Ley de 2001 que se apoya modificación de la Ley en la Justicia y Legislación (Aplicación del Código Penal), Australia

1 Short title

This Act may be cited as the Law and Justice Legislation Amendment (Application of Criminal Code) Act 2001.

2 Commencement

(1)

Subject to this section, this Act commences at the later of the following times:

(a)

immediately after the commencement of item 15 of Schedule 1 to the Criminal Code Amendment (Theft, Fraud, Bribery and Related Offences) Act 2000;

(b)

the start of the 28th day after the day on which this Act receives the Royal Assent.

(2)

Schedule 1 commences on the 28th day after the day on which this Act receives the Royal Assent.

(3)

Schedules 21 and 51 commence on the day mentioned in subsection 2.2(2) of the Criminal Code.

(4)

If section 1 of this Act has not commenced before the commencement of item 78 of Schedule 1 to the Crimes Amendment (Forensic Procedures) Act 2001, items 20, 21 and 22 of Schedule 10 to this Act do not commence.

(5)

If section 1 of this Act has not commenced before the commencement of Parts 2, 5 and 6 of Schedule 1 to the Human Rights Legislation Amendment Act 2001, the following provisions of this Act do not commence:

(a)

items 5, 6 and 7 of Schedule 24;

(b)

items 3, 4 and 5 of Schedule 43;

(c)

items 7, 8 and 9 of Schedule 45.

(6)

If item 2 of Schedule 1 to the Human Rights Legislation Amendment Act 2001 commences before the commencement of Schedule 32 to this Act, this Act has effect as if the amendments of the Human Rights and Equal Opportunities Commission Act 1986 contained in Schedule 32 to this Act were amendments of the Human Rights and Responsibilities Commission Act 1986.

(7)

If item 106 of Schedule 1 to the Privacy Amendment (Private Sector) Act 2000 has not commenced before the commencement of section 1 of this Act, item 10 of Schedule 40 to this Act commences immediately after the commencement of the first-mentioned item.

(8)

If paragraph 234(1)(c) of the Customs Act 1901 is repealed by another Act on or before the commencement of Schedule 21 to this Act, items 122 and 124 of that Schedule do not commence.

3 Schedule(s)

Subject to section 2, each Act that is specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Act has effect according to its terms.

4 Application of amendments

(1)

Subject to subsection (3), each amendment made by this Act applies to acts and omissions that take place after the amendment commences.

(2)

For the purposes of this section, if an act or omission is alleged to have taken place between 2 dates, one before and one on or after the day on which a particular amendment commences, the act or omission is alleged to have taken place before the amendment commences.

(3)

Subsection (1) does not apply to amendments made by this Act to the War Crimes Act 1945.

Crimes Act 1914

1 At the end of Part I

Add:

Criminal Code Act 1995

3 After section 3

Insert:

5B Application of the Criminal Code

Chapter 2 of the Criminal Code applies to all offences against this Act. Note: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.

2 Subsection 49M(1)

Omit “knowingly”, substitute “intentionally”.

3 Paragraph 63(b)

Omit “without lawful excuse,”.

4 Paragraphs 63(c) and (d)

Omit “, without lawful excuse,”.

5 At the end of section 63

Add:

(2) Paragraphs (1)(b), (c) and (d) do not apply if the person has a reasonable excuse.

Note: A defendant bears an evidential burden in relation to the matter in subsection (2) (see subsection 13.3(3) of the Criminal Code).

6 After subsection 64A(1)

Insert: (1A) Subsection (1) is an offence of strict liability. Note: For strict liability, see section 6.1 of the Criminal Code.

4A Application of the Criminal Code

Chapter 2 of the Criminal Code applies to all offences against this Act. Note: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.

2 Paragraph 13(2)(b)

Omit “, 7 or 7A of the Crimes Act 1914”, substitute “of the Crimes Act 1914, or section 11.1 or 11.4 of the Criminal Code,”.

3 After subsection 19(3)

Insert: (3A) Subsection (3) is an offence of strict liability. Note: For strict liability, see section 6.1 of the Criminal Code.

4 At the end of section 19

Add:

(7) Subsection (6) is an offence of strict liability. Note: For strict liability, see section 6.1 of the Criminal Code.

5 After subsection 20(4)

Insert: (4A) Subsection (4) is an offence of strict liability. Note: For strict liability, see section 6.1 of the Criminal Code.

4A Application of the Criminal Code

Chapter 2 of the Criminal Code (except Part 2.5) applies to all offences against this Act.

Note: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.

2 Subsection 92M(1)

Omit “, without reasonable excuse”.

3 Paragraph 92M(2)(b)

Omit “, without reasonable excuse”.

4 Subsection 92M(3)

Omit “, without reasonable excuse,”.

5 After subsection 92M(3)

Insert:

(3A) Subsections (1), (2) and (3) do not apply if the person has a reasonable excuse.

Note: A defendant bears an evidential burden in relation to the matter in subsection (3A) (see subsection 13.3(3) of the Criminal Code).

6 Subsection 92M(5)

Omit “references”, substitute “reference”.

7A Application of the Criminal Code

Chapter 2 of the Criminal Code applies to all offences against this Act. Note: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.

2 After subsection 54(2)

Insert:

(3) Subsections (1) and (2) are offences of strict liability. Note: For strict liability, see section 6.1 of the Criminal Code.

3 Subsection 56F(1)

Omit “, unless the member has a reasonable excuse”.

4 After subsection 56F(1)

Insert: (1A) Subsection (1) is an offence of strict liability. Note: For strict liability, see section 6.1 of the Criminal Code. (1B) Subsection (1) does not apply if the member has a reasonable excuse. Note: A defendant bears an evidential burden in relation to the matter in subsection (1B) (see subsection 13.3(3) of the Criminal Code).

5 After subsection 80(1)

Insert: (1A) Subsection (1) is an offence of strict liability. Note: For strict liability, see section 6.1 of the Criminal Code.

6 Subsection 155J(1)

Omit “, unless the person has a reasonable excuse”.

7 After subsection 155J(1)

Insert: (1A) Subsection (1) is an offence of strict liability. Note: For strict liability, see section 6.1 of the Criminal Code. (1B) Subsection (1) does not apply if the person has a reasonable excuse. Note: A defendant bears an evidential burden in relation to the matter in subsection (1B) (see subsection 13.3(3) of the Criminal Code).

8 At the end of section 168

Add:

(2) Subsection (1) is an offence of strict liability. Note: For strict liability, see section 6.1 of the Criminal Code.

9 At the end of section 173

Add:

(2) Subsection (1) is an offence of strict liability. Note: For strict liability, see section 6.1 of the Criminal Code.

10 After subsection 175(5)

Insert: (5A) Subsection (5) is an offence of strict liability. Note: For strict liability, see section 6.1 of the Criminal Code.

11 At the end of section 182

Add:

(5) Subsection (4) is an offence of strict liability. Note: For strict liability, see section 6.1 of the Criminal Code.

12 After subsection 246(1)

Insert: (1A) Subsection (1) is an offence of strict liability.

Note: For strict liability, see section 6.1 of the Criminal Code.

13 Section 263A

Omit “wilfully”, substitute “intentionally”.

14 Subsection 264A(1A)

Omit “, without reasonable excuse”.

15 After subsection 264A(1A)

Insert:

(1B) Subsection (1A) does not apply if the person has a reasonable excuse.

