1998-1999-2000-2001

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

HOUSE OF REPRESENTATIVES

EMPLOYMENT, WORKPLACE RELATIONS AND SMALL BUSINESS LEGISLATION AMENDMENT (APPLICATION OF CRIMINAL CODE) BILL 2001

EXPLANATORY MEMORANDUM

(Circulated by authority of the Minister for Employment, Workplace Relations 
and Small Business, the Honourable Tony Abbott MP)

EMPLOYMENT, WORKPLACE RELATIONS AND SMALL BUSINESS LEGISLATION AMENDMENT (APPLICATION OF CRIMINAL CODE) BILL 2001

OUTLINE

The purpose of this Bill is to make consequential amendments to certain offence provisions in legislation administered by the Minister for Employment, Workplace Relations and Small Business, to reflect the application of the Criminal Code Act 1995.

The Criminal Code Act 1995

This Bill amends 16 Employment, Workplace Relations and Small Business portfolio statutes by harmonising various offences and related provisions with Chapter 2 of the Criminal Code Act 1995.  The amendments are to ensure that the relevant offences continue to have much the same meaning and to operate in the same manner as they do at present.  The Criminal Code contains a standard approach to the formulation of criminal offences.  Offences developed over many years as part of the Commonwealth statute book are by no means standard and it is therefore necessary to make adjustment for when the Criminal Code applies to all Commonwealth offences on 15 December 2001 (as provided for in the Criminal Code Amendment (Application) Act 2000).  The Bill is one of a number being prepared for offences administered by other Ministers.

The application of the Criminal Code to all offences will improve Commonwealth criminal law by clarifying important elements of offences, in particular, the fault elements.  The proposed amendments have been kept to a minimum.  The aim of the Bill is simply to ensure that existing offences operate in much the same way as they do now.  However, there will be occasions where the operation of existing offences will be uncertain.  The amendments will therefore sometimes involve judgment about the likely effect of existing offences.  Where this occurs it will provide much needed clarification of the meaning of the relevant provisions.

The effect of the Bill is to harmonise all offence-creating and related provisions within the Employment, Workplace Relations and Small Business portfolio with the general principles of criminal responsibility as codified in Chapter 2 of the Criminal Code.  The major forms of amendment effected by this Bill are:

-	applying the Criminal Code to all offence-creating and related provisions in the DEWRSB portfolio;
-	removing the defences of lawful excuse and lawful authority specific to individual provisions and instead relying on the Criminal Code’s general defence of lawful authority and lawful excuse; 
-	better identifying exceptions and defences;
-	deleting references to sections 7, 7A and 86 of the Crimes Act 1914 and replacing these with references to equivalent Criminal Code provisions where appropriate;
-	applying strict liability to individual offences or specified physical elements of offences where appropriate;
-	reconstructing provisions in order to clarify physical elements of conduct, circumstance and result; and
-	removing or replacing inappropriate fault elements.  

General principles of criminal responsibility

The Bill applies Chapter 2 of the Criminal Code to DEWRSB Acts.  Chapter 2 of the Code deals with general principles of criminal responsibility.  The Code clarifies the common law that criminal offences consist of “guilty thoughts” and “guilty acts” (mens rea and actus rea).  The Code calls these fault elements and physical elements.  

The Code establishes what can be fault elements and what can be physical elements.  Fault elements can be intention, knowledge, recklessness or negligence.  Physical elements can be conduct, a circumstance in which conduct occurs or a result of conduct.  The Code makes it clear that 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 in relation to the physical element of conduct.

If an offence does not provide specifically for a fault element in respect of a physical element, the Code applies a default fault element – intention for conduct and recklessness for circumstance or result.

Many offences are already clear on their face or would fit appropriately with the Code provisions without amendment.  Some, however, require adjustment.

Strict liability

Strict liability is described in Section 6.1 of the Criminal Code.  

Where strict liability applies to an offence, the prosecution does not have to prove fault on the part of the defendant in relation to the physical element of the offence.  It means that the prosecution does not have to prove that the person had any particular state of mind.  For an offence of strict liability the defence of reasonable mistake of fact under section 9.2 of the Criminal Code is available.  Section 9.2 provides that a person is not criminally responsible for an offence of this nature if at or before the time of the conduct the person considered whether or not a relevant fact existed and is under a mistaken but reasonable belief about that fact and, had that fact existed, the conduct would not constitute an offence.  

If there is a mistake of fact, the evidential burden of proof is on the defence.  This means that the defendant has to adduce or point to evidence that suggests a reasonable possibility that the matter exists or does not exist.  If the defendant is able to do this, the prosecution is required to prove beyond reasonable doubt that there was no such mistake.

The Criminal Code requires that provisions that create an offence of strict liability must expressly state that they are strict liability offences.  If the provision does not expressly state this, the offence is not a strict liability offence.

Those amendments inserting a provision for each strict liability offence in the legislation to be amended by this Bill do not create new offences of strict liability.  They are simply identifying the current strict liability offences and ensuring that they will continue to operate as strict liability offences following the application of the Criminal Code.

There are several indicia which have been used to identify offences as offences of strict liability which include the following.

•	The existence of regulatory obligations, which could be difficult to establish if the prosecution was required to prove intention on the part of the defendant.  These are the type of obligations usually interpreted to mean that the legislature intended that strict liability should apply.

•	The language of the statute.  The most meaningful indicators are the implicit wording of other offences in the same provision, use of the term “without reasonable excuse” or some other express defence which implies fault need not be proved.

•	Penalties which are low in monetary terms or which provide for 6 months imprisonment or less.

•	Subject matter – including the regulation of social or industrial conditions (health and safety) where physical injury to a person or something of special value is involved (particularly where the penalty is monetary and not too large).

•	Certain specific elements of offences, which the prosecution would not otherwise be required to prove under the existing law.  Subsection 6.1(2) of the Criminal Code provides that strict liability may be isolated to a particular element of the offence.  There are cases where this is appropriate even though the penalties involve significant terms of imprisonment.  This is because fault is required to be proved in relation to other elements that are more critical to the person’s culpability and the existing law does not require intention or knowledge about the particular element.  

Amendment of inappropriate fault elements – “wilfully”, “knowingly”, “recklessly” and “intentionally or recklessly”

The Criminal Code provides fault elements of intention, knowledge, recklessness and negligence and prescribes the manner in which each fault element can be applied to a physical element of an offence.  Some existing criminal offences in DEWRSB portfolio legislation apply inappropriate fault elements - in particular knowledge and recklessness - to physical elements of conduct.  The Bill will replace such inappropriate fault elements with the Criminal Code fault element of “intention” and, where necessary, reconstruct offence provisions to preserve the operation of existing fault elements.  

“Wilfully”

Some current provisions use the non-Criminal Code fault element “wilfully” in relation to the physical element of conduct.  This is equivalent to applying the Criminal Code fault element of intention.  The Criminal Code allows the use of new fault elements (subsection 5.1(2)) and current offences would possibly still operate in the same manner following application of the Criminal Code.

 However it is also possible that future courts may attempt to distinguish “wilfulness” from intention on the basis that wilfulness appears to differ from the basic Criminal Code fault element.  Accordingly this Bill proposes the replacement of “wilfully” in relevant sections by the appropriate and equivalent Criminal Code fault element, namely intention.  It is considered that such provisions will continue to operate in the same manner as at present following this amendment.

“Knowingly”

Following application of the Criminal Code, the fault element of “knowledge” will be restricted to physical elements of circumstance or result, and intention will be the sole Criminal Code fault element that can be applied to a physical element of conduct: see sections 5.2 and 5.3 of the Criminal Code.  Applying “knowingly” to a physical element of conduct in the pre-Criminal Code environment is equivalent to applying the Criminal Code fault element of intention.  Accordingly this Bill proposes the replacement of “knowingly” with the appropriate and equivalent fault element, namely intention.  It is considered that affected provisions will continue to operate in the same manner as at present following this amendment.

“Recklessly”

Some provisions use the fault element of “recklessness” in relation to the proscribed conduct.
As with the application of knowledge to a physical element of conduct, it will not be possible to apply a fault element of recklessness (ie “recklessly”) to a physical element consisting of conduct following application of the Criminal Code:  see Part 2.2 Division 5 of the Criminal Code generally.  The fault element of recklessness can only be applied to physical elements of circumstance or result.  

Accordingly, it is proposed to amend the relevant provisions, as the word “recklessly”, in its current operation, will be of no effect following application of the Criminal Code.  In order to retain a fault element of recklessness in relation to those offences, it is proposed to reconstruct the offence provisions in such a way that recklessness attaches to an identifiable physical element of circumstance or result.  Such a fault element will attach by default to physical elements of circumstance or result in the absence of other provisions: see subsection 5.6(2) of the Criminal Code.

“Intentionally or recklessly”

Following application of the Criminal Code, the fault element of “recklessness” will be restricted to the physical elements of circumstance or result, and intention will be the Criminal Code fault element that can be applied to a physical element of conduct:  see section 5.2 and 5.3 of the Criminal Code.  At present when faced with a prosecution under a provision containing all of the physical elements in the same offence creating provision, a court would only be able to give effect to the fault element of “recklessly” if there is a circumstance or result element in the offence.  If there are no circumstance or result elements in the offence then “recklessly” would be of no effect.

The Bill proposes the deletion of “intentionally or recklessly” from a number of provisions.  The Criminal Code’s default fault provision (see section 5.6) will preserve the operation of the fault element of recklessness in relation to the physical elements of circumstance or result so that in fact the same outcome would be arrived at under the Criminal Code.  Similarly, the fault element of intention will still continue to apply to the physical elements of conduct by virtue of Criminal Code section 5.6.  This amendment will ensure that these offences continue to operate in the same manner as at present.  

Lawful excuse defence

The general defences of lawful excuse and lawful authority have been inserted into Chapter 2 of the Criminal Code (refer section 10.5).  Section 10.5 will be progressively made applicable to all offences under Commonwealth law.  Therefore the specific defences of  specific lawful excuse and lawful authority in current provisions will become unnecessary.  Following application of the Criminal Code, the accused will incur an evidential burden in establishing the defence under section 10.5, namely the burden of adducing evidence that suggests a reasonable possibility that the defence exists (subsections 13.3(3) and 13.3(6) of the Criminal Code).  

Aid, abet, counsel or procure

Section 11.2 of the Criminal Code creates an offence of aiding, abetting, counselling or procuring the commission of an offence by another person.  It replaces section 5 of the Crimes Act 1914.  Consequentially the reference to “procuring” in the provision will be superfluous following application of the Criminal Code and it is proposed that it be repealed.

Destroying, damaging, injuring person or property

Where provisions use the phrases “destroy, deface, alter, etc” and “destroy, take, open etc”, they will be amended to remove the active verbs and rephrased to proscribe the actions of a person whose conduct causes damage or injury to the property.  The rationale for this is that an accused person does not “damage”, “injure” or “destroy” (etc).  Rather, the damage, injury or destruction is the result of the accused person’s conduct, and is a physical element of result rather than a physical element of conduct.  It follows that using “destroy” etc as the active verb in a criminal offence may lead to difficulties in interpreting the offence following application of the Criminal Code.  Reconstructing the offence in this way better identifies the physical elements of conduct and result.

Clarifying a fault element – “for the purpose of”

The phrase “for the purpose of” will be replaced by the phrase “with the intention of” in some provisions.  The phrase “for the purpose of” should no longer be used in offence-creating provisions because of the potential confusion which could arise as to the applicable fault element.  This confusion could arise because most offences do not specify the fault element and because the phrase “for the purpose of” could be interpreted to refer to an additional fault element of intention attaching to the physical element of conduct, or denote a physical element of result, which would thereby attract the default fault element of recklessness.  Where the phrase “for the purpose of” is meant to denote an additional fault element of intention attaching to the physical element of conduct then the phrase “with the intention of” is more appropriate.

“So far as he or she is capable”

The phrase “so far as he or she is capable” or similar wording appears in a number of offences.  The offences are structured so that the phrase is a descriptor in the physical element of conduct and therefore the fault element of intention will apply.  

The Bill proposes to remove the phrase “so far as he or she is capable” from the body of the offence and place it in a separate subsection.  This subsection will be followed by a note stating that the defendant bears an evidential burden.  Redrafting in this way identifies the phrase as a defence and avoids the prosecution having to prove that the defendant failed to comply to the extent he or she was capable of complying.  Whether a person complies to the extent he or she is capable is something within that person’s knowledge and is difficult for the prosecution to prove.

Reasonable excuse defence

Under section 10.5, inserted into the Criminal Code by the Criminal Code Amendment (Theft, Fraud, Bribery and Related Offences) Act 2000, there is to be a defence which provides a person is not criminally responsible for an offence if the conduct constituting the offence is justified or excused by a law.  In order to avoid the defence of reasonable excuse being mistakenly interpreted to be part of the elements of the offence, it is proposed that all offence provisions containing this defence should be restructured to put the defence into a new stand-alone subsection.  A note advising that a defendant bears an evidential burden follows the new subsection.  

Restructuring offences to remove defence contained therein and replacing the defences as stand-alone defences

Several provisions in Employment, Workplace Relations and Small Business legislation incorporate an exception to an offence in the offence creating provision itself.  An example is in the Workplace Relations Act 1996 – section 329 – “but a person does not contravene this section merely because of refusing or failing to answer a question”.

Such a defence/exception could be mistakenly interpreted as one of the (or part of the) physical elements of the offence which must therefore be proved by the prosecution.  It is proposed that in order to avoid this mistaken interpretation, such defences (where they are contained in offence provisions and which could be mistakenly interpreted as elements of the offence) should be removed from the offence-creating provisions and recreated in separate subsections.  A note advising that a defendant bears an evidential burden should follow the new subsection.  

Vicarious liability – corporate criminal responsibility

A number of provisions within the Employment, Workplace Relations and Small Business legislation vicariously establish criminal responsibility for corporations as a result of the conduct of their directors, servants and agents.  Vicarious liability is not a general principle of criminal responsibility recognised in the Criminal Code, although a form of it exists in relation to Part 2.5 of the Criminal Code, which deals with corporate criminal responsibility.  Part 2.5 of the Criminal Code deals with corporate criminal responsibility and will be the basis of liability if no other basis is provided.  

Knowledge of law

It is proposed that several offences will note that strict liability applies to the physical element of circumstance in the offence.  The result of specifying that strict liability applies to that physical element of circumstance is that the prosecution does not have to prove fault on the part of the defendant in relation to that physical element.  The prosecution need only prove that the physical element of the offence did occur.

Subsection 9.3(1) of the Criminal Code provides that mistake or ignorance of statute law is no excuse.  Subsection 9.3(2) provides that subsection 9.3(1) does not apply if the particular Act is expressly or impliedly to the contrary effect.

Global offence provisions

There are a number of offences in the Workplace Relations Act 1996 which are criminal offences by virtue of another section.  This device is contrary to Commonwealth criminal law policy, which is that a provision that creates a criminal offence must clearly provide that a contravention of the proscribed conduct is a criminal offence and provide the relevant penalty.  Where possible, it is proposed that relevant sections of the Workplace Relations Act 1996 be amended to provide that contravention is a criminal offence and then state the penalty.  

Inappropriate inclusions in physical elements of conduct – breach of condition

The present wording of subsections 21L(4) and 21W(5) of the Industrial Chemicals (Notification and Assessment) Act 1989 will create a significant difficulty for the prosecution when prosecuting a person for an offence against this section.  The difficulty arises from the phrase “contravene a condition”, which is part of the physical element of conduct for this offence and therefore attracts a fault element of intention.  As the provision stands, the prosecution accordingly would be required to prove that the defendant had specific intention to breach the specific permit condition in question.  This would present a significant problem because it would be unusual for a defendant to in fact have such an intention.  More generally a defendant would either have knowledge of each of the permit’s conditions without the specific intention to breach a specific condition, or would be reckless as to the permit’s conditions, and simply intend to carry out the proscribed activity whilst breach of the permit generally.  

It is proposed that subsections 21L(4) and 21W(5) be restructured so that the actual permit conditions form a physical element of result (thereby attracting the default fault element of recklessness), rather than conduct (thereby attracting the default fault element of intention), as they presently do.  

Amendments arising from this Bill

The Employment, Workplace Relations and Small Business Legislation Amendment (Application of Criminal Code) Bill 2001 proposes amendments to the following Acts:

Building Industry Act 1985
Coal Mining Industry (Long Service Leave) Payroll Levy Collection Act 1992
Equal Opportunity for Women in the Workplace Act 1999
Industrial Chemicals (Notification and Assessment) Act 1989
National Occupational Health and Safety Commission Act 1985
Occupational Health and Safety (Commonwealth Employment) Act 1991
Occupational Health and Safety (Commonwealth Employment) Amendment Act 2001
Occupational Health and Safety (Maritime Industry) Act 1993
Safety, Rehabilitation and Compensation Act 1988
Safety, Rehabilitation and Compensation and Other Legislation Amendment Act 2001
Seafarers Rehabilitation and Compensation Act 1992
Seafarers Rehabilitation and Compensation Levy Collection Act 1992
Workplace Relations Act 1996
Workplace Relations Legislation Amendment (More Jobs, Better Pay) Act 2001
Workplace Relations (Registered Organisations) Act 2001
Workplace Relations (Registered Organisations) (Consequential Provisions) Act 2001

Some of these references to Acts are references to Bills currently before Parliament.  The present Bill proposes amendments to these Bills, which would take effect upon their commencement as Acts.

FINANCIAL IMPACT STATEMENT

As the Bill makes consequential amendments to the criminal law there is no financial impact.

NOTES ON CLAUSES

Clause 1 – Short title 

This is a formal provision specifying the short title of the Act.  

Clause 2 – Commencement

Clause 2 of the Bill deals with commencement.  It provides that, subject to subclauses 2(2) – 2(13), the Act commences on the day after the day that it receives the Royal Assent.
 
