1998-1999-2001-2001

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

HOUSE OF REPRESENTATIVES

FINANCE AND ADMINISTRATION LEGISLATION AMENDMENT (APPLICATION OF CRIMINAL CODE) BILL (NO. 1) 2001

EXPLANATORY MEMORANDUM

(Circulated by authority of the Acting Minister for Finance and Administration, Senator the Honourable Rod Kemp)

ISBN:  0642 468621

FINANCE AND ADMINISTRATION LEGISLATION AMENDMENT (APPLICATION OF CRIMINAL CODE) BILL (NO. 1) 2001

GENERAL OUTLINE
This bill brings together six different Acts within the Finance and Administration portfolio that are in need of amendment due to the pending application of Chapter 2 of the Criminal Code from 15 December 2001.  Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility and when it commences the general principles contained in the Criminal Code will apply to criminal offence provisions in all Commonwealth Acts.

In relation to superannuation matters, Schedule 1 of the Bill amends the Parliamentary Contributory Superannuation Act 1948, the Superannuation Act 1922, the Superannuation Act 1976 and the Superannuation Act 1990.

The proposed amendments amend various offence provisions in these superannuation Acts to ensure that they will operate in the same manner when Chapter 2 of the Criminal Code takes effect (known as ‘harmonisation amendments’) or in a manner consistent with Criminal Code policy.

The proposed amendments to offence provisions under the various superannuation Acts include an amendment to impose the lighter evidential burden on a defendant rather than a legal burden. Other proposed amendments of a technical nature ensure existing offences will comply with Chapter 2 of the Criminal Code.  In addition, an offence in the Parliamentary Contributory Superannuation Act 1948 relating to the provision of false or misleading information is to be repealed so that the general offences in the Criminal Code will apply.  The proposed amendments will not introduce any new offences under the various superannuation Acts.

This Bill also proposes some minor amendments to certain provisions to ensure reasonable time limits are specified in which a defendant is required to produce documents or to notify of a significant event. 

Other amendments proposed by Schedule 1 of the Bill will update maximum penalties in the various superannuation Acts to ensure that they are appropriate and conform with the principles of the Crimes Act 1914.  These changes include converting penalties from a dollar amount to penalty units.  

Schedule 2 of the Bill proposes a number of harmonisation amendments to the Public Accounts and Audit Committee Act 1951 and the Public Works Committee Act 1969. These amendments provide for the application of Chapter 2 of the Criminal Code to these Acts together with a number of minor technical amendments which will ensure existing offences continue to operate in the same way but also comply with the Criminal Code.

Financial Implications
This bill has no financial implications.

FINANCE AND ADMINISTRATION LEGISLATION AMENDMENT (APPLICATION OF CRIMINAL CODE) BILL (NO. 1) 2001

NOTES ON CLAUSES

Clause 1:	Short title

1.	Clause 1 provides for the short title of the Act to be the Finance and Administration Legislation Amendment (Application of Criminal Code) Act (No.1) 2001 (the Act).

Clause 2:	Commencement

2.	Clause 2 provides that the Act commences, or is taken to have commenced, at the latest of two dates, being (a) the 28th day after the day on which it receives the Royal Assent; and (b) the 28th day after the day on which the Law and Justice Legislation Amendment (Application of the Criminal Code) Act 2000 receives the Royal Assent.
3.	The Law and Justice Legislation Amendment (Application of the Criminal Code) Act 2000, which makes amendments to the Crimes Act 1914 as a consequence of the Criminal Code, is still before Parliament and, as such, has not yet received Royal Assent. However, Clause 2 will ensure that the proposed amendments in the Bill will commence by the time Chapter 2 of the Criminal Code applies to criminal offence provisions in all Commonwealth Acts from 15 December 2001.

Clause 3: 	Schedule(s)

4.	Clause 3 provides that the Acts as specified in the Schedules are to be amended or repealed according to the applicable items set out in each of the Schedules.

