Senate

Explanatory Memorandum

(Circulated by authority of the Minister for Family and Community Services, Senator the Hon Amanda Vanstone)

Schedule 1 - Amendment of Acts

1. Summary of proposed changes

Schedule 1 makes consequential amendments to certain offence provisions in legislation administered by the Minister for Family and Community Services and the Minister for Community Services to reflect the application of the Criminal Code Act 1995 (the Code).

2. Background

At present many hours of practitioners and court time are wasted in litigation about the meaning of particular fault elements or the extent to which the prosecution should have the burden of proving those fault elements. Moreover, offences which have been developed over many years as part of the Commonwealth statutory regime are by no means standard. The application of the Code to all offences will improve Commonwealth criminal law by clarifying important elements of offences and will provide a standard approach to the formulation of criminal offences.

This Bill makes consequential amendments to certain offence provisions in legislation administered by the Minister for Family and Community Services and the Minister for Community Services to reflect the application of the Code.

3. Explanation of the changes

A New Tax System (Bonuses for Older Australians) Act 1999

Item 1

Item 1 inserts proposed section 3AA which applies Chapter 2 of the Code to the above Act. Chapter 2 establishes the codified general principles of criminal responsibility.

Item 2

Part 4 of the Act provides for bonus payments to be made to clients of the Australian Taxation Office. In broad terms, section 55 creates an offence in certain circumstances where a person uses, records, discloses or communicates information relating to another person. One element of the offence relates to the nature of the relevant information. It requires that the information must be information that was acquired by the first person in the performance of a function or obligation, or in the exercise of a power under Part 4. Item 2 repeals and substitutes section 55 of the Act. The substituted section 55 recreates the offence provision and subsection 55(2) provides that the element of the offence relating to the nature of the information is one of strict liability. Section 6.1 of the Code governs strict liability.

An individual physical element would generally qualify for application of strict liability where it describes something that a defendant would not ordinarily consider in the course of committing the offence. In those circumstances, the defendant would not have a fault element in relation to that physical element and a prosecution would be defeated if the Crown was required to demonstrate that the defendant did possess such a fault element. Where strict liability applies to an offence, the prosecution does not have to prove fault on the part of the defendant. The prosecution need only prove that the physical element of the offence did occur. However, there is a defence of mistake of fact under section 9.2 of the Code. Section 9.2 provides that a person is not criminally responsible for an offence of this nature if, at the time of the conduct constituting the physical element, the person considered whether or not fact existed, and is under a mistaken but reasonable belief about those facts and, had those facts existed, the conduct would not have constituted an offence. According to subsection 13.3(2) of the Code, the person wishing to deny criminal responsibility bears an evidential burden in relation to showing a mistake of fact.

A New Tax System (Family Assistance) (Administration) Act 1999

Item 3

Item 3 inserts proposed section 3A which applies Chapter 2 of the Code to the above Act. Chapter 2 establishes the codified general principles of criminal responsibility.

Item 4

In general terms, section 25 of the Act requires a claimant who becomes eligible for family tax benefit to notify the Secretary in relation to the occurrence of particular events or circumstances. The information must be notified in the manner set out in a written notice given to the service under section 25A. The information must be notified as soon as practicable after the service becomes aware that the event or circumstance has happened or is likely to happen. The penalty is imprisonment for 6 months.

The effect of the Item is to add subsection 25(2) which provides that strict liability applies to the element of an offence against subsection (1) to the extent that a notice given under section 25A is such a notice. An individual physical element would generally qualify for application of strict liability where it describes something that a defendant would not ordinarily consider in the course of committing the offence. In those circumstances, the defendant would not have a fault element in relation to that physical element and a prosecution would be defeated if the Crown was required to demonstrate that the defendant did possess such a fault element.

Where strict liability applies to an offence, the prosecution does not have to prove fault on the part of the defendant. The prosecution need only prove that the physical element of the offence did occur. However, there is a defence of mistake of fact under section 9.2 of the Code. Section 9.2 provides that a person is not criminally responsible for an offence of this nature if, at the time of the conduct constituting the physical element, the person considered whether or not fact existed, and is under a mistaken but reasonable belief about those facts and, had those facts existed, the conduct would not have constituted an offence. According to subsection 13.3(2) of the Code, the person wishing to deny criminal responsibility bears an evidential burden in relation to showing a mistake of fact. It is appropriate that strict liability apply in relation to the physical element referred to above.

Item 5

In general terms, subsection 56C(1) of the Act provides that, where a determination of conditional eligibility under section 50F is in force in respect of a claimant who is an individual, the claimant must notify the Secretary in relation to the occurrence of particular events or circumstances. The information must be notified in the manner set out in a written notice given to the individual under section 57. The information must be notified as soon as practicable after the claimant becomes aware that the event or circumstance has happened or is likely to happen. The penalty is imprisonment for 6 months.