Subclauses 2(2) to 2(13) inclusive provide for the different commencement or non-commencement of specific items in the Schedule to the Bill based on commencement or otherwise of legislation that proposes to amend relevant provisions in the Principal Acts.  

Clause 3 – Schedule

This clause provides that an Act that is specified in a Schedule is amended or repealed as set out in that Schedule, and any other item in a Schedule operates according to its terms.  

Clause 4 – Application of amendments

Subclause 4(1) provides that each amendment made by this Act applies to acts and omissions that take place after the amendment commences.  The amendments will not operate retrospectively.

Subclause 4(2) provides that, for the purposes of this section, if an act or omission is alleged to have taken place between two dates, one before and one on or after the day on which a particular amendment commences, the act or omission is alleged to have taken place before the amendment commences.  

The application provision is drafted so that essentially, the amendments do not operate retrospectively.  Additionally, the amendments will apply only to acts or omissions occurring wholly after the commencement of the particular amendments.

SCHEDULE 1 – AMENDMENT OF ACTS

Building Industry Act 1985

Item 1	After section 3

New section 3A – Application of Criminal Code

This item inserts proposed section 3A, which applies Chapter 2 of the Criminal Code to all offences against the Act.  Chapter 2 establishes the codified general principles of criminal responsibility.  

The standard note concerning Chapter 2 of the Criminal Code setting out the principles of criminal responsibility is also added after this provision.

Coal Mining Industry (Long Service Leave) Payroll Levy Collection Act 1992

Item 2	After section 3

New section 3A – Application of Criminal Code

This item inserts proposed section 3A, which applies Chapter 2 of the Criminal Code to all offences against the Act.  Chapter 2 establishes the codified general principles of criminal responsibility.  

The standard note concerning Chapter 2 of the Criminal Code setting out the principles of criminal responsibility is also added after this provision.  

Item 3	After subsection 5(1)

This item proposes to insert subsection 5(1A), which identifies the offence in subsection 5(1) as one of strict liability.  Subsection 5(1) provides that a person who employs eligible employees at any time during a month that ends after the commencement of the Act must, within 28 days after the end of that month, make a return of the eligible wages paid by the person to those employees during that month.  The offence carries a penalty of $1000.  

For strict liability offences the Criminal Code provides for a defence of reasonable mistake of fact (Section 9.2 of the Code).  If there is a mistake of fact, there is an evidential burden of proof on the defence.

Factors such as the low penalty and regulatory nature of the offence support identification of this offence as one that attracts strict liability.

The standard note referring to section 6.1 of the Criminal Code, which governs strict liability, is added after this provision.

Item 4	After subsection 10(3)

This item proposes to insert subsection 10(3A), which provides that the offences contained in subsections 10(1), (2) and (3) are offences of strict liability.  Subsection 10(1) provides that the auditor of the company must provide a certificate to the Coal Mining Industry (Long Service Leave Funding) Corporation stating whether, in the opinion of the auditor, the company has paid all relevant amounts of levy that the company was required to pay in respect of a year.  Subsection 10(2) provides that the auditor must comply with a written notice to provide the company with a certificate stating whether, in the opinion of the auditor, the company has paid all relevant amounts of levy.  Subsection 10(3) provides that if the auditor identifies that the company has not paid all relevant amounts of levy, the auditor must also state in the certificate in what respect and to what extent, in the auditor’s opinion, the company has not paid those amounts.  The offences each carry a penalty of $1000.  

For strict liability offences the Criminal Code provides for a defence of reasonable mistake of fact (Section 9.2 of the Code).  If there is a mistake of fact, there is an evidential burden of proof on the defence.

Factors such as the low penalty and regulatory nature of the offence support identification of this offence as one that attracts strict liability.

The standard note referring to section 6.1 of the Criminal Code, which governs strict liability, is added after this provision.

Item 5	Subsection 13(8)

This item proposes to remove the defence of reasonable excuse from the subsection.  The defence is recreated in a new subsection 13(8B) – see item 6 below.  The rationale for this amendment is to prevent future interpretation that the reasonable excuse element of this provision is an element of the offence, which would have to be disproved in the negative by the prosecution, and puts it beyond doubt that it is a defence to the offence.

Item 6	After subsection 13(8)

This item proposes to insert subsection 13(8A), which identifies the offence in subsection 13(8) as one of strict liability.  Subsection 13(8) provides that a person must not fail to comply with a notice under subsection 13(2).  Subsection 13(2) requires certain information to be given to the Commissioner of Taxation or authorised officer of the Commonwealth and for attendance before the Commissioner of Taxation or officer to give evidence and produce all books in the possession of the person relating to any matters connected with the performance of the function of the Coal Mining Industry (Long Service Leave Funding) Corporation.  The penalty for this offence is $3,000.  

For strict liability offences the Criminal Code provides for a defence of reasonable mistake of fact (Section 9.2 of the Code).  If there is a mistake of fact, there is an evidential burden of proof on the defence.

Factors such as the low penalty and regulatory nature of the offence support identification of this offence as one that attracts strict liability.

The standard note referring to section 6.1 of the Criminal Code, which governs strict liability, is added after this provision.

This item is also consequential upon item 5 above in that it proposes insertion of subsection 13(8B), which creates a defence of reasonable excuse in relation to an offence against subsection 13(8).  

The new provision includes a note advising that the defendant bears an evidential burden if a defendant relies upon the reasonable excuse defence established by subsection 13(8B).  An evidential burden of proof means that the onus is on the defendant to adduce or point to evidence that suggests a reasonable possibility that a matter exists or not.

Item 7	Subsection 13(9)

This item proposes to omit the phrase “knowingly give information or evidence that is false or misleading” and to substitute “give information or evidence knowing that the information or evidence is false or misleading”.  Following application of the Criminal Code, it will not be possible to apply a fault element of “knowledge” (ie “knowingly”) to a physical element consisting of conduct: see Part 2.2, Division 5 of the Criminal Code generally.  The fault element of knowledge can only be applied to physical elements of circumstance or result.  Accordingly, it is proposed to amended this provision to delete the word “knowingly”, as in its present operation it will have no effect following application of the Criminal Code.  As the intention behind the provision is to criminalise the conduct of a person who commits the proscribed conduct with the requisite degree of knowledge (as opposed to committing the proscribed conduct whilst having the fault element of recklessness), it will be necessary for the provision to explicitly provide that “knowledge” is the fault element for the relevant physical element(s) of circumstance.  

Item 8	Subsection 14(3)

This item proposes to omit the phrase “except for the purposes of this Act or in the performance of the person’s duties as an officer”.  This exception could be mistakenly interpreted as one of the (or part of the) physical elements of the offence which the prosecution must therefore prove.  In order to avoid this mistaken interpretation, such a defence should be removed from the offence-creating provision and recreated in a separate subsection.  

Item 9	After subsection 14(3)

This item is consequential upon item 8, in that it proposes to insert subsection 14(3A) as a separate stand-alone subsection.  A note advising that a defendant bears an evidential burden follows the proposed subsection.

Equal Opportunity for Women in the Workplace Act 1999

Item 10	At the end of Part 1

New section 5A – Application of Criminal Code

This item inserts proposed section 5A, which applies Chapter 2 of the Criminal Code to all offences against the Act.  Chapter 2 establishes the codified general principles of criminal responsibility.  

The standard note concerning Chapter 2 of the Criminal Code setting out the principles of criminal responsibility is also added after this provision.  

Item 11	Subsection 32(1)

This item proposes to omit the phrase “except in the performance of a duty under or in connection with this Act or in the performance or exercise of such a function or power”.  This exception could be mistakenly interpreted as one of the (or part of the) physical elements of the offence and which the prosecution must therefore prove.  In order to avoid this mistaken interpretation, such a defence should be removed from the offence-creating provision and recreated in a separate subsection.  

Item 12	Paragraph 32(1)(c)

This item is consequential upon item 11, which deletes all the words after paragraph 32(1)(c).  Item 12 proposes to replace a semi-colon with a full stop.

Item 13	Subsection 32(1)

This item proposes to omit all the words after paragraph 32(1)(c) (but not the penalty), being “except to the extent that the report or information is the subject of a consent under subsection 16(2).”  This exception could be mistakenly interpreted as one of the (or part of the) physical elements of the offence and which the prosecution must therefore prove.  In order to avoid this mistaken interpretation, such a defence should be removed from the offence-creating provision and recreated in a separate subsection.  

Item 14	After subsection 32(1)

This item is consequential upon items 11, 12 and 13 in that it proposes to insert subsection 32(1A) which restructures the exceptions within a separate stand-alone subsection.  A note advising that a defendant bears an evidential burden follows the proposed subsection 32(1A).

Industrial Chemicals (Notification and Assessment) Act 1989

Item 15	After section 10

New section 3A – Application of Criminal Code

This item inserts proposed section 10AA which applies Chapter 2 of the Criminal Code to all offences against the Act.  Chapter 2 establishes the codified general principles of criminal responsibility.

The standard note concerning Chapter 2 of the Criminal Code setting out the principles of criminal responsibility is also added after this provision.

Item 16	Subsection 21(1)
Item 17	Subsection 21(1)

These items propose to omit the words “knowingly or recklessly” from subsection 21(1) in relation to the introduction of a new industrial chemical and to omit the exception of unless the person holds an assessment certificate in force in relation to that chemical.

Following application of the Criminal Code, it will not be possible to apply a fault element of knowledge (i.e.  “knowingly”) or recklessness (i.e.  “recklessly”) to a physical element consisting of conduct, in this case the introduction of the chemical.  Intention will be the required fault element for the conduct of introduction by virtue of the Criminal Code’s default fault provision (section 5.6).  The holding or otherwise of the assessment certificate will be removed from the offence and restated as an exception in a separate subsection.

Item 18	After subsection 21(1)

This item will insert proposed subsection 21(1A) which will provide for the exception that the person holds an assessment certificate in force in relation to the chemical which was introduced.  A note advising that the defendant bears an evidential burden follows the new subsection.

Item 19	At the end of subsection 21(2)
Item 20	At the end of subsection 21(3)
Item 21	At the end of subsection 21(4)

These items propose to insert notes to the effect that the defendant bears an evidential burden in relation to the exceptions provided for in those subsections.  The notes are to be inserted for consistency with proposed subsection 21(1A).

Item 22	Subsection 21L(4)

Subsection 21L(4) relevantly provides that a person who is or was the holder of a commercial evaluation permit must not without reasonable excuse contravene a condition of the permit.  The present wording of subsection 21L(4) could create a significant difficulty in the prosecution of  a person for an offence against this section after the application of the Criminal Code.  The difficulty arises from the phrase “contravene a condition”, which is part of the physical element of conduct for this offence and therefore by operation of the Code would attract a fault element of intention.

As the provision stands, the prosecution would be required to prove that the defendant had a specific intention to breach the specific permit condition in question.  This would present a problem because it would be unusual for a defendant to, in fact, have such an intention.  More generally a defendant would either have knowledge of each of the permit’s conditions without the specific intention to breach any specific condition(s), or would be reckless as to the permit’s conditions, and simply intend to carry out the proscribed activity whilst breaching the permit generally.  

Item 22 therefore proposes to repeal subsection 21L(4) and replace it with a restructured subsection which provides that the actual permit conditions form a physical element of result (thereby attracting the default fault element of recklessness), rather than conduct (thereby attracting the default fault element of intention), as they presently do.  Thus the offence is one of a person engaging in conduct the result of which is that a condition of the permit is contravened.  The prosecution would thus be required to demonstrate that the defendant intended to breach the permit generally, whilst merely being reckless as to whether the conduct would result in breach of the actual conditions of the permit.  This would more appropriately reflect the actual intention of the offence.

The defence of reasonable excuse is stated in a separate subsection to avoid the interpretation that it forms an element of the offence and the standard note that the defendant bears an evidential burden follows.

Item 23	Subsection 21W(5)

This item proposes to repeal and replace subsection 21W(5), which is in identical terms to subsection 21L(4) explained above, except that it relates to a low volume permit.  The section is to be restructured along the same lines proposed by item 22, explained above, for the same reasons.

Item 24	Subsection 30C(4)

Item 24 proposes to omit the words “knowingly or recklessly” from subsection 30C(4).  As noted at items 16 and 17 above, after the application of the Criminal Code it will not be possible to apply a fault element of knowledge (i.e.  “knowingly”) or recklessness (i.e.  “recklessly”) to a physical element consisting of conduct, that is that the person did not stop introducing a chemical.  Intention will be the required fault element for the conduct of introduction; while recklessness will apply to the physical element of the circumstance of the receipt of the notice revoking the permit, by virtue of the Criminal Code’s default fault provision (section 5.6).

Item 25	Subsection 48(7)

This item removes the defence of reasonable excuse from subsection 48(7) which will be restated in a new separate subsection.  This is to avoid the defence being interpreted as an element of the offence.

Item 26	At the end of section 48

This item will insert proposed subsection 48(8) which restates the defence of reasonable excuse in relation to subsection 48(7).  A note advising that the defendant bears an evidential burden follows the new subsection.

Item 27	Section 56
Item 28	Section 56

These items propose to omit the words “knowingly or recklessly” from section 56 in relation to the introduction of a priority existing chemical and to omit the exception of unless the person has applied under section 55 for the assessment of the chemical.

Following application of the Criminal Code, it will not be possible to apply a fault element of knowledge (i.e.  “knowingly”) or recklessness (i.e.  “recklessly”) to a physical element consisting of conduct, that is introduction of the chemical.  Intention will be the required fault element for the conduct of introduction, by virtue of the Criminal Code’s default fault provision (section 5.6).  The holding or otherwise of the assessment certificate will be removed from the offence and restated as an exception in a following subsection.

Item 29	At the end of section 56

This item will insert proposed subsection 56(2) which will provide for the exception that the person has applied under section 55 for the assessment of the chemical.  A note advising that the defendant bears an evidential burden follows the new subsection.

Item 30	Subsection 58(8)

This item removes the defence of reasonable excuse from subsection 58(8) which will be restated in a new separate subsection.  This is to avoid the defence being interpreted as an element of the offence.

Item 31	At the end of section 58

This item will insert proposed subsection 58(9) which restates the defence of reasonable excuse in relation to subsection 58(8).  A note advising that the defendant bears an evidential burden follows the new subsection.

This item also inserts proposed subsection 58(10) which identifies strict liability in relation to the physical element of conduct that the person failed to comply with a notice (to provide information about chemicals).  This is an administrative obligation provision of the type where strict liability is generally applied under the existing law.  The proposed change will clarify that the element of the offence is of strict liability.  The standard note referring to section 6.1 of the Criminal Code, which governs strict liability, is also added after this provision.

Item 32	Subsection 61(4)

This item removes the defence of reasonable excuse from subsection 61(4) which will be restated in a new separate subsection.  This is to avoid the defence being interpreted as an element of the offence.

Item 33	After subsection 61(4)

This item will insert proposed subsection 61(4A) which restates the defence of reasonable excuse in relation to subsection 61(4).  A note advising that the defendant bears an evidential burden follows the new subsection.

Item 34	Subsection 61(5)

This item removes the defence of reasonable excuse from subsection 61(5) which will be restated in a new separate subsection.  This is to avoid the defence being interpreted as an element of the offence.

Item 35	At the end of section 61

This item will insert proposed subsection 61(6) which restates the defence of reasonable excuse in relation to subsection 61(5).  A note advising that the defendant bears an evidential burden follows the new subsection.

This item also inserts proposed subsection 61(7) which identifies strict liability in relation to the physical element of conduct that the importer or manufacturer [subsection 61(4)] or a person [subsection 61(5)] failed to comply with a notice (from the Minister to prohibit an activity in relation to a chemical because of an unacceptable risk of adverse health or environmental risks).  Although the penalty is high ($30,000 for a manufacturer or importer; $24,000 for an individual) the subject matter being regulated is that of chemical substances which pose unacceptable risks and is suitable for the application of strict liability and is typically the type of regulatory provision where strict liability is applied under the existing law.  The proposed change will clarify that the element of the offence is of strict liability.  The standard note referring to section 6.1 of the Criminal Code, which governs strict liability, is also added after this provision.

Item 36	Subsection 67(2)

Item 36 proposes to omit the words “knowingly or recklessly” from subsection 67(2).  As noted at items 16, 17 and 24 above, after the application of the Criminal Code it will not be possible to apply a fault element of knowledge (i.e.  “knowingly”) or recklessness (i.e.  “recklessly”) to a physical element consisting of conduct, that is that the person did not stop introducing a chemical.  Intention will be the required fault element for the conduct of introduction; while recklessness will apply to the circumstance of the receipt of a notice prohibiting its importation or manufacture, by virtue of the Criminal Code’s default fault provision (section 5.6).

Item 37	Subsection 69(4)

This item removes the defence of reasonable excuse from subsection 69(4) which will be restated in a new separate subsection.  This is to avoid the defence being interpreted as an element of the offence.

Item 38	At the end of section 69

This item will insert proposed subsection 69(5) which restates the defence of reasonable excuse in relation to subsection 69(4).  A note advising that the defendant bears an evidential burden follows the new subsection.

This item also inserts proposed subsection 69(6) which identifies strict liability in relation to the physical element of conduct that the person failed to comply with a notice (to provide information about chemicals).  This is an administrative obligation provision of the type where strict liability is generally applied under the existing law.  The proposed change will clarify that the element of the offence is of strict liability.  The standard note referring to section 6.1 of the Criminal Code, which governs strict liability, is also added after this provision.

Item 39	Section 80B
Item 40	Paragraph 80B(b)
Item 41	Section 80B

These items propose to omit the words “knowingly or recklessly” from section 80B in relation to the introduction of relevant industrial chemicals and the exception where the person is registered in relation to that registration year.

Following application of the Criminal Code, it will not be possible to apply a fault element of knowledge (i.e.  “knowingly”) or recklessness (i.e.  “recklessly”) to a physical element consisting of conduct, that is the introduction of any relevant industrial chemical.  Intention will be the required fault element for the conduct of introduction, by virtue of the Criminal Code’s default fault provision (section 5.6).  The registration or otherwise in relation to that registration year will be removed from the offence and restated as an exception in a separate subsection.

