2002

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

HOUSE OF REPRESENTATIVES

TRANSPORT AND REGIONAL SERVICES LEGISLATION AMENDMENT (APPLICATION OF CRIMINAL CODE) BILL 2002

EXPLANATORY MEMORANDUM

(Circulated by authority of the Minister for Transport and Regional Services,
the Honourable John Anderson, MP)

TRANSPORT AND REGIONAL SERVICES LEGISLATION AMENDMENT (aPPLICATION OF CRIMINAL CODE) BILL 2002

OUTLINE

The purpose of this Bill is to make consequential amendments to certain offence provisions in legislation, for which the Minister for Transport and Regional Services has ministerial responsibility, to reflect the application of the Criminal Code Act 1995 (the Criminal Code).

If legislation containing offence provisions is not amended to have regard to the Criminal Code, the Criminal Code may alter the interpretation of the existing offence provisions.  Chapter 2 of the Criminal Code contains the General Principles of Criminal Responsibility that apply to the offence provisions contained in the Criminal Code and all other Commonwealth offence provisions.  The Criminal Code has applied to all Commonwealth offences from 15 December 2001.

The amendments will ensure that the offence provisions operate in the manner they did prior to the application of the Criminal Code.  The Bill affects a small number of offence provisions that were not included in the Transport and Regional Services Legislation Amendment (Application of Criminal Code) Act 2001, and are therefore inconsistent with the Criminal Code principles.

Chapter 2 of the Criminal Code adopts the common law approach of subjective fault based principles.  It clarifies the traditional distinction of dividing offences into actus reus (the physical act, now referred to as the physical element) and mens rea (what the defendant thought or intended, now referred to as the fault element).

The prosecution bears the onus of proving each of the physical elements.  Each offence must contain at least one of the physical elements, but any combination of the physical elements may be present in an offence provision.  For every physical element of an offence, the prosecution must also prove a corresponding fault element.  Table 1 sets out the physical elements and the corresponding fault elements.

Table 1:
Fault Elements	Physical Elements	
	Conduct	Circumstance in which conduct occurs	Result of conduct	
Intention	Defendant intends to engage in that conduct	Defendant believes that the circumstance exists or will exist	Defendant intends to bring about that result, or is aware that that result will eventuate in the ordinary course of events	
Knowledge	Not available as fault element	Defendant is aware that the circumstance exists, or will exist in the ordinary course of events 	Defendant is aware that that result exists, or will exist in the ordinary course of events	
Recklessness	Not available as fault element	Defendant is aware of a substantial risk that the circumstance exists or will exist and, having regard to the circumstances known to him or her, it is unjustifiable to take that risk	Defendant is aware of a substantial risk that the result will occur and, having regard to the circumstances known to him or her, it is unjustifiable to take that risk	

Negligence	Defendant’s conduct involves:

(a)	such a great falling short of the standard of care that a reasonable person would exercise in the circumstances; and
(b)	such a high risk that the physical element exists or will exist;

that the conduct merits criminal punishment for the offence.	

If legislation containing an offence provision does not specify a fault element for a physical element of the offence, the Criminal Code applies a default fault element under Section 5.6.  Table 2 sets out the default fault elements.

Table 2:
Fault element of: 	Applies to physical element of: 	
Intention	Conduct	
Recklessness	A circumstance	
Recklessness	A result	

A fault element can only be dispensed with in relation to an offence (or in relation to a particular element of an offence) if the offence specifies that it is a strict liability offence (or that a particular element is a strict liability element).  The defence of mistake of fact is available for a strict liability offence (or a strict liability element of an offence).  In the absence of express reference to the fact that an offence is a strict liability offence, a court will be obliged to interpret an offence provision as a fault offence rather than a strict liability offence, and will require proof of fault elements in relation to the physical elements.