The effect of the Item is to add subsection 56(1A) which provides that strict liability applies to the element of an offence against subsection (1) to the extent that a determination under section 50F is such a determination and to the extent that a notice given under section 57 is such a notice. An individual physical element would generally qualify for application of strict liability where it describes something that a defendant would not ordinarily consider in the course of committing the offence. In those circumstances, the defendant would not have a fault element in relation to that physical element and a prosecution would be defeated if the Crown was required to demonstrate that the defendant did possess such a fault element.

Where strict liability applies to an offence, the prosecution does not have to prove fault on the part of the defendant. The prosecution need only prove that the physical element of the offence did occur. However, there is a defence of mistake of fact under section 9.2 of the Code. Section 9.2 provides that a person is not criminally responsible for an offence of this nature if, at the time of the conduct constituting the physical element, the person considered whether or not fact existed, and is under a mistaken but reasonable belief about those facts and, had those facts existed, the conduct would not have constituted an offence. According to subsection 13.3(2) of the Code, the person wishing to deny criminal responsibility bears an evidential burden in relation to showing a mistake of fact. It is appropriate that strict liability apply in relation to the physical elements referred to above.

Item 6

In general terms, subsection 56C(2) of the Act requires claimants to notify the Secretary in relation to the occurrence of particular events or circumstances if:

•

determinations of conditional eligibility under section 50F and CCB% under section 50J are in force; and

•

the CCB% is calculated using Schedule 2 to the Family Assistance Act.

The information must be notified in the manner set out in a written notice given to the individual under section 57. The information must be notified as soon as practicable after the claimant becomes aware that the event or circumstance has happened or is likely to happen. The penalty is imprisonment for 6 months.

The effect of the Item is to add subsection 56C(2A) which provides that strict liability applies to certain elements of an offence against subsection (2). Firstly, strict liability applies to the element that a determination is a determination under section 50F or 50J. Strict liability also applies to the element that Schedule 2 to the Family Assistance Act is used to calculate CCB%. The Item also provides that strict liability applies to the element that a notice is a notice given under section 57.

An individual physical element would generally qualify for application of strict liability where it describes something that a defendant would not ordinarily consider in the course of committing the offence. In those circumstances, the defendant would not have a fault element in relation to that physical element and a prosecution would be defeated if the Crown was required to demonstrate that the defendant did possess such a fault element. Where strict liability applies to an offence, the prosecution does not have to prove fault on the part of the defendant. The prosecution need only prove that the physical element of the offence did occur. However, there is a defence of mistake of fact under section 9.2 of the Code. Section 9.2 provides that a person is not criminally responsible for an offence of this nature if, at the time of the conduct constituting the physical element, the person considered whether or not fact existed, and is under a mistaken but reasonable belief about those facts and, had those facts existed, the conduct would not have constituted an offence. According to subsection 13.3(2) of the Code, the person wishing to deny criminal responsibility bears an evidential burden in relation to showing a mistake of fact. It is appropriate that strict liability apply in relation to the physical elements referred to above.

Item 7

In general terms, subsection 56C(3) of the Act requires claimants to notify the Secretary in relation to the occurrence of particular events or circumstances if:

•

determinations of conditional eligibility under section 50F and a weekly limit of hours under section 50H are in force; and

•

the weekly limit of hours is more than 20 because a circumstance set out in subsection 54(2), (4), (6) or (8) of the Act or subsection 55(2) or (4) applies to the eligibility of the claimant.

The information must be notified in the manner set out in a written notice given to the individual under section 57. The information must be notified as soon as practicable after the claimant becomes aware that the event or circumstance has happened or is likely to happen. The penalty is imprisonment for 6 months.

The effect of the Item is to add subsection 56C(3A) which provides that strict liability applies to certain elements of an offence against subsection (3). Firstly, strict liability applies to the element that a determination is a determination under section 50F or 50H. Strict liability also applies to the element that a circumstance is a circumstance set out in subsection 54(2), (4), (6) or (8) of the Act or subsection 55(2) or (4). The Item also provides that strict liability applies to the element that a notice is a notice given under section 57.