Clause 4:	Application of amendments of Superannuation Acts 

5.	Clause 4 provides that the amendments proposed in the Bill will continue to apply to the Superannuation Act 1922 (1922 Act), the Superannuation Act 1976 (1976 Act) and the Superannuation Act 1990 (1990 Act) in the event that those Acts are repealed and then saved, before the commencement of this Act, by other Commonwealth superannuation Acts.  
6.	The Superannuation Legislation (Commonwealth Employment) Repeal and Amendment Bill, which is still before the Senate, proposes to repeal the 1922 Act, the 1976 Act and the 1990 Act.  However, the repealed legislation will continue to apply through the application of the Superannuation Legislation (Commonwealth Employment‑Savings and Transitional Provisions) Bill, which is also currently before the Senate.  

Clause 5:	Application of amendments generally

7.	Subclause 5(1) provides that amendments made by the Bill apply to acts and omissions that take place after the Act commences.  As a further clarification, subclause 5(2) provides that if an act or omission is alleged to have taken place between two dates – one before the Act commences, and one on or after the day on which the Act commences – the act or omission is alleged to have taken place before that commencement.  Therefore, the amendments made by the Bill only apply to conduct occurring wholly after the Act commences.

Schedule 1 – Amendment of Superannuation Acts

8.	The proposed amendments in this Schedule will amend various offence provisions in the Commonwealth legislation covering the Parliamentary Contributory Superannuation Scheme (PCSS), the Public Sector Superannuation Scheme (PSS), the Commonwealth Superannuation Scheme (CSS) and the scheme arrangements under the 1922 Act.  The proposed amendments will ensure that offence provisions in those Acts will operate in the same manner after Chapter 2 of the Criminal Code applies to them on 15 December 2001 or in a manner consistent with Criminal Code policy.

9.	These proposed amendments are part of the harmonisation of all Commonwealth offences with Chapter 2 of the Criminal Code to provide a more consistent and uniform Commonwealth criminal law regime.  The proposed amendments do not introduce any new offences under the various superannuation Acts.  

10.	This Schedule will also make changes to update the maximum penalties in the various Superannuation Acts to ensure that they are appropriate penalties and that they are expressed in a manner consistent with the Crimes Act 1914.  In particular, many of the current maximum pecuniary penalties are significantly low and hence ineffective to administer and unlikely to act as a deterrent against non-compliance.  These penalties are also currently specified in dollar amounts rather than penalty units.  The advantage with converting pecuniary penalties to unit terms is that in the future these penalties will be automatically updated when the value of a penalty unit (currently $110) under subsection 4AA(1) of the Crimes Act 1914 is changed.  This will ensure that those penalties will remain relevant.  The proposed amendments will also remove references to penalties applying to corporate bodies because the determination of these penalties is already provided for under subsection 4B(3) of the Crimes Act 1914.   

Parliamentary Contributory Superannuation Act 1948 (PCS Act)

Item 1 – Application of the Criminal Code

11.	Item 1 inserts new section 4F into the PCS Act to apply Chapter 2 of the Criminal Code to all offences under that Act.  Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.

Items 2 to 3 – Change to maximum penalty under subsection 21B(5)

12.	Section 21B of the PCS Act provides that, where a former member entitled to a retiring allowance takes up an office of profit under the Crown, the retiring allowance is reduced.  Subsection 21B(5) provides that a parliamentary pensioner who becomes the holder of an office of profit must notify the Secretary of the Department of Finance and Administration within 14 days.  The penalty for contravention of subsection 21B(5) is currently $500.

13.	Item 2 updates the maximum penalty currently applying under subsection 21B(5) and converts it from a dollar amount to penalty units to be consistent with the principles of the Crimes Act 1914.  The maximum penalty is increased from $500 to 15 penalty units to provide a more appropriate penalty for the offence.  One penalty unit is currently valued at $110 under subsection 4AA(1) of the Crimes Act 1914.

14.	A new general note is inserted at the end of subsection 21B(5) by item 3 to alert the reader that Part 1A of the Crimes Act 1914 deals with penalties.

Items 4 to 7 – Changes to offences and penalties under subsections 21B(7) and 21B(8)

15.	Subsection 21B(7) of the PCS Act provides that a parliamentary pensioner must not, without reasonable excuse, refuse to furnish information about holding an office of profit that is requested by a notice to the person under subsection 21B(6).  Subsection 21B(8) provides that the person must not make a statement or furnish information about holding an office of profit that the person knows is false or misleading.  

