Explanatory Memorandum
(Circulated by authority of the Attorney-General, Senator the Hon George Brandis QC)Schedule 4 - Guilty of an offence
48 Many Commonwealth Acts contain provisions creating a criminal offence using the expression "A person is guilty of an offence". Current Commonwealth drafting practice is to use the expression "A person commits an offence", which recognises that it is the role of the courts to find persons guilty of an offence. This was acknowledged by Justice Deane in the High Court decision of Polyukhovich v Commonwealth (1991) 101 ALR 545. The items in this Schedule update existing provisions to accord with current Commonwealth drafting practice.
49 Item 332 also remakes subsection 166(3) of the A New Tax System (Family Assistance) (Administration) Act 1999 to modernise the expression of the provision so that instead of stating that nothing in subsection 166(1) or (2) "has the effect that" an officer acting in the performance or exercise of his or her powers, duties or functions under the family assistance law commits an offence rather than stating that nothing in subsection 166(1) or (2) "makes" an officer acting in the performance or exercise of his or her powers, duties or functions under the family assistance law guilty of an offence. Items 338, 428 and 430 make similar modernisations, replacing "renders" with "has the effect that".
50 Other amendments make minor changes to modernise the expression of provisions, such as changing "shall be" to "is" and "deemed" to "is taken to" and to make grammatical corrections.
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