify that subsection (3) is properly to be regarded as the substantive offence provision when read together with subsection (1).

Item 187 Subsection 601JA(4)

Item 188 Subsection 601JB(6)

The item inserts a new subsection (6A) to specify that the offence in subsections (5) and (6) is an offence of strict liability. The item also inserts a note to identify the relevant provision in the Criminal Code that deals with strict liability.

Items 189 and 190 Section 601JD

The items repeal subsections 601JD(5) and (6), to remove a non-Criminal Code definition of recklessness that was inserted by the No. 1 Act.

Item 191 Subsection 601KA(3)

Items 192 and 193 Subsection 606(1)

Item 193 relocates the defence omitted in item 192 to a new subsection (1A) along with a note identifying the relevant provision in the Criminal Code that deals with the evidential burden that a defendant bears an in relation to the matters in subsection (1A).

Items 194 and 195 Subsection 606(2)

Item 195 relocates the defence omitted in item 194 to a new subsection (2A) along with a note identifying the relevant provision in the Criminal Code that deals with the evidential burden that a defendant bears in relation to the matters in subsection (2A).

Item 196 Subsection 606(4)

The item inserts a new subsection (4A) to specify that the offence in subsections (1), (2) and (4) is an offence of absolute liability. The item also inserts a note to identify the relevant provision in the Criminal Code that deals with absolute liability.

Absolute liability applies because the defences to a contravention are contained in subsection 606(5).

Item 197 Subsection 606(5)

Item 197 inserts a note identifying the relevant provision in the Criminal Code that deals with the legal burden that a defendant bears in relation to the matters in subsection (5).

Item 198 Subsection 622(1)

Item 199 Subsection 623(1)

Item 200 Section 624

Item 201 Subsection 630(4)

The item inserts a new subsection (4A) to specify that the offence in subsections (2), (3) and (4) is an offence of strict liability. The item also inserts a note to identify the relevant provision in the Criminal Code that deals with strict liability.

Item 202 Subsection 631(1)

The item rewrites subsection (1) to separate the individual elements of the offence into individual paragraphs to clarify the operation of the Criminal Code. The item inserts subsection (1A) to provide that for an offence under subsection (1), strict liability applies to paragraph (1)(b) and the sentence after it. The item also inserts a note to identify the relevant provision in the Criminal Code that deals with strict liability.

Item 203 Section 633

The item inserts a new subsection (8) to specify that the offence under the section is an offence of strict liability. The item also inserts a note to identify the relevant provision in the Criminal Code that deals with strict liability.

Item 204 Section 635

Item 205 Section 636

Item 206 Section 637

Items 207 and 208 Subsection 638(1)

Item 208 relocates the defence omitted in item 207 to a new subsection (1A) along with a note identifying the relevant provision in the Criminal Code that deals with the evidential burden that a defendant bears in relation to the matters in subsection (1A).

Item 209 Section 638

The item inserts a new subsection (7) to specify that the offence in subsections (1), (3), (5) and (6) is an offence of strict liability. The item also inserts a note to identify the relevant provision in the Criminal Code that deals with strict liability.

Item 210 Section 639

Item 211 Section 640

Items 212 and 213 Subsection 641(1)

Item 213 relocates the defence omitted in item 212 to a new subsection (1A) along with a note identifying the relevant provision in the Criminal Code that deals with the evidential burden that a defendant bears in relation to the matters in subsection (1A).

Item 213 also inserts a new subsection (1B) to specify that the offence in subsection (1) is an offence of strict liability. The item inserts a note to identify the relevant provision in the Criminal Code that deals with strict liability.

Item 214 Section 643

The item inserts a new subsection (2) to specify that for the offence in subsection (1), strict liability applies to the required conduct that the bidder must prepare a supplementary bidders statement to remedy the defect. The item also inserts a note to identify the relevant provision in the Criminal Code that deals with strict liability.

Item 215 Section 644

The item inserts a new subsection (2) to specify that for the offence in subsection (1), strict liability applies to the required conduct that the target must prepare a supplementary targets statement to remedy the defect. The item also inserts a note to identify the relevant provision in the Criminal Code that deals with strict liability.

Item 216 Section 647

The item inserts a new subsection (4) to specify that the offence in subsections (1), (2) and (3) is an offence of strict liability. The item also inserts a note to identify the relevant provision in the Criminal Code that deals with strict liability.

Item 217 Subsection 648A(1)

Item 218 Subsection 648E(2)

Item 219 Section 648G

The item inserts a new subsection (10) to specify that the offence in subsections (5) and (9) is an offence of strict liability. The item also inserts a note to identify the relevant provision in the Criminal Code that deals with strict liability.