16.	Item 4 removes the defence ‘without reasonable excuse’ from subsection 21B(7) of the PCS Act.  This is to avoid the mistaken interpretation that the words “without reasonable excuse” are in fact part of the physical elements of the offence in subsection 21B(7) rather than being a defence to the offence.  Item 7 reinserts the defence as a stand alone defence in substituted subclause 21B(8).

17.	Item 5 updates the maximum penalty under subsection 21B(7) and converts it from a dollar amount to penalty units to be consistent with the principles of the Crimes Act 1914.  The maximum penalty is increased from $500 to 30 penalty units and a new maximum imprisonment penalty of 6 months is introduced to replace, or to be applied in addition to, the pecuniary penalty if a court chooses to impose such a penalty.  

18.	Item 6 inserts at the end of subsection 21B(7) a note to alert the reader that Part 1A of the Crimes Act 1914 deals with penalties.  

19.	Item 7 repeals existing subsection 21B(8) which created offences of making false or misleading statements or giving false or misleading information.  Prosecutions for offences of this nature in relation to the PCS Act will now be conducted under the general false or misleading statement/information offences which have been inserted into the Criminal Code by the Criminal Code Amendment (Theft Fraud Bribery and Related Offences) Act 2000.  This will ensure that offences relating to the giving of false and misleading information are treated consistently and uniformly across all Commonwealth legislation.  Similar offence provisions in other Commonwealth legislation have already been repealed by the Criminal Code Amendment (Theft, Fraud, Bribery and Related Offences) Act 2000 for this purpose. 

20.	Item 7 is also consequential upon item 4 and, as stated above, reinserts the defence of “reasonable excuse” as a stand alone defence in the substituted 21B(8) in order to avoid the defence being mistakenly interpreted to be part of the physical elements of the offence contained in subsection 21B(7). 

21.	The note inserted under new subsection 21B(8) informs the reader that the burden of proof on a defendant is an evidential burden of proof if the defendant relies on the 'reasonable excuse' defence established by that subsection rather than a legal burden of proof.  An evidential burden of proof places a lighter burden of proof on the defendant and is consistent with the preferred policy of the new Criminal Code.

Superannuation Act 1922 (1922 Act)

Item 8 – Application of the Criminal Code

22.	Item 8 inserts new section 6 into the 1922 Act to apply Chapter 2 of the Criminal Code to all offences under that Act.  Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.

Items 9 to 10 – Change to the penalty under subsection 143A(3)

23.	Subsection 143A(3) of the 1922 Act provides that a person receiving a pension under the Act must comply with requirements contained in a notice given under subsection 143A(2).  The notice requires the person to provide information relating to a judgment by a court which is served on the Commissioner for Superannuation by the judgment creditor for the payment of a sum of money which has not been fully satisfied by the person.  The offence under subsection 143A(3) currently attracts a maximum penalty of $40.  
24.	Item 9 updates the penalty and converts it from a dollar amount to penalty units to be consistent with the principles of the Crimes Act 1914.  The new maximum penalty is increased to 5 penalty units.  One penalty unit is currently valued at $110 under subsection 4AA(1) of the Crimes Act 1914.  
25.	Item 10 inserts at the end of subsection 143A(3) a note to alert the reader that Part 1A of the Crimes Act 1914 deals with penalties. 

Item 11 – Inclusion of time limits to satisfy requirement and change to the penalty under subsection 143A(8)

26.	Subsection 143A(8) of the 1922 Act requires the judgment creditor who has served a copy of a judgment under subsection 143A(1) to notify the Commissioner for Superannuation in the prescribed manner immediately the judgment debt has been satisfied.  The current maximum penalty under subsection 143A(8) is $100 or imprisonment for three months.

27.	Item 11 includes a time limit of 21 days to satisfy the requirement under current subsection 143A(8) and makes changes to the maximum penalty attached to the provision.

28.	Subsection 143A(8) of the 1922 Act currently does not explicitly provide a time frame within which a judgment creditor must notify that a debt has been satisfied.  Therefore, subsection 143A(8) is proposed to be amended to include the time limit of 21 days.  The proposed change will ensure that those required to provide information have a clear and objective timeframe within which to operate.  It will also ensure that the judgment debtor is not disadvantaged by the inaction of the judgment creditor to notify that the debt has been satisfied.

