Commonwealth Numbered Regulations - Explanatory Statements

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COMMUNICATIONS, INFORMATION TECHNOLOGY AND THE ARTS LEGISLATION AMENDMENT (APPLICATION OF CRIMINAL CODE) REGULATIONS 2001 (NO. 1) 2001 NO. 337

EXPLANATORY STATEMENT

Statutory Rules 2001 No. 337

Issued by the authority of the Minister for Communications, Information Technology and the Arts

Australian National Maritime Museum Act 1990

National Gallery Act 1975

National Library Act 1960

Radiocommunications Act 1992

Telecommunications Act 1997

Communications, Information Technology and the Arts Legislation Amendment (Application of Criminal Code) Regulations 2001 (No. 1)

Section 54 of the Australian National Maritime Museum Act 1990, section 46 of the National Gallery Act 1975, section 28 of the National Library Act 1960, section 314 of the Radiocommunications Act 1992 and section 594 of the Telecommunications Act allow the Governor-General to make regulations under those Acts respectively.

The accompanying amendments to regulations made under each of the above Acts are intended to ensure that as a result of the application of Chapter 2 of the Criminal Code Act 1995 (the Code) to all Commonwealth offences from 15 December 2001, those provisions will continue to operate in the same manner as they operated previously.

If regulations containing offence provisions were not amended having regard to the Code, the Code may have altered the interpretation of existing offence provisions. The Criminal Code is contained in the Schedule to the Criminal Code Act 1995. It sets out the general principles of criminal responsibility that apply to all Commonwealth criminal offences. Chapter 2 of the Code has applied to new offences since 1 January 1997 and to all Commonwealth offences since 15 December 2001.

Chapter 2 of the Criminal Code codifies the general principles of criminal law and adopts the common law approach of subjective fault based principles. It adopts the traditional distinction of dividing offences into actus reus and mens rea but uses the plainer labels of physical elements and fault elements. The general rule is that for each physical element of an offence it is necessary to prove that the defendant has the relevant fault element. The prosecution must prove every physical and fault element of an offence. The physical elements are conduct, result of conduct and circumstance of conduct and the fault elements specified in the Criminal Code are intention, knowledge, recklessness and negligence. The default elements which the Criminal Code provides will apply where a fault element is not specified and where the offence (or an element of the offence) is not specified to be a strict or absolute liability offence. The default elements set out in the Code are intention for a physical element of conduct and recklessness for a physical element of circumstance or 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 or absolute liability offence (or that a particular element is a strict or absolute liability element). The defence of mistake of fact is available for a strict liability offence (or a strict liability element of an offence) but not for an absolute liability offence (or an absolute liability element of an offence). The Code does not prevent an offence from specifying an alternative fault element but this will rarely be done.

The accompanying regulations also make minor amendments to regulations made under the above Acts to convert pecuniary penalties expressed in dollar amounts to penalty units and to standardise similar offences across regulations made under the above Acts.

The amendments fall broadly into the following categories:

       amendments to restructure provisions to clarify the elements of the offence that the prosecution must establish;

       amendments to ensure that certain offences are interpreted as strict liability offences after the application of the Criminal Code;

       amendments so as not to require knowledge of the law;

       amendments to ensure that defences are not mistaken as an element of offences;

       amendments to restructure offence provisions which include an inappropriate physical element of conduct; and

       amendments to convert dollar amounts to penalty units.

Details of the accompanying regulations are in the Attachment.

The accompanying regulations commence on gazettal.

ATTACHMENT

DETAILS OF THE COMMUNICATIONS, INFORMATION TECHNOLOGY AND THE ARTS LEGISLATION AMENDMENT (APPLICATION OF CRIMINAL CODE) REGULATIONS 2001 (NO. 1)

Regulation 1 - Name of Regulations

Regulation 1 provides that the name of the regulations is the Communications, Information Technology and the Arts Legislation Amendment (Application of Criminal Code) Regulations 2001 (No. 1).

Regulation 2 - Commencement

Regulation 2 provides that the regulations commence on gazettal.

Regulation 3 - Amendment of Australian National Maritime Museum Regulations 1991

Regulation 3 provides that Schedule 1 amends the Australian National Maritime Museum Regulations 1991.

Regulation 4 - Amendment of National Gallery Regulations 1982

Regulation 4 provides that Schedule 2 amends the National Gallery Regulations 1982.

Regulation 5 - Amendment of National Library Regulations

Regulation 5 provides that Schedule 3 amends the National Library Regulations.

Regulation 6 - Amendment of Radiocommunications Regulations 1993

Regulation 6 provides that Schedule 4 amends the Radiocommunications Regulations 1993.

Regulation 7 - Amendment of Telecommunications (Arbitration) Regulations

Regulation 7 provides that Schedule 5 amends the Telecommunications (Arbitration) Regulations.

Schedule 1 - Amendments to the Australian National Maritime Museum Regulations 1991

Item 1 - Regulation 5

This item replaces regulation 5 of the Australian National Maritime Museum Regulations 1991 (ANMM Regulations) with a new regulation 5.

