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DEFENCE LEGISLATION AMENDMENT (APPLICATION OF CRIMINAL CODE) REGULATIONS 2001 (NO. 2) 2001 NO. 305
EXPLANATORY STATEMENTStatutory Rule 2001 No. 305
Issued by the authority of the Minister for Veterans' Affairs
Control of Naval Waters Act 1918
Defence Act 1903
Defence Legislation Amendment (Application of Criminal Code) Regulations 2001 (No. 2)
The Control of Naval Waters Act 1918 section 4 and the Defence Act 1903 section 124 empower the Governor-General to make regulations prescribing matters that are required or permitted by those Acts to be prescribed, or which are necessary or, convenient to be prescribed for carrying out or giving effect to those Acts.
The purpose of the Regulations is to harmonise the offence- creating and related provisions within Defence portfolio regulations with the general principles of criminal responsibility as codified in Chapter 2 of the Criminal Code Act 1995 (the Criminal Code) whilst at the same time ensuring that the offences continue to operate as intended by Parliament.
Chapter 2 of the Criminal Code will take effect on 15 December 2001. The purpose of Chapter 2 is to codify principles of criminal responsibility applicable to offences created by Commonwealth legislation and regulations. The effect of Chapter 2 may. be summarised as follows:
• Chapter 2 of the Criminal Code will replace common law notions of a criminal act and a guilty mind with physical and fault elements respectively.
• One key effect of Chapter 2 is that offences of strict liability, that is offences in respect of which a fault element need not be proven at present, will gain fault elements by force of Chapter 2 after 15 December 2001. On the other hand, the Criminal Code permits the regulations to specify certain offences to be offences of strict liability, to maintain their current operation.
• Chapter 2 of 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. An evidential burden means the burden of adducing or pointing to evidence that suggests a reasonable possibility that a matter exists or does not exist. By contrast, a legal burden is more onerous than an evidential burden and is defined in the Criminal Code to mean the burden of (positively) proving the existence of a matter.
The regulations amend Defence portfolio regulations to comply with the scheme set out in Chapter 2 of the Criminal Code with regard to physical and fault elements. A number of regulations have been specified as strict liability offences to preserve their current operation. The Regulations also provide that defences set out in Defence portfolio regulations should be made subject to proof at the evidential standard. In addition, the Regulations update pecuniary penalties by converting them into penalty units rather than dollar amounts.
Details of the Regulations are set out in the Attachment. The Regulations affected are the Control of Naval Waters Regulations 1922, the Defence (Areas Control) Regulations 1989, the Defence (Certification of Deaths) Regulations 1953, the Defence (Prohibited Wharves and Buildings) Regulations 1950, the Defence (Prohibited Words and Letters) Regulations 1957 and the Defence Force Regulations 1952.
'The Regulations commence on the day on which Chapter 2 of the Criminal Code commences, that is, on 15 December 2001. The commencement date allows time for the Department of Defence to conduct necessary staff training and to amend internal publications to conform to the requirements of the Schedules.
ATTACHMENT
Regulation 1 contains the name of the proposed Regulations.
Regulation 2 provides for the proposed Regulations to commence on the day on which Chapter 2 of the Criminal Code commences.
Regulations 3 to 8 inclusive refer to Schedules 1 to 7 respectively of the proposed Regulations which list the various amendments to the Principal Regulations.
Schedule 1: Amendments to Control of Naval Waters Regulations 1922
Authority. Control of Naval Waters Act 1918 section 4
Item 1 repeals regulation 1 of the Principal Regulations and substitutes the name of the regulations, being the Control of Naval Waters Regulations 1922
Item 2 repeals subregulation 4(4) and the penalty of the Principal Regulations dealing with conduct that contravenes a notice given under the regulation and substitutes a new subregulation 4(4). New subregulation 4(4) updates the existing subregulation in terms of drafting style and legal concepts. For example, the reference to a fine in subregulation 4(4) is replaced by a reference to penalty units. One penalty unit is equivalent to $110.
Item 2 also adds a new subregulation 4(4A) that applies strict liability to the physical element in paragraphs 4(4)(a) that the notice is given under this regulation. The application of strict liability to subregulation 4(4)(a) reflects subsection 9.3(1) of the Criminal Code (and the common law position) that ignorance of the law is no excuse. The inclusion of subregulation 4(4A) maintains the current operation of subregulation 4(4)(a) after Chapter 2 of the Criminal Code takes effect.
Item 3 repeals regulation 6 and the penalty of the Principal Regulations prohibiting the master of a vessel from permitting the vessel to lie or to be moored or anchored in naval waters in a position that impedes the approach to an installation. Item 3 substitutes a new regulation 6 that updates the existing regulation in terms of drafting style and legal concepts. For example, the reference to a fine in regulation 6 is replaced by a reference to penalty units. One penalty unit is equivalent to $110.
Item 3 also adds a new subregulation 6(2) that applies strict liability to the offence created by subregulation 6(1). The application of strict liability to subregulation 6(1) maintains the current operation of subregulation 6(1) after Chapter 2 of the Criminal Code takes effect.
