Communications and the Arts Legislation Amendment (Application of Criminal Code) Act 2001 (Cth)

Communications and the Arts Legislation Amendment (Application of Criminal Code) Act 2001

No. 5, 2001

Communications and the Arts Legislation Amendment (Application of Criminal Code) Act 2001

No. 5, 2001

An Act relating to the application of the Criminal Code to certain offences, and for related purposes

Contents

Communications and the Arts Legislation Amendment (Application of Criminal Code) Act 2001

No. 5, 2001

An Act relating to the application of the Criminal Code to certain offences, and for related purposes

[Assented to 20 March 2001]

The Parliament of Australia enacts:

1Short title

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

2Commencement

1. (1)

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

   1. (a)

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

   2. (b)

      the start of the 28th day after the day on which the Law and Justice Legislation Amendment (Application of Criminal Code) Act 2001 receives the Royal Assent;

   3. (c)

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

2. (2)

   If item 22 of Schedule 1 to the Broadcasting Services Amendment Act 2000 has not commenced before the commencement of section 1 of this Act, items 20, 21, 22, 23, 24 and 25 of Schedule 1 to this Act commence immediately after the commencement of the first‑mentioned item.

3. (3)

   If section 1 of this Act commences before 1 July 2001:

   1. (a)

      item 21 of Schedule 1 to the Broadcasting Services Amendment Act (No. 3) 1999 does not commence (despite section 2 of that Act); and

   2. (b)

      item 27 of Schedule 1 to this Act commences on 1 July 2001.

4. (4)

   If section 1 of this Act commences on 1 July 2001:

   1. (a)

      item 26 of Schedule 1 to this Act commences on that day immediately after the commencement of item 21 of Schedule 1 to the Broadcasting Services Amendment Act (No. 3) 1999; and

   2. (b)

      item 27 of Schedule 1 to this Act commences immediately after the commencement of item 26 of Schedule 1 to this Act.

5. (5)

   If section 1 of this Act commences after 1 July 2001, item 27 of Schedule 1 to this Act commences immediately after the commencement of item 26 of Schedule 1 to this Act.

6. (6)

   If item 140 of Schedule 1 to the Broadcasting Services Amendment (Digital Television and Datacasting) Act 2000 has not commenced before the commencement of section 1 of this Act, item 38 of Schedule 1 to this Act commences immediately after the commencement of the first‑mentioned item.

7. (7)

   If item 2 of Schedule 1 to the Postal Services Legislation Amendment Act 2001 commences before the commencement of section 1 of this Act, this Act has effect as if the amendments of the Australian Postal Corporation Act 1989 contained in Schedule 1 to this Act were amendments of the Australian Postal Corporation Limited Act 1989.

8. (8)

   If item 1 of Schedule 1 to the Telecommunications (Consumer Protection and Service Standards) Amendment Act (No. 2) 2000 has not commenced before the commencement of section 1 of this Act, items 164 and 165 of Schedule 1 to this Act commence immediately after the commencement of the first‑mentioned item.

3Schedule(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.

4Application of amendments

1. (1)

   Each amendment made by this Act applies to acts and omissions that take place after the amendment commences.

2. (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.

Schedule 1—Amendment of Acts

Archives Act 1983

1

Subsection 3(1)

Insert:

engage in conduct means:

1. (a)

   do an act; or

2. (b)

   omit to perform an act.

2

At the end of Part I

Add:

4AApplication 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

Subsection 24(1)

Repeal the subsection, substitute:

1. (1)

   Subject to this Part, a person must not engage in conduct that results in:

   1. (a)

      the destruction or other disposal of a Commonwealth record; or

   2. (b)

      the transfer of the custody or ownership of a Commonwealth record; or

   3. (c)

      damage to or alteration of a Commonwealth record.

   Penalty: 20 penalty units.

2. (1A)

   For the purposes of an offence against subsection (1), strict liability applies to the physical element of circumstance of the offence, that the record is a Commonwealth record.

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

4

Subsection 26(1)

Repeal the subsection, substitute:

1. (1)

   A person is guilty of an offence if:

   1. (a)

      a Commonwealth record has been in existence for more than 25 years; and

   2. (b)

      the person engages in conduct; and

   3. (c)

      the person’s conduct results in an addition to or an alteration of the record.

   Penalty: 20 penalty units.

2. (1A)

   Strict liability applies to paragraph (1)(a).

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

5

Subsection 56(3)

Repeal the subsection, substitute:

1. (3)

   A person is guilty of an offence if:

   1. (a)

      records are made available to the person under subsection (2) on conditions to be observed by the person; and

   2. (b)

      the person engages in conduct; and

   3. (c)

      the person’s conduct contravenes such a condition.