Item 220 Section 649C

Item 221 Section 650B

Item 222 Section 650E

The item inserts a new subsection (7) to specify that the offence in subsections (5) and (6) is an offence of strict liability. The item also inserts a note to identify the relevant provision in the Criminal Code that deals with strict liability.

Item 223 Section 650F

Item 224 Section 651A

Item 225 Section 651C

Item 226 Section 652C

Item 227 Subsection 654A(1)

Item 228 Subsection 654A(2)

The item inserts a note after subsection (2) identifying the relevant provision in the Criminal Code that deals with the evidential burden that a defendant bears an in relation to the matters in subsection (2).

Item 229 Section 654C

Item 230 Section 657F

Item 231 Subsection 661B(2)

Item 232 Section 661D

Item 233 Subsection 662A(1)

Item 234 Section 663A

Item 235 Subsection 664D(3)

Item 236 Section 664E

The item inserts a new subsection (5) to specify that the offence in subsections (2), (3) and (4) is an offence of strict liability. The item also inserts a note to identify the relevant provision in the Criminal Code that deals with strict liability.

Item 237 Section 665A

Item 238 Section 665D

Item 239 Section 665E

The item inserts a new subsection (4) to specify that the offence in this section is an offence of strict liability. The item also inserts a note to identify the relevant provision in the Criminal Code that deals with strict liability.

Item 240 Subsection 666A(1)

Item 241 Section 666B

Item 242 Section 667A

Item 243 Section 668A

The item inserts a new subsection (5) to specify that the offence in subsections (1), (2), (3) and (4) is an offence of strict liability. The item also inserts a note to identify the relevant provision in the Criminal Code that deals with strict liability.

Item 244 Subsection 668B(1)

Item 245 Section 670C

Item 246 Subsection 671B(1)

Items 247 and 248 Subsection 672B(1)

Item 248 relocates the defence omitted in item 247 to a new subsection (1A) along with a note identifying the relevant provision in the Criminal Code that deals with the evidential burden that a defendant bears in relation to the matters in subsection (1A).

Item 248 also inserts a new subsection (1B) to specify that the offence in subsection (1) is an offence of strict liability. The item inserts a note to identify the relevant provision in the Criminal Code that deals with strict liability.

Items 249 and 250 Subsection 721(1)

Item 250 relocates the defence omitted in item 249 to a new subsection (1A) along with a note identifying the relevant provision in the Criminal Code that deals with the evidential burden that a defendant bears in relation to the matters in subsection (1A).

Item 251 Section 721

Item 251 inserts a new subsection (5) to specify that a person commits an offence if the person intentionally or recklessly contravenes subsections (1) or (4). This has been done to clarify the operation of the provision for substantially the same reasons as discussed in relation to item 183.

Item 252 Section 722

Item 253 Section 723

Item 254 Subsection 724(1)

Item 255 Subsection 725(1)

Item 256 Section 730

Items 257 and 258 Subsection 734(2)

Item 258 relocates the defence omitted in item 257 to a new subsection (2A) along with a note identifying the relevant provision in the Criminal Code that deals with the evidential burden that a defendant bears in relation to the matters in subsection (2A).

Item 258 also inserts a new subsection (2B) to specify that the offence in subsection (1) and (2) is an offence of strict liability. The item inserts a note to identify the relevant provision in the Criminal Code that deals with strict liability.

Item 259 Section 735

Items 260 and 261 Subsection 736(1)

Item 261 relocates the defence omitted in item 260 to a new subsection (1A) along with a note identifying the relevant provision in the Criminal Code that deals with the evidential burden that a defendant bears in relation to the matters in subsection (1A).

Item 261 also inserts a new subsection (1B) to specify that the offence in subsections (1) and (2) is an offence of strict liability. The item inserts a note to identify the relevant provision in the Criminal Code that deals with strict liability.

Item 262 Subsection 1274(16)

The item inserts a new subsection (16A) to specify that the offence in subsections (9), (13) and (16) is an offence of strict liability. The item also inserts a note to identify the relevant provision in the Criminal Code that deals with strict liability.

Item 263 Subsection 1300(2A)

The item inserts a new subsection (2B) to specify that the offence in subsection (2A) is an offence of strict liability. The item also inserts a note to identify the relevant provision in the Criminal Code that deals with strict liability.

Item 264 Section 1300

Item 265 Subsection 1302(5)

The item inserts a new subsection (6) to specify that the offence in subsections (3) and (5) is an offence of strict liability. The item also inserts a note to identify the relevant provision in the Criminal Code that deals with strict liability.

Item 266 Subsection 1307(1)

The item amends subsection (1) in substantially the same manner discussed in relation to item 135 above.

Item 267 Paragraph 1307(2)(b)

The item amends subsection (1) in substantially the same manner discussed in relation to item 135 above.