New subregulation 6(3) restates the existing defence of reasonable excuse. In order to avoid the possibility that these words might be unintentionally interpreted as an element of the offence, they have bee ' n removed from the offence provision and redrafted as a stand-alone defence. A note is added to the effect that a defendant seeking to rely on this defence bears an evidential burden.
Item 4 repeals subregulation 7(1) and the penalty of the Principal Regulations regarding the making fast of vessels without permission. Item 4 substitutes a new subregulation 7(1) that updates the existing subregulation in terms of drafting style and legal concepts. For example, the reference to a fine in subregulation 7(1) is replaced by a reference to penalty units. One penalty unit is equivalent to $110. In addition, new paragraph 7(1)(b) restates the element of lack of permission to avoid the possibility that these words might be unintentionally interpreted as a defence,
Item 4 also adds a new subregulation 7(1A) that applies strict liability to the offence created by subregulation 7(1). The application of strict liability to subregulation 7(1) maintains the current operation of subregulation 7(1) after Chapter 2 of the Criminal Code takes effect.
New subregulation 7(1B) restates the existing defence of reasonable excuse. In order to avoid the possibility that these words might be unintentionally interpreted as an element of the offence, they have been removed from the offence provision and redrafted as a stand-alone defence. A note is added to the effect that a defendant seeking to rely on this defence bears an evidential burden.
]Item 5 repeals subregulation 7(4) and the penalty of the Principal Regulations regarding contravention of a permission and substitutes a new subregulation 7(4) that updates the existing subregulation in terms of drafting style and legal concepts. For example, the reference to a fine in subregulation 7(4) is replaced by a reference to penalty units. One penalty unit is equivalent to $110.
Item 5 also adds a new subregulation 7(5) that applies strict liability to the offence created by subregulation 7(4). The application of strict liability to subregulation 7(4) maintains the current operation of subregulation 7(4) after Chapter 2 of the Criminal Code takes effect.
New subregulation 7(6) restates the existing defence of reasonable excuse. In order to avoid the possibility that these words might be unintentionally interpreted as an element of the offence, they have been removed from the offence provision and redrafted as a stand-alone defence. A note is added to the effect that a defendant seeking to rely on this defence bears an evidential burden.
Item 6 repeals regulation 9 and the penalty of the Principal Regulations relating to anchoring ,and mooring of vessels. Item 6 substitutes a new subregulation 9 that updates the existing subregulation in terms of drafting style and legal concepts. For example, the reference to a fine in subregulation 9 is replaced by a reference to penalty units. One penalty unit is equivalent to $110.
Item 6 also adds a new subregulation 9(2) that applies strict liability to the offence created by subregulation 9(1). The application of strict liability to subregulation 9(1) maintains the current operation of subregulation 9(1) after Chapter 2 of the Criminal Code takes effect.
New subregulation 9(3) restates the existing defence of reasonable excuse. In order to avoid the possibility that these words might be unintentionally interpreted as an element of the offence, they have been removed from the offence provision and redrafted as a stand-alone defence. A note is added to the effect that a defendant seeking to rely on this defence bears an evidential burden.
Item 7 repeals regulation 10 and the penalty of the Principal Regulations relating to anchoring of vessels more than 10 metres in overall length. Item 7 substitutes a new regulation 10 that updates the existing regulation in terms of drafting style and legal concepts. For example, the reference to a fine in regulation 10 is replaced by a reference to penalty units. One penalty unit is equivalent to $110.
Item 7 also adds a new subregulation 10(2) that applies strict liability to the offence created by subregulation 10(1). The application of strict liability to subregulation 10(1) maintains the current operation of subregulation 10(1) after Chapter 2 of the Criminal Code takes effect.
New subregulation 10(3) restates the existing defence of reasonable excuse. In order to avoid the possibility that these words might be unintentionally interpreted as an element of the offence, they have been removed from the offence provision and redrafted as a stand-alone defence. A note is added to the effect that a defendant seeking to rely on this defence bears an evidential burden.
Item 8 repeals subregulations 11 (1) and (2) and the penalties of the Principal Regulations relating to vessels. Item 8 substitutes new subregulations 11(1) and (2) that updates the existing subregulations in terms of drafting style and legal concepts. For example, the reference to a fine in regulation 11 is replaced by a reference to penalty units. One penalty unit is equivalent to $110. The reference to the written permission of the superintendent of the naval waters has been restated as elements of the offences created by subregulations 11 (1) and (2) to avoid the possibility that these words might be unintentionally interpreted as defences.
Item 8 also adds a new subregulation 11(3) that applies strict liability to the offences created by subregulations 11 (1) and (2). The application of strict liability to subregulations 11 (1) and (2) maintains the current operation of subregulations 11(1) and (2) after Chapter 2 of the Criminal Code takes effect.
New subregulation 11 (4) restates the existing defence of reasonable excuse. In order to avoid the possibility that these words might be unintentionally interpreted as an element of the offence, they have been removed from the offence provision and redrafted as a stand-alone defence. A note is added to the effect that a defendant seeking to rely on this defence bears an evidential burden.