This item corrects an oversight in subregulation 5(3) to ensure that the Director, or any person authorised by the Director, may consent to an act under subregulation 5(1). This has been amended by redrafting regulation 5 to provide that the offence applies to a person who does not have the consent of the Director, or a person authorised by the Director.

This item removes references to "damage" and "interfere with" in paragraph 5(1)(a) and replaces it with a reference to "engages in unauthorised conduct that interferes with or damages". The offence is intended to proscribe conduct by a person that results in damage. This amendment has been made to clarify that damage is the result, not the physical element of conduct, of the offence. The item provides a definition of "unauthorised conduct".

This item also makes it clear that the offence under paragraph 5(3)(b) is intended to proscribe conduct by a person that results in Museum premises being defaced. This amendment has been made to clarify that the defacement is the result, not the physical element of conduct, of the offence.

This item makes it clear that offences under paragraphs 5(1)(b), (d) and (e) are strict liability offences (subregulation 5(6)). Paragraph 5(1)(b) provides that a person (who does not have the consent of the Director or a person authorised by the Director) must not, on Museum premises, refuse to obey a direction of a security officer given in the exercise of his or her powers under the ANMM Regulations. Paragraph 5(1)(d) provides that that a person (who does not have the consent of the Director or a person authorised by the Director) must not, on Museum premises, fail to obey a notice displayed in Museum premises. Paragraph 5(1)(e) provides that a person (who does not have the consent of the Director or a person authorised by the Director) must not, on Museum premises, if the person is carrying a prescribed article when he or she enters the Museum premises, fail to deposit the article at the place in the Museum premises made available by the Director for the purpose. A penalty of $500 is provided for offences under paragraphs 5(1)(b), (d) and (e). Paragraphs 5(1)(b), (d) and (e) are likely to have been interpreted as strict liability offences before this amendment because of the relatively low penalties attached to the offences and because of the nature of the offences (which do not involve dishonesty or other serious imputation affecting the offender's reputation). Therefore new subregulation 5(6) should not alter the way a court would interpret these offences. If the amendment were not made, then after the application of the Criminal Code, the offences would no longer be interpreted in the same way as they could currently be interpreted. After the Criminal Code comes into operation it is necessary to expressly state that an offence is one of strict liability if the provision is to attract strict liability (sections 6.1 and 6.2 of the Code). If it is not specified a court would be obliged to interpret it as a fault offence and no longer as a strict liability offence and would require proof of fault elements in relation to the physical elements.

This item removes the defence of "without reasonable excuse" from subregulation 5(2) of the ANMM Regulations and replaces it with the defence of reasonable excuse under new subregulation 5(7). This amendment has been made to avoid the defence being mistakenly interpreted as being part of the elements of the offence.

This item provides a definition of "prescribed article" that is consistent with the definition of "prescribed article" under regulation 5 prior to this amendment.

This item also converts the dollar penalties in regulation 5 to penalty units by replacing references to "$500" with references to an equivalent penalty of 5 penalty units. This provides consistency with other penalty provisions, which refer to penalty units rather than dollar penalties. It does not alter the penalty which is applied for these offences as section 4AB of the Crimes Act 1914 has the effect of converting references to dollar amounts to equivalent penalty units.

Item 2 - Regulation 7

This item replaces regulation 7 of the ANMM Regulations with new regulation 7. Regulation 7 deals with the powers of a security officer to give directions to persons in charge of a motor vehicle on Museum premises or a vessel in or near a water area of Museum premises.

This item removes the defence of "without reasonable excuse" from subregulations 7(1A) and 7(3) of the ANMM Regulations. The item provides the defence of reasonable excuse in new subregulation 7(5). This amendment has been made to avoid the defence being mistakenly interpreted as being part of the elements of the offences.

This item provides that the offences under subregulations 7(2) and (4) are strict liability offences (subregulation 7(5)). Subregulation 7(2) provides that a person must comply with a direction under subregulation 7(1). Subregulation 7(4) provides that a person must comply with a direction under subregulation 7(3). A penalty of 5 penalty units is provided for offences under subregulations 7(2) and (4). Subregulations 7(1) and 7(3) are likely to have been interpreted as strict liability offences before this amendment because of the relatively low penalties attached to the offences and because of the nature of the offences (which do not involve dishonesty or other serious imputation affecting the offender's reputation). Therefore new subregulation 7(5) should not alter the way a court would interpret these offences. If the amendment were not made, then after the application of the Criminal Code, the offences would no longer be interpreted in the same way as they could currently be interpreted. After the Criminal Code comes into operation it is necessary to expressly state that an offence is one of strict liability if the provision is to attract strict liability (sections 6.1 and 6.2 of the Code). If it is not specified a court would be obliged to interpret it as a fault offence and no longer as a strict liability offence and would require proof of fault elements in relation to the physical elements.

In addition the item replaces references to penalties of $100 and $500 in subregulations 7(1A) and 7(3) respectively (new subregulations 7(2) and 7(4)) with references to an equivalent penalty of 1 penalty unit and 5 penalty units respectively. This provides consistency with other penalty provisions, which refer to penalty units rather than dollar penalties. It does not alter the penalty which is applied for these offences as section 4AB of the Crimes Act 1914 has the effect of converting references to dollar amounts to equivalent penalty units.