Note: A defendant bears an evidential burden in relation to the matter in subsection (1B) (see subsection 13.3(3) of the Criminal Code).

16 Subsection 264C(1)

Omit “, without reasonable excuse”.

17 After subsection 264C(1)

Insert:

(1A) Subsection (1) does not apply if the person has a reasonable excuse.

Note: A defendant bears an evidential burden in relation to the matter in subsection (1A) (see subsection 13.3(3) of the Criminal Code).

18 At the end of section 264E

Add:

(2) For the purposes of an offence against subsection (1), strict liability applies to the following physical elements of circumstance of the offence:

(a)

that the Registrar or magistrate is a Registrar or magistrate before whom an examination under this Act is being held;

(b)

that the examination is an examination under this Act being held before a Registrar or magistrate.

Note: For strict liability, see section 6.1 of the Criminal Code.

19 Paragraphs 265(1)(a), (b) and (ca)

Omit “, to the best of his or her knowledge and belief,”.

20 After subsection 265(1)

Insert:

(1A) A bankrupt is taken to have complied with paragraph (1)(a), (b) or (ca) if he or she has fully and truly disclosed to the best of his or her knowledge and belief as required by that paragraph.

Note: A defendant bears an evidential burden in relation to the matter in subsection (1A) (see subsection 13.3(3) of the Criminal Code).

21 Subsection 265(3)

Omit “for the purpose”, substitute “with the intention”.

22 Subsection 265A(1)

Omit “, without reasonable excuse,”.

23 After subsection 265A(1)

Insert:

(1A) Subsection (1) does not apply if the person has a reasonable excuse. Note: A defendant bears an evidential burden in relation to the matter in subsection (1A) (see subsection 13.3(3) of the Criminal Code).

24 Subsection 265A(3)

Omit “, without reasonable excuse”.

25 After subsection 265A(3)

Insert:

(3A) Subsection (3) does not apply if the person has a reasonable excuse. Note: A defendant bears an evidential burden in relation to the matter in subsection (3A) (see subsection 13.3(3) of the Criminal Code).

26 Section 267B

Omit “, without reasonable excuse,”.

27 At the end of section 267B

Add:

(2) Subsection (1) does not apply if the person has a reasonable excuse.

Note: A defendant bears an evidential burden in relation to the matter in subsection (2) (see subsection 13.3(3) of the Criminal Code).

28 Section 267D

Omit “, without reasonable excuse”.

29 At the end of section 267D

Add:

(2) Subsection (1) does not apply if the person has a reasonable excuse.

Note: A defendant bears an evidential burden in relation to the matter in subsection (2) (see subsection 13.3(3) of the Criminal Code).

30 Section 267F

Omit “, without reasonable excuse”.

31 At the end of section 267F

Add:

(2) Subsection (1) does not apply if the person has a reasonable excuse.

Note: A defendant bears an evidential burden in relation to the matter in subsection (2) (see subsection 13.3(3) of the Criminal Code).

32 Paragraphs 268(2)(a) and (ba)

Omit “, to the best of his or her knowledge and belief,”.

33 After subsection 268(2)

Insert:

(2A) A debtor is taken to have complied with paragraph (2)(a) or (ba) if he or she has fully and truly disclosed to the best of his or her knowledge and belief as required by that paragraph.

Note: A defendant bears an evidential burden in relation to the matter in subsection (2A) (see subsection 13.3(3) of the Criminal Code).

34 Subsection 268(3)

Omit “for the purpose”, substitute “with the intention”.

35 At the end of subsection 268(4)

Add:

Note: A defendant bears an evidential burden in relation to the matter in subsection (4) (see subsection 13.3(3) of the Criminal Code).

36 Subsection 268(5)

Omit “, to the best of his or her knowledge and belief,”.

37 After subsection 268(5)

Insert:

(5A) A debtor is taken to have complied with subsection (5) if he or she has fully and truly disclosed to the best of his or her knowledge and belief as required by that subsection.

Note: A defendant bears an evidential burden in relation to the matter in subsection (5A) (see subsection 13.3(3) of the Criminal Code).

6A Application of the Criminal Code

Chapter 2 of the Criminal Code applies to all offences against this Act. Note: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.

2 At the end of subsection 23(4)

Add: Note: For strict liability, see section 6.1 of the Criminal Code.

3 At the end of subsection 24(4)

Add: Note: For strict liability, see section 6.1 of the Criminal Code.

4 At the end of subsection 30(3)

Add: Note: For strict liability, see section 6.1 of the Criminal Code.

5 Subsection 70(4)

Omit “, without reasonable excuse,”.

6 At the end of section 70

Add:

(5)

Subsection (4) is an offence of strict liability. Note: For strict liability, see section 6.1 of the Criminal Code.

(6)

Subsection (4) does not apply if the person has a reasonable excuse.

Note: A defendant bears an evidential burden in relation to the matter in subsection (6) (see subsection 13.3(3) of the Criminal Code).

5B Application of the Criminal Code

Chapter 2 of the Criminal Code applies to all offences against this Act.

Note: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.

2 Paragraph 7(8)(a)

Omit “without reasonable excuse,”.

3 After subsection 7(8)

Insert:

(8A) Paragraph (8)(a) does not apply if the appointee has a reasonable excuse.

Note: A defendant bears an evidential burden in relation to the matter in subsection (8A) (see subsection 13.3(3) of the Criminal Code).

4 Subsection 44(1)

Omit “, without reasonable excuse”.

5 After subsection 44(1)

Insert:

(1A) Subsection (1) does not apply if the person has a reasonable excuse.

Note: A defendant bears an evidential burden in relation to the matter in subsection (1A) (see subsection 13.3(3) of the Criminal Code).

6 Paragraph 50(8)(a)

Repeal the paragraph, substitute:

(a) fail to attend before a person when required to do so under this section; or

(aa) refuse or fail to be sworn or make an affirmation, when required to do so under this section; or

(ab) refuse or fail to furnish information, produce a document or other record, or to answer a question, when required to do so under this section; or

7 Paragraph 50(8)(b)

Omit “without reasonable excuse, wilfully”, substitute “intentionally”.

8 After subsection 50(8)

Insert:

(8A) Paragraphs (8)(a), (aa), (ab) and (b) do not apply if the person has a reasonable excuse.

Omit “, without reasonable excuse”.

10 At the end of section 82

Add:

(2) Subsection (1) does not apply if the person has a reasonable excuse.

Note: A defendant bears an evidential burden in relation to the matter in subsection (2) (see subsection 13.3(3) of the Criminal Code).

11 Subsection 83(1)

Omit “, without reasonable excuse,”.

12 After subsection 83(1)

Insert:

(1A) Subsection (1) does not apply if the person has a reasonable excuse. Note: A defendant bears an evidential burden in relation to the matter in subsection (1A) (see subsection 13.3(3) of the Criminal Code).

9A Application of the Criminal Code

Chapter 2 of the Criminal Code applies to all offences against this Act. Note: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.

2 After subsection 47A(3)

Insert: (3A) Subsection (3) is an offence of strict liability. Note: For strict liability, see section 6.1 of the Criminal Code.

3 Subsection 47A(7)

Omit “, without reasonable excuse,”.