Item 8 repeals subregulations 11(3) and (4) and the penalty of the Principal Regulations and substitutes new regulation 11A relating to entry into and remaining in naval waters or on the foreshore of naval waters (subregulation 11A(1) refers) and interfering with installations (subregulation 11A(2) refers). The new subregulations update the existing regulation in terms of drafting style and legal concepts. For example, the reference to a fine in subregulations 11A(1) and (2) are replaced by references to penalty units. One penalty unit is equivalent to $110. The reference to the written permission of the superintendent of the naval waters has been retained as element of the offences created by subregulations 11A(1) and (2) to avoid the possibility that these words might be unintentionally interpreted as defences.
Item 8 also adds a new subregulation 11A(3) that applies strict liability to the offence created by paragraphs 11A(1)(a) and (b). The application of strict liability to paragraphs 11A(1)(a) and (b) maintains the current operation of paragraphs 11A(1)(a) and (b) after Chapter 2 of the Criminal Code takes effect.
New subregulation 11A(4) restates the existing defence of reasonable excuse. In order to avoid the possibility that these words might be unintentionally interpreted as an element of the offence, they have been removed from the offence provision and redrafted as a stand-alone defence. A note is added to the effect that a defendant seeking to rely on this defence bears an evidential burden.
Item 9 repeals regulation 12 and the penalty of the Principal Regulations relating to vessels approaching installations and substitutes new regulation 12. The new regulation updates the existing regulation in terms of drafting style and legal concepts. For example, the reference to a fine in subregulation 12(1) is replaced by a reference to penalty units. One penalty unit is equivalent to $110. The reference to the written permission of the superintendent of the naval waters has been retained as an element of the offence because it is not a matter that is peculiarly within the knowledge of the defendant.
Item 9 also adds a new subregulation 12(2) that applies strict liability to the offence created by subregulation 12(1). The application of strict liability to subregulation 12(1) maintains the current operation of subregulation 12(1) after Chapter 2 of the Criminal Code takes effect.
New subregulation 12(3) restates the existing defence of reasonable excuse. In order to avoid the possibility that these words might be unintentionally interpreted as an element of the offence, they have been removed from the offence provision and redrafted as a stand-alone defence. A note is added to the effect that a defendant seeking to rely on this defence bears an evidential burden.
Item 10 repeals regulation 13 and the penalty of the Principal Regulations relating to laying of moorings in naval waters and substitutes new regulation 13. The new regulation updates the existing regulation in terms of drafting style and legal concepts. For example, the reference to a fine in subregulation 13(1) is replaced by a reference to penalty units. One penalty unit is equivalent to $110. The reference to the written permission of the superintendent of the naval waters is retained as an element of the offence because it is not a matter that is peculiarly within the knowledge of the defendant.
Item 10 also adds a new subregulation 13 (1A) that applies strict liability to the offence created 'by subregulation 13(1). The application of strict liability to subregulation 13(1) maintains the current operation of subregulation 13(1) after Chapter 2 of the Criminal Code takes effect.
New subregulation 13(1B) restates the existing defence of reasonable excuse. In order to avoid the possibility that these words might be unintentionally interpreted as an element of the offence, they have been removed from the offence provision and redrafted as a stand-alone defence. A note is added to the effect that a defendant seeking to rely on this defence bears an evidential burden.
Item 11 repeals regulation 15 and the penalty of the Principal Regulations relating to anchoring of vessels near electric cables in naval waters and substitutes new regulation 12. The new regulation updates the existing regulation in terms of drafting style and legal concepts. For example, the reference to a fine in subregulation 15(1) is replaced by a reference to penalty units. One penalty unit is equivalent to $110.
Item 11 also adds a new subregulation 15(2) that applies strict liability to the offence created by subregulation 15(1). The application of strict liability to subregulation 15(1 ) maintains the current operation of subregulation 15(1) after Chapter 2 of the Criminal Code takes effect.
New subregulation 15(3) restates the existing defence of reasonable excuse. In order to avoid the possibility that these words might be unintentionally interpreted as an element of the offence, they have been removed from the offence provision and redrafted as a stand-alone defence. A note is added to the effect that a defendant seeking to rely on this defence bears an evidential burden.
Item 12 repeals subregulation 25(1) and the penalty of the Principal Regulations relating to unloading etc of material in naval waters and substitutes new subregulation 25(1). The new regulation updates the existing regulation in terms of drafting style and legal concepts. For example, the reference to a fine in subregulation 25(1) is replaced by a reference to penalty units. One penalty unit is equivalent to $110. The reference to the direction of the superintendent of the naval waters has been retained as an element of the offence because it is not a matter that is peculiarly within the knowledge of the defendant.
Item 12 also adds a new subregulation 25(4) that applies strict liability to the offences created by subregulation 25(3). The application of strict liability to subregulation 25 (3) maintains the current operation of subregulation 25(3) after Chapter 2 of the Criminal Code takes effect.