Item 42	At the end of section 80B

This item will insert proposed subsection 80B(2) which will provide for the exception that the person is registered in relation to the registration year.  A note advising that the defendant bears an evidential burden follows the new subsection.

Item 43	Subsection 80Q(2)

This item removes the defence of reasonable excuse from subsection 80Q(2) which will be restated in a new separate subsection.  This is to avoid the defence being interpreted as an element of the offence.

Item 44	At the end of section 80Q

This item will insert proposed subsection 80Q(3) which restates the defence of reasonable excuse in relation to subsection 80Q(2).  A note advising that the defendant bears an evidential burden follows the new subsection.

This item also inserts proposed subsection 80(4) which identifies strict liability in relation to the physical element of conduct that the person fails to comply with the requirement to provide a written statement.  This is an administrative obligation provision of the type where strict liability is generally applied under the existing law.  The proposed change will clarify that the element of the offence is of strict liability.  The standard note referring to section 6.1 of the Criminal Code, which governs strict liability, is also added after this provision.

Item 45	At the end of section 80QD

This item inserts proposed subsection 80QD(2) which identifies proposed subsection 80QD(1) as an offence of strict liability.  Section 80QD provides that a person must retain records for five years in relation to the introduction of chemicals.  This is an administrative obligation provision of the type where strict liability is generally applied under the existing law.  The proposed change will clarify that the provision is an offence of strict liability.  The standard note referring to section 6.1 of the Criminal Code, which governs strict liability, is also added after this provision.

Item 46	Subsection 80W(3)

This item removes the defence of reasonable excuse from subsection 80W(3) which will be restated in a new separate subsection.  This is to avoid the defence being interpreted as an element of the offence.

Item 47	At the end of section 80W

This item will insert proposed subsection 80W(4) which restates the defence of reasonable excuse in relation to subsection 80W(3).  A note advising that the defendant bears an evidential burden follows the new subsection.

This item also inserts proposed subsection 80W(5) which identifies strict liability in relation to the physical element of conduct that the person fails to comply with a notice (to give information relating to the introduction of relevant industrial chemicals).  This is a administrative obligation provision of the type where strict liability is generally applied under the existing law.  The proposed change will clarify that the provision is an offence of strict liability.  The standard note referring to section 6.1 of the Criminal Code, which governs strict liability, is also added after this provision.

Item 48	Paragraphs 83(1)(b) and (c)

Certain Crimes Act 1914 provisions, including sections 7, 7A and 86, will be repealed on 15 December 2001.  It will be necessary to replace references to these Crimes Act provisions with references to relevant Criminal Code provisions.  

This item proposes that the references in paragraphs 83(1)(b) and (c) to sections 7, 7A and 86(1) of the Crimes Act 1914, which concern attempting to commit primary offences, incitement to commit primary offences, and conspiracy to commit primary offences, be replaced by references to the Criminal Code provisions which deal with these matters (sections 11.1, 11.4 and 11.5).

Item 49	At the end of section 85

This item inserts proposed subsection 85(3), which identifies subsection 85(2) as an offence of strict liability.  Subsection 85(2) provides that a person, in possession of an identity card, on ceasing to be an inspector must return it to the Director as soon as practicable.  The penalty is $100.  This is an administrative obligation provision where strict liability is commonly applied.  The standard note referring to section 6.1 of the Criminal Code, which governs strict liability, is also added after this provision.

Item 50	Subsection 87(8) (paragraphs (b) and (c) of the definition of offences against this Act)

This item proposes amendments to the definition of offence against this Act for the purpose of offence related searches and seizures to the same effect and for the same reason as at item 48 above.

Item 51	Subsection 88(3)

This item removes the defence of reasonable excuse from subsection 88(3) which will be restated in a new separate subsection.  This is to avoid the defence being interpreted as an element of the offence.

Item 52	After subsection 88(3)

This item will insert proposed subsection 88(3A) which restates the defence of reasonable excuse in relation to subsection 88(3).  A note advising that the defendant bears an evidential burden follows the new subsection.

Item 53	Subsection 106(5)

This item removes the defence of reasonable excuse from subsection 106(5) which will be restated in a new separate subsection.  This is to avoid the defence being interpreted as an element of the offence.

Item 54	At the end of section 106

This item will insert proposed subsection 106(6) which restates the defence of reasonable excuse in relation to subsection 106(5).  A note advising that the defendant bears an evidential burden follows the new subsection.

This item also inserts proposed subsection 106(7) which identifies strict liability in relation to the physical element of circumstance that the introduction or exportation of the industrial chemical is in contravention of a regulation or condition mentioned in subsection 106(5).  Although subsection 9.3(1) of the Criminal Code provides that mistake or ignorance of statute law is no excuse, subsection 9.3(2) provides that subsection 9.3(1) does not apply if the particular Act is expressly or impliedly to the contrary effect.  Applying strict liability to the physical element that the introduction or exportation was in contravention of a regulation avoids any implication that that subsection 9.3(1) of the Criminal Cod  does not apply.  The effect is that the prosecution need not prove fault and need only prove that the physical element of the offence did occur.  The standard note referring to section 6.1 of the Criminal Code, which governs strict liability, is also added after this provision.

Item 55	Subsections 109(1) and(2)

This item will repeal these subsections because they vicariously establish criminal responsibility for corporations as a result of the conduct of their directors, servants and agents.  The corporate criminal responsibility provisions of the Criminal Code will apply to offences under the Act.

Item 56	Subsection 109(6)
Item 57	Subsection 109(7)

These items are consequential to item 55 above.

National Occupational Health and Safety Commission Act 1985

Item 58 	At the end of Part I

New section 5A – Application of Criminal Code

This item inserts proposed section 5A which applies Chapter 2 of the Criminal Code to all offences against the Act.  Chapter 2 establishes the codified general principles of criminal responsibility.

The standard note concerning Chapter 2 of the Criminal Code setting out the principles of criminal responsibility is also added after this provision.

Item 59	Subparagraphs 43(7)(b)(i) and (ii) 

Certain Crimes Act 1914 provisions, including sections 7, 7A and 86, will be repealed on 15 December 2001.  It will be necessary to replace references to these Crimes Act provisions with references to relevant Criminal Code provisions.  

This item proposes that the references in subparagraphs 43(7)(b)(i) and (ii) to sections 7, 7A and 86(1) of the Crimes Act 1914, which concern attempting to commit primary offences, incitement to commit primary offences, and conspiracy to commit primary offences, be replaced by references to the Criminal Code provisions which deal with these matters (sections 11.1, 11.4 and 11.5).  

Item 60	Section 46

This item proposes to remove the defence of reasonable excuse from section 46 which will be restated in a separate subsection.  This is to avoid the defence being interpreted as an element of the offence.

Item 61	Paragraph 46(b)

This item removes the exception of "unless excused, or released from further attendance, by the Commissioner conducting the inquiry", from paragraph 46(b) which will be restated in a new separate subsection.  This is to avoid the exception being interpreted as an element of the offence.

Item 62	At the end of section 46

This item will insert proposed subsection 46(2) which restates the defence of reasonable excuse in relation to subsection proposed 46(1).  A note advising that a defendant bears an evidential burden follows the new subsection.  

This item will also insert proposed subsection 46(3) which restates the exception that proposed paragraph 46(1)(b) does not apply if the Commissioner conducting the inquiry excuses or releases the person from further attendance.  A note advising that a defendant bears an evidential burden follows the new subsection.

Item 63	Subsection 47(1)

This item removes the defence of reasonable excuse from subsection 47(1) which will be restated in a new separate subsection.  This is to avoid the defence being interpreted as an element of the offence.

Item 64	After subsection 47(1)

This item will insert proposed subsection 47(1A) which restates the defence of reasonable excuse in relation to subsection 47(1).  A note advising that a defendant bears an evidential burden follows the new subsection.  

Item 65	Subsection 47(2)

This item proposes to replace the reference to “subsection (1)” with a reference to “subsection (1A)”.  This is consequent to the change proposed in item 64.

Item 66	Paragraphs 52(1)(b) and (c) 

This item proposes to omit the words “or procure” in relation to a person engaging in or causing violence, damage, loss, or disadvantage to or punishment of another person because that other person has appeared, or is about to appear, as a witness at an inquiry or on account of any evidence given by the person before an inquiry.  The words are omitted, because section 11.2 of the Criminal Code creates an offence of aiding, abetting, counselling or procuring the commission of an offence by another person.  Consequently, the reference to “procure” in the provision will be superfluous following application of the Criminal Code.

Item 67	Subsection 62(2)

This item proposes to remove the defence of reasonable excuse from subsection 62(2) which will be restated in a new separate subsection.  This is to avoid the defence being interpreted as an element of the offence.

Item 68	Subsection 62(2)

This item proposes to remove the defence of the extent that the person is capable of complying with a notice, which will be restated in a new separate subsection.  The defence is of a particular character which makes this amendment desirable, namely it is peculiarly within the knowledge of the defendant of what he or she was capable.  

Item 69	After subsection 62(2)

This item will insert proposed subsection 62(3) which restates the defence of reasonable excuse in relation to subsection 62(2).  A note advising that a defendant bears an evidential burden follows the new subsection.  

This item also inserts proposed subsection 62(4) to restate the defence of the extent to which the person was capable of complying with a notice.  A note advising that a defendant bears an evidential burden follows the new subsection.

Item 70	Subsection 62(5)

The amendment proposed by this item amends numbering consequential to the new subsection 62(3) proposed in item 69.

Occupational Health and Safety (Commonwealth Employment) Act 1991

Item 71	Subsection 5(6)

Certain Crimes Act 1914 provisions, including sections 7, 7A and 86, will be repealed on 15 December 2001.  It will be necessary to replace references to these Crimes Act provisions with references to relevant Criminal Code provisions.  

This item proposes that the references in paragraphs 5(6)(a) and (b) to sections 7, 7A and 86(1) of the Crimes Act 1914, which concern attempting to commit primary offences, incitement to commit primary offences, and conspiracy to commit primary offences, be replaced by references to the Criminal Code provisions which deal with these matters (sections 11.1, 11.4 and 11.5).  

Item 72	At the end of Part 1

New section 15A – Application of Criminal Code

This item inserts proposed section 15A which applies Chapter 2 (except Part 2.5) of the Criminal Code to all offences against the Act.  Chapter 2 establishes the codified general principles of criminal responsibility.

The standard note concerning Chapter 2 of the Criminal Code setting out the principles of criminal responsibility is also added after this provision at Note 1.

An additional note clarifying that, for the purposes of this Act, corporate criminal responsibility is dealt with by section 78 of the Act, rather than by Part 2.5 of the Criminal Code, is also added after this provision at Note 2.

Item 73	Subsection 43(2)

This item proposes to remove the defence of reasonable excuse, from subsection 43(2) which will be restated in a new separate subsection.  This is to avoid the defence being interpreted as an element of the offence.

Item 74	At the end of section 43

This item will insert proposed subsection 43(3)which restates the defence of reasonable excuse in relation to subsection 43(2).  A note advising that the defendant bears an evidential burden follows the new subsection.

Item 75	Section 50

This item proposes to remove the defence of reasonable excuse from section 50 which will be restated in a new separate subsection.  This is to avoid the defence being interpreted as an element of the offence.

Item 76	At the end of section 50

This item will insert proposed subsection 50(2) which restates the defence of reasonable excuse in relation to proposed subsection 50(1).  A note advising that a defendant bears an evidential burden follows the new subsection.  

Item 77	Subsection 54(2)

This item proposes to remove the defence of reasonable excuse from subsection 54(2) which will be restated in a new separate subsection.  This is to avoid the defence being interpreted as an element of the offence.

Item 78	At the end of section 54

This item will insert proposed subsection 54(3) which restates the defence of reasonable excuse in relation to subsection 54(2).  A note advising that a defendant bears an evidential burden follows the new subsection.  

Item 79	Section 57

This item proposes to remove the defence of reasonable excuse from section 57 which will be restated in a new separate subsection.  This is to avoid the defence being interpreted as an element of the offence.

Item 80	Paragraph 57(b)

This item omits all the words after “day to day”, in paragraph 57(b) which are “unless excused, or released from further attendance, by a member of the Commission” which will be restated in a new separate subsection.  This is to avoid this exception being interpreted as an element of the offence.

Item 81	At the end of section 57

This item will insert proposed subsection 57(2) which restates the defence of reasonable excuse in relation to proposed subsection 57(1).  A note advising that a defendant bears an evidential burden follows the new subsection.  

This item will also insert proposed subsection 57(3) which restates the exception that a member of the Commission excuses or releases the person from further attendance.  A note advising that a defendant bears an evidential burden follows the new subsection.

Item 82	Section 59

This item proposes to remove the defence of reasonable excuse from section 59 which will be restated in a new separate subsection.  This is to avoid the defence being interpreted as an element of the offence.

Item 83	At the end of section 59

This item will insert proposed subsection 59(2) which restates the defence of reasonable excuse in relation to proposed subsection 59(1).  A note advising that a defendant bears an evidential burden follows the new subsection.  

Item 84	Paragraph 64(b)

This item repeals paragraph 64(b) and replaces it with new paragraphs (b) and (ba) to deal with the active verb of “injure” in the expression “injure, or threaten to injure, an employee in his or her employment” and to proscribe the actions of a person whose conduct causes such injury to an employee in his or her employment.

The injury is the result of the accused person’s conduct and is a physical element of result rather than a physical element of conduct.  The restructured offence better identifies the physical elements of conduct and result.  

Item 85	Section 72

This item proposes to omit the phrase ", without reasonable cause, wilfully or recklessly" from section 72.  Section 72 provides for offences in relation to interference with protective equipment or safety devices.  

Firstly, the effect of the item will be to remove the defence of reasonable excuse from section 59 which will be restated in a new separate subsection.  This is to avoid the defence being interpreted as an element of the offence.

Secondly, following application of the Criminal Code, the fault element of recklessness will be restricted to the physical elements of circumstance or result, and intention will be the sole fault element that can be applied to a physical element of conduct.  At present the offence consists of two physical elements – the first of conduct interfering with, rendering or causing another to interfere or render and the second of circumstance – that the person knew or ought reasonably to have known that the equipment was protective equipment or a safety device.  Accordingly, the effect of the removal of “wilfully or recklessly” will allow the default fault elements to apply, pursuant to section 5.6 of the Criminal Code – that is that the person intentionally performs the conduct reckless as to the circumstance.  

Item 86	Section 72

This item proposes to omit the words “which the person knew or ought reasonably to have known was protective equipment or a safety device”.  With the application of the default fault element of recklessness to the physical element of circumstance in the offence, and given the way that recklessness is constructed under the Criminal Code, the effect of the provision would be that a person must not intentionally interfere with equipment if he or she is aware of a substantial risk and having regard to the circumstances it was unreasonable to take that risk, that he or she ought to have known that the equipment was a protective equipment or a safety device.  Clearly the words about what the person ought to have known are redundant with the application of the fault element of recklessness and should be removed.

Item 87	At the end of section 72

This item will insert proposed subsection 72(2) which restates the defence of reasonable excuse in relation to proposed subsection 72(1).  A note advising that a defendant bears an evidential burden follows the new subsection.  

Item 88	Paragraph 76(1)(b)

This item repeals paragraph 76(1)(b) and replaces it with a restructured paragraph to deal with the active verb in the expression “injure an employee in his or her employment” and to proscribe the actions of a person whose conduct causes such injury to an employee in his or her employment.

The injury is the result of the accused person’s conduct and is a physical element of result rather than a physical element of conduct.  It follows that using these active verbs in a criminal offence may lead to difficulties in interpreting the offence following application of the Criminal Code.  The restructured offence better identifies the physical elements of conduct and result.  

Occupational Health and Safety (Commonwealth Employment) Amendment Act 2001

These amendments will only take effect if the amendments made in items 71 to 88 commence before the Occupational Health and Safety (Commonwealth Employment) Amendment Act 2001 (OHS(CE)A Act) commences.  They are necessary to take account of the changes made, by items 71 to 88 above, to the Occupational Health and Safety (Commonwealth Employment) Act 1991 (the Principal Act).

Item 89 	Item 23 of Schedule 1

This item proposes to repeal item 23 of Schedule 1 which would have inserted a new section 15A into the Principal Act.  This item is to be repealed because the new section 15A is already inserted by item 72 above.  

Item 90	After item 77 of Schedule 1

New item 77A – Subsection 43(3)

This item proposes to insert a new item 77A, the effect of which is to repeal subsection 43(3) as inserted in the Principal Act by item 74 above.  Item 74 provided the reasonable excuse defence for subsection 43(2).  The OHS(CE)A Act will restate the offence provisions in Part 2 of a new Schedule 2 to the Principal Act.  Those offence provisions will have a general reasonable excuse defence stated at proposed section 16(2) of Schedule 2, therefore the defence is not required to be stated at 43(2).

Item 91	After item 110 of Schedule 1

New item 110A – Subsection 54(3)

This item would insert a new item 110A to provide for the repeal of subsection 54(3), as inserted into the Principal Act by item 78 above.  Item 78 provided the reasonable excuse defence for subsection 54(2).  It is being replaced by a general reasonable excuse provision in new subsection 16(2) of Schedule 2 of the Principal Act as explained at item 90 above.

Item 92	Item 111 of Schedule 1

This item would omit item 111 of Schedule 1 to the OHS(CE)A Act.  That item proposed to remove the words without reasonable excuse from section 57.  Those words would already be removed by the operation of item 79 above.

Item 93	Items 112 and 113 of Schedule 1

New item 112 – Subsection 57(1) (penalty)
New item 113 – Subsections 57(2) and (3)

This item would provide for the repeal of items 112 and 113 of Schedule 1 and their replacement with new items which would repeal the provisions proposed in item 81 (including notes) amending section 57.  The new items would also repeal the penalty provision of section 57 and would insert a note advising that the criminal prosecution provisions in Schedule 2 of the (Principal) Act would apply to persons breaching section 57.