Item 3 - Subregulation 8(3)

This item replaces subregulation 8(3) of the ANMM Regulations with new subregulation 8(3). The item amends subregulation 8(3) to make it clear that not acting in accordance with the terms of the authority forms part of the elements of the offence for the prosecution to establish.

In addition the item replaces the reference to the penalty of $500 in subregulation 8(3) with reference to an equivalent penalty of 5 penalty units. This provides consistency with other penalty provisions, which refer to penalty units rather than dollar penalties. It does not alter the penalty which is applied for these offences as section 4AB of the Crimes Act 1914 has the effect of converting references to dollar amounts to equivalent penalty units.

Item 4 - Subregulation 10(2)

This item replaces subregulation 10(2) of the ANMM Regulations with a new subregulation 10(2). This amendment has been made in order to provide consistency with the similar offence in subregulation 12(2) of the National Gallery Regulations 1982.

Item 5 - Subregulation 15(1)

This item omits everything before paragraph (a) in subregulation 15(1) and makes it clear that not having consent of the Director, or a person authorised by the Director, forms part of the elements of the offence for the prosecution to establish.

Item 6 - Subregulation 15(2)

This item omits subregulation 15(2) as the substance of this subregulation has been incorporated into new subregulation 15(1).

Item 7 - Conversion of references to penalties to penalty units

This item replaces references to penalties of $500 with references to "5 penalty units" in regulation 9, subregulation 10(1), regulation 11, regulation 12, regulation 14 and subregulation 15(1).

This provides consistency with other penalty provisions, which refer to penalty units rather than dollar penalties. It does not alter the penalty which is applied for these offences as section 4AB of the Crimes Act 1914 has the effect of converting references to dollar amounts to equivalent penalty units.

Schedule 2 - Amendments to the National Gallery Regulations 1982

Item 1 - Regulation 7

This item replaces regulation 7 of the National Gallery Regulations 1982 (NG Regulations) with a new regulation 7.

The offence under paragraph 7(1)(a) is intended to proscribe conduct by a person that results in damage to a work of art. This amendment has been made to clarify that the damage is the result, not the physical element of conduct, of the offence.

This item makes it clear that offences under paragraphs 7(1)(b), (d) and (e) are strict liability offences (see subregulation 7(2)). Paragraph 7(1)(b) provides that a person, in a Gallery building or on Gallery land, must not refuse to obey a direction of a security officer given in the exercise of his or her powers under the NG Regulations. Paragraph 7(1)(d) provides that a person, in a Gallery building or on Gallery land, must not fail to obey a notice displayed in the Gallery building or on Gallery land that is issued by the authority of the Council and bears a statement to that effect. Paragraph 7(1)(e) provides that a person carrying a prescribed article, in a Gallery building or on Gallery land, must not fail to deposit the prescribed article at the place in the Gallery building designated by the Council for the purpose. A penalty of 5 penalty units applies to each offence.

Paragraphs 7(1)(b), (d) and (e) are likely to have been interpreted as strict liability offences before the amendment because of the relatively low penalties attached to the offences and because of the nature of the offences (which do not involve dishonesty or other serious imputation affecting the offender's reputation).

Therefore this new subregulation should not alter the way a court would interpret the offences. If the amendment were not made, then after the application of the Criminal Code, the offences would no longer be interpreted in the same way as they could currently be interpreted. After the Criminal Code comes into operation it is necessary to expressly state that an offence is one of strict liability if the provision is to attract strict liability (sections 6.1 and 6.2 of the Code). If it is not specified a court would be obliged to interpret it as a fault offence and no longer as a strict liability offence and would require proof of fault elements in relation to the physical elements.

The offence under paragraph 7(3)(b) is intended to proscribe conduct by a person that results in a Gallery building or any wall or fence on Gallery land being defaced. This amendment has been made to clarify that the defacement is the result, not the physical element of conduct, of the offence.

This item also makes it clear that in paragraphs 7(3)(d) and (e), the consumption of food or drink or smoking in an area that it is not permitted to do these acts forms part of the elements of the offences that the prosecution must establish.

In addition the item replaces references to penalties of $100 in subregulations 7(1) and 7(3) with references to 5 penalty units respectively. This provides consistency with other penalty provisions, which refer to penalty units rather than dollar penalties. It does not alter the penalty which is applied for these offences as section 4AB of the Crimes Act 1914 has the effect of converting references to dollar amounts to equivalent penalty units. A penalty unit higher than the current pecuniary penalty is to provide consistency between these subregulations and other regulations which impose a penalty of 5 penalty units for like offences.

Item 2 - Regulation 7A

This item replaces regulation 7A of the NG Regulations with a new regulation 7A.

This item amends regulation 7A to make it clear that not having the written consent of the Council, or a person authorised by the Council to give consents for the subregulation, forms part of the elements of the offence for the prosecution to establish.

