Explanatory Memorandum
(Circulated by authority of the Minister for Financial Services and Regulation, the Hon Joe Hockey MP)Chapter 4 - Schedule 1
Amendment to the Corporations Act
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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 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.
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.
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.
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.
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.
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.
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 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.
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).
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.
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.
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.
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.
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).
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.
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 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.
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.
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.
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.
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.
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.
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.
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.
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.
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 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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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 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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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).
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.
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.
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.
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.
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.
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.
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.
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).
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.
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).
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.
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.
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 .
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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).
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.
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.
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.
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.
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).
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 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).
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.
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.
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.
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.
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.
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.
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.
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.
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.
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).
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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).
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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 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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
The item amends subsection (1) in substantially the same manner discussed in relation to item 135 above.
The item amends subsection (1) in substantially the same manner discussed in relation to item 135 above.
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 .
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.
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.
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.
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.
These items make consequential amendments to the sections in the Schedule table of penalties consistent with the amendments to the substantive provisions.
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.
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