   Penalty: 20 penalty units.

6

Subsection 61(3)

Repeal the subsection (including the penalty), substitute:

1. (3)

   A person must not engage in conduct that results in:

   1. (a)

      the destruction or other disposal of any object to which this section applies; or

   2. (b)

      damage to such an object.

   Penalty: 20 penalty units.

2. (4)

   Subsection (3) does not apply if the person has the permission of the Archives to destroy, dispose of or damage the object.

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

Australian Communications Authority Act 1997

7

At the end of Part 1

Add:

4AApplication 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.

8

Subsection 55(1)

Omit “, unless the ACA consents in writing”.

9

Subsection 55(2)

Omit “intentionally or recklessly”.

10

After subsection 55(2)

Insert:

1. (2A)

   Subsections (1) and (2) do not apply if the ACA consents in writing to the use or application of the name or symbol.

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

Australian Film Commission Act 1975

11

At the end of Part I

Add:

3AApplication 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.

12

Subsection 10(5)

Repeal the subsection, substitute:

1. (5)

   Subsection (4) does not apply if the person has a reasonable excuse relating to the availability of Australian short films.

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

2. (5A)

   Subsection (4) is an offence of strict liability.

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

Australian Postal Corporation Act 1989

13

At the end of Part 1

Add:

11AApplication 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.

14

Subsection 90H(2)

Omit “knowingly or recklessly”.

15

Subsection 90LB(2)

Omit “knowingly or recklessly”.

16

Subsection 90LE(2)

Omit “knowingly or recklessly”.

17

Subsection 90N(2)

Omit “knowingly or recklessly”.

Broadcasting Services Act 1992

18

At the end of Part 1

Add:

10AApplication of the Criminal Code

1. (1)

   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. (2)

   Despite subsection (1), Part 2.5 of the Criminal Code does not apply to an offence against Schedule 5 to this Act.

19

After subsection 66(1)

Insert:

1. (1A)

   In a prosecution for an offence against subsection (1), it is not necessary to prove that the defendant knew that the provision breached was a provision of Division 2, 3, 4 or 5.

20

Subsection 121FH(2)

Repeal the subsection, substitute:

1. (2)

   A person is guilty of an offence if:

   1. (a)

      the person is subject to a notice under subsection (1); and

   2. (b)

      the person engages in conduct; and

   3. (c)

      the person’s conduct does not comply with the notice.

   Penalty: 20,000 penalty units.

21

At the end of section 121FH

Add:

1. (4)

   In this section:

engage in conduct means:

1. (a)

   do an act; or

2. (b)

   omit to perform an act.

22

Paragraph 121FJ(b)

Repeal the paragraph, substitute:

1. (b)

   the person engages in conduct; and

2. (c)

   the person’s conduct breaches a condition of the licence.

23

At the end of section 121FJ

Add:

1. (2)

   In this section:

engage in conduct means:

1. (a)

   do an act; or

2. (b)

   omit to perform an act.

24

Paragraph 121FLF(b)

Repeal the paragraph, substitute:

1. (b)

   the person engages in conduct; and

2. (c)

   the person’s conduct breaches a condition of the declaration.

25

At the end of section 121FLF

Add:

1. (2)

   In this section:

engage in conduct means:

1. (a)

   do an act; or

2. (b)

   omit to perform an act.

26

Section 139

Repeal the section, substitute:

139Offence for breach of conditions of licences and class licences

1. (1)

   A person is guilty of an offence if:

   1. (a)

      the person is a commercial television broadcasting licensee; and

   2. (b)

      the person engages in conduct; and

   3. (c)

      the person’s conduct breaches a condition of the licence set out in subclause 7(1) of Schedule 2.

   Penalty: 2,000 penalty units.

2. (2)

   A person is guilty of an offence if:

   1. (a)

      the person is a subscription television broadcasting licensee; and

   2. (b)

      the person engages in conduct; and

   3. (c)

      the person’s conduct breaches a condition of a subscription television broadcasting licence set out in section 103P, 103Q, 103S, 103T, 103V, 103W, 103Y, 103Z, 103ZM or 103ZN, or in subclause 10(1) of Schedule 2.

   Penalty: 1,000 penalty units.

3. (3)

   A person is guilty of an offence if:

   1. (a)

      the person is a commercial radio broadcasting licensee; and

   2. (b)

      the person engages in conduct; and

   3. (c)

      the person’s conduct breaches a condition of the licence set out in subclause 8(1) of Schedule 2.

   Penalty: 500 penalty units.