4 After subsection 47A(7)

Insert: (7A) Subsection (7) is an offence of strict liability. Note: For strict liability, see section 6.1 of the Criminal Code. (7B) Subsection (7) does not apply if the person has a reasonable excuse. Note: A defendant bears an evidential burden in relation to the matter in subsection (7B) (see subsection 13.3(3) of the Criminal Code).

5 Subsection 172(1)

Omit “without lawful excuse, and”.

6 At the end of subsection 172(1)

Add: Penalty: 10 penalty units or imprisonment for 3 months.

7 Subsection 172(2)

Omit “without lawful excuse, and”.

8 At the end of subsection 172(2)

Add: Penalty: 10 penalty units or imprisonment for 3 months.

9 Subsection 172(3)

Omit “, without lawful excuse,”.

10 Subsection 172(3) (penalty)

Omit “$1,000”, substitute “10 penalty units”.

11 At the end of section 172

Add:

(4) Subsections (1), (2) and (3) do not apply if the person has a reasonable excuse.

Note: A defendant bears an evidential burden in relation to the matter in subsection (4) (see subsection 13.3(3) of the Criminal Code).

12 After subsection 203E(6)

Insert: (6A) Subsection (6) is an offence of strict liability. Note: For strict liability, see section 6.1 of the Criminal Code.

13 Subsection 203E(10)

Omit “for the purpose”, substitute “with the intention”.

14 After subsection 203E(10)

Insert: (10A) Subsection (10) is an offence of strict liability. Note: For strict liability, see section 6.1 of the Criminal Code.

15 Subsection 203F(2)

Omit “wilfully”, substitute “intentionally”.

3BA Application of the Criminal Code

Chapter 2 of the Criminal Code applies to all offences against this Act.

Note: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.

5 Subsection 3V(2)

Omit “, without reasonable excuse”.

6 After subsection 3V(2)

Insert:

(2A) Subsection (2) does not apply if the person has a reasonable excuse.

Note: A defendant bears an evidential burden in relation to the matter in subsection (2A) (see subsection 13.3(3) of the Criminal Code).

7 Subsection 3ZL(2)

Repeal the subsection, substitute:

(2)

A person must not refuse or fail to allow those impressions or a photograph of the person to be taken.

Penalty: Imprisonment for 12 months.

(3)

Subsection (2) does not apply if the person has a reasonable excuse.

Note: A defendant bears an evidential burden in relation to the matter in subsection (3) (see subsection 13.3(3) of the Criminal Code).

8 Subsection 15V(2)

Insert:

24C Seditious enterprises

A person who engages in a seditious enterprise with the intention of causing violence, or creating public disorder or a public disturbance, is guilty of an indictable offence punishable on conviction by imprisonment for not longer than 3 years.

29 Subsection 25(1)

Omit “knowingly”, substitute “intentionally”.

30 Section 26

Omit “knowingly”, substitute “intentionally”.

31 Section 29

Omit “wilfully and unlawfully”, substitute “intentionally”.

32 At the end of section 29

Add:

(2) For the purposes of an offence against subsection (1), absolute liability applies to the physical element of circumstance of the offence, that the property is property belonging to the Commonwealth or to any public authority under the Commonwealth.

Note: For absolute liability, see section 6.2 of the Criminal Code.

33 Subsection 30AA(3)

Repeal the subsection.

34 Section 30F

Omit “knowingly prints, publishes, sells or exposes for sale or who”, substitute “intentionally prints, publishes, sells or exposes for sale or who intentionally”.

35 Section 30FC

Omit “knowingly”, substitute “intentionally”.

Note: The heading to section 30FC is altered by omitting “knowingly”.

36 Subsections 30R(1) to (4) (inclusive)

Repeal the subsections.

Note: The heading to section 30R is replaced by the heading “Books etc. taken to have been issued by associations”.

37 Paragraph 34(a)

Omit “without reasonable excuse, and”.

38 Paragraph 34(b)

Omit “wilfully”, substitute “intentionally”.

39 At the end of section 34

Add:

(2) Paragraph (1)(a) does not apply if the judge or magistrate has a reasonable excuse.

Note: A defendant bears an evidential burden in relation to the matter in subsection (2) (see subsection 13.3(3) of the Criminal Code).

40 Subsection 35(1)

Omit “for the purpose”, substitute “with the intention”.

41 Subsection 35(1)

Omit “knowingly”, substitute “intentionally”.

42 After subsection 35(1)

Insert:

(1A) For the purposes of an offence against subsection (1), strict liability applies to the physical element of circumstance of the offence, that the matter is material in the proceeding.

Note: For strict liability, see section 6.1 of the Criminal Code.

43 Section 36

After “proceeding”, insert “, intentionally”.

44 Paragraph 36(b)

Omit “knowingly”.

45 Paragraph 37(b)

Omit “attempts by any means to induce”, substitute “does an act with

the intention of inducing”.

46 Paragraph 37(c)

Omit “or attempts”.

47 Section 38

Omit “knowingly”, substitute “intentionally”.

48 Section 39

Omit “wilfully”, substitute “intentionally”.

49 Section 40

Omit “wilfully prevents or wilfully endeavours to prevent”, substitute “intentionally prevents”.

50 At the end of section 41

Add:

(2)

For a person to be guilty of an offence against subsection (1):

(a)

the person must have entered into an agreement with one or more other persons; and

(b)

the person and at least one other party to the agreement must have intended that a person be charged falsely with an offence pursuant to the agreement; and

(c)

the person or at least one other party to the agreement must have committed an overt act pursuant to the agreement.

(3)

A person may be found guilty of an offence against subsection (1) even if:

(a)

charging a person falsely pursuant to the agreement is impossible; or

(b)

the only other party to the agreement is a body corporate; or

(c)

each other party to the agreement is a person who is not criminally responsible; or

(d)

subject to subsection (4), all other parties to the agreement have been acquitted of the offence.

(4)

A person cannot be found guilty of an offence against subsection (1) if:

(a)

all other parties to the agreement have been acquitted of such an offence; and

(b)

a finding of guilt would be inconsistent with their acquittal.

(5)

A person cannot be found guilty of an offence against subsection (1) if, before the commission of an overt act pursuant to the agreement, the person:

(a)

withdrew from the agreement; and

(b)

took all reasonable steps to prevent the false charging.

(6)

A court may dismiss a charge of an offence against subsection (1) if the court thinks that the interests of justice require the court to do so.

(7)

Section 11.1 of the Criminal Code does not apply to an offence against subsection (1).

51 At the end of section 42

Add:

(2) For the purposes of an offence against subsection (1), absolute liability applies to the physical element of circumstance of the offence, that the judicial power is of the Commonwealth.

Note: For absolute liability, see section 6.2 of the Criminal Code.

(3)

For a person to be guilty of an offence against subsection (1):

(a)

the person must have entered into an agreement with one or more other persons; and

(b)

the person and at least one other party to the agreement must have intended to obstruct, prevent, pervert or defeat the course of justice pursuant to the agreement; and

(c)

the person or at least one other party to the agreement must have committed an overt act pursuant to the agreement.

(4)

A person may be found guilty of an offence against subsection (1) even if:

(a)

obstructing, preventing, perverting or defeating the course of justice pursuant to the agreement is impossible; or

(b)

the only other party to the agreement is a body corporate; or

(c)

each other party to the agreement is a person who is not criminally responsible; or

(d)

subject to subsection (5), all other parties to the agreement have been acquitted of the offence.