An individual physical element would generally qualify for application of strict liability where it describes something that a defendant would not ordinarily consider in the course of committing the offence. In those circumstances, the defendant would not have a fault element in relation to that physical element and a prosecution would be defeated if the Crown was required to demonstrate that the defendant did possess such a fault element. Where strict liability applies to an offence, the prosecution does not have to prove fault on the part of the defendant. The prosecution need only prove that the physical element of the offence did occur. However, there is a defence of mistake of fact under section 9.2 of the Code. Section 9.2 provides that a person is not criminally responsible for an offence of this nature if, at the time of the conduct constituting the physical element, the person considered whether or not fact existed, and is under a mistaken but reasonable belief about those facts and, had those facts existed, the conduct would not have constituted an offence. According to subsection 13.3(2) of the Code, the person wishing to deny criminal responsibility bears an evidential burden in relation to showing a mistake of fact. It is appropriate that strict liability apply in relation to the physical elements referred to above.

Item 8

In part, subsection 56C(4) of the Act requires claimants to notify the Secretary in relation to the occurrence of particular events or circumstances if determinations of conditional eligibility under section 50F and a weekly limit of hours under section 50H are in force. The information must be notified in the manner set out in a written notice given to the claimant under section 57. The information must be notified as soon as practicable after the claimant becomes aware that the event or circumstance has happened or is likely to happen. The penalty is imprisonment for 6 months.

The effect of the Item is to add subsection 56C(4A) which provides that strict liability applies to certain elements of an offence against subsection (4). Firstly, strict liability applies to the element that a determination is a determination under section 50F or 50H. The Item also provides that strict liability applies to the element that a notice is a notice given under section 57.

An individual physical element would generally qualify for application of strict liability where it describes something that a defendant would not ordinarily consider in the course of committing the offence. In those circumstances, the defendant would not have a fault element in relation to that physical element and a prosecution would be defeated if the Crown was required to demonstrate that the defendant did possess such a fault element. Where strict liability applies to an offence, the prosecution does not have to prove fault on the part of the defendant. The prosecution need only prove that the physical element of the offence did occur. However, there is a defence of mistake of fact under section 9.2 of the Code. Section 9.2 provides that a person is not criminally responsible for an offence of this nature if, at the time of the conduct constituting the physical element, the person considered whether or not fact existed, and is under a mistaken but reasonable belief about those facts and, had those facts existed, the conduct would not have constituted an offence. According to subsection 13.3(2) of the Code, the person wishing to deny criminal responsibility bears an evidential burden in relation to showing a mistake of fact. It is appropriate that strict liability apply in relation to the physical elements referred to above.

Item 9

In part, subsection 56C(5) of the Act requires claimants to notify the Secretary in relation to the occurrence of particular events or circumstances if determinations of conditional eligibility under section 50F and schooling % under section 50K are in force. The information must be notified in the manner set out in a written notice given to the claimant under section 57. The information must be notified as soon as practicable after the claimant becomes aware that the event or circumstance has happened or is likely to happen. The penalty is imprisonment for 6 months.

The effect of the Item is to add subsection 56C(5A) which provides that strict liability applies to certain elements of an offence against subsection (5). Firstly, strict liability applies to the element that a determination is a determination under section 50F or 50K. The Item also provides that strict liability applies to the element that a notice is a notice given under section 57.

An individual physical element would generally qualify for application of strict liability where it describes something that a defendant would not ordinarily consider in the course of committing the offence. In those circumstances, the defendant would not have a fault element in relation to that physical element and a prosecution would be defeated if the Crown was required to demonstrate that the defendant did possess such a fault element. Where strict liability applies to an offence, the prosecution does not have to prove fault on the part of the defendant. The prosecution need only prove that the physical element of the offence did occur. However, there is a defence of mistake of fact under section 9.2 of the Code. Section 9.2 provides that a person is not criminally responsible for an offence of this nature if, at the time of the conduct constituting the physical element, the person considered whether or not fact existed, and is under a mistaken but reasonable belief about those facts and, had those facts existed, the conduct would not have constituted an offence. According to subsection 13.3(2) of the Code, the person wishing to deny criminal responsibility bears an evidential burden in relation to showing a mistake of fact. It is appropriate that strict liability apply in relation to the physical elements referred to above.

Item 10

In general terms, subsection 56C(6) of the Act requires claimants to notify the Secretary in relation to the occurrence of particular events or circumstances if:

•

a determination of conditional eligibility under section 50F is in force; and

•

the claimants rate of child care benefit is the rate determined by the Secretary under subsection 81(2) of the Family Assistance Act.

The information must be notified in the manner set out in a written notice given to the individual under section 57. The information must be notified as soon as practicable after the claimant becomes aware that the event or circumstance has happened or is likely to happen. The penalty is imprisonment for 6 months.

