The Senate

Explanatory Memorandum

(Circulated by authority of the Minister for Industry, Science and Resources, Senator the Hon Nick Minchin)

General Outline

The purpose of this bill is to make consequential amendments to certain offence provisions in legislation administered within the Industry, Science and Resources portfolio to reflect the application of the Criminal Code Act 1995 (the Code).

The Code is Commonwealth legislation, which will alter the way in which criminal offence provisions are interpreted, including offences contained in legislation for which the Industry, Science and Resources portfolio is responsible. While the Code was passed in 1995, it commenced to apply to new offences from 1 January 1997. All new offences are now drafted according to the requirements of the Code. Staggered implementation was considered necessary in relation to existing offences to provide departments with sufficient time to assess the effect of the Code on their offence provisions, and to make any amendments necessary to their legislation. The Code is scheduled to apply to existing offences from 15 December 2001.

If legislation containing offence provisions is not amended to have regard to the Code, the Code may alter the interpretation of existing offence provisions. The Code contains subjective, fault-based principles of criminal responsibility. The defendant's guilt will depend on what he or she thought or intended at the time of the offence, rather than what a reasonable person would have thought or intended in the defendant's circumstances. The changes to be brought about by the Code reflect the view that proof of a guilty mind is generally necessary before a person can be found guilty of an offence.

The most significant effect of the Code is that it clarifies the traditional distinction between the actus reus (the physical act, now referred to as the physical element) and the mens rea (what the defendant thought or intended, now referred to as the fault element) and sets out this distinction in the Code.

The prosecution bears the onus of proving each of the physical elements. The physical elements provided in the Code are the conduct, the circumstance in which it occurs, and the result of the conduct. Each offence must contain at least one of these physical elements, but any combination of physical elements may be present in an offence provision. For every physical element of an offence, the prosecution must also prove a corresponding fault element. The Code does not prevent an offence from specifying an alternative fault element, but the Code indicates that the default fault element will apply in the absence of a specified fault element. The Code establishes four default fault elements: intention, knowledge, recklessness and negligence. The Code provides that for conduct, the default fault element is intention. For circumstance or result, the default fault element is recklessness.

The Industry, Science and Resources Legislation (Application of Criminal Code) Bill 2001 makes amendments to the Atomic Energy Act 1953 , Bounty and Capitalisation Grants (Textile Yarns) Act 1981 , Bounty (Bed Sheeting) Act 1977 , Bounty (Books) Act 1986, Bounty (Citric Acid) Act 1991 , Bounty (Computers) Act 1984 , Bounty (Fuel Ethanol) Act 1994 , Bounty (Machine Tools and Robots) Act 1985 , Bounty (Photographic Film) Act 1989 , Bounty (Printed Fabrics) Act 1981 , Bounty (Ships) Act 1989 , Designs Act 1906, Liquefied Petroleum Gas (Grants) Act 1980 , Liquid Fuel Emergency Act 1984 , Management and Investment Companies Act 1983 , National Measurement Act 1960 , Offshore Minerals Act 1994 , Patents Act 1990 , Petroleum Excise (Prices) Act 1987 , Petroleum Retail Marketing Sites Act 1980 , Petroleum (Submerged Lands) Act 1967 , Petroleum (Timor Gap Zone of Cooperation) Act 1990 , Pooled Development Funds Act 1992 , Scout Association Act 1924 , Trade Marks Act 1995 and the Tradex Scheme Act 1999 .

Amendments arise from:

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specifying that an offence is one of strict liability (with an express statement on the face of the offence that is an offence of strict liability, referring to section 60 of the Criminal Code );

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restructuring offence provisions which include an inappropriate fault element for conduct;

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restructuring offence provisions which include an inappropriate fault element for circumstance;

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restructuring offence provisions where part of the conduct element of the offence includes breach of a condition;

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restructuring offence provisions to proscribe the actions of a person whose conduct causes damage, injury, destruction or obliteration of prescribed property;

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restructuring criminal offence provisions containing a defence, by putting the defence provisions in separate subsections, in order to avoid a defence being mistakenly interpreted to be part of the elements of the offence;

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specifying whether a defence places a legal or evidential burden on a defendant;

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restructuring an offence to resolve an internal conflict between the offence and the complicity provision of the Criminal Code ;

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restructuring ancillary offence provisions so as to apply the relevant ancillary provisions of the Criminal Code ;

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extension of meaning of engaging in conduct to include omissions;

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restructuring offence provisions so as not to require knowledge of law;

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specifying in provisions which establish criminal responsibility for corporations whether or not Part 20 of the Criminal Code (dealing with corporate criminal responsibility) is applicable.

The approach in this Bill is to make the minimal amendments necessary to enable offences to operate in the same way after the Criminal Code comes into effect as they operate before the Criminal Code applies.

Financial Impact Statement

The Bill is not expected to have any significant financial impact on Commonwealth expenditure or revenue.