(5)

A person cannot be found guilty of an offence against subsection (1) if:

(a)

all other parties to the agreement have been acquitted of such an offence; and

(b)

a finding of guilt would be inconsistent with their acquittal.

(6)

A person cannot be found guilty of an offence against subsection (1) if, before the commission of an overt act pursuant to the agreement, the person:

(a)

withdrew from the agreement; and

(b)

took all reasonable steps to prevent the obstruction, prevention, perversion or defeat.

(7)

A court may dismiss a charge of an offence against subsection (1) if the court thinks that the interests of justice require the court to do so.

(8)

Section 11.1 of the Criminal Code does not apply to an offence against subsection (1).

52 At the end of section 43

Add:

(2) For the purposes of an offence against subsection (1), absolute liability applies to the physical element of circumstance of the offence, that the judicial power is of the Commonwealth.

Note: For absolute liability, see section 6.2 of the Criminal Code.

(3)

For the person to be guilty of an offence against subsection (1), the person’s conduct must be more than merely preparatory to the commission of the offence. The question whether conduct is more than merely preparatory to the commission of the offence is one of fact.

(4)

A person may be found guilty of an offence against subsection (1) even if doing the thing attempted is impossible.

53 Section 44

Omit “or attempts”.

54 After subsection 46(1)

Insert:

(1A) For a person to be guilty of an offence against paragraph (1)(a), (aa) or (ab):

(a)

the person’s conduct must have in fact aided the escape or attempted escape by the person in custody, under arrest or in detention (the escapee); and

(b)

the escapee must have actually escaped or attempted to escape.

(1B) For a person to be guilty of an offence against paragraph (1)(a), (aa) or (ab), the person must have intended that his or her conduct would aid the escape or attempted escape by the escapee.

(1C) A person cannot be found guilty of an offence against paragraph (1)(a), (aa) or (ab) if, before the escape or attempted escape, the person:

(a)

terminated his or her aid to the escapee; and

(b)

took all reasonable steps to prevent the escape or attempted escape.

(1D) A person may be found guilty of an offence against paragraph (1)(a), (aa) or (ab) even if the escapee has not been prosecuted, or has not been found guilty of an offence, in relation to the escape or attempted escape.

55 Paragraph 47B(1)(b)

Omit “, without reasonable excuse,”.

56 After subsection 47B(1)

Insert:

(1A) Paragraph (1)(b) does not apply if the person has a reasonable excuse.

Note: A defendant bears an evidential burden in relation to the matter in subsection (1A) (see subsection 13.3(3) of the Criminal Code).

57 Paragraph 47C(1)(c)

Omit “wilfully”, substitute “intentionally”.

58 Subsection 47C(2)

Omit “wilfully”, substitute “intentionally”.

59 Section 49

Omit “knowingly and with intent to hinder or defeat the attachment or process, receives, removes, retains, conceals, or disposes of the property”, substitute “intentionally receives, removes, retains, conceals or disposes of the property, with intent to hinder or defeat the attachment or process”.

60 Subparagraphs 50AA(2)(a)(i) and (ii)

Repeal the subparagraphs, substitute:

(i)

an offence against section 6 or 50DB; or

(ii)

an offence against section 11.1 or 11.5 of the Criminal Code;

61 Paragraph 50AA(2)(b)

Omit “section 5”, substitute “section 11.2 or 11.3 of the Criminal Code”.

62 Subsection 50AA(3)

Omit “section 5”, substitute “section 11.2 of the Criminal Code”.

63 Subsection 50AA(4)

Omit “Section 7A”, substitute “Section 11.4 of the Criminal Code”.

64 Subsection 50AA(5)

Omit “Paragraph 86(1)(a)”, substitute “Section 11.5 of the Criminal Code”.

65 At the end of section 50BA

Add:

(2) For the purposes of an offence against subsection (1), absolute liability applies to the following physical elements of circumstance of the offence:

(a)

that the sexual intercourse is engaged in outside Australia;

(b)

that the person referred to in that subsection as being under 16 is in fact under 16.

Note 1: For absolute liability, see section 6.2 of the Criminal Code.

Note 2: For a defence based on belief about age, see section 50CA.

66 At the end of section 50BB

Add:

(2) For the purposes of an offence against subsection (1), absolute liability applies to the following physical elements of circumstance of the offence:

(a)

that the sexual intercourse is engaged in outside Australia;

(b)

that the person referred to in that subsection as being under 16 is in fact under 16.

Note 1: For absolute liability, see section 6.2 of the Criminal Code.

Note 2: For a defence based on belief about age, see section 50CA.

67 At the end of section 50BC

Add:

(2) For the purposes of an offence against subsection (1), absolute liability applies to such of the following physical elements of circumstance as are relevant to the offence:

(a)

that the first person is outside Australia;

(b)

that the person referred to in that subsection as being under 16 is in fact under 16;

(c)

in the case of an offence against paragraph (1)(a), (b), (c) or (d)—that the act of indecency referred to in that paragraph is in fact an act of indecency.

Note 1: For absolute liability, see section 6.2 of the Criminal Code.

Note 2: For a defence based on belief about age, see section 50CA.

68 At the end of subsection 50BD(1)

Add:

Penalty: Imprisonment for 12 years.

69 After subsection 50BD(1)

Insert:

(1A) For the purposes of an offence against subsection (1), absolute liability applies to the following physical elements of circumstance of the offence:

(a)

that the act of indecency is committed outside Australia;

(b)

that the person referred to in that subsection as being under 16 is in fact under 16;

(c)

that the act of indecency referred to in that subsection is in fact an act of indecency.

Note 1: For absolute liability, see section 6.2 of the Criminal Code.

Note 2: For a defence based on belief about age, see section 50CA.

70 At the end of section 50BD

Add:

(3) For the purposes of an offence against subsection (2), absolute liability applies to the following physical elements of circumstance of the offence:

(a)

that the sexual intercourse is engaged in outside Australia;

(b)

that the person referred to in that subsection as being under 16 is in fact under 16.

Note 1: For absolute liability, see section 6.2 of the Criminal Code.

Note 2: For a defence based on belief about age, see section 50CA.

71 At the end of section 50CA

Add:

Note: A defendant bears an evidential burden in relation to the matter in this section (see subsection 13.3(3) of the Criminal Code).

72 At the end of section 50CB

Add:

Note: A defendant bears an evidential burden in relation to the matters in this section (see subsection 13.3(3) of the Criminal Code).

73 After subsection 50DA(1)

Insert:

(1A) Absolute liability applies to paragraph (1)(b).

Note: For absolute liability, see section 6.2 of the Criminal Code.

(1B) In a prosecution for an offence against subsection (1), it is not necessary to prove that the defendant knew that the conduct mentioned in paragraph (1)(a) would be of a kind that would constitute an offence against this Part.

74 After subsection 50DB(1)

Insert:

(1A) Absolute liability applies to paragraph (1)(b).

Note: For absolute liability, see section 6.2 of the Criminal Code.

(1B) In a prosecution for an offence against subsection (1), it is not necessary to prove that the defendant knew that the conduct mentioned in paragraph (1)(a) would be of a kind that would constitute an offence against this Part (other than this section).

75 Subsection 76B(3) (penalty)

Omit “for a contravention of this subsection”.

76 At the end of section 76B

Add:

(4) For the purposes of an offence against subsection (1), (2) or (3), absolute liability applies to whichever one of the following physical elements of circumstance is relevant to the offence:

(a)

that the computer is a Commonwealth computer;

(b)

that the computer is not a Commonwealth computer.

