Explanatory Memorandum
(Circulated by authority of the Minister for Education, Training and Youth Affairs the Hon Dr David Kemp MP)Outline and financial impact statement
Outline
The Bill amends criminal offences in Education, Training and Youth Affairs portfolio legislation to ensure there is a smooth transition to the application of the Criminal Code Act 1995. Specifically the Bill will amend provisions relating to offences contained in the Higher Education Funding Act 1988 and the Student Assistance Act 1973 to ensure that the relevant offences continue to have the same meaning and to operate in the same manner as they do at present.
The Criminal Code contains a standard approach to the formulation of criminal offences. Offences developed over many years as part of Commonwealth statute law are by no means standard and it is therefore necessary to make adjustments for when the Criminal Code applies to all Commonwealth offences on 15 December 2001 (as provided for in the Criminal Code Act 1995). The Bill is one of a number, which have been or are being prepared in relation to offences under Acts administered by other Ministers.
Financial impact
As the Bill makes consequential amendments to the criminal law there is no financial impact.
Notes on clauses
Clause 1 - Short title
Provides for the Act to be cited as the Education, Training and Youth Affairs Legislation Amendment (Application of Criminal Code) Act 2001.
Clause 2 - Commencement
Provides for the Act to commence on the day after the day on which it receives the Royal Assent.
Clause 3 - Schedule(s)
This clause has the effect that any Act that is specified in a Schedule is amended or repealed as provided in that Schedule.
Clause 4 - Application of amendments
Subclause 4(1) provides that amendments made by the Bill apply only to acts and omissions that take place after the Bill commences. To provide further clarity, subclause 4(2) provides that if an act or omission is alleged to have taken place between two dates; one before the Bill commences and one on or after the day on which the Bill commences, the act or omission is alleged to have taken place before the Bill commences. Hence the amendments made by the Bill only apply to offences occurring wholly after the Bill commences.
Schedule 1 - Higher Education Funding Act 1988
Item 1
Inserts a new section 11, which applies Chapter 2 of the Criminal Code to all offences against the Act. Chapter 2 establishes the codified general principles of criminal responsibility.
Item 2
This item has the effect of removing the defences to the offence of requiring or requesting a student to quote his or her tax file number from subsection 52(1) and recreating them in a new subsection 52(1A). The rationale for this amendment is to prevent the provision from being interpreted in such a way as to include the defence elements of the provision as elements of the offence, which would have to be disproved by the prosecution. The amendment makes it clear that these elements are a defence to the offence. A standard note is added after the new subsection referring to the fact that under subsection 13.3(3) of the Criminal Code, a defendant seeking to rely on the defences in new subsection 52(1A) carries an evidential burden.
Item 3
This item has the effect of removing the defences to the offence of unauthorised recording, use and divulgence of a students tax file number from subsection 53(1) and recreating them in new subsections 53(1A) and (1B). The rationale for this amendment is to prevent the provision from being interpreted in such a way as to include the defence elements of the provision as elements of the offence, which would have to be disproved by the prosecution. The amendment makes it clear that these elements are a defence to the offence. A standard note is added after the new subsections referring to the fact that under subsection 13.3(3) of the Criminal Code, a defendant seeking to rely on the defences in new subsections 53(1A) and (1B) carries an evidential burden.
Items 4 and 5
These items have the effect of removing from subsection 78(4) the defences to the offence of an officer recording or divulging information obtained in the course of his/her employment, and recreating them in a new subsection 78(4A). The rationale for this amendment is to prevent the provision from being interpreted in such a way as to include the defence elements of the provision as elements of the offence, which would have to be disproved by the prosecution. The amendment makes it clear that these elements are a defence to the offence. A standard note is added after the new subsection referring to the fact that under subsection 13.3(3) of the Criminal Code, a defendant seeking to rely on the defences in new subsection 78(4A) carries an evidential burden.
Item 5 also inserts a new subsection 78(4B), which specifies that the offence in subsection 78(4) attracts strict liability in respect of the physical element of circumstance that information was disclosed or obtained under or for the purposes of Chapter 4 of the Act. Where strict liability applies to an offence the prosecution does not have to prove fault on the part of the defendant in relation to that physical element. A defence of mistake of fact is open to the defendant under section 9.2 of the Criminal Code. This defence is available if a person is under a mistaken but reasonable belief about a fact and, had that fact existed, the conduct would not constitute an offence. Under the Criminal Code, any legislative provision that attracts strict liability must expressly state that it is an offence of strict liability (see section 6.1 of the Code).
Schedule 2 - Student Assistance Act 1973
Item 1
Inserts a new section 5E, which applies Chapter 2 (except Part 2.5) of the Criminal Code to all offences created by the Act. Chapter 2 establishes the codified general principles of criminal responsibility while Part 2.5 of Chapter 2 establishes the general principles of corporate criminal responsibility. Part 2.5 of Chapter 2 of the Criminal Code has been excluded in favour of retaining the existing corporate criminal responsibility provision established by section 50 of the Act.