Item 268 Subsection 1307(3)

The item inserts a note after subsection (3) identifying the relevant provision in the Criminal Code that deals with the legal burden that a defendant bears an in relation to the matters in subsection (3).

Item 269 Before Division 1 of Part 9.4

The item inserts a new Division in Part 9.4 of the Corporations Act that contains section 1308A which provides that, subject to a contrary indication within the Corporations Act, the Criminal Code applies to all offences against the Corporations Act. This is necessary as parts of the Corporations Act exclude the application of Part 2.5 of the Criminal Code.

Item 270 Subsection 1308(1)

Item 271 Subsection 1311(1)

The item inserts a note after subsection (1) identifying that Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility. This note has been inserted after subsection 1311(1) because it is the central offence provision in the Corporations Act.

Item 272 Section 1311

The item inserts a new subsection (6) to specify that an offence under subsection (1) that has its penalty set out in subsection (5) is an offence of strict liability. The effect of this is that all offences under the Corporations Act that do not have penalties set out in Schedule 3 will apply as strict liability offences. As the penalty under subsection (5) is only 5 penalty units ($550) with no term of imprisonment, applying strict liability generally to these offences is consistent with the principles of strict liability and the approach adopted with other offences throughout the Corporations Act.

The item also inserts a note to identify the relevant provision in the Criminal Code that deals with strict liability.

Item 273 Section 1323

The item inserts a new subsection (10) to specify that the offence in subsection (9) is an offence of strict liability. The item also inserts a note to identify the relevant provision in the Criminal Code that deals with strict liability.

Items 274 to 305 Schedule 3

These items make consequential amendments to the sections in the Schedule table of penalties consistent with the amendments to the substantive provisions.

Item 306 Schedule 3

The item inserts a note at the end of Schedule 3 identifying that Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.

Chapter 5 - Schedule 2

Amendments to the Treasury Legislation Amendment (Application of Criminal Code) Act (No. 1) 2001

Item 1 to Item 54 Schedule 1

These items repeal a number of provisions relating to offences in the Insurance Act 1973, the Life Insurance Act 1995, the Retirement Savings Accounts Act 1997 and the Superannuation Industry (Supervision) Act 1993, to remove a non-Criminal Code definition of recklessness that was inserted by the No. 1 Act.

These amendments commence immediately after the commencement of item 14 of Schedule 1 to the No. 1 Act.

Chapter 6 - Schedule 3

Other amendments

Part 1 Financial Sector Shareholdings Act 1998

Item 1 to Item 4 Section 24 and 26

These items repeal subsections 24(4) and (5) and subsections 26(4A) and (4B) of the Financial Sector Shareholdings Act 1998 (FSSA) to remove a non-Criminal Code definition of recklessness that was inserted into the FSSA by the No. 1 Act.

As the amendments to the FSSA which were made by the No. 1 Act commenced on Royal Assent, these amendments commence on the day after the day on which this Act receives Royal Assent.

Part 2 Insurance Contracts Act 1984

Item 5 Section 11AA

This item inserts new section 11AA, which applies Chapter 2 of the Criminal Code to all offences against the Act.

Items 6 and 9 Subsections 11C(2) and 11D(3)

These items insert new subsections 11C(2A) and 11D(3A), which specify that offences against subsections 11C(2) and 11D(3) are strict liability offences.

Items 7 and 8 Section 11C

These items insert notes after subsections 11C(3) and 11C(4) regarding the evidential burden borne by a defendant in relation to the matters in the respective subsections.

Items 10 and 11 Section 11D

These items insert notes after subsections 11D(4) and 11D(5) regarding the evidential burden borne by a defendant in relation to the matters in the respective subsections.

Item 12 Subsection 74(2)

This item insert a note after subsection 74(2) regarding the evidential burden borne by a defendant in relation to the matters in the respective subsections.

Item 13 Subsection 75(3)

This item insert a note after subsection 75(3) regarding the evidential burden borne by a defendant in relation to the matters in the respective subsections.

Item 14

This item inserts a note after subsection 75(7) regarding the legal burden borne by a defendant in relation to the matter mentioned in the subsection.

Part 3 Commonwealth Places (Mirror Taxes) Act 1998

Item 15 Section 20(1A)

The Commonwealth Places (Mirror Taxes) Act 1998 applies State taxation laws to Commonwealth places. This amendment would insert a new subsection 20(1A) to make it clear that Chapter 2 of the Criminal Code (which deals with criminal responsibility) does not operate in relation to offences under the relevant State taxation laws. Any offences would continue to be dealt with in accordance with the State law on criminal responsibility.

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Chapter 1 - Abbreviations

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Chapter 4 - Schedule 1

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Chapter 5 - Schedule 2

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