4. (4)

   A person is guilty of an offence if:

   1. (a)

      the person is a community broadcasting licensee (other than a temporary community broadcasting licensee); and

   2. (b)

      the person engages in conduct; and

   3. (c)

      the person’s conduct breaches a condition of the licence set out in subclause 9(1) of Schedule 2.

   Penalty: 50 penalty units.

5. (5)

   A person is guilty of an offence if:

   1. (a)

      the person is a temporary community broadcasting licensee; and

   2. (b)

      the person engages in conduct; and

   3. (c)

      the person’s conduct breaches a condition of the licence set out in subclause 9(1) (other than paragraph 9(1)(h)) of Schedule 2.

   Penalty: 50 penalty units.

6. (6)

   A person is guilty of an offence if:

   1. (a)

      the person provides a subscription radio broadcasting service, a subscription narrowcasting service or an open narrowcasting service; and

   2. (b)

      the person engages in conduct; and

   3. (c)

      the person’s conduct breaches a condition set out in subclause 11(1) of Schedule 2.

   Penalty: 50 penalty units.

7. (7)

   In this section:

engage in conduct means:

1. (a)

   do an act; or

2. (b)

   omit to perform an act.

27

Paragraph 139(2)(c)

Omit “103Y, 103Z, 103ZM or 103ZN”, substitute “103Y or 103Z”.

28

Subsection 202(1)

Omit “, without reasonable excuse”.

29

At the end of subsection 202(1)

Add:

Penalty: Imprisonment for one year.

30

Subsection 202(2)

Omit “, without reasonable excuse”.

31

After subsection 202(2)

Insert:

1. (2A)

   Subsections (1) and (2) do 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).

32

Paragraph 82(b) of Schedule 5

Repeal the paragraph, substitute:

1. (b)

   the person engages in conduct; and

2. (c)

   the person’s conduct contravenes the rule.

33

At the end of clause 82 of Schedule 5

Add:

1. (2)

   In this clause:

engage in conduct means:

1. (a)

   do an act; or

2. (b)

   omit to perform an act.

34

Paragraph 83(4)(b) of Schedule 5

Repeal the paragraph, substitute:

1. (b)

   the person engages in conduct; and

2. (c)

   the person’s conduct contravenes the direction.

35

Subclause 83(4) of Schedule 5 (penalty)

Omit “for contravention of this subclause”.

36

At the end of clause 83 of Schedule 5

Add:

1. (5)

   In this clause:

engage in conduct means:

1. (a)

   do an act; or

2. (b)

   omit to perform an act.

37

Subclause 87(9) of Schedule 5

Omit “section 5, 6, 7 or 7A or subsection 86(1) of the Crimes Act 1914”, substitute “section 6 of the Crimes Act 1914 or Part 2.4 of the Criminal Code”.

38

After subclause 10(2) of Schedule 6

Add:

1. (2A)

   Subclause (2) is an offence of strict liability.

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

Film Licensed Investment Company Act 1998

39

Section 35

Repeal the section.

Protection of Movable Cultural Heritage Act 1986

40

Paragraphs 3(3)(a) and (b)

Repeal the paragraphs, substitute:

1. (a)

   section 6 of the Crimes Act 1914; or

2. (b)

   an ancillary offence (within the meaning of the Criminal Code);

41

At the end of Part I

Add:

6AApplication 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.

42

Subsection 9(3)

Repeal the subsection, substitute:

1. (3)

   A person is guilty of an offence if:

   1. (a)

      the person exports, or attempts to export, an object; and

   2. (b)

      the object is an Australian protected object; and

   3. (c)

      the person’s conduct referred to in paragraph (a) is otherwise than in accordance with a permit or certificate.

2. (3A)

   A person is guilty of an offence if:

   1. (a)

      a permit or certificate relates to an Australian protected object; and

   2. (b)

      the person engages in conduct; and

   3. (c)

      the conduct contravenes a condition of the permit or certificate.

3. (3B)

   A person who is convicted of an offence against subsection (3) or (3A) is punishable by:

   1. (a)

      if the person is an individual—a fine not exceeding 1,000 penalty units or imprisonment for a period not exceeding 5 years, or both; or

   2. (b)

      if the person is a body corporate—a fine not exceeding 2,000 penalty units.

   Note: See subsection 46(4) for penalties that may be imposed by a court of summary jurisdiction.

43

At the end of section 9

Add:

1. (7)

   In this section:

engage in conduct means:

1. (a)

   do an act; or

2. (b)

   omit to perform an act.

44

At the end of section 29

Add:

1. (4)

   Subsection (3) is an offence of strict liability.