This item replaces the references to a penalty of $100 in subregulation 7A(1) with a reference to 5 penalty units. This provides consistency with other penalty provisions, which refer to penalty units rather than dollar penalties. It does not alter the penalty which is applied for these offences as section 4AB of the Crimes Act 1914 has the effect of converting references to dollar amounts to equivalent penalty units. A penalty unit higher than the current pecuniary penalty is to provide consistency between these regulations and other regulations which impose a penalty of 5 penalty units for like offences.

Item 3 - Subregulation 8(2)

This item makes it clear that the offence under subregulation 8(2) is a strict liability offence (see subregulation 8(3)). Subregulation 8(2) provides that a person, to whom a direction is given (under subregulation 8(1) by a security officer) must comply with the direction. A penalty of 5 penalty units applies to the offence.

This amendment is likely to have been interpreted as a strict liability offence before the amendment because of the relatively low penalty attached to the offence and because of the nature of the offence (which does not involve dishonesty or other serious imputation affecting the offender's reputation).

Therefore this new subregulation should not alter the way a court would interpret the offence. If the amendment were not made, then after the application of the Criminal Code, the offence would no longer be interpreted in the same way as it could currently be interpreted. After the Criminal Code comes into operation it is necessary to expressly state that an offence is one of strict liability if the provision is to attract strict liability (sections 6.1 and 6.2 of the Code). If it is not specified a court would be obliged to interpret it as a fault offence and no longer as a strict liability offence and would require proof of fault elements in relation to the physical elements.

This item removes the defence of "without reasonable excuse" from subregulation 8(2) of the NG Regulations. The item provides that the defence of reasonable excuse becomes new subregulation 8(4). This amendment has been made to avoid the defence being mistakenly interpreted as being part of the elements of the offence.

This item replaces the reference to a penalty of $100 with a reference to 5 penalty units. This provides consistency with other penalty provisions, which refer to penalty units rather than dollar penalties. It does not alter the penalty which is applied for these offences as section 4AB of the Crimes Act 1914 has the effect of converting references to dollar amounts to equivalent penalty units. A penalty unit higher than the current pecuniary penalty is to provide consistency between these subregulations and other regulations which impose a penalty of 5 penalty units for like offences.

Item 4 - Regulation 10

This item replaces regulation 10 of the NG Regulations with new regulation 10. The amendment amends subregulation 10(1) to make it clear that not holding an authority forms part of the elements of the offence for the prosecution to establish. The item amends subregulation 10(2) to make it clear that selling or supplying liquor not in accordance with the authority forms part of the elements of the offence for the prosecution to establish.

This item also replaces the reference to a penalty of $100 with a reference to 5 penalty units. This provides consistency with other penalty provisions, which refer to penalty units rather than dollar penalties. It does not alter the penalty which is applied for these offences as section 4AB of the Crimes Act 1914 has the effect of converting references to dollar amounts to equivalent penalty units. A penalty unit higher than the current pecuniary penalty is to provide consistency between these regulations and other regulations which impose a similar penalty of 5 penalty units for like offences.

Item 5 - Subregulation 12(2)

This item replaces subregulation 12(2) of the NG Regulations with new subregulation 12(2). The amendment amends the subregulation to make it clear that it is a defence for prosecution against subregulation 12(2) that the holder of an authority had reasonable grounds for believing that the person was not less than 18 years of age.

Item 6 - Regulation 15

This item replaces regulation 15 of the NG Regulations with new regulation 15. The amendment makes it clear that a person not being 18 years of age and not in the care of a responsible adult, forms part of the elements of the offence for the prosecution to establish.

In addition the item replaces reference to a penalty of $100 in regulation 15 with reference to an equivalent penalty of 5 penalty units. This provides consistency with other penalty provisions, which refer to penalty units rather than dollar penalties. It does not alter the penalty which is applied for these offences as section 4AB of the Crimes Act 1914 has the effect of converting references to dollar amounts to equivalent penalty units. A penalty unit higher than the current pecuniary penalty is to provide consistency between these regulations and other regulations which impose a similar penalty of 5 penalty units for like offences.

Item 7 - Conversion of references to penalties to penalty units

This item replaces references to penalties of $100 with references to "5 penalty units" in regulation 11, subregulation 12(1), regulation 13, regulation 14, and regulation 16.

This provides consistency with other penalty provisions, which refer to penalty units rather than dollar penalties. It does not alter the penalty which is applied for these offences as section 4AB of the Crimes Act 1914 has the effect of converting references to dollar amounts to equivalent penalty units. A penalty unit higher than the current pecuniary penalty is to provide consistency between these subregulations and other regulations which impose a penalty of 5 penalty units for like offences.

Item 5 - Additional amendments

This item omits references to "shall" and replaces it with references to "must" in subregulation 9(2), regulation 11, subregulation 12(1), regulation 13, regulation 14 and regulation 16.

Schedule 3 - Amendments of the National Library Regulations

Item 1 - Regulation 1

This item provides the name of the Regulations is the National Library Regulations 1994. This is because the name "National Library Regulations" did not previously include a reference to the year that they were made.