The effect of the Item is to add subsection 56C(6A) which provides that strict liability applies to certain elements of an offence against subsection (3). Firstly, strict liability applies to the element that a determination is a determination under section 50F. Strict liability also applies to the element that the determination of a rate is a determination under subsection 81(2) of the Act. The Item also provides that strict liability applies to the element that a notice is a notice given under section 57.

An individual physical element would generally qualify for application of strict liability where it describes something that a defendant would not ordinarily consider in the course of committing the offence. In those circumstances, the defendant would not have a fault element in relation to that physical element and a prosecution would be defeated if the Crown was required to demonstrate that the defendant did possess such a fault element. Where strict liability applies to an offence, the prosecution does not have to prove fault on the part of the defendant. The prosecution need only prove that the physical element of the offence did occur. However, there is a defence of mistake of fact under section 9.2 of the Code. Section 9.2 provides that a person is not criminally responsible for an offence of this nature if, at the time of the conduct constituting the physical element, the person considered whether or not fact existed, and is under a mistaken but reasonable belief about those facts and, had those facts existed, the conduct would not have constituted an offence. According to subsection 13.3(2) of the Code, the person wishing to deny criminal responsibility bears an evidential burden in relation to showing a mistake of fact. It is appropriate that strict liability apply in relation to the physical elements referred to above.

Item 11

In general terms, subsection 56D(1) of the Act requires an approved child care service that meets the requirements of paragraphs 56D(1)(a) to (d) to notify the Secretary in relation to the occurrence of particular events or circumstances. The information must be notified in the manner set out in a written notice given to the service under section 57. The information must be notified as soon as practicable after the service becomes aware that the event or circumstance has happened or is likely to happen. The penalty is 60 penalty units.

Paragraphs 56D(1)(a) to (c) are respectively concerned with the question of whether:

•

the service is eligible under section 47 of the Family Assistance Act for child care benefit by fee reduction;

•

a determination of a weekly limit of hours under section 54C is in force;

•

a circumstance under subsection 54(3), (5), (7), (9) or (12) or subsection 55(3), (5) or (8) of the Family Assistance Act applies.

Item 11 inserts paragraphs 56D(1A)(a) to (d) which apply strict liability to the following elements:

•

that a child care services eligibility for a child care benefit is an eligibility under section 47 of the Family Assistance Act;

•

that a determination is a determination under section 54C;

•

that a circumstance is a circumstance under subsection 54(3), (5), (7), (9) or (12) or subsection 55(3), (5) or (8) of the Family Assistance Act;

•

that a notice is a notice under section 57.

The rationale for the application of strict liability in relation to elements of this nature is discussed above (see, for example, the discussion at Item 4, 5, or 6).

Item 12

In general terms, subsection 56D(2) of the Act requires an approved child care service that meets the requirements of paragraphs 56D(2)(a) to (c) to notify the Secretary in relation to the occurrence of particular events or circumstances. The information must be notified in the manner set out in a written notice given to the service under section 57. The information must be notified as soon as practicable after the service becomes aware that the event or circumstance has happened or is likely to happen. The penalty is 60 penalty units.

Paragraphs 56D(2)(a) and (b) are respectively concerned with the question of whether:

•

the service is eligible under section 47 of the Family Assistance Act for child care benefit by fee reduction;

•

a rate, determined under subsection 81(4) of the Family Assistance Act, is in force.

Item 12 inserts paragraphs 56D(2A)(a) to (c) which apply strict liability to the following elements:

•

that a child care services eligibility for a child care benefit is an eligibility under section 47 of the Family Assistance Act;

•

that a determination of a rate is a determination under subsection 81(4) of the Family Assistance Act;

•

that a notice is a notice under section 57.

The rationale for the application of strict liability in relation to elements of this nature is discussed above (see, for example, the discussion at Item 4, 5, or 6).

Item 13

In general terms, subsection 56D(3) of the Act requires an approved child care service who meets the requirements of paragraphs 56D(3)(a) to (d) to notify the Secretary in relation to the occurrence of particular events or circumstances. The information must be notified in the manner set out in a written notice given to the service under section 57. The information must be notified as soon as practicable after the service becomes aware that the event or circumstance has happened or is likely to happen. The penalty is 60 penalty units.

Paragraphs 56D(3)(b) and (c) are respectively concerned with the question of whether:

•

a determination of conditional eligibility under section 50F is in force; and

•

the rate applicable is as determined by the Secretary under subsection 81(3) of the Family Assistance Act.

Item 13 inserts paragraphs 56D(3A)(a) to (c) which apply strict liability to the following elements:

•

that a determination is a determination under section 50F;

•

that a determination of a rate is a determination under subsection 81(3) of the Family Assistance Act;

•

that a notice is a notice given under section 57.