Note: For absolute liability, see section 6.2 of the Criminal Code.

77 Section 76C

Omit “or lawful excuse”.

78 At the end of section 76C

Add:

(2) For the purposes of an offence against subsection (1), absolute liability applies to whichever one of the following physical elements of circumstance is relevant to the offence:

(a)

that the computer is a Commonwealth computer;

(b)

that the computer is not a Commonwealth computer.

Note: For absolute liability, see section 6.2 of the Criminal Code.

79 Subsection 76D(3) (penalty)

Omit “for a contravention of this subsection”.

80 At the end of section 76D

Add:

(4) For the purposes of an offence against subsection (1), (2) or (3), absolute liability applies to the physical element of circumstance of the offence, that the facility is operated or provided by the

Commonwealth or by a carrier.

Note: For absolute liability, see section 6.2 of the Criminal Code.

81 Section 76E

Omit “or lawful excuse”.

82 At the end of section 76E

Add:

(2) For the purposes of an offence against subsection (1), absolute liability applies to the physical element of circumstance of the offence, that the facility is operated or provided by the Commonwealth or by a carrier.

Note: For absolute liability, see section 6.2 of the Criminal Code.

83 Subsection 78(1)

Omit “for a purpose intended to be prejudicial to”, substitute “with the intention of prejudicing”.

84 Paragraph 78(2)(a)

Omit “show a purpose intended to be prejudicial to”, substitute “show an intention to prejudice”.

85 Paragraph 78(2)(a)

Omit “purpose was a purpose intended to be prejudicial to”, substitute “intention was to prejudice”.

86 Paragraph 78(2)(b)

Omit “for a purpose intended to be prejudicial to”, substitute “with the intention of prejudicing”.

87 Paragraph 78(3)(a)

Omit “purpose of the defendant was a purpose intended to be prejudicial to”, substitute “defendant intended to prejudice”.

88 Subsection 78(4)

Omit “purpose of the defendant was a purpose intended to be prejudicial to”, substitute “defendant intended to prejudice”.

89 Subsection 79(2)

Omit “for a purpose intended to be prejudicial to”, substitute “with the intention of prejudicing”.

90 Subsection 79(7)

Omit “show a purpose intended to be prejudicial to”, substitute “show an intention to prejudice”.

91 Subsection 79(7)

Omit “purpose was a purpose intended to be prejudicial to”, substitute “intention was to prejudice”.

92 Paragraph 79(8)(a)

Omit “purpose of the defendant was a purpose intended to be prejudicial to”, substitute “defendant intended to prejudice”.

93 Subsection 79(9)

Omit “purpose of the defendant was a purpose intended to be prejudicial to”, substitute “defendant intended to prejudice”.

94 Paragraphs 81(1)(a) and (b)

Omit “knowingly”, substitute “intentionally”.

95 Paragraph 83(1)(c)

Omit “knowingly”, substitute “intentionally”.

96 Subsection 83A(1)

Omit “for the purpose”, substitute “with the intention”.

97 Paragraph 83A(1)(a)

Omit “, without lawful authority,”.

98 Paragraphs 83A(1)(b) and (c)

Omit “knowingly”.

99 Paragraph 83A(1)(e)

Omit “without lawful authority or excuse,”.

100 Subsection 83A(2)

Omit “, without lawful authority or excuse”.

101 Subsections 85G(3), (4) and (5)

Omit “, without lawful authority or excuse,”.

102 After subsection 85G(5)

Insert:

(5A) Subsections (3), (4) and (5) do not apply if the person has a reasonable excuse. Note: A defendant bears an evidential burden in relation to the matter in subsection (5A) (see subsection 13.3(3) of the Criminal Code).

103 Paragraph 85G(6)(a)

Omit “off;”, substitute “off; or”.

104 Paragraph 85G(6)(b)

Repeal the paragraph.

105 Paragraph 85G(6)(c)

Omit “it;”, substitute “it; or”.

106 Paragraph 85G(6)(d)

Repeal the paragraph.

107 Section 85H

Omit “, without lawful authority or excuse”.

108 Paragraphs 85H(a), (b) and (c)

Omit “knowingly or recklessly”, substitute “intentionally”.

109 At the end of section 85H

Add:

(2) Subsection (1) does not apply if the person has a reasonable excuse.

Note: A defendant bears an evidential burden in relation to the matter in subsection (2) (see subsection 13.3(3) of the Criminal Code).

110 Section 85N

Omit “knowingly or recklessly”, substitute “intentionally”.

111 Paragraph 85Q(3)(a)

Omit “off;”, substitute “off; or”.

112 Paragraph 85Q(3)(b)

Repeal the paragraph.

113 Paragraph 85Q(3)(c)

Omit “it;”, substitute “it; or”.

114 Paragraph 85Q(3)(d)

Repeal the paragraph.

115 Section 85R

Omit “knowingly or recklessly”, substitute “intentionally”.

116 Subsection 85S(1)

Repeal the subsection, substitute:

(1) A person must not intentionally use a postal or carriage service supplied by Australia Post:

(a)

with the result that another person is menaced or harassed; or

(b)

in such a way as would be regarded by reasonable persons as being, in all the circumstances, offensive.

Penalty: Imprisonment for 1 year.

(1A) For the purposes of an offence against paragraph (1)(a) or (b), absolute liability applies to the physical element of circumstance of the offence, that the postal or carriage service is supplied by Australia Post.

Note: For absolute liability, see section 6.2 of the Criminal Code.

117 Paragraphs 85T(b) and (d)

Omit “knowingly or recklessly”, substitute “intentionally”.

118 Section 85U

Omit “knowingly or recklessly”, substitute “intentionally”.

119 Subsection 85V(1)

Omit “knowingly or recklessly”, substitute “intentionally”.

120 After subsection 85V(1)

Insert:

(1A) For the purposes of an offence against subsection (1), absolute liability applies to whichever one of the following physical elements of circumstance is relevant to the offence:

(a)

that the post-box, or stamp vending machine, is erected by Australia Post;

(b)

that the property belongs to Australia Post.

Note: For absolute liability, see section 6.2 of the Criminal Code.

121 Subsection 85V(2)

Omit “knowingly or recklessly”, substitute “intentionally”.

122 At the end of section 85V

Add:

(3) For the purposes of an offence against subsection (2), absolute liability applies to the physical element of circumstance of the offence, that the notice, writing or other marking is on or attached to property belonging to Australia Post.

Note: For absolute liability, see section 6.2 of the Criminal Code.

123 Subsection 85W(1)

Omit “, without lawful authority or excuse, knowingly or recklessly”,

substitute “intentionally”.

124 Subsections 85X(2) and (3)

Omit “knowingly or recklessly”, substitute “intentionally”.

125 After subsection 85X(3)

Insert:

(3A) For the purposes of an offence against subsection (3), strict liability applies to the physical element of circumstance of the offence, that the carriage of the article by post is otherwise than in accordance with the terms and conditions mentioned in paragraph (1)(b).

Note: For strict liability, see section 6.1 of the Criminal Code.

126 Subsection 85X(4)

Omit “knowingly or recklessly”, substitute “intentionally”.

127 At the end of section 85X

Add:

(6) For the purposes of an offence against subsection (4), strict liability applies to the physical element of circumstance of the offence, that the carriage of the article by post is otherwise than in accordance with the requirements mentioned in subsection (5).