Item 94	Item 114 of Schedule 1

This item would omit item 114 of Schedule 1 to the OHS(CE)A Act.  That item proposed to remove the words “without reasonable excuse” from section 59.  Those words would already be removed by the operation of item 82 above.

Item 95	Items 116 and 117 of Schedule 1

New item 116 – Subsection 59(1) (penalty)
New item 117 – Subsection 59(2)

This item would provide for the repeal of items 116 and 117 of Schedule 1 and their replacement with new items which would repeal the provisions proposed in item 83 (including notes) amending section 59.  The new items would also repeal the penalty provision of section 59 and would insert a note advising that the criminal prosecution provisions in Schedule 2 of the (Principal) Act would apply to persons breaching section 59.

Item 96	Items 129 and 130 of Schedule 1

This item would repeal items 129 and 130 of Schedule 1 of the OHS(CE)A Act on the basis that the words which they would delete have already been deleted by the operation of item 85 and item 86 above.

Item 97	Items 131 and 132 of Schedule 1

New item 131 – Subsection 72(1) (penalty)
New item 132 – Subsection 72(2)

This item would provide for the repeal of items 131 and 132 of Schedule 1 and their replacement with new items which would repeal the provisions proposed in item 87 (including notes) amending section 72.  The new items would also repeal the penalty provision of section 72 and would insert a note advising that the criminal prosecution provisions in Schedule 2 of the (Principal) Act would apply to persons breaching section 72.  

Occupational Health and Safety (Maritime Industry) Act 1993

Item 98	At the end of Division 3 of Part 1

New section 8A – Application of Criminal Code

This item inserts proposed section 8A which applies Chapter 2 of the Criminal Code to all offences against the Act.  Chapter 2 establishes the codified general principles of criminal responsibility.

The standard note concerning Chapter 2 of the Criminal Code setting out the principles of criminal responsibility is also added after this provision.

Item 99	At the end of section 13

This item inserts proposed subsection 13(4) which identifies strict liability in relation to the physical element of circumstance that the obligations set out in subsections 11(1) to (6) apply as set out in subsection 13(3).  Although subsection 9.3(1) of the Criminal Code provides that mistake or ignorance of statute law is no excuse, subsection 9.3(2) provides that subsection 9.3(1) does not apply if the particular Act is expressly or impliedly to the contrary effect.  Applying strict liability to the physical element of the application of the obligations avoids any implication that that subsection 9.3(1) of the Criminal Code does not apply.  The effect is that the prosecution need not prove fault and need only prove that the physical element of the offence did occur in this case that the obligations applied.  The standard note referring to section 6.1 of the Criminal Code, which governs strict liability, is also added after this provision.

Item 100	At the end of section 85

This item inserts proposed subsection 85(4), which identifies subsection 85(3) as an offence of strict liability.  Subsection 85(3) provides that if a person issued with an identity card as an inspector under subsection 85(1) stops being an inspector, the person must immediately return the identity card to the Inspectorate.  The penalty is 1 penalty unit.  This is an administrative obligation provision where strict liability is commonly applied under the existing law.  The proposed change will clarify that the provision is an offence of strict liability.  The standard note referring to section 6.1 of the Criminal Code, which governs strict liability, is also added after this provision.

Item 101	Subsection 90(2)

This item proposes to remove the defence of  reasonable excuse subsection 90(2) in order that it may be restated in a separate subsection.  This is to avoid the defence being interpreted as an element of the offence.

Item 102	At the end of section 90

This item will insert proposed subsection 90(3) which restates the defence of reasonable excuse in relation to subsection 90(2).  A note advising that a defendant bears an evidential burden follows the new subsection.  

Item 103	Section 105

This item proposes to remove the defence of reasonable excuse from section 105 in order that it may be placed in a new separate subsection.  This is to avoid the defence being interpreted as an element of the offence.

Item 104	At the end of section 105

This item will insert proposed subsection 105(2) which restates the defence of reasonable excuse in relation to proposed subsection 105(1).  A note advising that a defendant bears an evidential burden follows the new subsection.  

Item 105	Section 111

This item proposes to omit the phrase ", without reasonable excuse, intentionally or recklessly" from section 111.  Section 111 provides for offences in relation to interference with protective equipment or safety devices.  

Firstly, the item proposes to remove the defence of without reasonable excuse from section 111 which will be restated in a new separate subsection.  This is to avoid the defence being interpreted as an element of the offence.

Secondly, following application of the Criminal Code, the fault elements of 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.  At present the offence consists of two physical elements – the first of conduct interfering with, rendering or causing another to interfere or render and the second of circumstance – that the person knew or ought reasonably to have known that the equipment was protective equipment or a safety device.  Accordingly, the effect of the removal of “intentionally or recklessly” will allow the default fault elements to apply, pursuant to section 5.6 of the Criminal Code – that is that the person intentionally performs the conduct reckless as to the circumstance.  

Item 106	Section 111

This item proposes to omit the words “which the person knew or ought reasonably to have known was protective equipment or a safety device”.  With the application of the default fault element of recklessness to the physical element of circumstance in the offence, and given the way that recklessness is constructed under the Criminal Code, the effect of the provision would be that a person must not intentionally interfere with equipment if he or she is aware of a substantial risk and having regard to the circumstances it was unreasonable to take that risk, that he or she ought to have known that the equipment was a protective equipment or a safety device.  Clearly the words about what the person ought to have known are redundant with the application of the fault element of recklessness and should be removed.

Item 107	At the end of section 111

This item will insert proposed subsection 111(2) which restates the defence of reasonable excuse in relation to proposed subsection 111(1).  A note advising that a defendant bears an evidential burden follows the new subsection.  

Item 108	Paragraph 115(1)(b)

This item proposes to repeal paragraph 115(1)(b) and replace it with a restructured paragraph to remove the active verb in the expression “damage an employee in his or her employment” and to proscribe the actions of a person whose conduct causes such damage in employment.
The damage is the result of the accused person’s conduct, and is a physical element of result rather than a physical element of conduct.  It follows that using this active verb in a criminal offence may lead to difficulties in interpreting the offence following application of the Criminal Code.  The restructured offence better identifies the physical elements of conduct and result.

Item 109	Subsections 117(1) and (2)

This item will repeal these subsections because they vicariously establish criminal responsibility for corporations as a result of the conduct of their directors, servants and agents.  The corporate criminal responsibility provisions of the Criminal Code will apply to offences under the Act.

Item 110	Subsection 117(6)

This item is consequential to the amendment proposed by item 109 above.

Safety, Rehabilitation and Compensation Act 1988

Item 111	At the end of Part 1

New section 13A – Application of Criminal Code

This item inserts proposed section 13A which applies Chapter 2 of the Criminal Code to all offences against the Act.  Chapter 2 establishes the codified general principles of criminal responsibility.

The standard note concerning Chapter 2 of the Criminal Code setting out the principles of criminal responsibility is also added after this provision.

Item 112	At the end of section 46

This item inserts proposed subsection 46(2), which identifies proposed subsection 46(1) as an offence of strict liability.  Section 46 provides that where compensation is payable under the Act and a person (other than to the Commonwealth or other specified entity) is liable to pay damages in respect of the event giving rise to the compensation then, where the employee or dependant institutes proceedings for the recovery of such damages, the employee or dependant must notify the Commission in writing of those proceedings as soon as practicable but in any event within seven days of becoming aware of the proceedings.  Failure to comply carries a penalty of $500.  This is an administrative obligation provision of the type where strict liability is generally applied under the existing law.  The proposed change will clarify that the provision is an offence of strict liability.  The standard note referring to section 6.1 of the Criminal Code, which governs strict liability, is also added after this provision.

Item 113	At the end of section 47

This item inserts proposed subsection 47(2), which identifies proposed subsection 47(1) as an offence of strict liability.  Section 47 provides that where compensation is payable under the Act and the employee or dependant institutes proceedings against the Commonwealth, or other designated body for the recovery of such damages, the employee or dependant must notify Comcare in writing of those proceedings as soon as practicable but in any event within seven days of the proceedings being instituted.  Failure to comply carries a penalty of $500.  This is an administrative obligation provision of the type where strict liability is generally applied under the existing law.  The proposed change will clarify that the provision is an offence of strict liability.  The standard note referring to section 6.1 of the Criminal Code, which governs strict liability, is also added after this provision.

Item 114	After subsection 48(2)

This item inserts proposed subsection 48(2A), which identifies subsection 48(2) as an offence of strict liability.  Subsection 48(2) provides that where compensation has been recovered as set out in subsection 48(1), then the employee or dependant shall notify Comcare in writing of the recovery of the damages and the amount of the damages, within 28 days of the day on the which the damages were recovered.  Failure to comply carries a penalty of $1000.  This is an administrative obligation provision of the type where strict liability is generally applied under the existing law.  The proposed change will clarify that the provision is an offence of strict liability.  The standard note referring to section 6.1 of the Criminal Code, which governs strict liability, is also added after this provision.

Item 115	At the end of section 120

This item inserts proposed subsection 120(5), which identifies subsection 120(4) as an offence of strict liability.  Subsection 120(4) provides that where a person described under subsection 120(1) is absent from Australia for a period of more than 3 months, the person shall give the relevant authority, as defined in section 4, a notice in writing setting out particulars of the residential address of the person on the day on which the notice is given.  Such notice shall be given within seven days after the expiration of the period of three months commencing on the day on which the person left Australia, and within seven days after the expiration of each successive period of three months ending while the person is still absent from Australia.  Failure to comply carries a penalty of $500.  This is an administrative obligation provision of the type where strict liability is generally applied under the existing law.  The proposed change will clarify that the provision is an offence of strict liability.  The standard note referring to section 6.1 of the Criminal Code, which governs strict liability, is also added after this provision.

Safety, Rehabilitation and Compensation and Other Legislation Amendment Act 2001

These amendments will only take effect if items 112 and 113 commence before Part 10 of Schedule 2 to the Safety, Rehabilitation and Compensation and Other Legislation Amendment Act 2001 (SRCOLA Act) commences.  They are necessary to take account of the changes proposed to be made by items 112 and 113 to the Safety, Rehabilitation and Compensation Act 1988 (SRC Act).  

Item 116	Item 61 of Schedule 2 (heading)

This item would amend item 61 of Schedule 2 to the SRCOLA Act such that the reference to “Section 46” in the heading is replaced by a reference to “Subsection 46(1)”.  This amendment is consequential to the amendment proposed by item 112 above.

Item 117	Item 62 of Schedule 2 (new section 47)

This item would amend item 62 of Schedule 2 to the SRCOLA Act to facilitate the addition of a new subsection 47(2) of the SRC Act.  This item would provide for the renumbering of new section 47 as subsection 47(1).  

Item 118	At the end of item 62 of Schedule 2 (at the end of new section 47)

This item would add proposed subsection 47(2) to provide that new subsection 47(1) would be a strict liability offence.  This is consequential to the repeal and replacement of section 47 made by item 62 of Schedule 2.

Seafarers Rehabilitation and Compensation Act 1992

Item 119	After section 21

New section 21A – Application of Criminal Code

This item inserts proposed section 21A which applies Chapter 2 of the Criminal Code to all offences against the Act.  Chapter 2 establishes the codified general principles of criminal responsibility.

The standard note concerning Chapter 2 of the Criminal Code setting out the principles of criminal responsibility is also added after this provision.

Item 120	At the end of section 56

This item inserts proposed subsection 56(2), which identifies proposed subsection 56(1) as an offence of strict liability.  Section 56 requires an employee, or a dependant of a deceased employee, who institutes proceedings against a third party, to notify the employee’s employer within seven days of becoming aware that the proceedings have been instituted.  Failure to comply carries a penalty of 5 penalty units.  This is an administrative obligation provision of the type where strict liability is generally applied under the existing law.  The proposed change will clarify that the provision is an offence of strict liability.  The standard note referring to section 6.1 of the Criminal Code, which governs strict liability, is also added after this provision.

Item 121	At the end of section 57

This item inserts proposed subsection 57(2), which identifies proposed subsection 57(1) as an offence of strict liability.  Section 57 requires an employee, or a dependant of a deceased employee, who institutes proceedings employee’s employer or a fellow employee, to notify the employer within seven days of becoming aware that the proceedings have been instituted.  Failure to comply carries a penalty of 5 penalty units.  This is an administrative obligation provision of the type where strict liability is generally applied under the existing law.  The proposed change will clarify that the provision is an offence of strict liability.  The standard note referring to section 6.1 of the Criminal Code, which governs strict liability, is also added after this provision.

Item 122	After subsection 58(2)

This item inserts proposed subsection 58(2A), which identifies subsection 58(2) as an offence of strict liability.  Subsection 58(2) requires an employee, or a dependant of a deceased employee, to notify the employee’s employer of the recovery of damages from a third party within 28 days of the damages being recovered.  Failure to comply carries a penalty of 10 penalty units.  This is an administrative obligation provision of the type where strict liability is generally applied under the existing law.  The proposed change will clarify that the provision is an offence of strict liability.  The standard note referring to section 6.1 of the Criminal Code, which governs strict liability, is also added after this provision.

Item 123	Subsection 68(1)

This item proposes to remove the defence of reasonable excuse from subsection 68(1) in order that it may be restated in a new separate subsection.  This is to avoid the defence being interpreted as an element of the offence.

Item 124	After subsection 68(1)

This item inserts proposed subsection 68(1A), which identifies subsection 68(1) as an offence of strict liability.  Subsection 68(1) requires an employer to give to the claimant any document held by the employer which is relevant to the claim.  Failure to comply carries a penalty of 50 penalty units.  This is an administrative obligation provision of the type where strict liability is generally applied under the existing law.  The proposed change will clarify that the provision is an offence of strict liability.  The standard note referring to section 6.1 of the Criminal Code, which governs strict liability, is also added after this provision.

This item also inserts proposed subsection 68(1B) which restates the defence of reasonable excuse in relation to subsection 68(1).  A note advising that a defendant bears an evidential burden follows the new subsection.  

Item 125	After subsection 93(1)

This item inserts proposed subsection 93(1A), which identifies subsection 93(1) as an offence of strict liability.  Subsection 93(1) requires any employer, other than the Fund, to be insured by an insurer authorised under the Insurance Act 1973, or indemnified by a protection and indemnity association that has been approved by the Authority and is a member of the International Group of Protection and Indemnity Associations.  Failure to comply carries a penalty of 50 penalty units.  This is a regulatory provision of the type where strict liability is generally applied under the existing law.  The proposed change will clarify that the provision is an offence of strict liability.  The standard note referring to section 6.1 of the Criminal Code, which governs strict liability, is also added after this provision.

Item 126	At the end of section 94

This item inserts proposed subsection 94(2), which identifies proposed subsection 94(1) as an offence of strict liability.  Section 94 requires that an employer must give the Authority the name and address of the authorised insurer or approved protection and indemnity association within 14 days of being issued with, or renewing, a policy of insurance or indemnity or becoming a member of, or renewing membership of, a protection and indemnity association.  Failure to comply carries a penalty of 20 penalty units.  This is a administrative obligation provision of the type where strict liability is generally applied under the existing law.  The proposed change will clarify that the provision is an offence of strict liability.  The standard note referring to section 6.1 of the Criminal Code, which governs strict liability, is also added after this provision.

Item 127	At the end of section 98

This item inserts proposed subsection 98(2), which identifies proposed subsection 98(1) as an offence of strict liability.  Section 98 provides that the Fund must provide the Authority with financial information, as and when the Authority determines.  Failure to comply carries a penalty of 20 penalty units.  This is administrative obligation provision of the type where strict liability is generally applied under the existing law.  The proposed change will clarify that the provision is an offence of strict liability.  The standard note referring to section 6.1 of the Criminal Code, which governs strict liability, is also added after this provision.

Item 128	Subsection 106(3)

This item proposes to remove the defence of reasonable excuse from subsection 106(3) in order that it may be placed in a new separate subsection.  This is to avoid the defence being interpreted as an element of the offence.

Item 129	At the end of section 106

This item inserts proposed subsection 106(4), which identifies subsection 106(3) as an offence of strict liability.  Subsection 106(3) provides that an employer must not fail to comply with a request under subsection 106(1) or (2).  

Subsection 106(1) enables the Authority to require employers to provide documents or information relevant to the compilation of statistics for injury prevention purposes.  Subsection 106(2) provides that if a declaration has been made under section 100 that the Authority has the Fund’s employer functions, powers and obligations, the Authority may require an employer to provide any documents or information in the employer’s possession or control that are relevant to a claim made by, or in relation to, an employee.  Failure to comply with either provision carries a penalty of 20 penalty units.  

This is an administrative obligation provision of the type where strict liability is generally applied under the existing law.  The proposed change will clarify that the provision is an offence of strict liability.  The standard note referring to section 6.1 of the Criminal Code, which governs strict liability, is also added after this provision.

This item will also insert proposed subsection 106(5) which restates the defence of reasonable excuse in relation to subsection 106(3).  A note advising that a defendant bears an evidential burden follows the new subsection.  

Item 130	After subsection 130(1)

This item inserts proposed subsection 130(1A), which identifies subsection 130(1) as an offence of strict liability.  Subsection 130(1) provides that an employer, having made an assessment under section 29, 39, 40 or 41 that compensation is payable to a claimant, must pay the amount within 30 days of the assessment.  Failure to comply carries a penalty of 10 penalty units.  The defendant can claim a defence if he or she made an honest and reasonable mistake of fact.  The proposed change will clarify that the provision is an offence of strict liability.  The standard note referring to section 6.1 of the Criminal Code, which governs strict liability, is also added after this provision.

Item 131	At the end of section 131

This item inserts proposed subsection 131(2), which identifies proposed subsection 131(1) as an offence of strict liability.  Section 131 requires an employee who has claimed against more than one employer in respect of an injury to notify the other employer, or employers, claimed against, if the full amount of compensation is received from one of the employers.  Failure to comply carries a penalty of 5 penalty units.  This is an administrative obligation provision of the type where strict liability is generally applied under the existing law.  The proposed change will clarify that the provision is an offence of strict liability.  The standard note referring to section 6.1 of the Criminal Code, which governs strict liability, is also added after this provision.