The rationale for the application of strict liability in relation to elements of this nature is discussed above (see, for example, the discussion at Item 4, 5, or 6).

Item 14

In general terms, where the requirements of paragraphs 56D(4)(a) to (d) of the Act are met, an approved child care service is required to notify the Secretary in relation to the occurrence of particular events or circumstances. The information must be notified in the manner set out in a written notice given to the service under section 57. The information must be notified as soon as practicable after the service becomes aware that the event or circumstance has happened or is likely to happen. The penalty is 60 penalty units.

Paragraph 56D(4)(b) is concerned with the question of whether:

•

a determination of conditional eligibility under section 50F is in force; and

•

a determination of a weekly limit of hours under section 50H is in force.

Paragraph 56D(4)(c) is concerned with the question of whether a circumstance set out in subsection 54(12) or 55(8) of the Family Assistance Act applies.

Item 14 inserts paragraphs 56D(4A)(a) to (d) which apply strict liability to the following elements:

•

that a determination is a determination under section 50F;

•

that a determination is a determination under 50H;

•

that a circumstance is a circumstance set out in subsection 54(12) or 55(8) of the Family Assistance Act; and

•

that a notice is a notice given under section 57.

The rationale for the application of strict liability in relation to elements of this nature is discussed above (see, for example, the discussion at Item 4, 5, or 6).

Item 15

In general terms, subsection 56D(5) of the Act requires an approved child care service that meets the requirements of paragraph 56D(5)(a) to notify the Secretary in relation to the occurrence of particular events or circumstances. The information must be notified in the manner set out in a written notice given to the service under section 57. The information must be notified as soon as practicable after the service becomes aware that the event or circumstance has happened or is likely to happen. The penalty is 60 penalty units.

Paragraph 56D(5)(a) is concerned with the question of whether a determination under section 57 of the Family Assistance Act is in force.

Item 15 inserts paragraphs 56D(5A)(a) and (b) which apply strict liability in relation to the following elements:

•

that a determination is a determination under section 57 of the Family Assistance Act;

•

that a notice is a notice given under section 57.

The rationale for the application of strict liability in relation to elements of this nature is discussed above (see, for example, the discussion at Item 4, 5, or 6).

Item 16

Sections 5, 7, 7A, 14, 15D and 86 of the Crimes Act 1914 (the Crimes Act) are being replaced in effect by sections 10.5, 11.1, 11.2, 11.4, 11.5, 13.3, 13.4 and 13.5 of the Code. As paragraph 75(c) contains references to some of those Crimes Act provisions, Item 16 repeals paragraph 75(c) and substitutes a new provision that contains references to the relevant Code provisions.

Item 17

Subsection 133(1) provides that the Executive Director may make an order in certain circumstances. Subsection 133(2) provides that a person who contravenes an order under subsection (1) is guilty of an offence. The effect of Item 17 is to apply strict liability to subsection (2) to the element of an offence against subsection (2) that an order is an order under subsection (1).

The rationale for the application of strict liability in relation to elements of this nature is discussed above (see, for example, the discussion at Item 4, 5, or 6).

Item 18

The Item recreates the offence provided for by existing section 159 by removing the defences from the offence provision - the defences being without reasonable excuse and to the extent that the person is capable of complying with the requirement. The offence is that a person must not refuse or fail to comply with a requirement under Division 1 to give information or produce a document. The penalty is imprisonment for 12 months.

The defence of a person not being capable of complying with the requirement is recreated in new subsection 159(2). The defence of a person having a reasonable excuse is recreated in new subsection 159(3).

The rationale for these amendments is to prevent any future interpretation that without reasonable excuse and being not capable of complying are elements of the offence, which would have to be disproved by the prosecution. The amendments put it beyond doubt that having a reasonable excuse or not being capable of complying with the requirement is a defence to the offence. Pursuant to subsection 13.3(3) of the Code, a defendant who wishes to rely on such defences bears an evidential burden in relation to the defence.

New subsection 159(4) provides that strict liability applies to the element of an offence against subsection 159(1) that a requirement is a requirement under Division 1. The rationale for the application of strict liability in relation to elements of this nature is discussed above (see, for example, the discussion at Item 4, 5, or 6).

Item 19

Section 163 creates an offence in relation to unauthorised access to protected information. The Item recreates the offence by removing the defence of lawful authority. Under section 10.5 of the Code there is a general defence which provides that a person is not criminally responsible for an offence if the conduct constituting the offence is justified or excused by a law.

New subsection 163(2) provides that strict liability applies to the element of an offence against subsection (1) that a person not authorised to do something is not authorised under the family assistance law to do that thing. The rationale for the application of strict liability in relation to elements of this nature is discussed above (see, for example, the discussion at Item 4, 5, or 6).