Item 2 - Subregulation 3(2)

The item makes it clear that the offence under subregulation 3(2) is a strict liability offence (see subregulation 3(3)). Subregulation 3(2) provides that a person must comply with the direction under subregulation 3(1). A penalty of 5 penalty units applies to the offence.

This amendment is likely to have been interpreted as a strict liability offence before the amendment because of the relatively low penalty attached to the offence and because of the nature of the offence (which does not involve dishonesty or other serious imputation affecting the offender's reputation).

Therefore this new subregulation should not alter the way a court would interpret the offence. If the amendment were not made, then after the application of the Criminal Code, the offence would no longer be interpreted in the same way as it could currently be interpreted. After the Criminal Code comes into operation it is necessary to expressly state that an offence is one of strict liability if the provision is to attract strict liability (sections 6.1 and 6.2 of the Code). If it is not specified a court would be obliged to interpret it as a fault offence and no longer as a strict liability offence and would require proof of fault elements in relation to the physical elements.

This item removes the defence of "without reasonable excuse" from subregulation 3(2) of the National Library Regulations (NL Regulations). The item provides that the defence of reasonable excuse becomes new subregulation 3(4). This amendment has been made to avoid the defence being mistakenly interpreted as being part of the elements of the offence.

Item 3 - Subregulation 4(2)

This item removes the defence of "unless he or she has a reasonable excuse" from subregulation 4(2) of the NL Regulations. The defence of reasonable excuse becomes a new subregulation under item 5. This amendment has been made to avoid the defence being mistakenly interpreted as being part of the elements of the offence.

Item 4 - Subregulation 4(4)

This item removes the defence of "without reasonable excuse" from subregulation 4(4) of the NL Regulations. The defence of reasonable excuse becomes new a subregulation under item 5. This amendment has been made to avoid the defence being mistakenly interpreted as being part of the elements of the offence.

Item 5 - After subregulation 4(4)

This item makes it clear that the offences under subregulations 4(2) and 4(4) are strict liability offences (see subregulation 4(4A)). Subregulation 4(2) provides that, on entering a Library building, a person possessing a prescribed article must leave it in an area set aside for that purpose. Subregulation 4(4) provides that a person must obey a direction (given under regulation 4). A penalty of 5 penalty units applies to the offences.

Subregulations 4(2) and 4(4) are likely to have been interpreted as strict liability offences before the amendments because of the relatively low penalties attached to the offences and because of the nature of the offences (which do not involve dishonesty or other serious imputation affecting the offender's reputation).

Therefore this new subregulation should not alter the way a court would interpret the offences. If the amendments were not made, then after the application of the Criminal Code, the offences would no longer be interpreted in the same way as they could currently be interpreted. After the Criminal Code comes into operation it is necessary to expressly state that an offence is one of strict liability if the provision is to attract strict liability (sections 6.1 and 6.2 of the Code). If it is not specified a court would be obliged to interpret it as a fault offence and no longer as a strict liability offence and would require proof of fault elements in relation to the physical elements.

This item also provides that the defence of reasonable excuse applies to the offences in subregulations 4(2) and 4(4) (see subregulation 4(4B)).

Item 6 - Regulation 5

This item replaces regulation 5 of the NL Regulations with new regulation 5. The amendment amends the regulation to make it clear that bringing an animal, or allowing an animal to enter or remain, in a Library building, that is not a guide dog for a person with a hearing or visual impairment, forms part of the elements of the offence for the prosecution to establish.

Item 7 - Regulation 6

This item removes the defence of "without reasonable excuse" from regulation 6 of the NL Regulations. The item provides for the defence of reasonable excuse in new subregulation 6(2). This amendment has been made to avoid the defence being mistakenly interpreted as being part of the elements of the offence.

Item 8 - After subregulation 7(2)

This item provides an offence for not complying with a direction given under regulation 7 of the NL Regulations and provides that the penalty attached to the offence is 5 penalty units. This ensures that the NL Regulations are consistent with other regulations containing similar offences.

Item 9 - Subregulation 8(1), except the penalty

This item replaces subregulation 8(1) of the NL Regulations with new subregulation 8(1). The amendment makes it clear that eating, drinking or smoking in a Library building in an area that is not an area where eating, drinking and smoking is permitted by the Director-General forms part of the elements of the offence to be established by the prosecution.

Item 10 - After subregulation 8(2)

This item provides a defence of reasonable under new subregulation 8(2A). This amendment has been made to avoid the defence being mistakenly interpreted as being part of the elements of the offence.

Item 11 - Subregulation 8(3), including the penalty

This item replaces subregulation 8(3) of the NL Regulations with new subregulation 8(3). The amendment makes it clear that igniting any article, material or substance in a Library building if the ignition is not for maintenance work or cooking or smoking in an area where it is permitted by the Director-General forms part of the elements of the offence for the prosecution to establish.

Item 12 - Regulation 10

This item replaces regulation 10 of the NL Regulations with a new regulation 10.

The offence under paragraph 10(1)(a) is intended to proscribe conduct by a person that results in damage to an exhibit, plant, structure or object on Library property. The item amends paragraph 10(1)(a) to clarify that the damage is the result, not the physical element of conduct, of the offence.

The offence under paragraph 10(10)(d) is intended to proscribe conduct that results in any structure being defaced. The item amends paragraph 10(1)(d) to clarify that the defacement is the result, and not the physical element of conduct, of the offence.

This item removes the defence of "without reasonable excuse" from paragraph 10(1)(d) of the NL Regulations. The defence of reasonable excuse becomes new subregulation 10(2). This amendment has been made to avoid the defence being mistakenly interpreted as being part of the elements of the offence.

This item makes it clear that in paragraph 10(1)(e), not having the written consent of the Council or the Director-General forms part of the elements of the offence for the prosecution to establish.

This item removes the defence of "without reasonable excuse" from paragraph 10(1)(f) of the NL Regulations. The defence of reasonable excuse becomes new subregulation 10(2). This amendment has been made to avoid the defence being mistakenly interpreted as being part of the elements of the offence.

This item makes it clear that an offence under paragraph 10(1)(f) is a strict liability offence (see subregulation 10(3)). Paragraph 10(1)(f) provides that a person must not refuse to obey a direction of a security officer given in the exercise of his or her powers under the NL Regulations. A penalty of 5 penalty units is provided.

This amendment is likely to have been interpreted as a strict liability offence before this amendment because of the relatively low penalty attached to this offence and because of the nature of the offence (which does not involve dishonesty or other serious imputation affecting the offender's reputation).

Therefore this new subregulation should not alter the way a court would interpret this offence. If the amendment were not made, then after the application of the Criminal Code, the offence would no longer be interpreted in the same way as it could currently be interpreted. After the Criminal Code comes into operation it is necessary to expressly state that an offence is one of strict liability if the provision is to attract strict liability (sections 6.1 and 6.2 of the Code). If it is not specified a court would be obliged to interpret it as a fault offence and no longer as a strict liability offence and would require proof of fault elements in relation to the physical elements.

Item 13 - Subregulation 11(2)

This item removes the defence of "unless he or she has a reasonable excuse" from subregulation 11(2) of the NL Regulations. The defence of reasonable excuse becomes a new subregulation under item 13. This amendment has been made to avoid the defence being mistakenly interpreted as being part of the elements of the offence.

Item 14 - After subregulation 11(2)

This item makes it clear that an offence under subregulation 11(2) is a strict liability offence (see subregulation 11(2A)). Subregulation 11(2) provides that a person must obey a direction (given by an authorised person under subregulation 11(1)). A penalty of 5 penalty units is provided.

This amendment is likely to have been interpreted as a strict liability offence before this amendment because of the relatively low penalty attached to this offence and because of the nature of the offence (which does not involve dishonesty or other serious imputation affecting the offender's reputation).

Therefore this new subregulation should not alter the way a court would interpret this offence. If the amendment were not made, then after the application of the Criminal Code, the offence would no longer be interpreted in the same way as it could currently be interpreted. After the Criminal Code comes into operation it is necessary to expressly state that an offence is one of strict liability if the provision is to attract strict liability (sections 6.1 and 6.2 of the Code). If it is not specified a court would be obliged to interpret it as a fault offence and no longer as a strict liability offence and would require proof of fault elements in relation to the physical elements.

This item also provides that the defence of reasonable excuse applies to the offence in subregulation 11(2) (see subregulation 11(2B)).

Item 15 - Subregulation 12(2)

This item removes the defence of "unless he or she has a reasonable excuse" from subregulation 12(2) of the NL Regulations. The defence of reasonable excuse becomes a new subregulation under item 16. This amendment has been made to avoid the defence being mistakenly interpreted as being part of the elements of the offence.

Item 16 - After subregulation 12(2)

This item makes it clear that an offence under subregulation 12(2) is a strict liability offence (see subregulation 12(3)). Subregulation 12(2) provides that a person must obey a direction (given by the Director-General under subregulation 11(1) not to re-enter the property during a reasonable period specified in the direction). A penalty of 5 penalty units is provided by subregulation 12(2).

This amendment is likely to have been interpreted as a strict liability offence before this amendment because of the relatively low penalty attached to this offence and because of the nature of the offence (which does not involve dishonesty or other serious imputation affecting the offender's reputation).

Therefore this new subregulation should not alter the way a court would interpret this offence. If the amendment were not made, then after the application of the Criminal Code, the offence would no longer be interpreted in the same way as it could currently be interpreted. After the Criminal Code comes into operation it is necessary to expressly state that an offence is one of strict liability if the provision is to attract strict liability (sections 6.1 and 6.2 of the Code). If it is not specified a court would be obliged to interpret it as a fault offence and no longer as a strict liability offence and would require proof of fault elements in relation to the physical elements.

This item provides that the defence of reasonable excuse applies to the offence in subregulation 12(2) (see subregulation 12(4)).

Item 17 - Subregulation 13(3), including the penalty

This item replaces subregulation 13(3) of the NL Regulations with new subregulation 13(3). The amendment makes it clear that selling or supplying liquor in a manner not in accordance with the authority (to sell or supply liquor) forms part of the elements of the offence for the prosecution to establish.