Note: For strict liability, see section 6.1 of the Criminal Code.

128 Section 85ZD

Omit “knowingly or recklessly”, substitute “intentionally”.

129 Subsection 85ZE(1)

Repeal the subsection, substitute:

(1) A person must not intentionally use a carriage service supplied by a carrier:

(a)

with the result that another person is menaced or harassed; or

(b)

in such a way as would be regarded by reasonable persons as being, in all the circumstances, offensive.

Penalty: Imprisonment for 1 year.

(1A) For the purposes of an offence against subsection (1), absolute liability applies to the physical element of circumstance of the offence, that the carriage service is supplied by a carrier.

Note: For absolute liability, see section 6.2 of the Criminal Code.

130 Subsection 85ZG(1)

Omit “knowingly or recklessly”, substitute “intentionally”.

131 Subsection 85ZG(1)

Omit “in such a way as to hinder”, substitute “, with the result of

hindering”.

132 At the end of subsection 85ZG(1)

Add: Penalty: Imprisonment for 2 years.

133 After subsection 85ZG(1)

Insert:

(1A) For the purposes of an offence against subsection (1), absolute liability applies to the following physical elements of circumstance of the offence:

(a) that the facility is operated by a carrier;

(b) that the carriage service is supplied by the carrier. Note: For absolute liability, see section 6.2 of the Criminal Code.

134 Subsection 85ZG(2)

Omit “knowingly or recklessly”, substitute “intentionally”.

135 Subsection 85ZG(2)

Omit “in such a way as to hinder”, substitute “, with the result of

hindering”.

136 At the end of section 85ZG

Add:

(3) For the purposes of an offence against subsection (2), absolute liability applies to the physical element of circumstance of the offence, that the carriage service is supplied by a carrier.

Note: For absolute liability, see section 6.2 of the Criminal Code.

137 Section 85ZH

Omit “, without lawful authority or excuse, knowingly or recklessly”,

substitute “intentionally”.

138 At the end of section 85ZH

Add:

(2) For the purposes of an offence against subsection (1), absolute liability applies to the physical element of circumstance of the offence, that the satellite is operated by a carrier.

Note: For absolute liability, see section 6.2 of the Criminal Code.

139 Section 85ZJ

Omit “knowingly or recklessly”, substitute “intentionally”.

140 At the end of section 85ZJ

Add:

(2) For the purposes of an offence against subsection (1), absolute liability applies to the physical element of circumstance of the offence, that the facility belongs to a carrier.

Note: For absolute liability, see section 6.2 of the Criminal Code.

141 After subsection 85ZK(1)

Insert:

(1A) In a prosecution for an offence against subsection (1), it is not necessary to prove that the defendant knew that the offence mentioned in paragraph (1)(a) or (b) would be against a law of the Commonwealth or of a State or Territory.

142 At the end of subsection 85ZK(2)

Add:

Note: A defendant bears an evidential burden in relation to the matter in subsection (2) (see subsection 13.3(3) of the Criminal Code).

143 At the end of subsection 85ZKA(2)

Add:

Note: A defendant bears an evidential burden in relation to the matters in subsection (2) (see subsection 13.3(3) of the Criminal Code).

144 Section 90B

Omit “knowingly makes a false statement”, substitute “intentionally

makes a statement that the person knows is false”.

9 What is hijacking?

For the purposes of Division 1 of Part 2, a person hijacks an aircraft if, while on board the aircraft, the person seizes, or exercises control of, the aircraft by force or threat of force, or by any other form of intimidation.

2 Section 10

Repeal the section, substitute:

10 What is an unlawful act?

(1)

For the purposes of Division 4 of Part 2, a person commits an unlawful act if he or she:

(a)

commits an act of violence against anyone on board an aircraft in flight, being an act likely to endanger the safety of the aircraft; or

(b)

destroys an aircraft in service, or causes damage to such an aircraft which renders it incapable of flight or which is likely to endanger its safety in flight.

(2)

For the purposes of Division 4 of Part 2, a person commits an unlawful act if he or she does any of the following:

(a)

places, or causes to be placed, on an aircraft in service a substance or thing that is likely to destroy the aircraft;

(b)

places, or causes to be placed, on an aircraft in service a substance or thing that is likely to cause damage to the aircraft which renders it incapable of flight or which is likely to endanger its safety in flight;

(c)

destroys or damages any navigation facilities or interferes with their operation, being destruction, damage or interference that is likely to endanger the safety of an aircraft in flight;

(d)

communicates information which he or she knows to be false, thereby endangering the safety of an aircraft in flight.

3 At the end of Part 1

Add:

Division 4—Application of Criminal Code

12A Application of the Criminal Code

Chapter 2 of the Criminal Code applies to all offences against this Act.

Note: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.

4 After subsection 13(2)

Insert:

(2A) Absolute liability applies to paragraphs (1)(a), (b), (c) and (d) and paragraphs (2)(a), (b) and (c).

Note: For absolute liability, see section 6.2 of the Criminal Code.

5 After subsection 14(1)

Insert:

(1A) Absolute liability applies to paragraphs (1)(b), (c), (d), (e), (f) and (g).

Note: For absolute liability, see section 6.2 of the Criminal Code.

6 After subsection 15(1)

Insert:

(1A) For the purposes of an offence against subsection (1), absolute liability applies to the physical element of circumstance of the offence, that the aircraft is a Division 2 aircraft.

Note: For absolute liability, see section 6.2 of the Criminal Code.

(1B) Absolute liability applies to paragraph (1)(b).

Note: For absolute liability, see section 6.2 of the Criminal Code.

7 Subsections 16(1), (2) and (3)

Omit “, without lawful excuse, takes or exercises control (whether directly or through an accomplice)”, substitute “takes or exercises control”.

8 At the end of section 16

Add:

(4) For the purposes of an offence against subsection (1), (2) or (3), absolute liability applies to the physical element of circumstance of the offence, that the aircraft is a Division 3 aircraft.

Note: For absolute liability, see section 6.2 of the Criminal Code.

9 Section 17

Omit “, without lawful excuse, wilfully”, substitute “intentionally”.

10 At the end of section 17

Add:

(2) For the purposes of an offence against subsection (1), absolute liability applies to the physical element of circumstance of the offence, that the aircraft is a Division 3 aircraft.

Note: For absolute liability, see section 6.2 of the Criminal Code.

11 Section 18

Omit “with reckless indifference to”, substitute “reckless as to”.

12 At the end of section 18

Add:

(2) For the purposes of an offence against subsection (1), absolute liability applies to the physical element of circumstance of the offence, that the aircraft is a Division 3 aircraft.

Note: For absolute liability, see section 6.2 of the Criminal Code.

13 At the end of section 19

Add:

(2) For the purposes of an offence against subsection (1), absolute liability applies to the physical element of circumstance of the offence, that the aircraft is a Division 3 aircraft.

Note: For absolute liability, see section 6.2 of the Criminal Code.

14 Paragraph 20(b)

Omit “with reckless indifference to”, substitute “reckless as to”.

15 At the end of section 20

Add:

(2) For the purposes of an offence against subsection (1), absolute liability applies to the physical element of circumstance of the offence, that the aircraft is a Division 3 aircraft.

Note: For absolute liability, see section 6.2 of the Criminal Code.