Items 2 and 3
These items have the effect of removing from subsection 12ZU(4) the defences to the offence of an officer divulging information obtained in the course of his/her employment, and recreating them in a new subsection 12ZU(4A). The rationale for this amendment is to prevent the provision from being interpreted in such a way as to include the defence elements of the provision as elements of the offence, which would have to be disproved by the prosecution. The amendment makes it clear that these elements are a defence to the offence. A standard note is added after the new subsection referring to the fact that under subsection 13.3(3) of the Criminal Code, a defendant seeking to rely on the defences in new subsection 12ZU(4A) carries an evidential burden.
Item 3 also inserts a new subsection 12ZU(4B), which specifies that the offence in subsection 12ZU(4) attracts strict liability in respect of the physical element of circumstance that information was disclosed or obtained under or for the purposes of Division 6 of Part 4A of the Act. Where strict liability applies to an offence the prosecution does not have to prove fault on the part of the defendant in relation to that physical element. A defence of mistake of fact is open to the defendant under section 9.2 of the Criminal Code. This defence is available if a person is under a mistaken but reasonable belief about a fact and, had that fact existed, the conduct would not constitute an offence. Under the Criminal Code, any legislative provision that attracts strict liability must expressly state that it is an offence of strict liability (see section 6.1 of the Code).
Items 4 and 5
These items remove the defence of reasonable excuse from subsection 42(5) and recreate it in a new subsection 42(5A). The rationale for this amendment is to prevent the provision from being interpreted in such a way as to include the reasonable excuse element of the provision as an element of the offence, which would have to be disproved by the prosecution. The amendment makes it clear that reasonable excuse is a defence to the offence.
A standard note is added after the new subsection referring to the fact that under subsection 13.3(3) of the Criminal Code a defendant seeking to rely on the reasonable excuse defence carries an evidential burden.
Items 6 and 7
These items remove the defence of reasonable excuse from subsection 49(1) and recreate it in a new subsection 49(1A). The rationale for this amendment is to prevent the provision from being interpreted in such a way as to include the reasonable excuse element of the provision as an element of the offence, which would have to be disproved by the prosecution. The amendment makes it clear that reasonable excuse is a defence to the offence.
A standard note is added after the new subsection referring to the fact that under subsection 13.3(3) of the Criminal Code a defendant seeking to rely on the reasonable excuse defence carries an evidential burden.
Item 8
This item has the effect of removing from subsection 347(10) the defences to the offence of failing to comply with a requirement made under section 343, 344 or 345 and recreating them in new subsections 347(11) and (12). The rationale for this amendment is to prevent subsection 347(10) from being interpreted in such a way as to include the defence elements of the provision as elements of the offence, which would have to be disproved by the prosecution. The amendment makes it clear that these elements are a defence to the offence. A standard note is added after each of the new subsections referring to the fact that under subsection 13.3(3) of the Criminal Code, a defendant seeking to rely on the defences in the relevant subsection carries an evidential burden.
Item 8 also inserts a new subsection 347(13), which specifies that the offence in subsection 347(10) is an offence of strict liability in respect of the physical element of circumstance that the requirement was made under section 343, 344 or 345 of the Act. Where strict liability applies to an offence the prosecution does not have to prove fault on the part of the defendant in relation to that physical element. A defence of mistake of fact is open to the defendant under section 9.2 of the Criminal Code. This defence is available if a person is under a mistaken but reasonable belief about a fact and, had that fact existed, the conduct would not constitute an offence. Under the Criminal Code, any legislative provision that attracts strict liability must expressly state that it is an offence of strict liability (see section 6.1 of the Code).
Items 9 and 10
Repeal paragraphs 352(b) and 353(b) respectively in favour of relying on the Criminal Codes general defence of lawful authority (see section 10.5 of the Code) as a defence to the offence of unauthorised access to protected information.
Item 11
Inserts a new subsection 357(2), which specifies that the offence of soliciting the disclosure of protected information from an officer or another person in subsection 357(1) is an offence of strict liability in respect of the physical element of circumstance that the contravention is a contravention of Division 3 of Part 10 of the Act. Where strict liability applies to an offence the prosecution does not have to prove fault on the part of the defendant in relation to that physical element. A defence of mistake of fact is open to the defendant under section 9.2 of the Criminal Code. This defence is available if a person is under a mistaken but reasonable belief about a fact and, had that fact existed, the conduct would not constitute an offence. Under the Criminal Code, any legislative provision that attracts strict liability must expressly state that it is an offence of strict liability (see section 6.1 of the Code).
Item 12
This item replaces paragraph 358(b) with a new paragraph to make it clear that it is the intention held by the defendant that is the key element in the offence of making untrue representations for the purpose of soliciting the disclosure of protected information from an officer.