Item 20

Section 164 creates an offence in relation to unauthorised use of protected information. One element of the offence, set out at paragraph 164(1)(b), is that the person is not authorised or required under:

i.

the family assistance law;

ii.

the Social Security Act 1991 ; or

iii.

the Social Security (Administration) Act 1999 ;

to record, disclose or use the information.

New subsection 164(2) provides that strict liability applies to the element of an offence against subsection (1) that a person not authorised or required to do something is not authorised or required to do that thing under:

i.

the family assistance law;

ii.

the Social Security Act 1991 ; or

iii.

the Social Security (Administration) Act 1999.

The rationale for the application of strict liability in relation to elements of this nature is discussed above (see, for example, the discussion at Item 4, 5, or 6).

Item 21

Section 165 creates an offence in relation to soliciting the disclosure of protected information. One element of the offence, set out at paragraph 165(b), is that the disclosure would be in contravention of Division 2. This Item inserts new subsection 165(2) which provides that strict liability applies in relation to paragraph 165(1)(b). The rationale for the application of strict liability in relation to elements of this nature is discussed above (see, for example, the discussion at Item 4, 5, or 6).

Item 22

Section 172 is concerned with the making of false statements in connection with a claim. Currently the section applies the fault elements of knowledge (or "knowingly") and recklessness (or recklessly) in relation to the proscribed physical element of conduct, namely making a statement. Following application of the Code, the fault elements of knowledge and recklessness will be restricted to physical elements of circumstance or result, and intention will be the sole fault element that can be applied to a physical element of conduct: see Division 5 of Part 2.2 of the Code. Applying "knowingly" to a physical element of conduct in the pre-Code environment is equivalent to applying the fault element of intention. This Item recreates the offence so that intention is the fault element in relation to the physical element of conduct. The offence is recreated so that the fault element of recklessness applies in relation to other physical elements.

Item 23

Section 173 is also concerned with the making of false statements. Currently the section applies the fault elements of knowledge (or "knowingly") and recklessness (or recklessly) in relation to the proscribed physical element of conduct, namely making a statement. Following application of the Code, the fault elements of knowledge and recklessness will be restricted to physical elements of circumstance or result, and intention will be the sole fault element that can be applied to a physical element of conduct: see Division 5 of Part 2.2 of the Code. Applying "knowingly" to a physical element of conduct in the pre-Code environment is equivalent to applying the fault element of intention. This Item recreates the offence so that intention is the fault element in relation to the physical element of conduct. The offence is recreated so that the fault element of recklessness applies in relation to other physical elements.

For the purposes of an offence against section 177 that relates to a contravention of subsection 173(1), new subsection (2) provides for strict liability to apply to the elements set out in paragraphs (2)(a) and (2)(b). The rationale for the application of strict liability in relation to elements of this nature is discussed above (see, for example, the discussion at Item 4, 5, or 6).

Item 24

Section 174 is concerned with the making of false statements or producing documents that are false. Currently the section applies the fault elements of knowledge (or "knowingly") and recklessness (or recklessly) in relation to the proscribed physical element of conduct, namely making a statement. Following application of the Code, the fault elements of knowledge and recklessness will be restricted to physical elements of circumstance or result, and intention will be the sole fault element that can be applied to a physical element of conduct: see Division 5 of Part 2.2 of the Code. Applying "knowingly" to a physical element of conduct in the pre-Code environment is equivalent to applying the fault element of intention. This Item recreates the offence so that intention is the fault element in relation to the physical element of conduct. The offence is recreated so that the fault element of recklessness applies in relation to other physical elements.

The broad effect of paragraph 174(1)(a) is that the statement or document must be given to an officer or an approved child care service exercising powers or performing duties or functions under the family assistance law. For the purposes of an offence against section 177 that relates to a contravention of subsection 174(1), new subsection (2) provides for strict liability to apply to the element of the offence that a power, duty or function is a power, duty or function under the family assistance law. The rationale for the application of strict liability in relation to elements of this nature is discussed above (see, for example, the discussion at Item 4, 5, or 6).

Item 25

In broad terms, section 175 creates an offence where a person knowingly obtains a payment of family assistance to which the person is not entitled or only entitled in part. The section applies the fault element of knowledge (or "knowingly") in relation to the proscribed physical element of conduct, namely obtaining the payment. Following application of the Code, the fault element of knowledge will be restricted to physical elements of circumstance or result, and intention will be the sole fault element that can be applied to a physical element of conduct: see Division 5 of Part 2.2 of the Code. Applying "knowingly" to a physical element of conduct in the pre-Code environment is equivalent to applying the fault element of intention. This Item recreates the offence by omitting the word knowingly so that intention is the fault element in relation to the physical element of conduct. The offence is recreated so that the fault element of knowledge applies in relation to other physical elements.