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

45

Subsection 39(2)

Omit “, without reasonable excuse,”.

46

At the end of section 39

Add:

1. (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).

2. (4)

   Subsection (2) is an offence of strict liability.

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

47

Section 42

Repeal the section.

48

Subsection 46(1)

Omit “subsection 9(3), 14(2) or 42(1)”, substitute “subsection 9(3), 9(3A) or 14(2)”.

49

Subsection 46(4)

Repeal the subsection, substitute:

1. (4)

   If, in accordance with subsection (3), a court of summary jurisdiction convicts a person of an offence referred to in subsection (1), the penalty that the court may impose is:

   1. (a)

      if the person is an individual—a fine not exceeding 50 penalty units or imprisonment for a period not exceeding 2 years, or both; or

   2. (b)

      if the person is a body corporate—a fine not exceeding 200 penalty units.

Radiocommunications Act 1992

50

Subsection 11(1)

Omit “section 6, 7 or 7A, or subsection 86(1), of the Crimes Act 1914”, substitute “section 6 of the Crimes Act 1914, or an ancillary offence (within the meaning of the Criminal Code),”.

51

Section 46

Omit “, without reasonable excuse, knowingly or recklessly”.

52

At the end of section 46

Add:

1. (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).

53

Section 47

Omit “, without reasonable excuse,”.

54

At the end of section 47

Add:

1. (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).

55

Section 113

Repeal the section, substitute:

113Contravention of conditions

1. (1)

   A person is guilty of an offence if:

   1. (a)

      an apparatus licence relates to the person; and

   2. (b)

      the person engages in conduct; and

   3. (c)

      the person’s conduct contravenes a condition of the licence.

   Penalty: 100 penalty units.

2. (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).

3. (3)

   In this section:

engage in conduct means:

1. (a)

   do an act; or

2. (b)

   omit to perform an act.

56

At the end of section 117

Add:

1. (2)

   Subsection (1) is an offence of strict liability.

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

57

After subsection 118(1)

Insert:

1. (1A)

   Subsection (1) is an offence of strict liability.

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

58

Subsection 124(4)

Omit “, without reasonable excuse,”.

59

Subsection 124(4) (penalty)

Omit “for contravention of this subsection”.

60

At the end of section 124

Add:

1. (5)

   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 (5) (see subsection 13.3(3) of the Criminal Code).

2. (6)

   Subsection (4) is an offence of strict liability.

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

61

Subsection 157(1)

Omit “, without reasonable excuse,”.

62

After subsection 157(1)

Insert:

1. (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).

63

Subsection 158(1)

Omit “, without reasonable excuse,”.

64

After subsection 158(1)

Insert:

1. (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).

65

Subsection 160(1)

Omit “, without reasonable excuse,”.

66

After subsection 160(1)

Insert:

1. (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).

67

Section 170

Repeal the section, substitute:

170Contraventions of permit conditions

1. (1)

   A person is guilty of an offence if:

   1. (a)

      a permit relates to the person; and

   2. (b)

      the person engages in conduct; and

   3. (c)

      the person’s conduct contravenes a condition of the permit.

   Penalty: 100 penalty units.

2. (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).

3. (3)

   In this section:

engage in conduct means:

1. (a)

   do an act; or

2. (b)

   omit to perform an act.

68

Section 178

Omit “subsection 157(1), 158(1) or 160(1)”, substitute “subsection 157(1A), 158(1A) or 160(1A)”.

69

Subsection 186(1)

Omit “, without reasonable excuse,”.

70

After subsection 186(1)

Insert:

1. (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).

71

Subsection 187(1)

Omit “, without reasonable excuse,”.

72

After subsection 187(1)

Insert:

1. (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).

73

Subsection 187A(1)

Omit “, without reasonable excuse,”.

74

After subsection 187A(1)

Insert:

1. (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).

2. (1B)

   Subsection (1) is an offence of strict liability.

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

75

Subsection 188A(2)

Omit “intentionally or recklessly”.

76

Subsection 189(1)

Omit “, without reasonable excuse”.

77

After subsection 189(1)

Insert:

1. (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).

78

Section 197

Repeal the section, substitute:

197Causing interference etc.

1. (1)

   A person is guilty of an offence if:

   1. (a)

      the person engages in conduct; and

   2. (b)

      the person is reckless as to whether the conduct will result in:

      1. (i)

         substantial interference with radiocommunications; or

      2. (ii)

         substantial disruption or disturbance of radiocommunications.

   Penalty: Imprisonment for 1 year.

2. (2)

   In this section:

engage in conduct means:

1. (a)

   do an act; or

2. (b)

   omit to perform an act.

