House of Representatives

Explanatory Memorandum

(Circulated by authority of the Minister for Education, Training and Youth Affairs the Hon Dr David Kemp MP)

Schedule 1 - Higher Education Funding Act 1988

Item 1

Inserts a new section 11, which applies Chapter 2 of the Criminal Code to all offences against the Act. Chapter 2 establishes the codified general principles of criminal responsibility.

Item 2

This item has the effect of removing the defences to the offence of requiring or requesting a student to quote his or her tax file number from subsection 52(1) and recreating them in a new subsection 52(1A). The rationale for this amendment is to prevent the provision from being interpreted in such a way as to include the defence elements of the provision as elements of the offence, which would have to be disproved by the prosecution. The amendment makes it clear that these elements are a defence to the offence. A standard note is added after the new subsection referring to the fact that under subsection 13.3(3) of the Criminal Code, a defendant seeking to rely on the defences in new subsection 52(1A) carries an evidential burden.

Item 3

This item has the effect of removing the defences to the offence of unauthorised recording, use and divulgence of a students tax file number from subsection 53(1) and recreating them in new subsections 53(1A) and (1B). The rationale for this amendment is to prevent the provision from being interpreted in such a way as to include the defence elements of the provision as elements of the offence, which would have to be disproved by the prosecution. The amendment makes it clear that these elements are a defence to the offence. A standard note is added after the new subsections referring to the fact that under subsection 13.3(3) of the Criminal Code, a defendant seeking to rely on the defences in new subsections 53(1A) and (1B) carries an evidential burden.

Items 4 and 5

These items have the effect of removing from subsection 78(4) the defences to the offence of an officer recording or divulging information obtained in the course of his/her employment, and recreating them in a new subsection 78(4A). The rationale for this amendment is to prevent the provision from being interpreted in such a way as to include the defence elements of the provision as elements of the offence, which would have to be disproved by the prosecution. The amendment makes it clear that these elements are a defence to the offence. A standard note is added after the new subsection referring to the fact that under subsection 13.3(3) of the Criminal Code, a defendant seeking to rely on the defences in new subsection 78(4A) carries an evidential burden.

Item 5 also inserts a new subsection 78(4B), which specifies that the offence in subsection 78(4) attracts strict liability in respect of the physical element of circumstance that information was disclosed or obtained under or for the purposes of Chapter 4 of the Act. Where strict liability applies to an offence the prosecution does not have to prove fault on the part of the defendant in relation to that physical element. A defence of mistake of fact is open to the defendant under section 9.2 of the Criminal Code . This defence is available if a person is under a mistaken but reasonable belief about a fact and, had that fact existed, the conduct would not constitute an offence. Under the Criminal Code , any legislative provision that attracts strict liability must expressly state that it is an offence of strict liability (see section 6.1 of the Code).