New subregulation 25(5) restates the existing defence of reasonable excuse. In order to avoid the possibility that these words might be unintentionally interpreted as an element of the offence, they have been removed from the offence provision and redrafted as a stand-alone defence. A note is added to the effect that a defendant seeking to rely on this defence bears an evidential burden.
Item 13 repeals regulation 26 and the penalty of the Principal Regulations relating to breaming, careening or cleaning vessels in naval waters and substitutes new regulation 26.. The new regulation updates the existing regulation in terms of drafting style and legal concepts. For example, the reference to a fine in subregulation 26 is replaced by a reference to penalty units. One penalty unit is equivalent to $110. The reference to the permission of the superintendent of the naval waters has been retained as an element of the offence because it is not a matter that is peculiarly within the knowledge of the defendant.
Item 13 also adds a new subregulation 26(4) that applies strict liability to the offence created by subregulation 26(3). The application of strict liability to subregulation 26(3) maintains the current operation of subregulation 26(3) after Chapter 2 of the Criminal Code takes effect.
New subregulation 26(5) restates the existing defence of reasonable excuse. In order to avoid the possibility that these words might be unintentionally interpreted as an element of the offence, they have been removed from the offence provision and redrafted as a stand-alone defence. A note is added to the effect that a defendant seeking to rely on this defence bears an evidential burden.
Item 14 repeals subregulation 28(4) and the penalty of the Principal Regulations relating to contravention of notices under regulation 28 and substitutes new subregulation 28(4). The new regulation updates the existing regulation in terms of drafting style and legal concepts. For example, the reference to a fine in subregulation 28(4) is replaced by a reference to penalty units. One penalty unit is equivalent to $110.
Item 14 also adds a new subregulation 28(5) that applies strict liability to the physical element in subregulation 28(4) that the notice is given under this regulation. The application of strict liability to subregulation 28(4) reflects subsection 9.3(1) of the Criminal Code (and the common law position) that ignorance of the law is no excuse. The application of strict liability to subregulation 28(4) maintains the current operation of subregulation 28(4) after Chapter 2 of the Criminal Code takes effect
Item 15 repeals regulation 29 and the penalty of the Principal Regulations relating to discharge of guns over naval waters and substitutes new regulation 29. The new regulation updates the existing regulation in terms of drafting style and legal concepts. For example, the reference to a fine in regulation 29 is replaced by a reference to penalty units. One penalty unit is equivalent to $110.
New subregulation 29(2) restates the provision that the defendant is a member of the Defence Force, the Australian Federal Police or a Police Force or Service of a State or Territory engaged within the limits of naval waters.
Item 16 repeals regulation 30 and the penalty of the Principal Regulations relating to entry into naval waters by vessels with dangerous cargoes and substitutes new regulation 30. The new regulation updates the existing regulation in terms of drafting style and legal concepts. For example, the reference to a fine in regulation 30 is replaced by a reference to penalty units. One penalty unit is equivalent to $110. Ministerial approval has been obtained for the clarification of the language currently found in subregulation 30(2) and this is reflected in subregulation 30(5). The reference to the permission in writing of the superintendent of the naval waters has been retained as an element of the offence because it is not a matter that is peculiarly within the knowledge of the defendant.
Item 14 also adds a new subregulation 30(6) that applies strict liability to the offences created by subregulations 30(4) and (5). Ministerial approval has been obtained for the application of strict liability to subregulation 30(5). The application of strict liability to subregulations 30(4) and (5) also maintains the current operation of subregulation 30(4) after Chapter 2 of the Criminal Code takes effect.
New subregulation 30(7) restates the existing defence of reasonable excuse. In order to avoid the possibility that these words might be unintentionally interpreted as an element of the offence, they have been removed from the offence provision and redrafted as a stand-alone defence. A note is added to the effect that a defendant seeking to rely on this defence bears an evidential burden.
Item 17 repeals regulation 31 and the penalty of the Principal Regulations relating to the necessity for vessels with dangerous cargoes to display signals and substitutes new regulation 31. The new regulation updates the existing regulation in terms of drafting style and legal concepts. For example, the reference to a fine in regulation 31 is replaced by a reference to penalty units. One penalty unit is equivalent to $110.
Item 18 also adds a new subregulation 31(2) that applies strict liability to the offences created 'by subregulation 31 (1). The application of strict liability to subregulation 31 (1) maintains the current operation of subregulation 31 (1) after Chapter 2 of the Criminal Code takes effect.
New subregulation 30(3) restates the existing defence of reasonable excuse. In order to avoid the possibility that these words might be unintentionally interpreted as an element of the offence, they have been removed from the offence provision and redrafted as a stand-alone defence. A note is added to the effect that a defendant seeking to rely on this defence bears an evidential burden.
Schedule 2: Amendments to Defence (Areas Control) Regulations 1989
Authority. Defence Act 1903 section 124
Item 1 repeals subregulation 3(2) and the penalty of the Principal Regulations dealing with construction of buildings. New subregulation 3(2) updates the existing subregulation in terms of drafting style and legal concepts. For example, the reference to a fine in subregulation 3(2) is replaced by a reference to penalty units. One penalty unit is equivalent to $110. The reference to an approval given under the Regulations has been retained as an element of the offence because it is not a matter that is peculiarly within the knowledge of the defendant.
