House of Representatives

Explanatory Memorandum

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

Schedule 2 - Student Assistance Act 1973

Item 1

Inserts a new section 5E, which applies Chapter 2 (except Part 2.5) of the Criminal Code to all offences created by the Act. Chapter 2 establishes the codified general principles of criminal responsibility while Part 2.5 of Chapter 2 establishes the general principles of corporate criminal responsibility. Part 2.5 of Chapter 2 of the Criminal Code has been excluded in favour of retaining the existing corporate criminal responsibility provision established by section 50 of the Act.

Items 2 and 3

These items have the effect of removing from subsection 12ZU(4) the defences to the offence of an officer divulging information obtained in the course of his/her employment, and recreating them in a new subsection 12ZU(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 12ZU(4A) carries an evidential burden.

Item 3 also inserts a new subsection 12ZU(4B), which specifies that the offence in subsection 12ZU(4) attracts strict liability in respect of the physical element of circumstance that information was disclosed or obtained under or for the purposes of Division 6 of Part 4A 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).

Items 4 and 5

These items remove the defence of reasonable excuse from subsection 42(5) and recreate it in a new subsection 42(5A). The rationale for this amendment is to prevent the provision from being interpreted in such a way as to include the reasonable excuse element of the provision as an element of the offence, which would have to be disproved by the prosecution. The amendment makes it clear that reasonable excuse is 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 reasonable excuse defence carries an evidential burden.

Items 6 and 7

These items remove the defence of reasonable excuse from subsection 49(1) and recreate it in a new subsection 49(1A). The rationale for this amendment is to prevent the provision from being interpreted in such a way as to include the reasonable excuse element of the provision as an element of the offence, which would have to be disproved by the prosecution. The amendment makes it clear that reasonable excuse is 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 reasonable excuse defence carries an evidential burden.

Item 8

This item has the effect of removing from subsection 347(10) the defences to the offence of failing to comply with a requirement made under section 343, 344 or 345 and recreating them in new subsections 347(11) and (12). The rationale for this amendment is to prevent subsection 347(10) 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 each of 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 the relevant subsection carries an evidential burden.

Item 8 also inserts a new subsection 347(13), which specifies that the offence in subsection 347(10) is an offence of strict liability in respect of the physical element of circumstance that the requirement was made under section 343, 344 or 345 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).

Items 9 and 10

Repeal paragraphs 352(b) and 353(b) respectively in favour of relying on the Criminal Codes general defence of lawful authority (see section 10.5 of the Code) as a defence to the offence of unauthorised access to protected information.

Item 11

Inserts a new subsection 357(2), which specifies that the offence of soliciting the disclosure of protected information from an officer or another person in subsection 357(1) is an offence of strict liability in respect of the physical element of circumstance that the contravention is a contravention of Division 3 of Part 10 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).

Item 12

This item replaces paragraph 358(b) with a new paragraph to make it clear that it is the intention held by the defendant that is the key element in the offence of making untrue representations for the purpose of soliciting the disclosure of protected information from an officer.