79

Section 199

Omit “, without reasonable excuse,”.

80

At the end of section 199

Add:

1. (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).

81

Subsection 210(5)

Omit “, without reasonable excuse”.

82

After subsection 210(5)

Insert:

1. (5A)

   Subsection (5) does 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).

83

Section 214

Repeal the section, substitute:

214Contravention of a direction

1. (1)

   A person is guilty of an offence if:

   1. (a)

      the person has been issued with a direction under section 212; and

   2. (b)

      the person engages in conduct; and

   3. (c)

      the person’s conduct contravenes the direction.

   Penalty: 100 penalty units.

2. (2)

   In this section:

engage in conduct means:

1. (a)

   do an act; or

2. (b)

   omit to perform an act.

84

Subsection 227(1)

Omit “, without reasonable excuse,”.

85

After subsection 227(1)

Insert:

1. (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).

86

Subsection 227(4)

Omit “subsection (1)”, substitute “subsection (1A)”.

87

Subsection 261B(3)

Omit “, without reasonable excuse,”.

88

Subsection 261B(4)

Repeal the subsection, substitute:

1. (4)

   A person is guilty of an offence if:

   1. (a)

      the ACA has made an order under subsection (2); and

   2. (b)

      the person engages in conduct; and

   3. (c)

      the person’s conduct contravenes the order.

   Penalty: 50 penalty units.

2. (5)

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

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

3. (6)

   In this section:

engage in conduct means:

1. (a)

   do an act; or

2. (b)

   omit to perform an act.

89

Subsection 261C(3)

Omit “, without reasonable excuse,”.

90

Subsection 261C(4)

Repeal the subsection, substitute:

1. (4)

   A person is guilty of an offence if:

   1. (a)

      the ACA has given a direction under paragraph (2)(a); and

   2. (b)

      the person engages in conduct; and

   3. (c)

      the person’s conduct contravenes the direction.

   Penalty: 10 penalty units.

2. (5)

   A person is guilty of an offence if:

   1. (a)

      the ACA has given a direction under paragraph (2)(b); and

   2. (b)

      the person engages in conduct; and

   3. (c)

      the person’s conduct contravenes the direction.

   Penalty: 50 penalty units.

3. (6)

   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 (6) (see subsection 13.3(3) of the Criminal Code).

4. (7)

   In this section:

engage in conduct means:

1. (a)

   do an act; or

2. (b)

   omit to perform an act.

91

Subsection 268(3)

Omit “, without reasonable excuse,”.

92

At the end of section 268

Add:

1. (4)

   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 (4) (see subsection 13.3(3) of the Criminal Code).

2. (5)

   Subsection (3) is an offence of strict liability.

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

93

Subsection 278(4)

Omit “, without reasonable excuse,”.

94

At the end of section 278

Add:

1. (5)

   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 (5) (see subsection 13.3(3) of the Criminal Code).

2. (6)

   Subsection (4) is an offence of strict liability.

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

95

Subsection 279(2)

Omit “, without reasonable excuse,”.

96

At the end of section 279

Add:

1. (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).

2. (4)

   Subsection (2) is an offence of strict liability.

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

97

Subsection 301(1)

Omit “, without reasonable excuse,”.

98

After subsection 301(1)

Insert:

1. (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).

2. (1B)

   Subsection (1) is an offence of strict liability.

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

99

After subsection 301(3)

Insert:

1. (3A)

   Subsection (3) is an offence of strict liability.

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

100

After section 313

Insert:

313AApplication 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.

Telecommunications Act 1997

101

Paragraph 2(1)(e)

Repeal the paragraph.

102

Section 5

Omit:

·

Provision is made for the following ancillary matters:

1. (a)

   information‑gathering powers;

2. (b)

   powers of search, entry and seizure;

3. (c)

   review of decisions;

4. (d)

   injunctions;

5. (e)

   the prohibition of false and misleading statements.

Substitute:

·

Provision is made for the following ancillary matters:

1. (a)

   information‑gathering powers;

2. (b)

   powers of search, entry and seizure;

3. (c)

   review of decisions;

4. (d)

   injunctions.

103

Section 6 (table item 31)

Repeal the item.

104

After section 11

Insert:

11AApplication 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.

105

Subsection 42(5)

Omit “intentionally or recklessly”.

106

Subsection 276(3)

Omit “intentionally or recklessly”.

107

Subsection 277(3)

Omit “intentionally or recklessly”.

108

Subsection 278(3)

Omit “intentionally or recklessly”.

109

Section 303

Omit “intentionally or recklessly”.

110

Subsection 306(7)

Omit “intentionally or recklessly”.

111

Subsection 307(2)

Omit “intentionally or recklessly”.

112

Section 399

Repeal the section, substitute:

399Offence of contravening condition

1. (1)

   A person is guilty of an offence if:

   1. (a)

      the person is the holder of a connection permit, or a nominee of such a holder; and

   2. (b)

      the person engages in conduct; and

   3. (c)

      the person’s conduct contravenes a condition to which the permit is subject.

   Penalty: 100 penalty units.

   Note: See also sections 4AA and 4B of the Crimes Act 1914.

2. (2)

   In this section:

engage in conduct means:

1. (a)

   do an act; or

2. (b)

   omit to perform an act.

113

Subsection 411(2)

Omit “, without reasonable excuse, intentionally or recklessly”.

114

After subsection 411(2)

Insert:

Exception—reasonable excuse for contravention

1. (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).

115

Subsection 412(2)

Omit “, without reasonable excuse, intentionally or recklessly”.

116

After subsection 412(2)

Insert:

1. (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).

117

Subsection 413(2)

Omit “, without reasonable excuse, intentionally or recklessly”.

118

After subsection 413(2)

Insert:

1. (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).

119

Subsection 414(2)

Omit “, without reasonable excuse, intentionally or recklessly”.

120

At the end of section 414

Add:

1. (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).

121

Subsection 415(2)

Repeal the subsection, substitute:

1. (2)

   A person is guilty of an offence if:

   1. (a)

      the person is a manufacturer or importer of customer equipment or customer cabling; and

   2. (b)

      the person engages in conduct; and

   3. (c)

      the person’s conduct contravenes a requirement referred to in subsection (1).

   Penalty: 100 penalty units.

   Note: See also sections 4AA and 4B of the Crimes Act 1914.

2. (3)

   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 (3) (see subsection 13.3(3) of the Criminal Code).

3. (4)

   In this section:

engage in conduct means:

1. (a)

   do an act; or

2. (b)

   omit to perform an act.

122

Subsection 416(2)

Omit “intentionally or recklessly”.

123

Subsection 417(2)

Omit “intentionally or recklessly”.

124

Subsection 420(2)

Omit “intentionally or recklessly”.

125

Subsection 421(4)

Omit “intentionally or recklessly”.

126

Section 434

Repeal the section, substitute:

434Offence in relation to contravening condition

1. (1)

   A person is guilty of an offence if:

   1. (a)

      the person is the holder of a cabling licence that authorises the performance of a particular type of cabling work; and

   2. (b)

      the person performs cabling work of that type; and

   3. (c)

      the performance of that work contravenes a condition to which the licence is subject.

   Penalty: 100 penalty units.

   Note: See also sections 4AA and 4B of the Crimes Act 1914.

2. (2)

   A person is guilty of an offence if:

   1. (a)

      the person is the holder of a cabling licence that authorises the performance of a particular type of cabling work; and

   2. (b)

      the person engages in conduct; and

   3. (c)

      the result of the person’s conduct is a failure to take all reasonable steps to ensure that cabling work of that type performed under the person’s supervision does not contravene the conditions of the licence.

   Penalty: 100 penalty units.

   Note: See also sections 4AA and 4B of the Crimes Act 1914.

3. (3)

   In this section:

engage in conduct means:

1. (a)

   do an act; or

2. (b)

   omit to perform an act.

127

Subsection 452(2)

Omit “intentionally or recklessly”.

128

Subsection 475(7)

Repeal the subsection, substitute:

1. (7)

   A person is guilty of an offence if:

   1. (a)

      the person has been given a direction under this section; and

   2. (b)

      the person engages in conduct; and

   3. (c)

      the person’s conduct contravenes the direction.

   Penalty: 10 penalty units.

129

At the end of section 475

Add:

1. (9)

   In this section:

engage in conduct means:

1. (a)

   do an act; or

2. (b)

   omit to perform an act.

130

Subsection 476(7)

Repeal the subsection, substitute:

1. (7)

   A person is guilty of an offence if:

   1. (a)

      the person has been given a direction under this section; and

   2. (b)

      the person engages in conduct; and

   3. (c)

      the person’s conduct contravenes the direction.

   Penalty: 10 penalty units.

131

At the end of section 476

Add:

1. (9)

   In this section:

engage in conduct means:

1. (a)

   do an act; or

2. (b)

   omit to perform an act.

132

Subsection 493(3)

Omit “, without reasonable excuse,”.

133

Subsection 493(4)

Repeal the subsection, substitute:

1. (4)

   A person is guilty of an offence if:

   1. (a)

      the ACA has made an order under subsection (2); and

   2. (b)

      the person engages in conduct; and

   3. (c)

      the person’s conduct contravenes the order.

   Penalty: 50 penalty units.

2. (5)

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

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

3. (6)

   In this section:

engage in conduct means:

1. (a)

   do an act; or

2. (b)

   omit to perform an act.

134

Subsection 494(3)

Omit “, without reasonable excuse,”.

135

Subsection 494(4)

Repeal the subsection, substitute:

1. (4)

   A person is guilty of an offence if:

   1. (a)

      the ACA has given a direction under paragraph (2)(a); and

   2. (b)

      the person engages in conduct; and

   3. (c)

      the person’s conduct contravenes the direction.

   Penalty: 10 penalty units.

2. (5)

   A person is guilty of an offence if:

   1. (a)

      the ACA has given a direction under paragraph (2)(b); and

   2. (b)

      the person engages in conduct; and

   3. (c)

      the person’s conduct contravenes the direction.

   Penalty: 50 penalty units.

3. (6)

   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 (6) (see subsection 13.3(3) of the Criminal Code).

4. (7)

   In this section:

engage in conduct means:

1. (a)

   do an act; or

2. (b)

   omit to perform an act.

136

Subsection 503(3)

Omit “, without reasonable excuse,”.

137

Subsection 503(4)

Repeal the subsection, substitute:

1. (4)

   A person is guilty of an offence if:

   1. (a)

      the ACCC has made an order under subsection (2); and

   2. (b)

      the person engages in conduct; and

   3. (c)

      the person’s conduct contravenes the order.

   Penalty: 50 penalty units.

2. (5)

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

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

3. (6)

   In this section:

engage in conduct means:

1. (a)

   do an act; or

2. (b)

   omit to perform an act.

138

Subsection 504(3)

Omit “, without reasonable excuse,”.

139

Subsection 504(4)

Repeal the subsection, substitute:

1. (4)

   A person is guilty of an offence if:

   1. (a)

      the ACCC has given a direction under paragraph (2)(a); and

   2. (b)

      the person engages in conduct; and

   3. (c)

      the person’s conduct contravenes the direction.

   Penalty: 10 penalty units.

2. (5)

   A person is guilty of an offence if:

   1. (a)

      the ACCC has given a direction under paragraph (2)(b); and

   2. (b)

      the person engages in conduct; and

   3. (c)

      the person’s conduct contravenes the direction.

   Penalty: 50 penalty units.

3. (6)

   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 (6) (see subsection 13.3(3) of the Criminal Code).

4. (7)

   In this section:

engage in conduct means:

1. (a)

   do an act; or

2. (b)

   omit to perform an act.

140

Paragraphs 521(4)(e) and (f)

Repeal the paragraphs, substitute:

1. (e)

   section 525.

141

Paragraphs 521(5)(e) and (f)

Repeal the paragraphs, substitute:

1. (e)

   section 525.

142

Subsections 522(4) and (5)

Repeal the subsections, substitute:

1. (4)

   A person is guilty of an offence if:

   1. (a)

      the ACA has given a notice to the person under subsection (2); and

   2. (b)

      the person engages in conduct; and

   3. (c)

      the person’s conduct contravenes a requirement in the notice.

   Penalty: 20 penalty units.

2. (5)

   A notice under this section must set out the effect of subsection (4) and section 525.

3. (6)

   In this section:

engage in conduct means:

1. (a)

   do an act; or

2. (b)

   omit to perform an act.

143

Paragraph 524(2)(c)

Omit “or 526”.

144

Section 525

Omit “intentionally or recklessly”.

145

Section 526

Repeal the section.

146

Subsection 531(2)

Omit “intentionally or recklessly”.

147

Subsection 534(3)

Omit “, without reasonable excuse, intentionally or recklessly”.

148

At the end of section 534

Add:

1. (4)

   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 (4) (see subsection 13.3(3) of the Criminal Code).

2. (5)

   Subsection (3) is an offence of strict liability.

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

149

Subsection 535(2)

Omit “section 6, 7 or 7A or subsection 86(1) of the Crimes Act 1914”, substitute “section 6 of the Crimes Act 1914 or Part 2.4 of the Criminal Code”.

150

Subsection 542(4)

Omit “section 6, 7 or 7A or subsection 86(1) of the Crimes Act 1914”, substitute “section 6 of the Crimes Act 1914 or Part 2.4 of the Criminal Code”.

151

Subsection 544(2)

Omit “section 6, 7 or 7A or subsection 86(1) of the Crimes Act 1914”, substitute “section 6 of the Crimes Act 1914 or Part 2.4 of the Criminal Code”.

152

Subsection 545(4)

Omit “section 6, 7 or 7A or subsection 86(1) of the Crimes Act 1914”, substitute “section 6 of the Crimes Act 1914 or Part 2.4 of the Criminal Code”.

153

Subsection 548(2)

Omit “, without reasonable excuse, intentionally or recklessly”.

154

After subsection 548(2)

Insert:

1. (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).

2. (2B)

   Subsection (2) is an offence of strict liability.

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

155

Subsection 548(3)

Insert:

engage in conduct means:

1. (a)

   do an act; or

2. (b)

   omit to perform an act.

156

Subsection 549(3)

Repeal the subsection, substitute:

1. (3)

   A person is guilty of an offence if:

   1. (a)

      the person is subject to a requirement under subsection (1); and

   2. (b)

      the person engages in conduct; and

   3. (c)

      the person’s conduct contravenes the requirement.

   Penalty: 20 penalty units.

2. (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).

157

At the end of section 549

Add:

1. (5)

   In this section:

engage in conduct means:

1. (a)

   do an act; or

2. (b)

   omit to perform an act.

158

Subsection 551(2)

Omit “section 6, 7 or 7A or subsection 86(1) of the Crimes Act 1914”, substitute “section 6 of the Crimes Act 1914 or Part 2.4 of the Criminal Code”.

159

Subsection 553(2)

Omit “section 6, 7 or 7A or subsection 86(1) of the Crimes Act 1914”, substitute “section 6 of the Crimes Act 1914 or Part 2.4 of the Criminal Code”.

160

Subparagraph 574(b)(ii)

Omit “section 6, 7 or 7A or subsection 86(1) of the Crimes Act 1914”, substitute “section 6 of the Crimes Act 1914 or Part 2.4 of the Criminal Code”.

161

Paragraph 576(1)(b)

Omit “section 6, 7 or 7A or subsection 86(1) of the Crimes Act 1914”, substitute “section 6 of the Crimes Act 1914 or Part 2.4 of the Criminal Code”.

162

Part 33

Repeal the Part.

Telecommunications (Consumer Protection and Service Standards) Act 1999

163

At the end of Part 1

Add:

7AApplication of the Criminal Code

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

Note 1: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.

Note 2: For criminal liability of corporations under this Act, see sections 574A and 575 of the Telecommunications Act 1997.

164

Section 20 (note)

Omit “(see section 578 of the Telecommunications Act 1997)”, substitute “(see Part 7.4 of the Criminal Code)”.

165

Section 20J (note)

Omit “(see section 578 of the Telecommunications Act 1997)”, substitute “(see Part 7.4 of the Criminal Code)”.

Telstra Corporation Act 1991

166

After section 6

Insert:

6AApplication of the Criminal Code

1. (1)

   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. (2)

   Despite subsection (1), Part 2.5 of the Criminal Code does not apply to an offence against Part 2 or 2A (within the meaning of section 8CI).

167

Subsection 8AC(2)

Repeal the subsection, substitute:

1. (2)

   Telstra is guilty of an offence if:

   1. (a)

      Telstra engages in conduct; and

   2. (b)

      that conduct contravenes subsection (1).

   Penalty: 500 penalty units.

2. (3)

   In this section:

engage in conduct means:

1. (a)

   do an act; or

2. (b)

   omit to perform an act.

168

Subsection 8BI(2)

Repeal the subsection, substitute:

1. (2)

   Telstra is guilty of an offence if:

   1. (a)

      Telstra engages in conduct; and

   2. (b)

      that conduct contravenes subsection (1).

   Penalty: 500 penalty units.

2. (3)

   In this section:

engage in conduct means:

1. (a)

   do an act; or

2. (b)

   omit to perform an act.

169

Subsection 8BO(2)

Omit “intentionally or recklessly”.

170

Section 8BP

Repeal the section.

171

Subsection 8CI(6)

Omit “section 6, 7 or 7A or subsection 86(1) of the Crimes Act 1914”, substitute “section 6 of the Crimes Act 1914 or Part 2.4 of the Criminal Code”.

172

At the end of subsection 8CI(6)

Add “of this Act”.

173

Subsection 8CJ(6)

Omit “section 6, 7 or 7A or subsection 86(1) of the Crimes Act 1914”, substitute “section 6 of the Crimes Act 1914 or Part 2.4 of the Criminal Code”.

174

At the end of subsection 8CJ(6)

Add “of this Act”.

[Minister’s second reading speech made in—

House of Representatives on 7 December 2000

(203/00)

Senate on 8 February 2001]