Item 1 also adds a new subregulation 3(3) that applies strict liability to the physical elements set out in paragraphs 2)(b), (c) and (d). The application of strict liability to paragraphs (2)(b), (c) and (d) reflects subsection 9.3(1) of the Criminal Code (and the common law position) that ignorance of the law is no excuse. The application of strict liability to paragraphs (2)(b), (c) and (d) maintains the current operation of paragraph (2)(b), and (c) and (d) after Chapter 2 of the Criminal Code takes effect.
Item 2 repeals subregulation 4(2) and the penalty of the Principal Regulations dealing with construction of buildings higher than 7.5 metres. New subregulation 4(2) updates the existing subregulation in terms of drafting style and legal concepts. For example, the reference to a fine in subregulation 4(2) is replaced by a reference to penalty units. One penalty unit is equivalent to $110. The reference to an approval given under the Regulations has been retained as an element of the offence because it is not a matter that is peculiarly within the knowledge of the defendant.
item 2 also adds a new subregulation 4(3) that applies strict liability to the physical elements set out in paragraphs (2)(b), (c) and (d) that the area is one to which the regulation applies. The application of strict liability to paragraphs (2)(b), (c) and (d) reflects subsection 9.3(1) of the Criminal Code (and the common law position) that ignorance of the law is no excuse. The application of strict liability to paragraphs (2)(b), (c) and (d) maintains the, current operation of paragraphs (2)(b), (c) and (d) after Chapter 2 of the Criminal Code takes effect.
Item 3 repeals subregulation 5(2) and the penalty of the Principal Regulations dealing with construction of buildings higher than 15 metres. New subregulation 5(2) updates the existing subregulation in terms of drafting style and legal concepts. For example, the reference to a fine in subregulation 5(2) is replaced by a reference to penalty units. One penalty unit is equivalent to $110. The reference to an approval given under the Regulations has been retained as an element of the offence because it is not a matter that is peculiarly within the knowledge of the defendant.
Item 3 also adds a new subregulation 5(3) that applies strict liability to the physical elements set out in paragraphs (2)(b), (c) and (d) that the area is one to which the regulation applies. The application of strict liability to paragraphs (2)(b), (c) and (d) reflects subsection 9.3(1) of the Criminal Code (and the common law position) that ignorance of the law is no excuse. The application of strict liability to paragraphs (2)(b), (c) and (d) maintains the current operation of paragraphs (2)(b), (c) and (d) after Chapter 2 of the Criminal Code takes effect.
Item 4 repeals subregulation 6(2) and the penalty of the Principal Regulations dealing with construction of buildings higher than 45 metres. New subregulation 6(2) updates the existing subregulation in terms of drafting style and legal concepts. For example, the reference to a fine in subregulation 6(2) is replaced by a reference to penalty units. One penalty unit is equivalent to $110. The reference to an approval given under the Regulations has been retained as an element of the offence because it is not a matter that is peculiarly within the knowledge of the defendant.
Item 4 also adds a new subregulation 6(3) that applies strict liability to the physical element set out in paragraphs (2)(b), (c) and (d) that the area is one to which the regulation applies. The application of strict liability to paragraphs (2)(b), (c) and (d) reflects subsection 9.3(1) of the Criminal Code (and the common law position) that ignorance of the law is no excuse. The application of strict liability to paragraphs (2)(b), (c) and (d) maintains the current operation of paragraphs (2)(b), (c) and (d) after Chapter 2 of the Criminal Code takes effect.
Item 5 repeals subregulation 7(2) and the penalty of the Principal Regulations dealing with construction of buildings higher than 90 metres. New subregulation 7(2) updates the existing subregulation in terms of drafting style and legal concepts. For example, the reference to a fine in subregulation 7(2) is replaced by a reference to penalty units. One penalty unit is equivalent to $110. The reference to an approval given under the Regulations has been retained as an element of the offence because it is not a matter that is peculiarly within the knowledge of the defendant.
Item 5 also adds a new subregulation 7(1) that applies strict liability to the physical element set out in paragraphs (2)(b), (c) and (d) that the area is one to which the regulation applies. The application of strict liability to paragraphs (2)(b), (c) and (d) reflects subsection 9.3(1) of the Criminal Code (and the common law position) that ignorance of the law is no excuse. The application of strict liability to paragraphs (2)(b), (c) and (d) maintains the current operation of paragraphs (2)(b), (c) and (d) after Chapter 2 of the Criminal Code takes effect.
Item 6 repeals regulation 9 and the penalty of the Principal Regulations dealing with making false or misleading statements.'
Item 7 repeals subregulation 11 (1) and the penalty of the Principal Regulations dealing with failure to comply with approvals. New subregulation 11 (1) updates the existing subregulation in terms of drafting style and legal concepts. For example, the reference to a fine in subregulation 11 (1) is replaced by a reference to penalty units. One penalty unit is equivalent to $110. The reference to an approval given under the Regulations has been retained as an element of the offence because it is not a matter that is peculiarly within the knowledge of the defendant.
