House of Representatives

Explanatory Memorandum

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

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.

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.

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.