Item 26

In broad terms, subsections 175A(1) to (3) create an offence for an individual or an approved child care service to knowingly obtain certain benefits. The subsections apply the fault element of knowledge (or "knowingly") in relation to the proscribed physical element of conduct, namely obtaining the relevant benefits. Following application of the Code, the fault element of knowledge will be restricted to physical elements of circumstance or result, and intention will be the sole fault element that can be applied to a physical element of conduct: see Division 5 of Part 2.2 of the Code. Applying "knowingly" to a physical element of conduct in the pre-Code environment is equivalent to applying the fault element of intention. This Item recreates the offence by omitting the word knowingly so that intention is the fault element in relation to the physical element of conduct.

Item 27

In broad terms, subsection 175A(3) provides that, if an approved child care service is not eligible under section 47 of the Family Assistance Act for child care benefit, the service must not obtain an amount of an advance paid under section 219R. For the purposes of an offence against section 177 that relates to a contravention of subsection 175A(3), new subsection (3A) provides for strict liability to apply to the elements set out in paragraphs (3A)(a) and (3A)(b). The rationale for the application of strict liability in relation to elements of this nature is discussed above (see, for example, the discussion at Item 4, 5, or 6).

Item 28

In broad terms, subsection 175A(4) creates an offence for an approved child care service to knowingly obtain certain benefits. The subsection applies the fault element of knowledge (or "knowingly") in relation to the proscribed physical element of conduct, namely obtaining the relevant benefits. Following application of the Code, the fault element of knowledge will be restricted to physical elements of circumstance or result, and intention will be the sole fault element that can be applied to a physical element of conduct: see Division 5 of Part 2.2 of the Code. Applying "knowingly" to a physical element of conduct in the pre-Code environment is equivalent to applying the fault element of intention. This Item recreates the offence by omitting the word knowingly so that intention is the fault element in relation to the physical element of conduct.

Item 29

In broad terms, subsection 175A(4) provides that, if an approved child care service is eligible under section 47 of the Family Assistance Act for child care benefit, the service must not obtain an incorrect amount of an advance paid under section 219R. For the purposes of an offence against section 177 that relates to a contravention of subsection 175(4), new subsection (4A) provides for strict liability to apply to the elements set out in paragraphs (4A)(a) and (4A)(b). The rationale for the application of strict liability in relation to elements of this nature is discussed above (see, for example, the discussion at Item 4, 5, or 6).

Item 30

In broad terms, section 176 deals with payments or fee reductions obtained by fraud. At present, the section applies the fault element of knowledge (or "knowingly") in relation to the proscribed physical element of conduct, namely obtaining one of the benefits set out in paragraphs (a) to (c). Following application of the Code, the fault element of knowledge will be restricted to physical elements of circumstance or result, and intention will be the sole fault element that can be applied to a physical element of conduct: see Division 5 of Part 2.2 of the Code. Applying "knowingly" to a physical element of conduct in the pre-Code environment is equivalent to applying the fault element of intention. This Item recreates the offence by, firstly, omitting the word knowingly so that intention is the fault element in relation to the physical element of conduct.

The Item also recreates the offence by separately providing for situations where the relevant benefits are obtained as a result of false or misleading statements. Currently the effect of paragraph (d) is to apply the fault elements of knowledge (or "knowingly") and recklessness (or recklessly) in relation to the proscribed physical element of conduct, namely making a statement. Following application of the Code, the fault elements of knowledge and recklessness will be restricted to physical elements of circumstance or result, and intention will be the sole fault element that can be applied to a physical element of conduct: see Division 5 of Part 2.2 of the Code. Applying "knowingly" to a physical element of conduct in the pre-Code environment is equivalent to applying the fault element of intention. This Item recreates the offence so that intention is the fault element in relation to the physical element of conduct. The offence is recreated so that the fault element of recklessness applies in relation to other physical elements.

Subparagraphs 176(1)(a)(iii) and (3)(d)(iii) are concerned with situations involving payment of an amount of an advance paid under section 219R. For the purposes of an offence against section 177 that relates to a contravention of subsections 175(1) or (3), new subsections (2) and (4) respectively provide for strict liability to apply to the element of the offence that an amount of an advance paid to reimburse a service is an amount paid under section 219R. The rationale for the application of strict liability in relation to elements of this nature is discussed above (see, for example, the discussion at Item 4, 5, or 6).