Item 7 also adds a new subregulation 11 (1A) that applies strict liability to the offence under subregulation 11 (1). The application of strict liability to subregulation 11 (1) maintains the current operation of subregulation 11 (1) after Chapter 2 of the Criminal Code takes effect.
New subregulation 11 (1B) restates the existing defence of reasonable excuse. In order to avoid the possibility that these words might be unintentionally interpreted as an element of the offence, they have been removed from the offence provision and redrafted as a stand-alone defence. A note is added to the effect that a defendant seeking to rely on this defence bears an evidential burden.
Item 8 repeals regulation 12 and the penalty of the Principal Regulations dealing with bringing, having or constructing of objects hazardous to aircraft or to communications on or onto affected land. New regulation 12 updates the existing regulation in terms of drafting style and legal concepts. For example, the reference to a fine in regulation 12 is replaced by a reference to penalty units. One penalty unit is equivalent to $110.
Item 8 also adds a new subregulation 12(2) that applies strict liability to the offence under subregulation 12(1). The application of strict liability to subregulation 12(1) maintains the current operation of subregulation 12(1) after Chapter 2 of the Criminal Code takes effect.
New subregulation 12(3) restates the existing defence of reasonable excuse. In order to avoid the possibility that these words might be unintentionally interpreted as an element of the offence, they have been removed from the offence provision and redrafted as a stand-alone defence. A note is added to the effect that a defendant seeking to rely on this defence bears an evidential burden.
Item 9 repeals subregulation 13(5) and the penalty of the Principal Regulations dealing with failure to comply with a notice. New subregulation 13(5) updates the existing subregulation in terms of drafting style and legal concepts. For example, the reference to a fine in subregulation 13(5) is replaced by a reference to penalty units. One penalty unit is equivalent to $110.
item 9 also adds a new subregulation 13(5A) that applies strict liability to the offence under subregulation 13(5). The application of strict liability to subregulation 13(5) maintains the current operation of subregulation 13(5) after Chapter 2 of the Criminal Code takes effect.
New subregulation 13(5B) restates the existing defence of reasonable excuse. In order to avoid the possibility that these words might be unintentionally interpreted as an element of the offence, they have been removed from the offence provision and redrafted as a stand-alone defence. A note is added to the effect that a defendant seeking to rely on this defence bears an evidential burden.
Item 10 repeals subregulations 15(4) and (5) and the penalty of the Principal Regulations dealing with obstructing, threatening or interfering with officers authorised under subregulations 15 (1)(2) or 14(1). New subregulations 15(4) and (5) update the existing subregulations in terms of drafting style and legal concepts. For example, the reference to a fine in subregulations 15(4) and (5) is replaced by a reference to penalty units. One penalty unit is equivalent to $110.
Item 10 also adds a new subregulations 15(5) and (7) that apply strict liability to the physical elements in paragraphs 15(4)(a) and (b) and 15(6)(a) and (b). The application of strict liability to paragraphs 15(4)(a) and (b) and 15(6)(a) and (b) reflects subsection 9.3(1) of the Criminal Code (and the common law position) that ignorance of the law is no excuse. The application of strict liability to paragraphs 15(4)(a) and (b) and (6)(a) and (b) also maintains the current ,operation of subregulations 15(4) and (6) after Chapter 2 of the Criminal Code takes effect.
Item 11 renumbers subregulation 15(6) as subregulation 15(8)
Schedule 3: Amendments to Defence (Certification of Deaths) Regulations 1953
Authority. Defence Act 1903 section 124
Item 1 repeals regulation 1 of the Principal Regulations and substitutes the name of the regulations, being the Defence (Certification of Deaths) Regulations 1953.
Item 2 omits the words "..and that person shall forthwith comply with the requirement..." from subregulation 11 (1).
Item 3 omits the penalty applicable to subregulation 11(1).
Item 4 inserts new subregulation 11 (1A) after subregulation 11 (1). New subregulation 11 (1A) creates the offence of lack of compliance with a notice to deliver up a certificate to the competent authority. The penalty applicable to the new subregulation is expressed in penalty units or imprisonment. One penalty unit is equivalent to $110.
Item 4 also adds a new subregulation 11(1B) that applies strict liability to the physical element in paragraph 11 (1A)(a) that the notice is under subregulation 11 (1). The application of strict liability to paragraph 11 (1A)(a) reflects subsection 9.3 (1) of the Criminal Code (and the common law position) that ignorance of the law is no excuse. The application of strict liability to paragraph 11 (1A)(a) also maintains the current operation of subregulation 11 (1) after Chapter 2 of the Criminal Code takes effect.