AMENDMENTS ARISING FROM THIS BILL

This Bill amends the following Acts:

Aircraft Noise Levy Collection Act 1995
Airports Act 1996
Air Navigation Act 1920
Civil Aviation Act 1988

The amendments arise from the requirement to:

i.	specify that an offence (or a physical element of an offence) is one of strict liability;
ii.	clarify the physical elements of an offence;
iii.	clarify the fault elements of an offence (especially where the fault elements vary from those specified by the Criminal Code); and
iv.	separate defences from offences and identify the evidential burden in relation to a defence.

Financial impact statement

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

TRANSPORT AND REGIONAL SERVICES LEGISLATION AMENDMENT (APPLICATION OF CRIMINAL CODE) BILL 2002

NOTES ON CLAUSES

Clause 1: Short Title

This clause provides that the short title by which the Act may be cited is the Transport and Regional Services Legislation Amendment (Application of Criminal Code) Act 2002.

Clause 2: Commencement

This clause provides that the Act commences on the day after it receives the Royal Assent.

Clause 3: Schedule(s)

This clause makes it clear that any Act specified in a schedule to the Act is amended or repealed as set out in the relevant Schedule.  It also provides that Schedules may contain other provisions that have effect according to their terms.

Clause 4: Application of amendments

Subclause (1) provides that each amendment made by this Act applies to acts and omissions that take place after the amendment commences.

Subclause (2) provides that 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, then the act or omission is alleged to have taken place before the amendment commences.

SCHEDULE 1 – AMENDMENTS

Items 1 – 81 provide for the following amendments:

Strict liability

Item 77 provides that the offence in subsection 23(2A) of the Civil Aviation Act 1988 is an offence of strict liability.

The offence of strict liability is an offence where no fault elements apply to the physical elements of the offence.  A fault element can only be dispensed with in relation to an offence if the offence specifies that it is a strict liability offence.  The defence of mistake of fact is available for a strict liability offence.  In the absence of express reference that an offence is strict liability, a court will be obliged to interpret the offence as a fault offence rather than a strict liability offence, and will require proof of fault elements in relation to the physical elements.

Subsection 23(2A) of the Civil Aviation Act 1988 was a strict liability offence prior to the application of the Criminal Code.  The amendment will ensure that it continues to operate as strict liability.  A significant penalty is required as this is a serious offence with safety implications for the aircraft or persons on board the aircraft.  The penalty serves as a deterrent to people who carry goods on board an aircraft, or consign goods for carriage on board an aircraft, from failing to ascertain whether the goods are dangerous.  The maximum penalty for this offence is 2 years imprisonment.

Knowledge of law

In the offence provision identified in Table 1 below, the prosecution may be required to prove, as part of the offence, that the defendant had knowledge of a provision of statute law or subordinate legislation referred to in the offence provision.  It is generally very difficult for the prosecution to establish such knowledge and is contrary to the usual maxim that ignorance of the law is no excuse.  Subsection 9.3(1) of the Criminal Code provides that mistake or ignorance of statute law is no excuse.  However, subsection 9.3(2) provides that subsections 9.3(1) does not apply if the particular statute law is expressly or impliedly to the contrary effect.

To ensure that the provision is not interpreted to indicate contrary intention for the purposes of section 9.3 of the Criminal Code, the offence provision is amended to provide that strict liability applies to that part of the physical element of conduct that raises the knowledge of law issues.  The defence of mistake of fact will then apply. 

Table 1

Item(s)	Name of Act	Section(s)	
75	Airports Act 1996	ss 132(2)	

Restructuring the offence to clarify the defence and note the evidential burden

The items specified in Table 2 below amend the offence provisions to clarify that the defence to the offence does not form part of the elements of the offence for the prosecution to establish.  This is achieved by removing the defence from each offence provision and inserting it in a new stand-alone defence provision for each offence.  The defence provision is then followed by a Note to the effect that the defendant bears an evidential burden of proof.  The Criminal Code requires proof of defences at an evidential standard unless the law creating the offence expressly imposes proof at the higher legal standard. 

Table 2

Item(s)	Name of Act	Section(s)	
2, 3	Air Navigation Act 1920	ss 19(3)	
5, 6	Air Navigation Act 1920	ss 20(2)	
8, 9	Air Navigation Act 1920	ss 20(5)	
10, 11, 12, 13	Air Navigation Act 1920	ss 20A(2), (4), (9)	
14, 15	Air Navigation Act 1920	ss 21B(2)	
16, 17	Air Navigation Act 1920	ss 21C(3)	
22, 23, 24, 25	Air Navigation Act 1920	ss 22A(6), (8), (12)	
26, 27	Air Navigation Act 1920	ss 22B(4)	
28, 29, 30, 31, 32, 33	Air Navigation Act 1920	ss 22C(2), (4), (5), (7), (9), (11)	
35, 36	Air Navigation Act 1920	ss 22D(4)	
37, 38	Air Navigation Act 1920	ss 22F(2)	
39, 40	Air Navigation Act 1920	ss 22G(3)	
41, 42	Air Navigation Act 1920	ss 22H(3)	
43, 44	Air Navigation Act 1920	ss 22J(3)	
45, 46	Air Navigation Act 1920	ss 22L(1)	
47, 48	Air Navigation Act 1920	ss 22W(3)	
49, 50	Air Navigation Act 1920	ss 22X(4)	
51, 52	Air Navigation Act 1920	ss 22Y(2)	
53, 54	Air Navigation Act 1920	ss 22ZB(2)	
55, 56	Air Navigation Act 1920	ss 22ZJ(2)	
57, 58	Air Navigation Act 1920	ss 22ZL(2)	
59, 60	Air Navigation Act 1920	ss 22ZM(2)	
61, 62	Air Navigation Act 1920	ss 22ZN(2)	
63, 64	Air Navigation Act 1920	ss 22ZO(2)	
65, 66	Air Navigation Act 1920	ss 22ZP(2)	
67, 68	Air Navigation Act 1920	ss 22ZQ(3)	
70, 71	Air Navigation Act 1920	ss 22ZS(9)	
72, 73	Air Navigation Act 1920	ss 22ZV(3)	
81	Civil Aviation Act 1988 	ss 32AJ(2)	

Restructuring the offence to clarify the physical elements of the offence

The items specified in Table 3 below, restructure, or reword using simpler language, the offence provisions, to clarify the physical elements of circumstance or result in the offences.  Items 78 and 79 make clear that the interference and tampering respectively are the result of the person’s conduct.  Item 76 clarifies the physical element of circumstance in the offence.  The proposed amendments will not alter the operation or the effect of the offence provisions.

Table 3

Item(s)	Name of Act	Section(s)	
76	Civil Aviation Act 1988	ss 20AA(3),(4) 	
78	Civil Aviation Act 1988	ss 24(1)(a)	
79	Civil Aviation Act 1988	ss 24(2)	

Clarify the fault elements

The items identified in Table 4 below amend the offence provisions to remove the fault elements of knowingly or recklessly, intentionally or recklessly, or the term knowingly in relation to the physical element of conduct.  It is not possible under the Criminal Code, to apply these fault elements to the physical element of conduct.  These fault elements can only be applied to the physical elements of circumstance or result (see Part 2.2, Division 5 of the Criminal Code).  The Criminal Code applies the fault element of intention to the physical element of conduct in the offence provisions.  

Table 4

Item(s)	Name of Act	Section(s)	
1	Aircraft Noise Levy Collection Act 1995	ss 15(4)	
4, 7, 18, 19, 20, 21, 34, 69	Air Navigation Act 1920	ss 19(5), ss 20(2A), ss 22(1),
ss 22A(1), ss 22A(2),
ss 22A(3), ss 22D(1),
ss 22ZR(1)	
74	Airports Act 1996	ss 132(2)	
76 	Civil Aviation Act 1988	ss 20AA(5)