16 Section 21

Omit “so as to”, substitute “in a manner that results in”.

17 Paragraph 21(a)

Omit “interfere”, substitute “an interference”.

18 Paragraph 21(b)

Omit “lessen”, substitute “a lessening of”.

19 At the end of section 21

Add:

(2) For the purposes of an offence against subsection (1), absolute liability applies to the physical element of circumstance of the offence, that the aircraft is a Division 3 aircraft.

Note: For absolute liability, see section 6.2 of the Criminal Code.

20 Section 22

Repeal the section, substitute:

22 Endangering safety of aircraft

(1)

A person who, while on board a Division 3 aircraft, does an act, reckless as to whether the act will endanger the safety of the aircraft, is guilty of an offence.

Penalty: Imprisonment for 7 years.

(2)

For the purposes of an offence against subsection (1), absolute liability applies to the physical element of circumstance of the offence, that the aircraft is a Division 3 aircraft.

Note: For absolute liability, see section 6.2 of the Criminal Code.

21 Paragraph 23(1)(b)

Omit “for the purpose”, substitute “with the intention”.

22 At the end of section 23

Add:

(3) For the purposes of an offence against paragraph (1)(a), (b) or (c), absolute liability applies to the physical element of circumstance of the offence, that the aircraft is a Division 3 aircraft.

Note: For absolute liability, see section 6.2 of the Criminal Code.

23 At the end of section 24

Add:

(3) For the purposes of an offence against subsection (1) or (2), absolute liability applies to the physical element of circumstance of the offence, that the aircraft is a Division 3 aircraft.

Note: For absolute liability, see section 6.2 of the Criminal Code.

24 After subsection 25(2)

Insert:

(2A) Absolute liability applies to paragraphs (1)(a), (b) and (c), and (2)(a), (b), (c) and (d).

Note: For absolute liability, see section 6.2 of the Criminal Code.

25 Subsections 26(1) and (2)

Repeal the subsections, substitute:

(1) A person is guilty of an offence if:

(a)

the person uses a substance or thing to commit an act of violence against anyone at a prescribed airport; and

(b)

that act:

(i)

causes or is likely to cause serious injury or death; and

(ii)

endangers, or is likely to endanger, the safe operation of the airport or the safety of anyone at the airport; and

(c)

the Montreal Convention, when read together with the Protocol, requires Australia to make the act punishable; and

(d)

Article 5 of that Convention, when so read, requires Australia to establish its jurisdiction over the offence.

Penalty: Imprisonment for 15 years.

(2) A person is guilty of an offence if:

(a)

the person does any of the following things:

(i)

destroys or seriously damages the facilities of a prescribed airport;

(ii)

destroys or seriously damages any aircraft not in service that is at a prescribed airport;

(iii) disrupts the services of a prescribed airport; and

(b)

doing so endangers, or is likely to endanger, the safe operation of the airport or the safety of anyone at the airport; and

(c)

either of the following applies:

(i)

the Montreal Convention, when read together with the Protocol, requires Australia to make the act concerned punishable;

(ii)

if the act concerned relates to an aircraft—the aircraft is in Australia, or is a Commonwealth aircraft or a defence aircraft, or the act is committed by an Australian citizen, whether in Australia or not.

Penalty: Imprisonment for 10 years.

(2A) For the purposes of an offence against subsection (1) or (2), absolute liability applies to the physical element of circumstance of the offence, that the airport is a prescribed airport.

Note: For absolute liability, see section 6.2 of the Criminal Code.

(2B) Absolute liability applies to paragraphs (1)(c) and (d) and paragraph (2)(c).

Note: For absolute liability, see section 6.2 of the Criminal Code.

26 Subsection 26(3)

Omit “paragraph (2)(d)”, substitute “subparagraph (2)(c)(i)”.

27 Section 27

Omit “anything that he or she knows is likely to”, substitute “an act, reckless as to whether the act will”.

28 At the end of section 27

Add:

(2) For the purposes of an offence against subsection (1), absolute liability applies to whichever one of the following physical elements of circumstance is relevant to the offence:

(a)

that the aerodrome is a Commonwealth aerodrome;

(b)

that the air navigation facilities are Commonwealth air navigation facilities.

Note: For absolute liability, see section 6.2 of the Criminal Code.

29 At the end of subsection 28(1)

Add:

Penalty: Imprisonment for 2 years.

30 At the end of section 28

Add:

(3) For the purposes of an offence against subsection (1) or (2), absolute liability applies to whichever one of the following physical elements of circumstance is relevant to the offence:

(a)

that the aerodrome is a Commonwealth aerodrome;

(b)

that the air navigation facilities are Commonwealth air navigation facilities.

Note: For absolute liability, see section 6.2 of the Criminal Code.

engage in conduct means:

(a)

do an act; or

(b)

omit to perform an act.

2 After section 4

Insert:

4A Application of the Criminal Code

Chapter 2 of the Criminal Code applies to all offences against this Act.

Note: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.

3 Paragraphs 6(1)(a), (d), (e) and (f)

Omit “for the purpose”, substitute “with the intention”.

4 At the end of section 9

Add:

(2) For the purposes of an offence against this section, absolute liability applies to the following physical elements of circumstance of the offence:

(a)

that the possession is in Australia;

(b)

that the substance possessed is listed in Table I or II in the Annex to the Convention;

(c)

that the dealing in drugs in which, or for which, the substance, equipment or materials are being used or are to be used is a dealing in drugs described in paragraphs (1)(a) and (b).

Note: For absolute liability see section 6.2 of the Criminal Code.

5 At the end of section 10

Add:

(3) For the purposes of an offence against this section, absolute liability applies to such of the following physical elements of circumstance as are relevant to the offence:

(a)

that the conduct is engaged in on board an Australian aircraft in flight, whether in or outside Australia;

(b)

that the conduct would constitute an offence against a law in force in a State or Territory if it were engaged in by the person in that State or Territory;

(c)

if paragraph 6(1)(f) applies—that the importation is into Australia, or the exportation is from Australia;

(d)

if paragraph 6(1)(fa) or (g) applies—that the substance is listed in Table I or II in the Annex to the Convention.

Note: For absolute liability see section 6.2 of the Criminal Code.

6 At the end of section 11

Add:

(2) For the purposes of an offence against this section, absolute liability applies to such of the following physical elements of circumstance as are relevant to the offence:

(a)

that the conduct is engaged in on board an Australian ship at sea;

(b)

that the conduct if engaged in by the person in a State or Territory would constitute an offence against a law of the Commonwealth;

(c)

if paragraph 6(1)(f) applies—that the importation is into Australia, or the exportation is from Australia;

(d)

if paragraph 6(1)(fa) or (g) applies—that the substance is listed in Table I or II in the Annex to the Convention.

Note: For absolute liability see section 6.2 of the Criminal Code.

7 At the end of section 12

Add:

(3) For the purposes of an offence against this section, absolute liability applies to such of the following physical elements of circumstance as are relevant to the offence:

(a)

that the conduct is engaged in outside Australia;

(b)

that the conduct constitutes an offence against the law of a foreign country;

(c)

that the conduct would constitute an offence against a law in force in a State or Territory if it were engaged in by the person in that State or Territory;

(d)

if paragraph 6(1)(f) applies—that the importation is into Australia, or the exportation is from Australia;

(e)

if paragraph 6(1)(fa) or (g) applies—that the substance is listed in Table I or II in the Annex to the Convention.