29.	It is proposed that the penalty applying under subsection 143A(8) be updated and that the pecuniary penalty be converted from a dollar amount to penalty units to be consistent with the principles of the Crimes Act 1914.  While the imprisonment penalty is to be removed, the pecuniary penalty is to be increased from $100 to 5 penalty units.  One penalty unit is currently valued at $110 under subsection 4AA(1) of the Crimes Act 1914.  

30.	The new note inserted at the end of subsection 143A(8) alerts the reader that Part 1A of the Crimes Act 1914 deals with penalties.

Items 12 to 13 – Change to the penalty under paragraph 150(1)(d)

31.	Item 12 updates the fine specified in paragraph 150(1)(d) which provides that the Governor-General may make regulations under the Act to prescribe penalties not exceeding a fine of $100 for offences against the regulations.  This item also converts the fine from a dollar amount to penalty units to be consistent with the principles of the Crimes Act 1914.  The maximum penalty is increased from $100 to 20 penalty units.  One penalty unit is currently valued at $110 under subsection 4AA(1) of the Crimes Act 1914.  

32.	Item 13 inserts at the end of subsection 150(1) a note to alert the reader that Part 1A of the Crimes Act 1914 deals with penalties. 

Superannuation Act 1976 (1976 Act)

Item 14 – Application of the Criminal Code

33.	Item 14 inserts new section 3F into the 1976 Act to apply Chapter 2 of the Criminal Code to all offences under that Act.  Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.  

Items 15 to 17– Change to the offence and penalty under subsection 44(3)

34.	These items amend subsection 44(3) of the 1976 Act which refers to requirements that the CSS Board must keep proper accounts and records dealing with the CSS Fund, ensure payments from the Fund are correctly made and properly authorised and that adequate control is maintained over the Fund’s assets and liabilities.  Subsection 44(3) provides that each member of the CSS Board who intentionally causes the contravention of the section or failed to take reasonable steps is guilty of an offence.  The current maximum penalty for contravention of subsection 44(3) is imprisonment for 6 months.

35.	Item 15 deletes the word ‘intentionally’ from subsection 44(3) to be consistent with the principles of the new Criminal Code.  This proposed amendment does not change the operation of the offence as under the Criminal Code the fault element of intention will now automatically apply to offence provisions such as subsection 44(3) (ie, which have conduct as the physical element of the offence).  Therefore, this would mean that while the word ‘intentionally’ is now not to be specified in the provision, the prosecution will still need to prove that the defendant intentionally caused the contravention or failed to take reasonable steps to comply.

36.	Item 16 changes the maximum penalty applying under subsection 44(3) by adding a pecuniary penalty of 30 penalty units to replace or to be applied in addition to the current imprisonment penalty of 6 months.  This will clearly indicate that the fine is an alternative penalty, or an additional penalty, to the prison term for the courts to utilise if they choose to do so.  The addition of the pecuniary penalty is also consistent with the determination of pecuniary penalties attached to prison terms under subsection 4B(2) of the Crimes Act 1914, which specifies that the fine in penalty units is an amount not exceeding 5 times the prison term expressed in months.  One penalty unit is currently valued at $110 under subsection 4AA(1) of the Crimes Act 1914.

37.	Item 17 inserts at the end of subsection 44(3) a note to alert the reader that Part 1A of the Crimes Act 1914 deals with penalties. 

Item 18 - Inclusion of time limits to satisfy requirement and change to the penalty under subsection 119(7)

38.	Subsection 119(7) of the 1976 Act requires a judgment creditor who has served under subsection 119(1) a copy of a judgment on the CSS Board to notify the Board when the judgment debt has been satisfied.  For example, this ensures that deductions are no longer made from the judgment debtor’s pension to satisfy their outstanding debt.  The current penalty for the contravention of subsection 119(7) is $100 or imprisonment for 10 days if the offender is a natural person or $500 if the offender is a body corporate.