Item 18 - Subregulation 20(3)

This item removes the defence of "unless he or she has a reasonable excuse" from subregulation 20(3) of the NL Regulations. The defence of reasonable excuse becomes a new subregulation under item 18. This amendment has been made to avoid the defence being mistakenly interpreted as being part of the elements of the offence.

Item 19 - After subregulation 20(3)

This item makes it clear that an offence under subregulation 20(3) is a strict liability offence (see subregulation 20(4)). Subregulation 20(3) provides that a person must comply with a direction (given under subregulation 20(1) or 20(2)). A penalty of 5 penalty units is provided by subregulation 20(3).

This amendment is likely to have been interpreted as a strict liability offence before this amendment because of the relatively low penalty attached to this offence and because of the nature of the offence (which does not involve dishonesty or other serious imputation affecting the offender's reputation).

Therefore this new subregulation should not alter the way a court would interpret this offence. If the amendment were not made, then after the application of the Criminal Code, the offence would no longer be interpreted in the same way as it could currently be interpreted. After the Criminal Code comes into operation it is necessary to expressly state that an offence is one of strict liability if the provision is to attract strict liability (sections 6.1 and 6.2 of the Code). If it is not specified a court would be obliged to interpret it as a fault offence and no longer as a strict liability offence and would require proof of fault elements in relation to the physical elements.

This item also provides that the defence of reasonable excuse applies to the offence in subregulation 20(3) (see subregulation 20(5)).

Item 20 - Subregulation 21(1), except the penalty

This item replaces subregulation 21(1) of the NL Regulations with new subregulation 21(1). The amendment makes it clear that not having the written permission of an authorised person forms part of the elements of the offence for the prosecution to establish.

This item removes the defence of "without reasonable excuse" from subregulation 21(1) of the NL Regulations. The defence of reasonable excuse becomes a new subregulation under item 22.

Item 21 - Subregulation 21(2), including the penalty

This item replaces subregulation 21(2) of the NL Regulations with new subregulation 21(2). The amendment makes it clear that not having the written permission of an authorised person to remove an item of Library material forms part of the elements of the offence for the prosecution to establish.

This item removes the defence of "without reasonable excuse" from subregulation 21(2) of the NL Regulations. The defence of reasonable excuse becomes a new subregulation under item 22.

Item 22 - Subregulation 21(3)

This item replaces subregulation 21(3) of the NL Regulations with new subregulation 21(3). The item removes a reference to "damage" in subregulation 21(3) and replaces it with a reference to "engage in conduct that damages". The offence is intended to proscribe conduct by a person that results in damage. This amendment has been made to clarify that damage is the result, not the physical element of conduct, of the offence.

This item removes the defence of "without reasonable excuse" from subregulation 21(3) of the NL Regulations. The defence of reasonable excuse becomes a new subregulation under item 22.

Item 23 - After subregulation 21(4)

This item provides that the defence of reasonable excuse applies to the offences in subregulations 21(1), 21(2) and 21(3).

Schedule 4 - Amendments of the Radiocommunications Regulations 1993

Item 1- Subregulations 40(2), (3) and (4)

This item replaces subregulations 40(2), (3) and (4) of the Radiocommunications Regulations 1993 (Radiocommunications Regulations) with new subregulations 40(2), (3) and (4). Subregulation 40(2) provides that it is an offence for a licensee to fail, knowingly or recklessly, to comply with directions given by an inspector. Subregulation 40(3) makes it an offence to make, knowingly or recklessly, any alteration to a station or service that is likely to cause interference to radiocommunications. A defence is provided if it is in accordance with a particular direction given by an inspector or with the consent of an inspector. The item amends the subregulations by removing the references to "knowingly and recklessly". This is intended to make the subregulations consistent with the principles of the Criminal Code. This amendment is necessary because following the application of the Code, it will not be possible to apply fault elements of "knowingly or recklessly" to a physical element consisting of conduct (see Division 5 of Part 2.2 of the Criminal Code generally). The fault elements of knowingly or recklessly can only be applied to physical elements of circumstance or result. Accordingly the subregulation is amended to remove the reference to "knowingly and recklessly" as in its present operation it will have no effect following application of the Criminal Code. The default fault element of intention will apply to the physical elements of conduct in the offences.

This item also makes it clear that a licensee not acting in accordance with a direction given under subregulation (1) or with the written consent of an inspector, and where the alteration is of a kind that is likely to cause interference to radiocommunications, forms part of the elements of the offence for the prosecution to establish.

This item provides that strict liability applies to the words "under subregulation (1)" in subregulation 40(2) in order to avoid the prosecution having to establish that the licensee knew that the directions were give under subregulation 40(1). The prosecution would still have to establish that the licensee intentionally failed to comply with the directions reckless as to whether an inspector gave those directions.

Schedule 5 - Amendments of the Telecommunications (Arbitration) Regulations

Item 1 - Name of Regulations

This item provides that the name of the regulations is Telecommunications (Arbitration) Regulations 1997. This amendment ensures that the name of the regulations is specified correctly.

Item 2 - Regulation 21

This item replaces regulation 21 of the Telecommunications (Arbitration) Regulations 1997 (TA Regulations) with a new regulation 21. This amendment makes it clear that not having been excused or released from further attendance by a member of the ACCC for the arbitration forms part of the elements of the offence for the prosecution to establish.

This item makes it clear that an offence under subregulation 21(1) is a strict liability offence (see subregulation 21(2)). Subregulation 21(1) provides that a person must attend an arbitration hearing where the person is summoned under regulation 17 of the TA Regulations and has not been excused or released from further attendance by a member of the ACCC for the arbitration. A penalty of 10 penalty units is provided by subregulation 21(1).

This amendment is likely to have been interpreted as a strict liability offence before this amendment because of the relatively low penalty attached to this offence and because of the nature of the offence (which does not involve dishonesty or other serious imputation affecting the offender's reputation).

Therefore this new subregulation should not alter the way a court would interpret this offence. If the amendment were not made, then after the application of the Criminal Code, the offence would no longer be interpreted in the same way as it could currently be interpreted. After the Criminal Code comes into operation it is necessary to expressly state that an offence is one of strict liability if the provision is to attract strict liability (sections 6.1 and 6.2 of the Code). If it is not specified a court would be obliged to interpret it as a fault offence and no longer as a strict liability offence and would require proof of fault elements in relation to the physical elements.

This item removes the defence of "without reasonable excuse" from regulation 21 of the TA Regulations. The defence of reasonable excuse becomes new subregulation 21(3). This amendment has been made to avoid the defence being mistakenly interpreted as being part of the elements of the offence.

Item 3 - Regulation 22

This item replaces regulation 22 of the TA Regulations with a new regulation 22. This amendment removes the word "refuse" from paragraphs 22(1)(a), (b) and (c) to avoid the result of there being alternative offences of refusing to do one of the acts listed in paragraphs 22(1)(a), (b) or (c) or failing to do one of those acts. The item amends the offences to specify that the offences relate to failing to do one of the acts listed in paragraphs 22(1)(a), (b) or (c) (which includes the concept of refusing to do an act).

This item makes it clear that the offences under paragraphs 22(1)(a), (b) and (c) are strict liability offences (see subregulation 22(3)). Subregulation 22(1) provides that a witness at an arbitration must not fail to be sworn or make an affirmation, fail to answer a question that the witness is required by the ACCC to answer or fail to produce a document that the witness is required to provide under a summons. A penalty of 10 penalty units is provided by subregulation 21(1).

These amendments are likely to have been interpreted as strict liability offences before this amendment because of the relatively low penalty attached to these offences and because of the nature of the offences (which do not involve dishonesty or other serious imputation affecting the offender's reputation).

Therefore this new subregulation should not alter the way a court would interpret this offence. If the amendment were not made, then after the application of the Criminal Code, the offence would no longer be interpreted in the same way as it could currently be interpreted. After the Criminal Code comes into operation it is necessary to expressly state that an offence is one of strict liability if the provision is to attract strict liability (sections 6.1 and 6.2 of the Code). If it is not specified a court would be obliged to interpret it as a fault offence and no longer as a strict liability offence and would require proof of fault elements in relation to the physical elements.

This item removes the defence of "without reasonable excuse" from subregulation 22(1) of the TA Regulations. The item provides that the defence of reasonable excuse becomes new subregulation 22(4). This amendment has been made to avoid the defence being mistakenly interpreted as being part of the elements of the offence.

Item 4 - Regulations 23 and 24

Regulation 23 prohibits a person from giving oral evidence at an arbitration hearing that the person knows is false or misleading in a material particular. Regulation 24 prohibits the provision of false or misleading documents in compliance with a summons. Item 3 repeals the regulations as they are very similar to the general offences provided in subsections 136.1, 137.1 and 137.2 of the Criminal Code. These subsections create general offences relating to making false and misleading statements, providing false and misleading information and producing false and misleading documents. These offences will apply to all Commonwealth criminal offences following application of the Criminal Code.

Item 5 - Subregulation 25(2), including the penalty

This item replaces subregulation 25(2) with new subregulation 25(2).

This item makes it clear that the offences under subregulation 25(2) is a strict liability offence (see subregulation 25(3)). Subregulation 25(2) provides that a person must not engage in conduct that threatens, intimidates or coerces a person mentioned in subregulation (1) (insert) or causes damage, disadvantage or loss to the person. A penalty of 10 penalty units is provided by subregulation 21(1).

These amendments are likely to have been interpreted as strict liability offences before this amendment because of the relatively low penalty attached to these offences and because of the nature of the offences (which do not involve dishonesty or other serious imputation affecting the offender's reputation).

Therefore this new subregulation should not alter the way a court would interpret this offence. If the amendment were not made, then after the application of the Criminal Code, the offence would no longer be interpreted in the same way as it could currently be interpreted. After the Criminal Code comes into operation it is necessary to expressly state that an offence is one of strict liability if the provision is to attract strict liability (sections 6.1 and 6.2 of the Code). If it is not specified a court would be obliged to interpret it as a fault offence and no longer as a strict liability offence and would require proof of fault elements in relation to the physical elements.


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