Item 5 repeals regulation 12 and the penalty of the Principal Regulations dealing with use of certificates of death that are required by a competent authority. New regulation 12 updates the existing regulation in terms of drafting style and legal concepts. For example, the reference to a fine in regulation 12 is replaced by a reference to penalty units. One penalty unit is equivalent to $110.
item 5 also adds a new subregulation 12(2) that applies strict liability to the physical element in paragraph 12(1)(a) that the certificate is one to which these Regulations apply. The application of strict liability to paragraph 12(1)(a) reflects subsection 9.3(1) of the Criminal Code (and the common law position) that ignorance of the law is no excuse. The application of strict liability to subregulation 12(1)(a) also maintains the current operation of subregulation 12(1)(a) after Chapter 2 of the Criminal Code takes effect.
Schedule 4: Amendments to Defence (Prohibited Wharves and Buildings) Regulations 1950
Authority. Defence Act 1903 section 124
Item 1 repeals regulation 1 of the Principal Regulations and substitutes the name of the regulations, being the Defence (Prohibited Wharves and Buildings) Regulations 1950.
Item 2 repeals regulation 5 and the penalty of the Principal Regulations forbidding entry etc into prohibited wharves and buildings and substitutes new regulation 5. New regulation 5 updates the existing regulation in terms of drafting style and legal concepts. For example, the reference to a fine in regulation 5 is replaced by a reference to penalty units. One penalty unit is equivalent to $ 110.
Item 2 also adds a new subregulation 5(2) that applies strict liability to the physical element in paragraph 5(1)(b)(i) and (ii) that the wharf or building is a prohibited wharf or building. The application of strict liability to paragraph 5(1)(b)(i) and (ii) reflects subsection 9.3(1) of the Criminal Code (and the common law position) that ignorance of the law is no excuse. The application of strict liability to paragraph 5(1)(b) also maintains the current operation of regulation 5 after Chapter 2 of the Criminal Code takes effect.
Item 2 further adds a new subregulation 5(3) that restates the existing defence that the person had a permit under regulation 6 for the relevant conduct. A note is added to the effect that a defendant seeking to rely on this defence bears an evidential burden.
Item 3 repeals subregulation 6(3) and the penalty of the Principal Regulations requiring persons who hold permits to comply with any conditions or restrictions in the permit and to deliver up a permit upon its revocation or suspension. New regulation 6 updates the existing regulation in terms of drafting style and legal concepts. For example, the reference to a fine in regulation 6 is replaced by a reference to penalty units. One penalty unit is equivalent to $110.
Item 3 also adds a new subregulation 6(4) that applies strict liability to the physical element in subregulation 6(3) that the permit was issued under this regulation. The application of strict liability to subregulation 6(3) reflects subsection 9.3(1) of the Criminal Code (and the common law position) that ignorance of the law is no excuse. The application of strict liability to subregulation 6(3) also maintains the current operation of subregulation 6(3) after Chapter 2 of the Criminal Code takes effect.
Item 4 repeals regulation 8 and the penalty of the Principal Regulations requiring persons to comply with directions of an officer or person in charge in relation to entry and inspection of prohibited wharves and buildings. New regulation 8 updates the existing regulation in terms of drafting style and legal concepts. For example, the reference to a fine in regulation 8 is replaced by a reference to penalty units. One penalty unit is equivalent to $110.
Item 4 also adds a new subregulation 8(2) that applies strict liability to the physical element in paragraph 8(1)(a) that the wharf of building is a prohibited wharf or building. The application of strict liability to paragraph 8(1)(a) reflects subsection 9.3(1) of the Criminal Code (and the common law position) that ignorance of the law is no excuse.
Schedule 5: Amendments Defence (Prohibited Words and Letters) Regulations 1953
Authority. Defence Act 1903 section 124
Item 1 amends regulation 2 of the Principal Regulations by substituting the words "For this regulation, the use...' for the words "The use..."
Item 2 amends regulation 2 of the Principal Regulations by substituting the words "...a restricted use..." for the words "...prohibited unless the consent in writing of the Minister to the use has been obtained..."
Item 3 repeals subregulation 2(2) Regulation 2 of the Principal Regulations and its penalty relating to unauthorised use of a word, words or groups of words protected by the Regulations. New subregulation 2(2) updates the existing regulation in terms of drafting style and legal concepts. For example, the reference to a fine in subregulation 2(2) is replaced by a reference to penalty units. One penalty unit is equivalent to $ 110.
Item 3 also adds a new subregulation 2(3) that applies strict liability to the physical element in paragraph 2(2)(c) that the consent is one to which these Regulations apply. The application of strict liability to paragraph 2(2)(c) reflects subsection 9.3(1) of the Criminal Code (and the common law position) that ignorance of the law is no excuse. The application of strict liability to paragraph 2(2)(c) also maintains the current operation of paragraph 2(2)(c) after Chapter 2 of the Criminal Code takes effect.
Item 4 repeals regulation 6 that formerly created the offence of unauthorised use of a word, words or groups of letters protected by the Principal Regulations.
Schedule 6: Amendments to Defence Force Regulations 1952
Authority. Defence Act 1903 section 124
Item 1 repeals regulation 21 of the Principal Regulations and the penalty relating to making of false statements. New regulation 21 updates the existing regulation in terms of drafting style and legal concepts. For example, the reference to a fine in regulation 21 is replaced by a reference to penalty units. One penalty unit is equivalent to $110.