39.	Item 18 includes a time limit of 21 days in subsection 119(7) for the judgment creditor to satisfy the requirement under that subsection and makes changes to the maximum penalty attached to the provision.

40.	Subsection 119(7) of the 1976 Act currently does not specify a time frame for a judgment creditor to notify that a debt has been satisfied.  Therefore, subsection 119(7) is proposed to be amended to specify a time limit of 21 days.  The proposed change will ensure that those required to provide information have a clear and objective timeframe within which to operate.  It will also ensure that the judgment debtor is not disadvantaged by the inaction of the judgment creditor to notify that the debt has been satisfied.

41.	It is proposed that the maximum penalty applying under subsection 119(7) be updated and that the pecuniary penalty be converted from a dollar amount to penalty units to be consistent with the principles of the Crimes Act 1914.  While the imprisonment penalty is to be removed, the pecuniary penalty for a natural person is to be increased from $100 to 5 penalty units.  One penalty unit is currently valued at $110 under subsection 4AA(1) of the Crimes Act 1914.  

42.	In addition, the reference to the penalty applying to a body corporate under subsection 119(7) is to be removed.  This is no longer required because subsection 4B(3) of the Crimes Act 1914 automatically calculates these penalties as a multiple of 5 of the penalty applying to a natural person.  

43.	The note inserted at the end of subsection 119(7) will alert the reader that Part 1A of the Crimes Act 1914 deals with penalties.

Items 19 to 22 – Inclusion of time limits to satisfy requirement and change to the penalty under section 163A

44.	Under subsection 163A(3) of the 1976 Act, a person shall not refuse or fail to comply with a notice given to the person under the section about giving information or producing a document relating to a matter relevant to the operation of this Act, the superseded Act (ie, the 1922 Act) or regulations under either Act to the extent that the person is capable of complying with it.  The penalty for the contravention of subsection 163A(3) is $1,000 or imprisonment for 6 months, or both if the offender is a natural person or $5,000 if the offender is a body corporate.

45.	Items 19 to 21 amend paragraphs 163A(1)(a) and (b) and inserts a new subsection 163A(1A) to apply a time limit of 14 days in relation to the giving of information or the production of documents as required under those paragraphs.  Currently, while paragraph 163A(1)(a) mentions that the CSS Board would specify a time frame in the notice given to the person, neither paragraphs explicitly provides a time limit.  Therefore, the proposed change will ensure that those required to provide information or produce documents as required under subsection 163A(3) have a clear and objective timeframe within which to operate.

46.	Item 22 updates the pecuniary penalty applying under subsection 163A(3) and converts that penalty from a dollar amount to penalty units to be consistent with the principles of the Crimes Act 1914.  While no change is made to the current maximum imprisonment term of 6 months, the pecuniary penalty for a natural person is increased from $1,000 to 30 penalty units.  One penalty unit is currently valued at $110 under subsection 4AA(1) of the Crimes Act 1914.  

47.	In addition, the reference to the penalty applying to a body corporate under subsection 163A(3) is to be removed.  This is no longer required because subsection 4B(3) of the Crimes Act 1914 automatically calculates these penalties as a multiple of 5 of the penalty applying to a natural person.  

48.	The note inserted at the end of subsection 163A(3) will alert the reader that Part 1A of the Crimes Act 1914 deals with penalties.

Items 23 to 24 –Update of penalty under subsection 168(1)

49.	Item 23 updates the fine specified in paragraph 168(1)(b) which provides that the Governor-General may make regulations under the Act to prescribe penalties not exceeding a fine of $100 for offences against the regulations.  This item also converts that maximum fine from a dollar amount to penalty units to be consistent with the principles of the Crimes Act 1914.  The fine is increased from $100 to 20 penalty units.  One penalty unit is currently valued at $110 under subsection 4AA(1) of the Crimes Act 1914.  

50.	Item 24 inserts at the end of subsection 168(1) a note to alert the reader that Part 1A of the Crimes Act 1914 deals with penalties. 

Superannuation Act 1990 (1990 Act)

Item 25 – Application of the Criminal Code

51.	Item 25 inserts new section 3B into the 1990 Act to apply Chapter 2 of the Criminal Code to all offences under that Act.  Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.

Items 26 to 28 – Change to the offence and penalty under subsection 27A(3)

52.	These items amend subsection 27A(3) of the 1990 Act which refers to requirements that the PSS Board must keep proper accounts and records dealing with the PSS Fund, ensure payments from the Fund are correctly made and properly authorised and that adequate control is maintained over the Fund’s assets and liabilities.  The subsection provides that each member of the PSS Board who intentionally causes the contravention of the section or failed to take reasonable steps is guilty of an offence.  The current maximum penalty for contravention of subsection 44(3) is imprisonment for 6 months.

53.	Item 26 deletes the word ‘intentionally’ from subsection 27A(3) to be consistent with the principles of the new Criminal Code.  This proposed amendment does not change the operation of the offence as under the Criminal Code the fault element of intention will now automatically apply to offence provisions such as subsection 27A(3) (ie, which have conduct as the physical element of the offence).  Therefore, this would mean that while the word ‘intentionally’ is now not to be specified in the provision, the prosecution will still need to prove that the defendant intentionally caused the contravention or failed to take reasonable steps to comply.

54.	Item 27 changes the penalty for an offence under subsection 27A(3) by adding a pecuniary penalty of 30 penalty units as an alternative, or to be applied in addition, to the current imprisonment penalty of 6 months.  One penalty unit is currently valued at $110 under subsection 4AA(1) of the Crimes Act 1914.  This will clearly indicate that the fine is an alternative penalty, or an additional penalty, to the prison term for the courts to utilise if they choose to do so.  The addition of the pecuniary penalty is also consistent with the determination of pecuniary penalties attached to prison terms under subsection 4B(2) of the Crimes Act 1914, which specifies that the fine in penalty units is an amount not exceeding 5 times the prison term expressed in months.  

55.	Item 28 inserts at the end of subsection 27A(3) a note to alert the reader that Part 1A of the Crimes Act 1914 deals with penalties. 

Public Accounts and Audit Committee Act 1951

Schedule 2 – Amendments to Public Accounts and Audit Committee Act 1951

Item 1 – Application of Chapter 2 of the Criminal Code to all offences against this Act

56.  Item 1 of Schedule 2 inserts a new section (4A) to provide for the application of Chapter 2 of the Criminal Code to all offences against this Act.

Items 2 and 3 – Defence of "reasonable excuse" included in a separate subsection

57.  Items 2 and 3 of Schedule 2 restructures section 15 so that the defence of "without reasonable excuse (proof whereof shall lie upon him)" is removed from the offence provision.  This is to avoid the mistaken interpretation that the words “without reasonable excuse” are in fact part of the physical elements of the offence rather than being a defence to the offence.   Item 3 reinserts the defence as a stand alone defence in new subsection 15(2).   The subsection is followed by a note indicating that a defendant bears a legal burden in relation to the defence in subsection 15(2).   A defendant already had a legal burden in relation to the defence under the terms of the wording of original section 15. 

Item 4 – Deletion of the word "knowingly" from section 16

58.  Item 4 of Schedule 2 omits the fault element of “knowingly" from section 16 because it had been inappropriately applied to the physical element of conduct in the offence (namely the conduct of dissuading or preventing a person from obeying a summons).  Although the Criminal Code provides for a fault element of "knowledge", it cannot apply to a physical element of "conduct".  Subsection 5.6(1)) of the Criminal Code provides for the application of the fault element of "intention" to the physical element of conduct in the offence provision.  The omission of "knowledge" from section 16 of the Act will mean that subsection 5.6(1) of Criminal Code will apply.

Item 5 – Deletion of the word "wilfully" from section 18

59.  Item 5 of Schedule 2 omits the fault element of "wilfully" from section 18, which applied to the physical element of conduct in the offence (namely the conduct of giving false evidence on oath or affirmation).  The Criminal Code does not provide for a fault element of "wilfully", but does provide for a fault element of "intention" (section 5.1) which is akin to "wilfully".  The omission of "wilfully" from section 18 will mean that subsection 5.6(1) of the Criminal Code will apply, that is that the fault element of "intention" applies to the physical element of conduct in the offence.  The Criminal Code allows the use of new fault elements (subsection 5.1(2)) and the present offence would possibly still operate in the same manner following application of the Criminal Code.  However it is also possible that future courts may attempt to distinguish wilfulness from intention on the basis that wilfulness appears to differ from the basic Criminal Code fault element of intention.  Accordingly this item proposes deletion of “wilfully”.