Item 31

Currently the heading to Part 7 includes a reference to the liability of corporations. As it is proposed that the relevant provisions of the family assistance law be repealed so that Part 2.5 of the Code applies in relation to corporations, this Item omits the reference to liability of corporations.

Item 32

This Item repeals sections 186 to 188. Existing section 186 is concerned with the term director of a corporation while section 187 deals with the term engaging in conduct. These provisions are repealed as it is intended that the provisions of the Code which cover the subject matter of these provisions be applied in relation to the family assistance law.

Sections 5, 7, 7A, 14, 15D and 86 of the Crimes Act are being replaced in effect by sections 10.5, 11.1, 11.2, 11.4, 11.5, 13.3, 13.4 and 13.5 of the Code. As section 188 contains references to some of those Crimes Act provisions, Item 32 repeals section 188 and substitutes a new provision that contains references to the relevant Code provisions.

Item 33

Division 2 of Part 7 deals with proceedings against corporations. This Item repeals the Division as it is intended that Part 2.5 of the Code, which deals with corporate criminal responsibility, apply in relation to corporate offences under the family assistance law.

Item 34

Subsection 219A(2) sets out the obligations that apply to an approved child care service that receives certain notices or gives a certificate under the family assistance law. This Item applies strict liability in respect of that subsection as it is considered that the provision presently attracts strict liability. The provision is expressed in mandatory language and does not imply that proof of fault is required. The penalty is monetary only.

Item 35

Subsection 219B(1) sets out the obligations that apply to an approved child care service that is eligible under section 47 of the Family Assistance Act for child care benefit by fee reduction. This Item applies strict liability in respect of that subsection as it is considered that the provision presently attracts strict liability. The provision is expressed in mandatory language and does not imply that proof of fault is required. The penalty is monetary only.

Item 36

Section 219C creates an obligation for approved child care services to pay amounts to individuals where certain conditions are met. This Item applies strict liability in respect of that section as it is considered that the provision presently attracts strict liability. The provision is expressed in mandatory language and does not imply that proof of fault is required. The penalty is monetary only.

Item 37

Subsections 219D(1) and (2) create certain obligations where an approved child care service receives notice that its approval has been suspended or cancelled (subsection (1)) or that its suspension has been revoked (subsection (2)). This Item applies strict liability in respect of those subsections as it is considered that the provisions presently attract strict liability. The provisions are expressed in mandatory language and do not imply that proof of fault is required. The penalty is monetary only.

Item 38

Subsection 219E(1) creates an obligation for approved child care services to issue receipts containing certain information. This Item applies strict liability in respect of that subsection as it is considered that the provision presently attracts strict liability. The provision is expressed in mandatory language and does not imply that proof of fault is required. The penalty is monetary only.

Item 39

Subsection 219F(1) provides that an approved child care service must keep certain records and subsection 219F(2) provides that the records must be kept for 36 months. This Item applies strict liability in respect of those subsections as it is considered that the provisions presently attract strict liability. The provisions are expressed in mandatory language and do not imply that proof of fault is required. The penalty is monetary only.

Item 40

Subsection 219F(1) requires a person who operates an approved child care service to keep records in certain circumstances. This Item applies strict liability in respect of that subsection as it is considered that the provision presently attracts strict liability. The provision is expressed in mandatory language and does not imply that proof of fault is required. The penalty is monetary only.

Item 41

Subsections 219L(1) and (2) require the occupier of premises to produce documents to an authorised officer in certain circumstances. Subsection 219L(3) states that the occupier must assist the officer with certain matters. This Item applies strict liability in respect of those subsections as it is considered that the provisions presently attracts strict liability. The provisions are expressed in mandatory language and do not imply that proof of fault is required. The penalty is monetary only.

Data-matching Program (Assistance and Tax) Act 1990

Item 68

This Item inserts proposed section 2A which applies Chapter 2 of the Code to the above Act. Chapter 2 establishes the codified general principles of criminal responsibility.

Item 69

Section 15 provides that a person must not make a record or disclose information except:

(a)

in the course of carrying out functions and duties under this Act; or

(b)

with the consent of the person to whom the information relates.

The penalty for contravention is imprisonment for 2 years.

The Item recreates the offence in section 15 by removing the defences from the offence provision. The rationale for this approach is to prevent any future interpretation that those defences are elements of the offence, which would have to be disproved in the negative by the prosecution. The amendments put it beyond doubt that recording or disclosing information is not an offence where that disclosure or recording occurs in the circumstances contemplated by either paragraph (a) or (b) above. Pursuant to subsection 13.3(3) of the Code, a defendant who wishes to rely on such defences bears an evidential burden in relation to the defence.