Item 1 also adds a new subregulation 21(2) that applies strict liability to paragraph 21(1)(b), that the affidavit or declaration is sworn or made under this Part. The application of strict liability to paragraph 21(1)(b) reflects subsection 9.3(1) of the Criminal Code (and the common law position) that ignorance of the law is no excuse. The application of strict liability to paragraph 21 (1)(b) also maintains the current operation of paragraph 21 (1)(b) after Chapter 2 of the Criminal Code takes effect.
Item 2 repeals subregulations 35(3)(4) and (5) and the penalty of the Principal Regulations dealing with entering into or remaining in a prohibited area. New subregulation 35(5) updates the existing regulation in terms of drafting style and legal concepts. For example, the reference to a fine in subregulation 35(5) is replaced by a reference to penalty units. One penalty unit is equivalent to $110.
Item 2 also adds a new subregulation 35(6) that applies strict liability to paragraph 35(5)(b) that the area is a prohibited area. The application of strict liability to paragraph 35(5)(b) reflects subsection 9.3(1) of the Criminal Code (and the common law position) that ignorance of the law is no excuse. The application of strict liability to paragraph 35(5)(b) also maintains the current operation of paragraphs 35(5)(b) after Chapter 2 of the Criminal Code takes effect.
New subregulation 35(7) restates the existing defence of permission. In order to avoid the possibility that these words might be unintentionally interpreted as an element of the offence, they have been removed from the offence provision and redrafted as a stand-alone defence. A note is added to the effect that a defendant seeking to rely on this defence bears an evidential burden.
Item 3 repeals regulation 37 and the penalty of the Principal Regulations dealing with smoking etc in a protected place. New regulation 37 updates the existing regulation in terms of drafting style and legal concepts. For example, the reference to a fine in regulation 37 is replaced by a reference to penalty units. One penalty unit is equivalent to $110.
Item 3 also adds a new subregulation 37(2) that applies strict liability to paragraphs 37(1)(b) and (c) that the place is a protected place and that the person engages in certain conduct, such as smoking, striking a naked light or flame or being in possession of flammable material. The application of strict liability to paragraph 37(1)(b) reflects subsection 9.3(1) of the Criminal Code (and the common law position) that ignorance of the law is no excuse. The application of strict liability to paragraph 37(1)(b) also maintains the current operation of paragraph 37(1)(b) and (c) after Chapter 2 of the Criminal Code takes effect. Ministerial approval has been obtained for the application of strict liability to paragraph 37(1)(c).
New subregulation 37(3) restates the existing defence of permission. In order to avoid the possibility that these words might be unintentionally interpreted as an element of the offence, they have been removed from the offence provision and redrafted as a stand-alone defence. A note is added to the effect that a defendant seeking to rely on this defence bears an evidential burden.
Item 4 repeals regulation 53 and the penalty of the Principal Regulations dealing with persons being in and allowing vehicles, vessels or aircraft to be present in a defence practice area during the time specified for the carrying out of a defence operation or practice. In particular, new subregulations 53(1), (2), (3), (4) and (5) replace subregulations 53(1), (2), (2A), (5) and (6) respectively. The existing subregulations are updated in terms of drafting style and legal concepts. For example, references to fines are replaced by a reference to penalty units. One penalty unit is equivalent to $110.
New subregulation 53(9) applies strict liability to the offences created by subregulations 53(1), (2), (4) and (5). Further, new subregulation 53(10) applies strict liability to the physical element in paragraph 53(3)(b) that the installation of the equipment is authorised under subregulation 49(4) of the Regulations. The application of strict liability to paragraph 53(3)(b) reflects subsection 9.3(1) of the Criminal Code (and the common law position) that ignorance of the law is no excuse. The application of strict liability to 53(1), (2), (4) and (5) and to paragraph 53(3)(b) also maintains the current operation of paragraph 37(1)(b) and (c) after Chapter 2 of the Criminal Code takes effect.
New subregulation 53(11) restates the existing defence of grant of permission by relevant persons. In order to avoid the possibility that these words might be unintentionally interpreted as an element of the offence, they have been removed from the offence provision and redrafted as a stand-alone defence. A note is added to the effect that a defendant seeking to rely on this defence bears an evidential burden.
Further, new subregulation 53(12) restates the existing defence of reasonable excuse in relation to an offence created by subregulation 53(1), (2) or (4). In order to avoid the possibility that these words might be unintentionally interpreted as an element of the offence, they have been removed from the offence provision and redrafted as a stand-alone defence. A note is added to the effect that a defendant seeking to rely on this defence bears an evidential burden.
New subregulation 53(13) restates the further existing defence of lack of knowledge or approval in relation to an offence under subregulation 53(5). The defence is currently contained in subregulation 53(7). In order to avoid the possibility that these words might be unintentionally interpreted as an element of the offence, they have been removed from the offence provision and redrafted as a standalone defence. A note is added to the effect that a defendant seeking to rely on this defence bears an evidential burden.