Item 6 – Deletion of the word "procure" from subsection 19(2)

60.  Item 6 of Schedule 2 omits "procure" from subsection 19(2).  The ancillary offence of "procuring" the commission of a primary offence is covered by section 11.2 of the Criminal Code which creates the ancillary offence of aiding, abetting, counselling or procuring the commission of an offence and will apply to all Commonwealth offences. 

Public Works Committee Act 1969

Schedule 2:  Amendments to Public Works Committee Act 1969

Item 7 – Application of Chapter 2 of the Criminal Code to all offences against this Act

61.  Item 7 of Schedule 2 inserts a new section (5A) to provide for the application of Chapter 2 of the Criminal Code to all offences against this Act.

Items 8 and 9 – Defence of "reasonable excuse" included in a separate subsection

62.  Items 8 and 9 of Schedule 2 restructures section 28 so that the defence of "without reasonable excuse (proof whereof shall lie upon him)" is removed from the offence provision.  This is to avoid the mistaken interpretation that the words “without reasonable excuse” are in fact part of the physical elements of the offence rather than being a defence to the offence.   Item 9 reinserts the defence as a stand alone defence in new subsection 28(2).   The subsection is followed by a note indicating that a defendant bears a legal burden in relation to the defence in subsection 28(2).   A defendant already had a legal burden in relation to the defence under the terms of the wording of original section 28.

Item 10 – Deletion of the word "knowingly" from section 29

63.  Item 10 of Schedule 2 omits the fault element of “knowingly" from section 29 because it had been inappropriately applied to the physical element of conduct in the offence (namely the conduct of dissuading or preventing a person from obeying a summons).  Although the Criminal Code provides for a fault element of "knowledge", it cannot apply to a physical element of "conduct".  Subsection 5.6(1)) of the Criminal Code provides for the application of the fault element of "intention" to the physical element of conduct in the offence provision.  The omission of "knowledge" from section 29 of the Act will mean that subsection 5.6(1) of Criminal Code will apply.

Items 11 and 12 –Defence of "reasonable excuse" exists as a separate subsection

64.  Items 11 and 12 of Schedule 2 restructures section 30 so that the defence of "without reasonable excuse (proof whereof shall lie upon him)" is removed from the offence provision.  This is to avoid the mistaken interpretation that the words “without reasonable excuse” are in fact part of the physical elements of the offence rather than being a defence to the offence.   Item 12 reinserts the defence as a stand alone defence in new subsection 30(2).   The subsection is followed by a note indicating that a defendant bears a legal burden in relation to the defence in subsection 30(2).   A defendant already had a legal burden in relation to the defence under the terms of the wording of original section 30. 

Item 13 – Deletion of the word "wilfully" from section 31

65.  Item 13 of Schedule 2 omits the fault element of "wilfully" from section 31 which applied to the physical element of conduct in the offence (namely the conduct of giving false evidence on oath or affirmation).  The Criminal Code does not provide for a fault element of "wilfully", but does provide for a fault element of "intention" (section 5.1) which is akin to "wilfully".  The omission of "wilfully" from section 31 will mean that subsection 5.6(1) of the Criminal Code will apply, that is that the fault element of "intention" applies to the physical element of conduct in the offence.  The Criminal Code allows the use of new fault elements (subsection 5.1(2)) and the present offence would possibly still operate in the same manner following application of the Criminal Code.  However it is also possible that future courts may attempt to distinguish wilfulness from intention on the basis that wilfulness appears to differ from the basic Criminal Code fault element of intention.  Accordingly this item proposes deletion of “wilfully”.

Item 14 – Deletion of the word "procure" from section 32

66.  Item 14 of Schedule 2 omits "procure", wherever occurring, from section 32.  The ancillary offence of "procuring" the commission of a primary offence is covered by section 11.2 of the Criminal Code which creates the ancillary offence of aiding, abetting, counselling or procuring the commission of an offence and will apply to all Commonwealth offences.