Item 132	At the end of section 140

This item inserts proposed subsection 140(5), which identifies subsections 140(3) and (4) as offences of strict liability.  Subsection 140(3) provides that where a person who has been receiving weekly payments for incapacity under section 31 for a period of three months or more has left Australia without giving notice under subsection 140(2), the person is required to notify the employer within seven days of his or her departure from Australia.  Subsection 140(4) requires a person who is absent from Australia for more than three months to notify his or her employer within seven days of the end of the period of three months (and at three monthly intervals thereafter) particulars of his or her residential address.  Failure to comply with either of subsection 140(3) or (4) carries a penalty of 5 penalty units.  This is an administrative obligation provision of the type where strict liability is generally applied under the existing law.  The proposed change will clarify that the provision is an offence of strict liability.  The standard note referring to section 6.1 of the Criminal Code, which governs strict liability, is also added after this provision.

Seafarers Rehabilitation and Compensation Levy Collection Act 1992

Item 133	After section 3

New section 3A – Application of Criminal Code

This item inserts proposed section 3A which applies Chapter 2 of the Criminal Code to all offences against the Act.  Chapter 2 establishes the codified general principles of criminal responsibility.

The standard note concerning Chapter 2 of the Criminal Code setting out the principles of criminal responsibility is also added after this provision.

Item 134	Subsection 7(1)

This item proposes to remove the defence of reasonable excuse from subsection 7(1) to be restated in a new separate subsection.  This item would also omit “knowingly” from subsection 7(1) in relation to the refusal or failure to give a return.

Following application of the Criminal Code, it will not be possible to apply a fault element of knowledge (i.e.  “knowingly”) to a physical element consisting of conduct, that is that the person refused or failed.  Intention will be the required fault element for the conduct of refusal or failure (to give a return), by virtue of the Criminal Code’s default fault provision (section 5.6).  While strict liability will apply to the circumstance of its requirement under section 6 (see item 135 below).  

Item 135	After subsection 7(1)

This item will insert proposed subsection 7(1A) which restates the defence of reasonable excuse in relation to subsection 7(1).  A note advising that a defendant bears an evidential burden follows the new subsection.  

This item also inserts proposed subsection 7(1B), which identifies strict liability in relation to the physical element of circumstance, that the person is required to give a return under section 6.  Although subsection 9.3(1) of the Criminal Code provides that mistake or ignorance of statute law is no excuse, subsection 9.3(2) provides that subsection 9.3(1) does not apply if the particular Act is expressly or impliedly to the contrary effect.  Applying strict liability to the physical element that the return was required under section 6 avoids any implication that that subsection 9.3(1) of the Criminal Code does not apply.  The effect is that the prosecution need not prove fault and need only prove that the physical element of the offence did occur.  The standard note referring to section 6.1 of the Criminal Code, which governs strict liability, is also added after this provision.

Item 136	Subsection 7(2)

This item will repeal and replace subsection 7(2).  The proposed subsection 7(2) will remove the defence of reasonable excuse from the subsection which will be restated in a new separate subsection.  It will also omit the word “knowingly” because following the application of the Criminal Code, it will not be possible to apply a fault element of knowledge (i.e.  “knowingly”) to a physical element consisting of conduct, that is that the person did not give the return.  Intention will be the required fault element for the conduct of not giving the return, by virtue of the Criminal Code’s default fault provision (section 5.6).  The item will also omit present paragraph 7(2)(b) which provides for an offence in relation to a return that is false or misleading in a material particular.  The general offence at 137.2 of the Criminal Code in relation to the provision of false or misleading documents in compliance or purported compliance with a law of the Commonwealth will instead apply.

This item will also insert proposed subsection 7(2A) which restates the defence of reasonable excuse in relation to subsection 7(2).  A note advising that a defendant bears an evidential burden follows the new subsection.  

This item will also insert proposed subsection 7(2B) which identifies strict liability in relation to the physical element of circumstance, that the person is required under section 6 to give the information in a return.  Although subsection 9.3(1) of the Criminal Code provides that mistake or ignorance of statute law is no excuse, subsection 9.3(2) provides that subsection 9.3(1) does not apply if the particular Act is expressly or impliedly to the contrary effect.  Applying strict liability to the physical element that the person is required under section 6 to give the information in a return avoids any implication that that subsection 9.3(1) of the Criminal Code does not apply.  The effect is that the prosecution need not prove fault and need only prove that the physical element of the offence did occur.  The standard note referring to section 6.1 of the Criminal Code, which governs strict liability, is also added after this provision.

Item 137	Subsection 7(3)

This item is consequential to the repeal of the paragraph 7(2)(b) above.  

Item 138	Subsection 14(5)

This item proposes to remove the defence of reasonable excuse from subsection 14(5) in order that it may be placed in a new separate subsection.  This is to avoid the defence being interpreted as an element of the offence.

Item 139	At the end of section 14

This item will insert proposed subsection 14(6) which restates the defence of reasonable excuse in relation to subsection 14(5).  A note advising that a defendant bears an evidential burden follows the new subsection.  

This item also inserts proposed subsection 14(7), which identifies subsection 14(5) as an offence of strict liability.  Subsection 14(5) provides that where a person, to whom an identity card has been issued but who has ceased to be an authorised person, fails to immediately return the identity card to a person designated, in writing, by the Secretary, then that person is guilty of an offence.  Failure to comply carries a penalty of one penalty unit.  This is an administrative obligation provision of the type where strict liability is commonly applied under the existing law.  The proposed change will clarify that the provision is an offence of strict liability.  The standard note referring to section 6.1 of the Criminal Code, which governs strict liability, is also added after this provision.

Workplace Relations Act 1996

Item 140	At the end of Part 1

New section 7B – Application of Criminal Code

This item inserts proposed section 7B, which applies Chapter 2 of the Criminal Code (other than Part 2.5) to all offences against the Act.  Chapter 2 establishes the codified general principles of criminal responsibility.

The standard note concerning Chapter 2 of the Criminal Code setting out the principles of criminal responsibility is also added after this provision at Note 1.

A note drawing attention to the retention of section 349 in preference to Part 2.5 (Corporate Criminal Responsibility) of the Criminal Code has also been added after this provision at Note 2.

Item 141	Subsection 83BG(5)

This item proposes to remove the defence of reasonable excuse from the subsection.  The defence is recreated in a new subsection 83BG(5B) – see item 142 below.  The rationale for this amendment is to prevent future interpretation that the reasonable excuse element of this provision is an element of the offence, which would have to be disproved in the negative by the prosecution, and puts it beyond doubt that it is a defence to the offence.

Item 142	After subsection 83BG(5)

This item proposes to insert subsection 83BG(5A), which identifies the offence in subsection 83BG(5) as one of strict liability.  Subsection 83BG(5) provides that a person must not contravene subsection 83BG(4) in that a person who is no longer an authorised officer must return their identity card to the Employment Advocate.  The penalty for this offence is 1 penalty unit.  

For strict liability offences the Criminal Code provides for a defence of reasonable mistake of fact (Section 9.2 of the Code).  If there is a mistake of fact, there is an evidential burden of proof on the defence.

Factors such as the low penalty and regulatory nature of the offence support identification of this offence as one that attracts strict liability.

The standard note referring to section 6.1 of the Criminal Code, which governs strict liability, is added after this provision.

This item is also consequential upon item 141 above in that it proposes insertion of subsection 83BG(5B), which creates a defence of reasonable excuse in relation to an offence against subsection 83BG(5).  

The new provision includes a note advising that the defendant bears an evidential burden if a defendant relies upon the reasonable excuse defence established by subsection 83BG(5B).  An evidential burden of proof means that the onus is on the defendant to adduce or point to evidence that suggests a reasonable possibility that a matter exists or not.

Item 143	At the end of subsection 214(1)

This item proposes to insert the penalty for breach of section 214(1) at the end of the subsection, removing it from its current location in section 310.  This amendment is consequential upon the proposed repeal of section 310 (item 157).

Item 144	At the end of section 214

This item proposes to insert a new subsection 214(3) which defines “penalty period” and is consequential upon the proposed repeal of section 310 (refer item 157).  The amendments are designed to avoid the prosecution being required to prove, as part of the offence, that the defendant intentionally contravened a requirement made of the person under section 214.  For the prosecution to establish the fault element of intention in this offence would be very difficult and would be contrary to the usual maxim that ignorance of the law is no excuse.

Item 145	At the end of subsection 275(1)

This item proposes to relocate the penalty provision that is currently located in subsection 324(1) to follow subsection 275(1).  The penalty for breach of section 275(1) is $1000, as currently prescribed in subsection 324(1).  This amendment is consequential upon the proposed repeal of subsection 324 (refer item 180).

Item 146	After subsection 275(1)

This item proposes to insert subsection 275(1A), which identifies the offence in subsection 275(1) as one of strict liability.  Subsection 275(1) requires the appointment of an auditor where an auditor in certain circumstances.

For strict liability offences the Criminal Code provides for a defence of reasonable mistake of fact (Section 9.2 of the Code).  If there is a mistake of fact, there is an evidential burden of proof on the defence.

Factors such as the low penalty and regulatory nature of the offence support identification of this offence as one that attracts strict liability.

The standard note referring to section 6.1 of the Criminal Code, which governs strict liability, is added after this provision.

Item 147	At the end of subsections 275(3), (4), (5), (6) and (7)

This item proposes to relocate the penalty provision that is currently located at the end of subsection 324(2) to follow subsections 275(3), (4), (5), (6) and (7).  The penalty for breach of these subsections is $500, as currently prescribed in subsection 324(2).  This amendment is consequential upon the proposed repeal of subsection 324 (refer item 180).

Item 148	Paragraph 299(1)(a)

This item proposes to omit the word “wilfully” from paragraph 299(1)(a), because use of the word “wilfully” in relation to the physical element of conduct is akin to “intentionally”.  The default fault element of “intention” is the equivalent used in the Criminal Code.  The offence will still operate in the same manner following application of the Criminal Code.  As it is possible that future courts may attempt to distinguish “wilfulness” from “intention” on the basis that it appears to differ from the basic Criminal Code fault element, “wilfully” is to be deleted from the provision and the default fault element of intention will apply consistent with section 5.6 of the Criminal Code.  

Item 149	Subsection 303(1)

This item proposes to remove the defence of reasonable excuse from the subsection.  The defence is recreated in a new subsection 303(1B) – see item 150 below.  The rationale for this amendment is to prevent future interpretation that the reasonable excuse element of this provision is an element of the offence, which would have to be disproved in the negative by the prosecution, and puts it beyond doubt that it is a defence to the offence.

Item 150	After subsection 303(1)

This item proposes to insert subsection 303(1A), which identifies, for the purposes of an offence against subsection 303(1) that strict liability applies to the physical conduct that the person fails to be sworn or make an affirmation (paragraph 303(1)(b)), fails to answer a question (paragraph 303(1)(c)) or fails to produce a document (paragraph 303(1)(d)).  

For strict liability offences the Criminal Code provides for a defence of reasonable mistake of fact (Section 9.2 of the Code).  If there is a mistake of fact, there is an evidential burden of proof on the defence.

Factors such as the low penalty and regulatory nature of the offence support identification of this offence as one that attracts strict liability.

The standard note referring to section 6.1 of the Criminal Code, which governs strict liability, is added after this provision.

This item is also consequential upon item 149 above in that it proposes insertion of subsection 303(1B), which creates a defence of reasonable excuse in relation to an offence against subsection 303(1).  

The new provision includes a note advising that the defendant bears an evidential burden if a defendant relies upon the reasonable excuse defence established by subsection 303(1B).  An evidential burden of proof means that the onus is on the defendant to adduce or point to evidence that suggests a reasonable possibility that a matter exists or not.

Item 151	Section 305

This item proposes to remove the defence of reasonable excuse from the section.  The defence is recreated in a new subsection 305(2) – see item 152 below.  The rationale for this amendment is to prevent future interpretation that the reasonable excuse element of this provision is an element of the offence, which would have to be disproved in the negative by the prosecution, and puts it beyond doubt that it is a defence to the offence.

Item 152	At the end of section 305

This item is consequential upon item 151 above in that it proposes insertion of subsection 305(2), which creates a defence of reasonable excuse in relation to an offence against proposed subsection 305(1).  

The new provision includes a note advising that the defendant bears an evidential burden if a defendant relies upon the reasonable excuse defence established by subsection 305(2).  An evidential burden of proof means that the onus is on the defendant to adduce or point to evidence that suggests a reasonable possibility that a matter exists or not.

Item 153	Section 305A

This item proposes to remove the defence of reasonable excuse from the section.  The defence is recreated in a new subsection 305A(2) – see item 154 below.  The rationale for this amendment is to prevent future interpretation that the reasonable excuse element of this provision is an element of the offence, which would have to be disproved in the negative by the prosecution, and puts it beyond doubt that it is a defence to the offence.

Item 154	At the end of section 305A

This item is consequential upon item 153 above in that it proposes insertion of subsection 305A(2), which creates a defence of reasonable excuse in relation to an offence against proposed subsection 305A(1).  

The new provision includes a note advising that the defendant bears an evidential burden if a defendant relies upon the reasonable excuse defence established by subsection 305A(2).  An evidential burden of proof means that the onus is on the defendant to adduce or point to evidence that suggests a reasonable possibility that a matter exists or not.

Item 155	At the end of section 307

Section 307 currently provides that a person shall not join with other persons in making an application under subsection 136(1) if the application includes a statement that is to the person’s knowledge false or misleading in a material particular.  This item proposes to insert subsection 307(2), which indicates that strict liability applies to the physical element, namely that the application was made under subsection 136(1).  The offence carries a penalty of $1000.  

For strict liability offences the Criminal Code provides for a defence of reasonable mistake of fact (Section 9.2 of the Code).  If there is a mistake of fact, there is an evidential burden of proof on the defence.

Factors such as the low penalty and regulatory nature of the offence support identification of this offence as one that attracts strict liability.

The standard note referring to section 6.1 of the Criminal Code, which governs strict liability, is added after this provision.

Item 156	At the end of section 308

Section 308 provides that an organisation or person to whom a direction has been given under subsection 138(1) shall comply with the direction.  Failure to comply carries a penalty for a natural person of $500 or imprisonment of 6 months or both.  The penalty in the case of a body corporate is $1000.  This item proposes to insert subsection 308(2), which identifies proposed subsection 308(1) as an offence of strict liability.  

For strict liability offences the Criminal Code provides for a defence of reasonable mistake of fact (Section 9.2 of the Code).  If there is a mistake of fact, there is an evidential burden of proof on the defence.

Factors such as the low penalty and regulatory nature of the offence support identification of this offence as one that attracts strict liability.

The standard note referring to section 6.1 of the Criminal Code, which governs strict liability, is added after this provision.

Item 157	Section 310

This item proposes repeal of section 310, which provides for imposition of a penalty where an organisation or branch of an organisation contravenes subsection 214(1).  Provisions for imposition and calculation of the penalty is to be combined in proposed subsection 214(3) (refer items 143 and 144).

Item 158	Section 313

This item proposes repeal of section 313 and substitution of proposed subsections 313(1), (2) and (3).  Proposed paragraph 313(1)(a) provides that a person must not refuse or fail to comply with a direction under subsection 215(1).  Proposed subsection 313(2) provides that paragraph 313(1)(a) does not apply so far as the person is not capable of complying with the direction.  This reformulation of this aspect of section 313 is designed to avoid an interpretation of section 313 which would require the prosecution to prove that a defendant failed to comply with a relevant direction to the extent he or she was capable of complying.  Removing the phrase “so far as the person is capable of complying” from the body of section 313 and placing it in a separate stand-alone subsection makes it clear that lack of capacity to comply is a defence.

The standard note is included after proposed subsection 313(2) concerning the imposition of an evidential burden on a defendant by subsection 13.3(3) of the Criminal Code if a defendant relies on the defence established by subsection 313(2).

Proposed subsection 313(3) provides that the offence contained in paragraph 313(1)(a) is an offence of strict liability so far as a person fails to comply with a direction, as mentioned in paragraph 1(a).  

For strict liability offences the Criminal Code provides for a defence of reasonable mistake of fact (Section 9.2 of the Code).  If there is a mistake of fact, there is an evidential burden of proof on the defence.

Factors such as the low penalty and regulatory nature of the offence support identification of this offence as one that attracts strict liability.

The standard note referring to section 6.1 of the Criminal Code, which governs strict liability, is added after this provision.

Item 159	Section 314A

This item proposes amendments to a section proposed by the Workplace Relations Amendment (Secret Ballots for Protected Action) Bill 2000 and the Workplace Relations Legislation Amendment (More Jobs, Better Pay) Bill 1999 under which a person must not knowingly or recklessly contravene section 170NBGC, that is fail to preserve protected action ballot papers.

It is proposed that the phrase “knowingly or recklessly” be omitted from section 314A.  Section 314A as drafted applies the fault elements of knowledge and recklessness (knowingly or recklessly) in relation to the physical elements of conduct, namely contravening section 170NBGC.  Following application of the Criminal 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.  Accordingly, this item proposes the replacement of “knowingly or recklessly” in section 314A with the appropriate fault element, namely intention.  The fault element of intention is the direct Criminal Code equivalent of pre-Criminal Code knowingly where the latter has been applied to physical elements of conduct.  The fault element of recklessness will apply by default to the physical element of circumstance or result in section 314A.  It is considered that section 314A will continue to operate in the same manner as at present following this amendment.

Item 160	Subsection 315(1)

This item proposes to remove the specific defence of lawful authority or excuse from the body of subsection 315(1).  The general defences of lawful authority and lawful excuse are now included in section 10.5 of the Criminal Code.  Therefore, the specific inclusion of these defences in Commonwealth offence provisions will be redundant.  The accused will incur an evidential burden in establishing the defences under section 10.5, namely the burden of adducing evidence that suggests a reasonable possibility that the defence exists.  These matters are addressed in subsections 13.3(3) and 13.3(6) of the Criminal Code.  

Item 161	Paragraph 315(1)(b)

This item proposes repeal of paragraph 315(1)(b) and replacement with a restructured paragraph that removes the active verbs in the expression “destroy, deface, alter, take or otherwise interfere with a nomination paper, ballot paper or envelope” and proscribes the actions of a person whose conduct causes such damage or interference to the property.

The damage or interference is the result of the accused person’s conduct, and is a physical element of result rather than a physical element of conduct.  It follows that using these active verbs in a criminal offence may lead to difficulties in interpreting the offence following application of the Criminal Code.  The restructured offence better identifies the physical elements of conduct and result.

Item 162	Paragraph 315(1)(j)

This item proposes repeal of paragraph 315(1)(j) and replacement with a restructured paragraph that removes the active verbs in the expression “destroy, take, open or otherwise interfere with a ballot box or other ballot receptacle” and proscribes the actions of a person whose conduct causes such damage or interference to the property.

The damage or interference is the result of the accused person’s conduct, and is a physical element of result rather than a physical element of conduct.  It follows that using these active verbs in a criminal offence may lead to difficulties in interpreting the offence following application of the Criminal Code.  The restructured offence better identifies the physical elements of conduct and result.

Item 163	Subsection 315(2)

This item proposes to remove the specific defence of lawful authority or excuse from subsection 315(2).  The general defences of lawful authority and lawful excuse are now included in section 10.5 of the Criminal Code.  Therefore, the specific inclusion of these defences in Commonwealth offence provisions will be redundant.  The accused will incur an evidential burden in establishing the defences under section 10.5, namely the burden of adducing evidence that suggests a reasonable possibility that the defence exists.  These matters are addressed in subsections 13.3(3) and 13.3(6) of the Criminal Code.  

Item 164	Subsection 315(2)

This item proposes to omit the phrase “cause, inflict or procure” from the subsection and replace it with “cause or inflict”.  Section 11.2 of the Criminal Code creates an offence of aiding, abetting, counselling or procuring the commission of an offence by another person.  It replaces section 5 of the Crimes Act 1914.  Consequentially the reference to “procuring” in the provision will be superfluous following application of the Criminal Code and it is proposed that it be repealed.

Item 165	Subsection 315(3)

This item proposes to remove the specific defence of lawful authority or excuse from subsection 315(3).  The general defences of lawful authority and lawful excuse are now included in section 10.5 of the Criminal Code.  Therefore, the specific inclusion of these defences in Commonwealth offence provisions will be redundant.  The accused will incur an evidential burden in establishing the defences under section 10.5, namely the burden of adducing evidence that suggests a reasonable possibility that the defence exists.  These matters are addressed in subsections 13.3(3) and 13.3(6) of the Criminal Code.  

Item 166	Subsection 315(4)

This item proposes to remove the specific defence of lawful authority or excuse from subsection 315(4).  The general defences of lawful authority and lawful excuse are now included in section 10.5 of the Criminal Code.  Therefore, the specific inclusion of these defences in Commonwealth offence provisions will be redundant.  The accused will incur an evidential burden in establishing the defences under section 10.5, namely the burden of adducing evidence that suggests a reasonable possibility that the defence exists.  These matters are addressed in subsections 13.3(3) and 13.3(6) of the Criminal Code.  

Item 167	Subsection 315(4)

This item proposes to omit the phrase “cause, inflict or procure” and to substitute “cause or inflict”.  Section 11.2 of the Criminal Code creates an offence of aiding, abetting, counselling or procuring the commission of an offence by another person.  It replaces section 5 of the Crimes Act 1914.  Consequentially the reference to “procuring” in the provision will be superfluous following application of the Criminal Code and it is proposed that it be repealed.

Item 168	Subsection 317(1)

This item proposes to remove the phrase “so far as he or she is capable” from subsection 317(1).  

Item 169	After subsection 317(1)

This item proposes insertion of subsection 307(1A) as a stand-alone defence and is consequential upon item 168.  Redrafting in this way identifies the phrase as a defence and avoids the prosecution having to prove that the defendant failed to comply to the extent he or she was capable of complying.  Whether a person complies to the extent he or she is capable is something within that person’s knowledge and is difficult for the prosecution to prove.

This item also proposes to add the standard note after subsection 317(1A) concerning the imposition of an evidential burden on a defendant by subsection 13.3(3) of the Criminal Code if a defendant relies on the defence established by subsection 317(1A).

Item 170	Subsection 317(2)

This item proposes to remove the specific defence of lawful authority or excuse from subsection 317(2).  The general defences of lawful authority and lawful excuse are now included in section 10.5 of the Criminal Code.  Therefore, the specific inclusion of these defences in Commonwealth offence provisions will be redundant.  The accused will incur an evidential burden in establishing the defences under section 10.5, namely the burden of adducing evidence that suggests a reasonable possibility that the defence exists.  These matters are addressed in subsections 13.3(3) and 13.3(6) of the Criminal Code.  

Item 171	Paragraph 317(2)(b)

This item proposes repeal of paragraph 317(2)(b) and replacement with a restructured paragraph that removes the active verbs in the expression “destroy, deface, alter, take or otherwise interfere with a ballot paper or envelope” and proscribes the actions of a person whose conduct causes such damage or interference to the property.

The damage or interference is the result of the accused person’s conduct, and is a physical element of result rather than a physical element of conduct.  It follows that using these active verbs in a criminal offence may lead to difficulties in interpreting the offence following application of the Criminal Code.  A restructured offence will better identify the physical elements of conduct and result.

Item 172	Paragraph 317(2)(j)

This item proposes repeal of paragraph 317(2)(j) and replacement with a restructured paragraph that removes the active verbs in the expression “destroy, take, open or otherwise interfere with a ballot box or other ballot receptacle” and proscribes the actions of a person whose conduct causes such damage or interference to the property.

The damage or interference is the result of the accused person’s conduct, and is a physical element of result rather than a physical element of conduct.  It follows that using these active verbs in a criminal offence may lead to difficulties in interpreting the offence following application of the Criminal Code.  A restructured offence will better identify the physical elements of conduct and result.

Item 173	Subsection 317(3)

This item proposes to remove the specific defence of lawful authority or excuse from subsection 317(3).  The general defences of lawful authority and lawful excuse are now included in section 10.5 of the Criminal Code.  Therefore, the specific inclusion of these defences in Commonwealth offence provisions will be redundant.  The accused will incur an evidential burden in establishing the defences under section 10.5, namely the burden of adducing evidence that suggests a reasonable possibility that the defence exists.  These matters are addressed in subsections 13.3(3) and 13.3(6) of the Criminal Code.  

Item 174	Paragraph 317(3)(c)

This item proposes to omit the phrase “cause, inflict or procure” and to substitute “cause or inflict”.  Section 11.2 of the Criminal Code creates an offence of aiding, abetting, counselling or procuring the commission of an offence by another person.  It replaces section 5 of the Crimes Act 1914.  Consequentially the reference to “procuring” in the provision will be superfluous following application of the Criminal Code and it is proposed that it be repealed.

Item 175	Subsection 317(4)

This item proposes to remove the specific defence of lawful authority or excuse from subsection 317(4).  The general defences of lawful authority and lawful excuse are now included in section 10.5 of the Criminal Code.  Therefore, the specific inclusion of these defences in Commonwealth offence provisions will be redundant.  The accused will incur an evidential burden in establishing the defences under section 10.5, namely the burden of adducing evidence that suggests a reasonable possibility that the defence exists.  These matters are addressed in subsections 13.3(3) and 13.3(6) of the Criminal Code.  

Item 176	At the end of section 319

This item proposes to insert subsection 319(2), which identifies the offence in subsection 319(1) as one of strict liability.  Subsection 319(1) provides that an organisation not contravene section 263.  Section 263 relates to requests by members for statements about their membership status.  The penalty for contravening section 263 is $500.  

For strict liability offences the Criminal Code provides for a defence of reasonable mistake of fact (Section 9.2 of the Code).  If there is a mistake of fact, there is an evidential burden of proof on the defence.

Factors such as the low penalty and regulatory nature of the offence support identification of this offence as one that attracts strict liability.

The standard note referring to section 6.1 of the Criminal Code, which governs strict liability, is added after this provision.

Item 177	At the end of section 321

This item proposes to insert subsection 321(6), which provides that the offences contained in subsections 321(1) to (5) are offences of strict liability.  Subsection 321 provides for a number of offences in relation to the management of records of an organisation as required in section 268.  The penalties on conviction for an organisation for contravention of the relevant offences in section 268 are monetary (between $500 and $1000) as well as additional monetary penalties for each day or week that the organisation remains in breach of the relevant subsection.  

For strict liability offences the Criminal Code provides for a defence of reasonable mistake of fact (Section 9.2 of the Code).  If there is a mistake of fact, there is an evidential burden of proof on the defence.

Factors such as the low penalty and regulatory nature of the offence support identification of this offence as one that attracts strict liability.

The standard note referring to section 6.1 of the Criminal Code, which governs strict liability, is added after this provision.

Item 178	After subsection 322(1)

This item proposes to insert subsection 322(1A), which identifies the offence in subsection 322(1) as one of strict liability.  Subsection 322(1) provides that an organisation is to notify the Industrial Registrar as soon as practicable after the end of the financial year of loans, grants and donations made to an organisation – as specified in subsection 269(1).  The offence carries a penalty of $1000.  

For strict liability offences the Criminal Code provides for a defence of reasonable mistake of fact (Section 9.2 of the Code).  If there is a mistake of fact, there is an evidential burden of proof on the defence.

Factors such as the low penalty and regulatory nature of the offence support identification of this offence as one that attracts strict liability.

The standard note referring to section 6.1 of the Criminal Code, which governs strict liability, is added after this provision.

Item 179	At the end of section 323

This item proposes to insert subsection 323(2), which identifies the offence in subsection 323(1) as one of strict liability.  Subsection 323(1) provides that an organisation shall not contravene section 272, 273 or 274.  These sections concern requirements to keep proper accounting records, prepare accounts, and provide information to its members or the Registrar.  The offence carries a penalty of $1000.  

For strict liability offences the Criminal Code provides for a defence of reasonable mistake of fact (Section 9.2 of the Code).  If there is a mistake of fact, there is an evidential burden of proof on the defence.

Factors such as the low penalty and regulatory nature of the offence support identification of this offence as one that attracts strict liability.

The standard note referring to section 6.1 of the Criminal Code, which governs strict liability, is added after this provision.

Item 180	Section 324

This item proposes repeal of section 324.  The penalties prescribed in section 324 have been relocated to follow subsections 275(1), (3), (4), (5), (6) and (7) as appropriate (refer items 145 and 147).  

Item 181	At the end of section 325

This item proposes to insert subsection 325(3), which identifies the offence in subsection 325(2) as one of strict liability.  Subsection 325(2) provides that an auditor shall not contravene subsection 276(5), which requires an auditor to report particular matters to the Registrar.  The offence carries a penalty of $500.  

For strict liability offences the Criminal Code provides for a defence of reasonable mistake of fact (Section 9.2 of the Code).  If there is a mistake of fact, there is an evidential burden of proof on the defence.

Factors such as the low penalty and regulatory nature of the offence support identification of this offence as one that attracts strict liability.

The standard note referring to section 6.1 of the Criminal Code, which governs strict liability, is added after this provision.

Item 182	Paragraph 326(1)(b)

This item proposes to remove the defence of reasonable excuse from the subsection.  The defence is recreated in a new subsection 326(1B) – see item 183 below.  The rationale for this amendment is to prevent future interpretation that the reasonable excuse element of this provision is an element of the offence, which would have to be disproved in the negative by the prosecution, and puts it beyond doubt that it is a defence to the offence.

Item 183	After subsection 326(1)

This item proposes to insert subsection 326(1A), which identifies the offence in paragraph 326(1)(b) as one of strict liability.  Paragraph 326(1)(b) provides that an officer, employee or member of an organisation must produce to the auditor particular documents sought under paragraph 276(2)(a).  The offence carries a penalty of $500.  

For strict liability offences the Criminal Code provides for a defence of reasonable mistake of fact (Section 9.2 of the Code).  If there is a mistake of fact, there is an evidential burden of proof on the defence.

Factors such as the low penalty and regulatory nature of the offence support identification of this offence as one that attracts strict liability.

The standard note referring to section 6.1 of the Criminal Code, which governs strict liability, is added after this provision.

This item is also consequential upon item 182 above in that it proposes insertion of subsection 326(1B), which restructures the defence of reasonable excuse into a stand-alone provision.  

The new provision includes a note advising that the defendant bears an evidential burden if a defendant relies upon the reasonable excuse defence established by subsection 326(1B).  An evidential burden of proof means that the onus is on the defendant to adduce or point to evidence that suggests a reasonable possibility that a matter exists or not.

Item 184	After subsection 326

This item proposes to insert subsection 326(2A), which identifies the offence in subsection 326(2) as one of strict liability.  Subsection 326(2) provides that an organisation shall not contravene section 282.  Section 282 requires an organisation to forward certain notices to the organisation’s auditor.  The offence carries a penalty of $1000.  

For strict liability offences the Criminal Code provides for a defence of reasonable mistake of fact (Section 9.2 of the Code).  If there is a mistake of fact, there is an evidential burden of proof on the defence.

Factors such as the low penalty and regulatory nature of the offence support identification of this offence as one that attracts strict liability.

The standard note referring to section 6.1 of the Criminal Code, which governs strict liability, is added after this provision.

Item 185	After subsection 327(1)

This item proposes to insert subsection 327(1A), which identifies the offence in subsection 327(1) as one of strict liability.  Subsection 327(1) provides that an organisation shall not contravene subsection 279(1).  Section 279(1) requires an organisation to provide to its members copies of the report of the auditor and copies of the accounts and statements to which the report relates.  The offence carries a penalty not exceeding $1000 as well as additional monetary penalties for each week that the organisation remains in breach of the relevant subsection.  

For strict liability offences the Criminal Code provides for a defence of reasonable mistake of fact (Section 9.2 of the Code).  If there is a mistake of fact, there is an evidential burden of proof on the defence.

Factors such as the low penalty and regulatory nature of the offence support identification of this offence as one that attracts strict liability.

The standard note referring to section 6.1 of the Criminal Code, which governs strict liability, is added after this provision.

Item 186	After subsection 327(2)

This item proposes to insert subsection 327(2A), which identifies the offence in subsection 327(2) as one of strict liability.  Subsection 279(2) allows compliance with subsection 279(1) by providing a summary of a report, accounts and statements, provided it is accompanied by a statement that the organisation will provide full copies on request.  Subsection 327(2) provides that an organisation shall not fail to provide full copies on request, where a summary has been issued.  The offence carries a penalty not exceeding $1000 as well as additional monetary penalties for each week that the organisation remains in breach of the relevant subsection.  

For strict liability offences the Criminal Code provides for a defence of reasonable mistake of fact (Section 9.2 of the Code).  If there is a mistake of fact, there is an evidential burden of proof on the defence.

Factors such as the low penalty and regulatory nature of the offence support identification of this offence as one that attracts strict liability.

The standard note referring to section 6.1 of the Criminal Code, which governs strict liability, is added after this provision.

Item 187	After subsection 327(3)

This item proposes to insert subsection 327(3A), which identifies the offence in subsection 327(3) as one of strict liability.  Subsection 327(3) provides that if an organisation contravenes subsection 279(6) it is subject to the specified penalties.  Subsection 279(6) establishes time periods within which reports, accounts and statements must be provided to members.  The offence carries a penalty not exceeding $1000 as well as additional monetary penalties for each week that the organisation remains in breach of the relevant subsection.  

For strict liability offences the Criminal Code provides for a defence of reasonable mistake of fact (Section 9.2 of the Code).  If there is a mistake of fact, there is an evidential burden of proof on the defence.

Factors such as the low penalty and regulatory nature of the offence support identification of this offence as one that attracts strict liability.

The standard note referring to section 6.1 of the Criminal Code, which governs strict liability, is added after this provision.

Item 188	After subsection 327(4)

This item proposes to insert subsection 327(4A), which identifies the offence in subsection 327(4) as one of strict liability.  Subsection 327(4) provides that if an organisation contravenes subsection 279(7), on conviction, it is subject to the specified fines.  Subsection 279(7) establishes that if the report sets out a deficiency, failure or shortcoming in relation to a matter referred to in subsection 276(4), then this information must be presented to a meeting of the committee of management within a relevant time period.  The offence carries a penalty not exceeding $1000 as well as additional monetary penalties for each week that the organisation remains in breach of the relevant subsection.  

For strict liability offences the Criminal Code provides for a defence of reasonable mistake of fact (Section 9.2 of the Code).  If there is a mistake of fact, there is an evidential burden of proof on the defence.

Factors such as the low penalty and regulatory nature of the offence support identification of this offence as one that attracts strict liability.

The standard note referring to section 6.1 of the Criminal Code, which governs strict liability, is added after this provision.

Item 189	After subsection 327(5)

This item proposes to insert subsection 327(5A), which identifies the offence in subsection 327(5) as one of strict liability.  Subsection 327(5) provides that if a member of the committee of management of an organisation comments on a matter dealt with in a report, accounts or statements, or summary referred to in section 279, then those comments must not be, to the member’s knowledge, false or misleading in a material particular.  Proposed subsection 327(5A) identifies that strict liability will apply to the physical element, that the matter is dealt with in a report, accounts, statement or summary of the kind referred to in section 279.  The offence carries a penalty of $500.  

For strict liability offences the Criminal Code provides for a defence of reasonable mistake of fact (Section 9.2 of the Code).  If there is a mistake of fact, there is an evidential burden of proof on the defence.

Factors such as the low penalty and regulatory nature of the offence support identification of this offence as one that attracts strict liability.

The standard note referring to section 6.1 of the Criminal Code, which governs strict liability, is added after this provision.

Item 190	At the end of section 328

This item proposes to insert subsection 328(2) which identifies the offence in new subsection 328(1) as one of strict liability.  The offence carries a penalty of $500.  

For strict liability offences the Criminal Code provides for a defence of reasonable mistake of fact (Section 9.2 of the Code).  If there is a mistake of fact, there is an evidential burden of proof on the defence.

Factors such as the low penalty and regulatory nature of the offence support identification of this offence as one that attracts strict liability.

The standard note referring to section 6.1 of the Criminal Code, which governs strict liability, is added after this provision.

Item 191	Paragraph 329(1)(a)

This item proposes to remove the defence of reasonable excuse from the paragraph.  The defence is recreated in a new subsection 329(1B) – see item 194 below.

Item 192	Paragraph 329(1)(c)
Item 193	Subsection 329(1)

Item 193 proposes removal of all the words after paragraph 329(1)(c) (but not the penalty) to ensure that they are not considered to be part of the offence.  These words are to be recast in proposed subsection 329(1C) as a stand-alone defence (refer item 194).  Item 192 is a consequential amendment which proposes deletion of the semicolon after “particular” in paragraph 329(1)(c) and insertion of a full stop.  

Item 194	After subsection 329(1)

Item 194 proposes insertion of new subsections 329(1A), (1B) and (1C).  Proposed subsection 329(1A) provides that, for the purposes of an offence against subsection 329(1) strict liability applies to the physical element that the person fails to attend before a Registrar or provide information or produce a document in the circumstances set out in paragraph 329(1)(a).  

For strict liability offences the Criminal Code provides for a defence of reasonable mistake of fact (Section 9.2 of the Code).  If there is a mistake of fact, there is an evidential burden of proof on the defence.

Factors such as the low penalty and regulatory nature of the offence support identification of this offence as one that attracts strict liability.

The standard note referring to section 6.1 of the Criminal Code, which governs strict liability, is added after this provision.

Insertion of proposed subsection 329(1B) is consequential upon item 191 above in that it incorporates the defence of reasonable excuse into this new stand-alone subsection.  The rationale for this amendment is to prevent future interpretation that the reasonable excuse element of this provision is an element of the offence, which would have to be disproved in the negative by the prosecution, and puts it beyond doubt that it is a defence to the offence

The new provision includes a note advising that the defendant bears an evidential burden if a defendant relies upon the reasonable excuse defence in subsection 329(1B).  An evidential burden of proof means that the onus is on the defendant to adduce or point to evidence that suggests a reasonable possibility that a matter exists or not.

Insertion of proposed subsection 329(1C) is consequential upon item 193.  Words omitted from paragraph 329(1)(c) will be incorporated as a stand-alone defence.  

Item 195	At the end of section 330

This item proposes to insert subsection 330(2) which identifies the offence in new subsection 330(1) as one of strict liability.  Section 330 deals with offences related to the lodging by a branch of an organisation specified documents in the Industrial Registry.  The offence carries a penalty not exceeding $1000 as well as additional monetary penalties that may accrue for continued contravention.  

For strict liability offences the Criminal Code provides for a defence of reasonable mistake of fact (Section 9.2 of the Code).  If there is a mistake of fact, there is an evidential burden of proof on the defence.

Factors such as the low penalty and regulatory nature of the offence support identification of this offence as one that attracts strict liability.

The standard note referring to section 6.1 of the Criminal Code, which governs strict liability, is added after this provision.

Item 196	At the end of section 331

This item proposes to insert subsection 331(2) which identifies the offence in new subsection 331(1) as one of strict liability.  Section 331 provides that an organisation shall not contravene certain requirements, as specified in subsection 285(5), (7), (8) and (9).  The offence carries a penalty of $1000.  

For strict liability offences the Criminal Code provides for a defence of reasonable mistake of fact (Section 9.2 of the Code).  If there is a mistake of fact, there is an evidential burden of proof on the defence.

Factors such as the low penalty and regulatory nature of the offence support identification of this offence as one that attracts strict liability.

The standard note referring to section 6.1 of the Criminal Code, which governs strict liability, is added after this provision.

Item 197	Section 332

This item proposes to remove the defence of reasonable excuse from the subsection by deleting the word “unreasonably”.  The defence is recreated in a new subsection 332(2) – see item 198 below.  
	
Item 198	At the end of subsection 332

This item is consequential upon item 191 above in that it proposes insertion of a new subsection 332(2) as a stand-alone provision.  The rationale for this amendment is to prevent future interpretation that the reasonable excuse element of this provision is an element of the offence, which would have to be disproved in the negative by the prosecution, and puts it beyond doubt that it is a defence to the offence.

The new provision includes a note advising that the defendant bears an evidential burden if a defendant relies upon the reasonable excuse defence established by subsection 332(2).  An evidential burden of proof means that the onus is on the defendant to adduce or point to evidence that suggests a reasonable possibility that a matter exists or not.

Item 199	At the end of section 333

This item proposes to insert subsection 333(2) which identifies the offence in new subsection 333(1) as one of strict liability.  Section 333(1) provides that contravention of section 289 constitutes an offence.  Section 289 relates to the provision of a copy of the rules of an organisation on request by a member.  The offence carries a penalty of $500.  

For strict liability offences the Criminal Code provides for a defence of reasonable mistake of fact (Section 9.2 of the Code).  If there is a mistake of fact, there is an evidential burden of proof on the defence.

Factors such as the low penalty and regulatory nature of the offence support identification of this offence as one that attracts strict liability.

The standard note referring to section 6.1 of the Criminal Code, which governs strict liability, is added after this provision.

Item 200	Section 337

New section 337 – False representation as to membership of organisation

This item proposes repeal of the current section 337 and replace it with a restructured section 337.  This amendment is proposed because following application of the Criminal Code, it will not be possible to apply a fault element of knowledge to a physical element consisting of conduct: see Part 2.2, Division 5 of the Criminal Code generally.  The fault element of knowledge can only be applied to physical elements of circumstance or result.  Accordingly, it is proposed to amend this provision by deleting the word “knowingly”, as in its present operation it will have no effect following application of the Criminal Code.  

In addition, because Subsection 5.6(2) of the Criminal Code applies a fault element of “recklessness” to a physical element consisting of a circumstance where no fault element is stated in the provision, the offence has been restructured.  The proposed paragraph 337(b) clarifies that the physical element of circumstance is to be addressed by the phrase  “the person knows that the representation is false”.

Item 201	Section 339

New section 339 – Publication of trade secrets etc.

This item proposes repeal of section 339 and substitution of a restructured provision.  New subsection 339(1) deals with the publication of trade secrets in circumstances that may amount to commission of an offence.  New subsection 339(2) identifies new subparagraph 339(1)(b)(i) as an offence that attracts strict liability.

For strict liability offences the Criminal Code provides for a defence of reasonable mistake of fact (Section 9.2 of the Code).  If there is a mistake of fact, there is an evidential burden of proof on the defence.

Factors such as the low penalty and regulatory nature of the offence support identification of this offence as one that attracts strict liability.

The standard note referring to section 6.1 of the Criminal Code, which governs strict liability, is added after this provision.

Item 202	Subsection 340(1)

This item proposes repeal of the current subsection 340(1) and the replacement of that subsection  it with a restructured subsection 340(1).  This amendment is proposed because following application of the Criminal Code, it will not be possible to apply a fault element of knowledge to a physical element consisting of conduct: see Part 2.2, Division 5 of the Criminal Code generally.  The fault element of knowledge can only be applied to physical elements of circumstance or result.  Accordingly, it is proposed to amend this provision by deleting the word “knowingly”, as in its present operation it will have no effect following application of the Criminal Code.  

In addition, because Subsection 5.6(2) of the Criminal Code applies a fault element of “recklessness” to a physical element consisting of a circumstance where no fault element is stated in the provision, the offence has been restructured.  The proposed paragraph 340(1)(b) clarifies that the physical element of circumstance is to be addressed by the phrase  “the person knows that the representation is false”.

Workplace Relations Legislation Amendment (More Jobs, Better Pay) Act 2001

Item 203	Item 55 of Schedule 2 (heading)

This item proposes to omit the reference to “Paragraph 316(b)” and to substitute “Paragraph 316(1)(b)”.

Item 204	Item 6 of Schedule 15 (heading)

This item proposes to omit the reference to “Paragraph 305(b)” and to substitute “Paragraph 305(1)(b)”.

Workplace Relations (Registered Organisations) Act 2001

Item 205	After section 13

New section 13A – Application of Criminal Code

This item inserts proposed section 13A, which applies Chapter 2 of the Criminal Code (other than Part 2.5) to all offences against the Act.  Chapter 2 establishes the codified general principles of criminal responsibility.

The standard note concerning Chapter 2 of the Criminal Code setting out the principles of criminal responsibility is also added after this provision at Note 1.

A note for the retention of section 323 in preference to Part 2.5 (Corporate Criminal Responsibility) of the Criminal Code has also been added after this provision at Note 2.

Item 206	After subsection 61(2)

This item proposes to insert subsection 61(2A) which identifies the offence in subsection 61(2) as one of strict liability.  Subsection 61(2) provides that it is an offence if an officer or employee of an organisation or branch does not comply with requirements made under subsection 61(1) to provide certain information or documents to electoral officials.  The offence carries a maximum penalty of 30 penalty units.  

For strict liability offences the Criminal Code provides for a defence of reasonable mistake of fact (Section 9.2 of the Code).  If there is a mistake of fact, there is an evidential burden of proof on the defence.

Factors such as the low penalty and regulatory nature of the offence support identification of this offence as one that attracts strict liability.

The standard note referring to section 6.1 of the Criminal Code, which governs strict liability, is added after this provision.

Item 207	Subsection 82(1)

This item proposes to remove the specific defence of lawful authority or excuse from subsection 82(1).  The general defences of lawful authority and lawful excuse are now included in section 10.5 of the Criminal Code.  Therefore, the specific inclusion of these defences in Commonwealth offence provisions will be redundant.  The accused will incur an evidential burden in establishing the defences under section 10.5, namely the burden of adducing evidence that suggests a reasonable possibility that the defence exists.  These matters are addressed in subsections 13.3(3) and 13.3(6) of the Criminal Code.  

Item 208	Paragraph 82(1)(a)

This item proposes repeal of paragraph 82(1)(a) and replace it with a restructured paragraph.  The phrase “for the purpose of” will be replaced by the phrase “with the intention of”.  The phrase “for the purpose of” should no longer be used in offence-creating provisions because of the potential confusion which could arise as to the applicable fault element.  This confusion could arise because most offences do not specify the fault element and because the phrase “for the purpose of” could be interpreted to refer to an additional fault element of intention attaching to the physical element of conduct, or denote a physical element of result, which would thereby attract the default fault element of recklessness.  Where the phrase “for the purpose of” is meant to denote an additional fault element of intention attaching to the physical element of conduct then the phrase “with the intention of” is more appropriate.

Item 209	Paragraph 82(1)(b)

This item proposes repeal of paragraph 82(1)(b) and replacement with a restructured paragraph that removes the active verbs in the expression “destroy, deface, alter, take or otherwise interfere with a nomination paper, ballot paper or envelope” and proscribes the actions of a person whose conduct causes such damage or interference to the property.

The damage or interference is the result of the accused person’s conduct, and is a physical element of result rather than a physical element of conduct.  It follows that using these active verbs in a criminal offence may lead to difficulties in interpreting the offence following application of the Criminal Code.  The restructured offence better identifies the physical elements of conduct and result.

Item 210	Paragraph 82(1)(i)

This item proposes repeal of paragraph 82(1)(i) and replacement with a restructured paragraph that removes the active verbs in the expression “destroy, take, open or otherwise interfere with a ballot box or other ballot receptacle” and proscribes the actions of a person whose conduct causes such damage or interference to the property.

The damage or interference is the result of the accused person’s conduct, and is a physical element of result rather than a physical element of conduct.  It follows that using these active verbs in a criminal offence may lead to difficulties in interpreting the offence following application of the Criminal Code.  The restructured offence better identifies the physical elements of conduct and result.

Item 211	Subsection 82(2)

This item proposes to remove the specific defence of lawful authority or excuse from subsection 82(2).  The general defences of lawful authority and lawful excuse are now included in section 10.5 of the Criminal Code.  Therefore, the specific inclusion of these defences in Commonwealth offence provisions will be redundant.  The accused will incur an evidential burden in establishing the defences under section 10.5, namely the burden of adducing evidence that suggests a reasonable possibility that the defence exists.  These matters are addressed in subsections 13.3(3) and 13.3(6) of the Criminal Code.  

Item 212	Paragraph 82(2)(c)

This item proposes to omit the phrase “cause, inflict or procure” and to substitute “cause or inflict”.  Section 11.2 of the Criminal Code creates an offence of aiding, abetting, counselling or procuring the commission of an offence by another person.  It replaces section 5 of the Crimes Act 1914.  Consequentially the reference to “procuring” in the provision will be superfluous following application of the Criminal Code and it is proposed that it be repealed.

Item 213	Subsection 82(3)

This item proposes to remove the specific defence of lawful authority or excuse from subsection 82(3).  The general defences of lawful authority and lawful excuse are now included in section 10.5 of the Criminal Code.  Therefore, the specific inclusion of these defences in Commonwealth offence provisions will be redundant.  The accused will incur an evidential burden in establishing the defences under section 10.5, namely the burden of adducing evidence that suggests a reasonable possibility that the defence exists.  These matters are addressed in subsections 13.3(3) and 13.3(6) of the Criminal Code.  

Item 214	After subsection 113(2)

This item proposes to insert subsection 113(2A) which identifies the offence in subsection 113(2) as one of strict liability.  Subsection 113(2) provides that it is an offence if an officer or employee of an organisation or branch does not comply with requirements made under subsection 113(1) to provide certain information or documents to electoral officials.  The offence carries a maximum penalty of 30 penalty units.  

For strict liability offences the Criminal Code provides for a defence of reasonable mistake of fact (Section 9.2 of the Code).  If there is a mistake of fact, there is an evidential burden of proof on the defence.

Factors such as the low penalty and regulatory nature of the offence support identification of this offence as one that attracts strict liability.

The standard note referring to section 6.1 of the Criminal Code, which governs strict liability, is added after this provision.

Item 215	Subsection 115(1)

This item proposes to remove the specific defence of lawful authority or excuse from subsection 115(1).  The general defences of lawful authority and lawful excuse are now included in section 10.5 of the Criminal Code.  Therefore, the specific inclusion of these defences in Commonwealth offence provisions will be redundant.  The accused will incur an evidential burden in establishing the defences under section 10.5, namely the burden of adducing evidence that suggests a reasonable possibility that the defence exists.  These matters are addressed in subsections 13.3(3) and 13.3(6) of the Criminal Code.  

Item 216	Paragraph 115(1)(a)

This item proposes repeal of paragraph 115(1)(a) and replace it with a restructured paragraph.  The phrase “for the purpose of” will be replaced by the phrase “with the intention of”.  The phrase “for the purpose of” should no longer be used in offence-creating provisions because of the potential confusion which could arise as to the applicable fault element.  This confusion could arise because most offences do not specify the fault element and because the phrase “for the purpose of” could be interpreted to refer to an additional fault element of intention attaching to the physical element of conduct, or denote a physical element of result, which would thereby attract the default fault element of recklessness.  Where the phrase “for the purpose of” is meant to denote an additional fault element of intention attaching to the physical element of conduct then the phrase “with the intention of” is more appropriate.

Item 217	Paragraph 115(1)(b)

This item proposes repeal of paragraph 115(1)(b) and replacement with a restructured paragraph that removes the active verbs in the expression “destroy, deface, alter, take or otherwise interfere with a nomination paper, ballot paper or envelope” and proscribes the actions of a person whose conduct causes such damage or interference to the property.

The damage or interference is the result of the accused person’s conduct, and is a physical element of result rather than a physical element of conduct.  It follows that using these active verbs in a criminal offence may lead to difficulties in interpreting the offence following application of the Criminal Code.  The restructured offence better identifies the physical elements of conduct and result.

Item 218	Paragraph 115(1)(i)

This item proposes repeal of paragraph 115(1)(i) and replacement with a restructured paragraph that removes the active verbs in the expression “destroy, take, open or otherwise interfere with a ballot box or other ballot receptacle” and proscribes the actions of a person whose conduct causes such damage or interference to the property.

The damage or interference is the result of the accused person’s conduct, and is a physical element of result rather than a physical element of conduct.  It follows that using these active verbs in a criminal offence may lead to difficulties in interpreting the offence following application of the Criminal Code.  The restructured offence better identifies the physical elements of conduct and result.

Item 219	Subsection 115(2)

This item proposes to remove the specific defence of lawful authority or excuse from subsection 115(2).  The general defences of lawful authority and lawful excuse are now included in section 10.5 of the Criminal Code.  Therefore, the specific inclusion of these defences in Commonwealth offence provisions will be redundant.  The accused will incur an evidential burden in establishing the defences under section 10.5, namely the burden of adducing evidence that suggests a reasonable possibility that the defence exists.  These matters are addressed in subsections 13.3(3) and 13.3(6) of the Criminal Code.  

Item 220	Paragraph 115(2)(c)

This item proposes to omit the phrase “cause, inflict or procure” and to substitute “cause or inflict”.  Section 11.2 of the Criminal Code creates an offence of aiding, abetting, counselling or procuring the commission of an offence by another person.  It replaces section 5 of the Crimes Act 1914.  Consequentially the reference to “procuring” in the provision will be superfluous following application of the Criminal Code and it is proposed that it be repealed.

Item 221	Subsection 115(3)

This item proposes to remove the specific defence of lawful authority or excuse from subsection 115(3).  The general defences of lawful authority and lawful excuse are now included in section 10.5 of the Criminal Code.  Therefore, the specific inclusion of these defences in Commonwealth offence provisions will be redundant.  The accused will incur an evidential burden in establishing the defences under section 10.5, namely the burden of adducing evidence that suggests a reasonable possibility that the defence exists.  These matters are addressed in subsections 13.3(3) and 13.3(6) of the Criminal Code.  

Item 222	Subsection 183(1)

This item proposes to omit the words “without lawful authority or excuse, use, cause, inflict or procure” from subsection 183(1) and to substitute “use, cause or inflict”.  The general defences of lawful authority and lawful excuse are now included in section 10.5 of the Criminal Code.  Therefore, the specific inclusion of these defences in Commonwealth offence provisions will be redundant.  The accused will incur an evidential burden in establishing the defences under section 10.5, namely the burden of adducing evidence that suggests a reasonable possibility that the defence exists.  These matters are addressed in subsections 13.3(3) and 13.3(6) of the Criminal Code.  

It is also proposed to delete the term “procure”.  Section 11.2 of the Criminal Code creates an offence of aiding, abetting, counselling or procuring the commission of an offence by another person.  It replaces section 5 of the Crimes Act 1914.  Consequentially the reference to “procuring” in the provision will be superfluous following application of the Criminal Code and it is proposed that it be repealed.

Item 223	Subsection 183(2)

This item proposes to remove the specific defence of lawful authority or excuse from subsection 183(2).  The general defences of lawful authority and lawful excuse are now included in section 10.5 of the Criminal Code.  Therefore, the specific inclusion of these defences in Commonwealth offence provisions will be redundant.  The accused will incur an evidential burden in establishing the defences under section 10.5, namely the burden of adducing evidence that suggests a reasonable possibility that the defence exists.  These matters are addressed in subsections 13.3(3) and 13.3(6) of the Criminal Code.  

Item 224	After subsection 189(2)

This item proposes to insert subsection 189(2A) which identifies the offence in subsection 189(1) as one of strict liability.  Subsection 189(1) provides that it is an offence if an officer or employee of an organisation or branch does not comply with a request of a returning officer under section 219 to make available a register of members.  The offence carries a maximum penalty of 30 penalty units.  

For strict liability offences the Criminal Code provides for a defence of reasonable mistake of fact (Section 9.2 of the Code).  If there is a mistake of fact, there is an evidential burden of proof on the defence.

Factors such as the low penalty and regulatory nature of the offence support identification of this offence as one that attracts strict liability.

The standard note referring to section 6.1 of the Criminal Code, which governs strict liability, is added after this provision.

Item 225	Subsection 191(2)

This item proposes repeal of subsection 191(2) and restructure the provision to remove the expression “must not refuse or fail to comply” and to provide that a person commits an offence if the person “does not comply with a direction under subsection (1)”.  This is a minor change which will not affect the characterisation of the offence.

This item also proposes to remove the phrase “so far as the person is capable” from subsection 191(2) and include a stand-alone defence in subsection 191(2A) stating that the defendant bears an evidential burden.  Redrafting in this way identifies the phrase as a defence and avoids the prosecution having to prove that the defendant failed to comply to the extent he or she was capable of complying.  Whether a person complies to the extent he or she is capable is something within that person’s knowledge and is difficult for the prosecution to prove.

This item also proposes to insert subsection 191(2B) which identifies the offence in subsection 191(2) as one of strict liability.  Subsection 191(2) provides that it is an offence if a secretary or other prescribed officer does not comply with a direction under subsection 191(1).  The offence carries a maximum penalty of 30 penalty units.  

For strict liability offences the Criminal Code provides for a defence of reasonable mistake of fact (Section 9.2 of the Code).  If there is a mistake of fact, there is an evidential burden of proof on the defence.

Factors such as the low penalty and regulatory nature of the offence support identification of this offence as one that attracts strict liability.

The standard note referring to section 6.1 of the Criminal Code, which governs strict liability, is added after this provision.

Item 226	Subsection 193(2)

This item proposes to remove the specific defence of lawful authority or excuse from subsection 193(2).  The general defences of lawful authority and lawful excuse are now included in section 10.5 of the Criminal Code.  Therefore, the specific inclusion of these defences in Commonwealth offence provisions will be redundant.  The accused will incur an evidential burden in establishing the defences under section 10.5, namely the burden of adducing evidence that suggests a reasonable possibility that the defence exists.  These matters are addressed in subsections 13.3(3) and 13.3(6) of the Criminal Code.  

Item 227	Paragraph 193(2)(a)

This item proposes repeal of paragraph 193(2)(a) and replace it with a restructured paragraph.  The phrase “for the purpose of” will be replaced by the phrase “with the intention of”.  The phrase “for the purpose of” should no longer be used in offence-creating provisions because of the potential confusion which could arise as to the applicable fault element.  This confusion could arise because most offences do not specify the fault element and because the phrase “for the purpose of” could be interpreted to refer to an additional fault element of intention attaching to the physical element of conduct, or denote a physical element of result, which would thereby attract the default fault element of recklessness.  Where the phrase “for the purpose of” is meant to denote an additional fault element of intention attaching to the physical element of conduct then the phrase “with the intention of” is more appropriate.

Item 228	Paragraph 193(2)(b)

This item proposes repeal of paragraph 193(2)(b) and replacement with a restructured paragraph that removes the active verbs in the expression “destroy, deface, alter, take or otherwise interfere with a nomination paper, ballot paper or envelope” and proscribes the actions of a person whose conduct causes such damage or interference to the property.

The damage or interference is the result of the accused person’s conduct, and is a physical element of result rather than a physical element of conduct.  It follows that using these active verbs in a criminal offence may lead to difficulties in interpreting the offence following application of the Criminal Code.  The restructured offence better identifies the physical elements of conduct and result.

Item 229	Paragraph 193(2)(i)

This item proposes repeal of paragraph 193(2)(i) and replacement with a restructured paragraph that removes the active verbs in the expression “destroy, take, open or otherwise interfere with a ballot box or other ballot receptacle” and proscribes the actions of a person whose conduct causes such damage or interference to the property.

The damage or interference is the result of the accused person’s conduct, and is a physical element of result rather than a physical element of conduct.  It follows that using these active verbs in a criminal offence may lead to difficulties in interpreting the offence following application of the Criminal Code.  The restructured offence better identifies the physical elements of conduct and result.

Item 230	Subsection 193(3)

This item proposes to omit the words “without lawful authority or excuse, threaten, offer or suggest, or use, cause, inflict, or procure” from subsection 193(3) and to substitute “threaten, offer or suggest, or use, cause or inflict”.  The general defences of lawful authority and lawful excuse are now included in section 10.5 of the Criminal Code.  Therefore, the specific inclusion of these defences in Commonwealth offence provisions will be redundant.  The accused will incur an evidential burden in establishing the defences under section 10.5, namely the burden of adducing evidence that suggests a reasonable possibility that the defence exists.  These matters are addressed in subsections 13.3(3) and 13.3(6) of the Criminal Code.  

It is also proposed to delete the term “procure”.  Section 11.2 of the Criminal Code creates an offence of aiding, abetting, counselling or procuring the commission of an offence by another person.  It replaces section 5 of the Crimes Act 1914.  Consequentially the reference to “procuring” in the provision will be superfluous following application of the Criminal Code and it is proposed that it be repealed.

Item 231	Subsection 193(4)

This item proposes to remove the specific defence of lawful authority or excuse from subsection 193(4).  The general defences of lawful authority and lawful excuse are now included in section 10.5 of the Criminal Code.  Therefore, the specific inclusion of these defences in Commonwealth offence provisions will be redundant.  The accused will incur an evidential burden in establishing the defences under section 10.5, namely the burden of adducing evidence that suggests a reasonable possibility that the defence exists.  These matters are addressed in subsections 13.3(3) and 13.3(6) of the Criminal Code.  

Item 232	Subsection 193(4)

This item proposes to delete the phrase “for the purpose of” and to replace it with “with the intention of”.  The phrase “for the purpose of” should no longer be used in offence-creating provisions because of the potential confusion which could arise as to the applicable fault element.  This confusion could arise because most offences do not specify the fault element and because the phrase “for the purpose of” could be interpreted to refer to an additional fault element of intention attaching to the physical element of conduct, or denote a physical element of result, which would thereby attract the default fault element of recklessness.  Where the phrase “for the purpose of” is meant to denote an additional fault element of intention attaching to the physical element of conduct then the phrase “with the intention of” is more appropriate.

Item 233	Subsection 193(5)

This item proposes to remove the specific defence of lawful authority or excuse from subsection 193(5).  The general defences of lawful authority and lawful excuse are now included in section 10.5 of the Criminal Code.  Therefore, the specific inclusion of these defences in Commonwealth offence provisions will be redundant.  The accused will incur an evidential burden in establishing the defences under section 10.5, namely the burden of adducing evidence that suggests a reasonable possibility that the defence exists.  These matters are addressed in subsections 13.3(3) and 13.3(6) of the Criminal Code.  

Item 234	Subsection 193(6)

This item proposes to remove the specific defence of lawful authority or excuse from subsection 193(6).  The general defences of lawful authority and lawful excuse are now included in section 10.5 of the Criminal Code.  Therefore, the specific inclusion of these defences in Commonwealth offence provisions will be redundant.  The accused will incur an evidential burden in establishing the defences under section 10.5, namely the burden of adducing evidence that suggests a reasonable possibility that the defence exists.  These matters are addressed in subsections 13.3(3) and 13.3(6) of the Criminal Code.  

Item 235	At the end of section 197

This item proposes to insert subsection 197(5) which provides that the offences contained in subsections 197(3) and (4) are offences of strict liability.  Subsections 197(3) and (4) provide that it is an offence to contravene subsections 197(1) and (2) which provide for the preservation of ballot papers, envelopes, lists and other documents relevant to an election for one year after the completion of the election.  Subsection 197(3) applies a penalty of no more than 100 penalty units to an organisation or branch of an organisation.  Subsection 197(4) applies a penalty of no more than 20 penalty units to an officer or employee of an organisation or branch of an organisation.  

For strict liability offences the Criminal Code provides for a defence of reasonable mistake of fact (Section 9.2 of the Code).  If there is a mistake of fact, there is an evidential burden of proof on the defence.

Factors such as the low penalty and regulatory nature of the offence support identification of this offence as one that attracts strict liability.

The standard note referring to section 6.1 of the Criminal Code, which governs strict liability, is added after this provision.

Item 236	After subsection 200(5)

This item proposes to insert subsection 200(5A) which identifies the offence in paragraph 200(5)(a) as one of strict liability.  Paragraph 200(5)(a) provides that it is an offence to contravene subsection 200(2), which concerns compliance with a requirement of a Registry official designated by the Industrial Registrar.  The offence carries a maximum penalty of 30 penalty units.  

For strict liability offences the Criminal Code provides for a defence of reasonable mistake of fact (Section 9.2 of the Code).  If there is a mistake of fact, there is an evidential burden of proof on the defence.

Factors such as the low penalty and regulatory nature of the offence support identification of this offence as one that attracts strict liability.

The standard note referring to section 6.1 of the Criminal Code, which governs strict liability, is added after this provision.

Item 237	Section 221

New section 221 – Offence to interfere with register or copy

This item proposes repeal of section 221 and replacement with a restructured paragraph that removes the active verbs in the expression “destroy, deface, or otherwise interfere with” a register of members or a copy of a register of members, required to be kept under paragraph 219(1)(a) or section 220” and proscribes the actions of a person whose conduct causes such damage or interference to the property.

The damage or interference is the result of the accused person’s conduct, and is a physical element of result rather than a physical element of conduct.  It follows that using these active verbs in a criminal offence may lead to difficulties in interpreting the offence following application of the Criminal Code.  The restructured offence better identifies the physical elements of conduct and result.

This item also proposes new subsection 221(2) which provides that the offence contained in paragraph 221(1)(c) is an offence of strict liability.  Paragraph 221(1)(c) provides that it is an offence if the person’s acts result in interference with a register of members required to be kept under paragraph 219(1)(a) or section 220.  Strict liability is appropriate for this provision because in most applicable instances the person concerned will not possess any fault element concerning these physical elements and the offence would become almost unenforceable if the prosecution were obliged to demonstrate fault.  Further, the person’s degree of culpability under this offence is not materially affected by absence of the subject fault.  The offence carries a maximum penalty of 20 penalty units.  

For strict liability offences the Criminal Code provides for a defence of reasonable mistake of fact (Section 9.2 of the Code).  If there is a mistake of fact, there is an evidential burden of proof on the defence.

Factors such as the low penalty and regulatory nature of the offence support identification of this offence as one that attracts strict liability.

The standard note referring to section 6.1 of the Criminal Code, which governs strict liability, is added after this provision.

Item 238	Subsection 247(1)

This item proposes to repeal subsection 247(1) and restructure the provision to remove the expression “must not refuse or fail to produce” in paragraph 247(1)(b) and to provide that a person commits an offence if the person “does not comply with a request under paragraph 246(2)(a)”.  This is a minor change which will not affect the characterisation of the offence.

This item proposes to insert subsection 247(1A) which provides that paragraph 247(1)(b) attracts strict liability.  Subsection 247(1) provides that it is an offence if an officer does not comply with certain requests from an auditor.  The offence carries a maximum penalty of 30 penalty units.  

For strict liability offences the Criminal Code provides for a defence of reasonable mistake of fact (Section 9.2 of the Code).  If there is a mistake of fact, there is an evidential burden of proof on the defence.

Factors such as the low penalty and regulatory nature of the offence support identification of this offence as one that attracts strict liability.

The standard note referring to section 6.1 of the Criminal Code, which governs strict liability, is added after this provision.

Item 239	Subsection 247(2)

This item proposes to amend subsection 247(2) by omitting the expression “the refusal or failure” and substituting “not complying”.  This is a minor change, which will not affect the characterisation of the offence.

Item 240	Subsection 249(3)

This item proposes to omit the words “intentionally or recklessly”.  This provision currently applies the alternative fault elements of “intentionally or recklessly” to the physical elements of conduct in the provision.  Following application of the Criminal Code, the fault element of recklessness will be restricted to the physical elements of circumstance or result, and intention will be the Criminal Code fault element that can be applied to a physical element of conduct:  see section 5.2 and 5.3 of the Criminal Code.  At present when faced with a prosecution under a provision such as this, a court would only be able to give effect to the fault element of “recklessly” if there is a circumstance or result element in the offence.  As there are no circumstance or result elements in the offence, then “recklessly” would be of no effect.

Item 241	Subsection 277(1)

This item proposes repeal of subsection 277(1) and substitution of a revised subsection.  Without this change the offence could be interpreted as creating a new fault element of “dishonestly” doing something.  This is a minor technical amendment.

Item 242	Subsections 316(1) and (2)

This item proposes repeal of subsections 316(1) and (2).  The new subsection (1) will have the effect of removing the concept of “refuse or fail” from the current provision in relation to attending before a Registrar and providing information or documents connected with the making of an investigation, when required.  The proposal is to restructure the offence so that it occurs if a person does not comply with the relevant requirements.  The item also proposes to identify new paragraph 316(1)(a) as an offence of strict liability.

This item also proposes insertion of subsection 316(2A), which creates a defence of reasonable excuse in relation to an offence against subsection 316(1)(a).  The new provision includes a note advising that the defendant bears an evidential burden if a defendant relies upon the reasonable excuse defence established by subsection 316(2A).  An evidential burden of proof means that the onus is on the defendant to adduce or point to evidence that suggests a reasonable possibility that a matter exists or not.

Proposed subsection 316(2B) notes that paragraph 316(1)(a) does not apply if the person merely refuses or fails to answer a question.  This subsection is unchanged from the current provision, merely restructured and placed in a stand-alone subsection.

Item 243	Section 329

New section 329 – Unauthorised collection of money

This item proposes repeal of the current section 329 and substitution of a restructured provision.  The new subsection 329(1) will not include the term “knowingly” in relation to making a false representation.  Following application of the Criminal Code, it will not be possible to apply a fault element of “knowledge” (ie “knowingly”) to a physical element consisting of conduct: see Part 2.2, Division 5 of the Criminal Code generally.  The fault element of knowledge can only be applied to physical elements of circumstance or result.  Accordingly, the provision is to be amended to delete the word “knowingly”, as in its present operation it will have no effect following application of the Criminal Code.  

This item also proposes to remove the specific defence of lawful authority or excuse from subsection 329(2).  The general defences of lawful authority and lawful excuse are now included in section 10.5 of the Criminal Code.  Therefore, the specific inclusion of these defences in Commonwealth offence provisions will be redundant.  The accused will incur an evidential burden in establishing the defences under section 10.5, namely the burden of adducing evidence that suggests a reasonable possibility that the defence exists.  These matters are addressed in subsections 13.3(3) and 13.3(6) of the Criminal Code.  

Workplace Relations (Registered Organisations) (Consequential Provisions) Act 2001

Item 244	Item 49 of Schedule 1

This item proposes to omit new subsections 316(1) and (2), proposed to be substituted by item 49 for the subsections currently in the Workplace Relations Act 1996, and to substitute alternative new subsections.  The new subsection 316(1) will have the effect of removing the concept of “refuse or fail” from the current provision in relation to attending before a Registrar and providing information or documents connected with the making of an investigation, when required.  The proposal is to restructure the offence so that it occurs if a person does not comply with the relevant requirements.  The item also proposes to identify new paragraph 316(1)(a) as an offence of strict liability.

This item also proposes insertion of subsection 316(2A), which creates a defence of reasonable excuse in relation to an offence against subsection 316(1)(a).  The new provision includes a note advising that a defendant bears an evidential burden if the defendant relies upon the reasonable excuse defence established by subsection 316(2A).  An evidential burden of proof means that the onus is on the defendant to adduce or point to evidence that suggests a reasonable possibility that a matter exists or not.

A proposed subsection 316(2B) notes that paragraph 316(1)(a) does not apply if the person merely refuses or fails to answer a question.  This subsection is unchanged from the current provision, merely restructured and placed in a stand-alone subsection.