Note: For absolute liability see section 6.2 of the Criminal Code.

8 At the end of section 13

Add:

(2) For the purposes of an offence against this section, absolute liability applies to such of the following physical elements of circumstance as are relevant to the offence:

(a)

that the conduct is engaged in outside Australia;

(b)

that the view to the carrying out of a dealing in drugs with which the conduct is engaged in, is a view to the carrying out of such a dealing:

(i)

in Australia; or

(ii)

on board an Australian aircraft in flight outside Australia; or

(iii) on board an Australian ship at sea;

(c)

that the carrying out of the dealing in drugs referred to in paragraph (b) constitutes an offence against a law of the Commonwealth, of a State or of a Territory;

(d)

if paragraph 6(1)(f) applies—that the importation is into Australia, or the exportation is from Australia;

(e)

if paragraph 6(1)(fa) or (g) applies—that the substance is listed in Table I or II in the Annex to the Convention.

Note: For absolute liability see section 6.2 of the Criminal Code.

9 At the end of section 14

Add:

(2) For the purposes of an offence against this section, absolute liability applies to such of the following physical elements of circumstance as are relevant to the offence:

(a)

that the conduct is engaged in outside Australia;

(b)

that the dealing in drugs is carried out, or is to be carried out, in a State or Territory;

(c)

that the carrying out of the dealing in drugs constitutes an offence against a law of that State or Territory;

(d)

if paragraph 6(1)(f) applies—that the importation is into Australia, or the exportation is from Australia;

(e)

if paragraph 6(1)(fa) or (g) applies—that the substance is listed in Table I or II in the Annex to the Convention.

Note: For absolute liability see section 6.2 of the Criminal Code.

10 Paragraph 15(6)(a)

Omit “for the purpose” (wherever occurring), substitute “with the intention”.

11 Section 15A

Omit “for the purpose”, substitute “with the intention”.

12 At the end of section 15A

Add:

(2) For the purposes of an offence against this section, absolute liability applies to the physical element of circumstance of the offence, that the conversion or transfer of property takes place in:

(a)

a State other than a prescribed State; or

(b)

a Territory other than a prescribed Territory.

Note: For absolute liability, see section 6.2 of the Criminal Code.

Note: The heading to section 15A is altered by omitting “Knowingly converting” and substituting “Intentionally converting”.

13 At the end of section 15B

Add:

(2) For the purposes of an offence against this section, absolute liability applies to the physical element of circumstance of the offence, that the concealing or disguising takes place in:

(a)

a State other than a prescribed State; or

(b)

a Territory other than a prescribed Territory.

Note: For absolute liability, see section 6.2 of the Criminal Code.

Note: The heading to section 15B is altered by omitting “Knowingly concealing” and substituting “Intentionally concealing”.

14 At the end of section 15C

Add:

(2) For the purposes of an offence against this section, absolute liability applies to the physical element of circumstance of the offence, that the acquisition, possession or use is in:

(a)

a State other than a prescribed State; or

(b)

a Territory other than a prescribed Territory.

Note: For absolute liability, see section 6.2 of the Criminal Code.

Note: The heading to section 15C is altered by omitting “Knowingly acquiring” and substituting “Intentionally acquiring”.

15 Section 17

Omit “for the purpose” (wherever occurring), substitute “with the intention”.

Schedule 21—Customs Act 1901

1 Subsection 4(1) (subparagraphs (b)(i) and (ii) of the definition of Records offence)

Repeal the subparagraphs, substitute:

(i) section 6 of the Crimes Act 1914; or

2 Subsection 4(1) (after paragraph (b) of the definition of Records offence)

Insert: (ba) an ancillary offence (within the meaning of the Criminal Code) that relates to an offence of the kind referred to in paragraph (a) of this definition; or

3 At the end of Part I

Add:

5AA Application of the Criminal Code

(1)

Subject to subsection (2), Chapter 2 of the Criminal Code applies to an offence against this Act.

(2)

For the purposes of a Customs prosecution:

(a)

Parts 2.1, 2.2 and 2.3 of the Criminal Code apply; and

(b)

Parts 2.4, 2.5 and 2.6 of the Criminal Code do not apply; and

(c)

a reference to criminal responsibility in Chapter 2 of the Criminal Code is taken to be a reference to responsibility.

(3)

This section is not to be interpreted as affecting in any way the nature of any offence under this Act, the nature of any prosecution or proceeding in relation to any such offence, or the way in which any such offence is prosecuted, heard or otherwise dealt with.

(4)

Without limiting the scope of subsection (3), this section is not to be interpreted as affecting in any way the standard or burden of proof for any offence under this Act that is the subject of a Customs prosecution.

(5)

In this section:

Customs prosecution has the meaning given in section 244.

4 Subsection 5A(1)

Omit “, without the permission of the CEO given under

subsection (2),”.

5 After subsection 5A(1)

Insert:

(1A) Subsection (1) does not apply if the person has the permission of the CEO given under subsection (2).

6 Subsection 5B(1)

Omit “, without the permission of the CEO given under

subsection (2),”.

7 After subsection 5B(1)

Insert:

(1A) Subsection (1) does not apply if the person has the permission of the CEO given under subsection (2).

8 Subsection 20(7)

Omit “, without reasonable excuse,”.

9 After subsection 20(7)

Insert:

(7A) Subsection (7) does not apply if the person has a reasonable excuse.

10 Subsection 33A(1)

Omit “Except with permission in force under subsection (2), a”,

substitute “A”.

11 After subsection 33A(1)

Insert: (1A) Subsection (1) is an offence of strict liability. Note: For strict liability, see section 6.1 of the Criminal Code.

(1B) Subsection (1) does not apply if the person has permission in force under subsection (2).

12 Subsection 33B(1)

Omit “Except with permission in force under subsection (2), a”,

substitute “A”.

13 After subsection 33B(1)

Insert: (1A) Subsection (1) is an offence of strict liability. Note: For strict liability, see section 6.1 of the Criminal Code. (1B) Subsection (1) does not apply if the person has permission in force under subsection (2).

14 Subsection 50(4)

Repeal the subsection, substitute:

(4) A person is guilty of an offence if:

(a)

a licence or permission has been granted, on or after 16 October 1963, under the regulations; and

(b)

the licence or permission relates to goods that are not narcotic goods; and

(c)

the licence or permission is subject to a condition or requirement to be complied with by the person; and

(d)

the person engages in conduct; and

(e)

the person’s conduct contravenes the condition or requirement.

Penalty: 100 penalty units.

(5)

Subsection (4) is an offence of strict liability. Note: For strict liability, see section 6.1 of the Criminal Code.

(6)

Absolute liability applies to paragraph (4)(a), despite

subsection (5). Note: For absolute liability, see section 6.2 of the Criminal Code.

(7)

A person is guilty of an offence if:

(a)

a licence or permission has been granted, on or after 16 October 1963, under the regulations; and

(b)

the licence or permission relates to goods that are narcotic goods; and

(c)

the licence or permission is subject to a condition or requirement to be complied with by the person; and

(d)

the person engages in conduct; and

(e)

the person’s conduct contravenes the condition or requirement.

(8)

A person who is convicted of an offence against subsection (7) is punishable as provided by section 235.

(9)

Absolute liability applies to paragraph (7)(a).

Note: For absolute liability, see section 6.2 of the Criminal Code.

(10) In this section: