Civil Aviation Amendment Regulations 2003 (No. 5)

Civil Aviation Amendment Regulations 2003 (No. 5) 2003 No. 201

EXPLANATORY STATEMENT

Statutory Rules 2003 No. 201

Issued by the authority of the Minister for Transport and Regional Services

Civil Aviation Act 1988

Civil Aviation Amendment Regulations 2003 (No. 5)

Section 98 of the Civil Aviation Act 1988 provides that the Governor-General may make regulations for the purposes of the Act, including inter alia regulations imposing penalties for contraventions of the regulations: paragraph 98 (3) (p).

The purpose of the Regulations is to ensure that the existing offence provisions in the Civil Aviation Regulations 1988 continue to operate in the same manner as they did prior to the application of the Criminal Code Act 1995 (the Criminal Code) to all Commonwealth legislation on 15 December 2001.

Chapter 2 of the Criminal Code contains general principles of criminal responsibility that apply to the offence provisions contained in the Criminal Code and all other Commonwealth offence provisions. If regulations containing existing offence provisions are not amended to have regard to the Criminal Code, the Criminal Code may alter the interpretation of those offence provisions.

Chapter 2 adopts the common law approach of subjective fault based principles. It clarifies the traditional distinction of dividing offences into actus reus (the physical act, now referred to as the physical element) and mens rea (what the defendant thought or intended, now referred to as the fault element).

The prosecution bears the onus of proving each of the elements of an offence. Each offence must contain at least one physical element, and for every physical element of an offence, the prosecution must also prove a corresponding fault element. If legislation containing an offence provision does not specify a fault element for a physical element of the offence, the Criminal Code applies a default fault element under Section 5.6 of the Criminal Code.

In relation to an offence that operates as a strict liability offence, a fault element can only be dispensed with in relation to the offence (or in relation to a particular element of an offence) if the offence specifies that it is a strict liability offence (or that a particular element is a strict liability element). Strict liability offences are offences where proof of a fault element is not required. The defence of mistake of fact is available for a strict liability offence (or a strict liability element of an offence). In the absence of express reference to the fact that an offence is a strict liability offence, a court will be obliged by the Criminal Code to interpret the offence as a fault offence rather than a strict liability offence, and will require proof of fault elements in relation to the physical elements of the offence.

The Regulations amend the Civil Aviation Regulations 1988.

The Regulations:

•       specify that an offence is one of strict liability;

•       separate defences from offences and identify the evidential burden in relation to the defence;

•       restructure offence provisions to clarify that provisos are elements of the offence;

•       clarify the physical elements of an offence;

•       omit general offence provisions;

•       clarify the actor for an offence;

•       remove fault elements to attract Criminal Code default fault elements;

•       clarify the meaning of phrases relating to time period;

•       substitute more appropriate expressions for less clear ones, to give greater clarity to the offence provision;

•       omit offence or defence provisions that have equivalent Criminal Code provisions;

•       introduce numbering for, or renumber, certain provisions;

•       place or reword the applicable penalty after each offence provision;

•       provide a definition for "engage in conduct"; and

•       substitute references to repealed provisions of the Crimes Act 1914 with equivalent Criminal Code provisions.

The Criminal Code harmonisation process has received prior approval of the Office of Regulation Review (ORR). In respect of those amendments that are beyond the harmonisation process, the ORR has determined that they are mechanical and minor in nature, do not have a direct or significant impact on business and do not restrict competition, and therefore a Regulation Impact Statement is not required.

Details of the Regulations are set out in the Attachment.

The Regulations commenced on gazettal.

ATTACHMENT

Civil Aviation Amendment Regulations 2003 (No. 5)

DETAILS OF THE AMENDING REGULATIONS

Regulation 1 - Name of Regulations

Regulation 1 names the Regulations as the Civil Aviation Amendment Regulations 2003 (No. 5).

Regulation 2 - Commencement

Regulation 2 provides that the Regulations commence on gazettal.

Regulation 3 - Amendment of Civil Aviation Regulations 1988

The Regulations specified in Schedule 1 are amended as follows:

1.       Ensuring strict liability offences remain strict liability offences

The Regulations provide that each of the offences (or particular elements of offences) listed in Table 1 below will be offences (or elements) of strict liability.

An offence of strict liability is an offence where no fault elements apply to the physical elements of the offence. A fault element can only be dispensed with in relation to an offence (or in relation to a particular element of an offence) if the offence provision specifies that it is a strict liability offence (or that a particular element is a strict liability element). The defence of mistake of fact is available for a strict liability offence (or a strict liability element of an offence). In the absence of express reference that an offence (or element of an offence) is strict liability, a court will be obliged by the Criminal Code Act 1995 to interpret the offence (or element of the offence) as a fault offence (or fault element) rather than a strict liability offence (or fault element), and will require proof of fault elements in relation to the physical elements of the offence (or element of the offence).

The regulations identified in Table 1 below currently provide for strict liability offences (or contain strict liability elements of offences). The amendments ensure that the offences (or elements of the offences) continue to operate as strict liability offences following application of the Criminal Code.

Table 1 - Strict liability offences

2.       Ignorance of the law is no excuse

In the regulations identified in Table 2 below, the prosecution may be required to prove, as part of the offence, that the defendant had knowledge of a provision of statute law or subordinate legislation referred to in the offence provision. It is generally very difficult for the prosecution to establish such knowledge and is contrary to the usual maxim that ignorance of the law is no excuse. Subsections 9.3 (1), and 9.4 (1) of the Criminal Code provide that mistake or ignorance of statute law, or subordinate legislation, is no excuse. However, subsections 9.3 (2) and 9.4 (2) provide that subsections 9.3 (1) and 9.4 (1) do not apply if the particular statute law or subordinate legislation is expressly or impliedly to the contrary effect.

To ensure that the provisions are not interpreted to indicate contrary intention for the purposes of section 9.4 of the Criminal Code, the Regulations amend the offence provisions identified in Table 2 below to provide that strict liability applies to that part of the physical element of conduct that raises the knowledge of law issues. The defence of mistake of fact will then apply.

Table 2 - Ignorance of the law - strict liability

3.       Restructuring offences to clarify defences

The Regulations amend the offence provisions identified in Table 3 below, to clarify that the defence to the offence does not form part of the elements of the offence for the prosecution to establish. The amendments are achieved by removing the defence from the offence provisions and inserting them in new stand-alone defence provisions, each of which is followed by a Note to the effect that the defendant bears an evidential burden of proof. The Criminal Code requires proof of defences at an evidential standard unless the law creating the offence expressly imposes proof at the higher legal standard.

Table 3 - Clarify defences

4.       Restructuring offence provisions to clarify that provisos are elements of the offences

The Regulations amend the offence provisions identified in Table 4 below, to clarify that the proviso is intended to form part of the elements of the offence for the prosecution to establish. The amendments are achieved by redrafting the offences so that the use of the terms "unless", "except" or "other than" are removed and replaced by terminology that makes clear that the wording concerned forms part of the offence. The amendments are beyond the general Government policy authority in relation to harmonisation of Commonwealth offences with the Criminal Code. However, they are preferable in that it is Commonwealth Criminal Law Policy that criminal offence provisions should be structured to provide certainty and clarity in relation to the scope and effect of each offence, and to give consistency as to how criminal offences are to be interpreted by the courts. The Office of Regulation Review (ORR) has determined that the amendments are mechanical and minor in nature, do not have a direct or significant impact on business and do not restrict competition, and therefore a Regulation Impact Statement is not required.

Table 4 - Provisos as elements of offences