Offshore Minerals (Data Lodgement and Reporting) Amendment Regulations 2001 (No. 1) 2001 No. 286
EXPLANATORY STATEMENT
Statutory Rules 2001 No. 286
Issued by the Authority of the Minister for Industry, Science and Resources
Offshore Minerals Act 1994
Offshore Minerals (Data Lodgement and Reporting) Amendment Regulations 2001 (No. 1)
The Offshore Minerals Act 1994 provides the legal framework for the exploration for, and the production of, minerals other than petroleum on Australia's continental shelf that is under Commonwealth jurisdiction. The Act is administered on a day-to-day basis by the States and the Northern Territory on behalf of the Commonwealth.
Section 440 of the Act provides that the Governor-General may make regulations prescribing all matters which are either required, permitted, necessary or convenient to be prescribed for carrying out or giving effect to the Act.
Section 124 of the Act provides that an exploration licence holder must keep whatever records, cores and samples and make whatever returns that are necessary to comply with the regulations, the licence conditions or a direction given to the licence holder under the Act.
The Offshore Minerals (Data Lodgment and Reporting) Regulations 1996 ("the Regulations") details the manner in which cores, samples, reports, returns and all other data derived from offshore minerals exploration authorised under the Act are to be kept and provided to the relevant authorities.
The purpose of the Regulations is to amend the criminal offence provisions contained within the Offshore Minerals (Data Lodgment and Reporting) Regulations in anticipation of the application of Chapter 2 of the Criminal Code (as contained in the Criminal Code Act 1995), which is scheduled to occur on or before 15 December 2001,
A key feature of the Criminal Code is the deconstruction of each criminal offence into physical elements of conduct, circumstance and result, each of which has an attaching fault element. Fault elements are either those directly prescribed in the body of an offence creating provision, or are imposed by default in the absence of express provision (section 5.6 of the Criminal Code refers).
The Regulations specify that strict liability applies to part of the physical elements of one offence provision. Where it is intended that an offence or part of an element of an offence is to attract strict liability after application of the Criminal Code, the provision creating that offence expressly states on its face that it is an offence of strict liability (sections 6.1 and 6.2 of the Criminal Code refer). If no such statement appeared, then the offence would be interpreted not to be strict liability, irrespective of any court decisions to the contrary before the Criminal Code came into effect.
The amended Regulations are designed to maintain the status quo, namely to ensure that the offences in the Regulations continue to operate in the same manner as they did before the application of the Criminal Code.
All States and the Northern Territory were informed of the nature of the amendments to the Regulations.
The amendments:
• apply Chapter 2 of the Criminal Code to offences against the Regulations
• restructure the criminal offence provision in Regulation 10 of the Regulations in order to harmonise it with Chapter 2 of the Criminal Code.
Details of the Regulations are set out in the Attachment.
The Regulations commenced on gazettal.
Attachment
Details of the Regulations are as follows:
Regulation 1 - Name of Regulations
This Regulation provides that these Regulations are the Offshore Minerals (Data Lodgment and Reporting) Amendment Regulations 2001 (No. 1).
Regulation 2 - Commencement
This Regulation provides that the Regulations take effect from the date of gazettal.
Regulation 3 - Amendment of Offshore Minerals (Data Lodgment and Reporting) Regulations
This Regulation provides that Schedule 1 amends the Offshore Minerals (Data Lodgment and Reporting) Regulations.
Schedule 1 Amendments
Item [1] - Regulation 1
This item provides that the name of the Regulations is Offshore Minerals (Data Lodgment and Reporting) Regulations 1996. it brings the title of the Regulations into line with modem citation practice that includes the year in the short title.
Item [2] - After Regulation 3
Regulation 3A permits the application of Chapter 2 of the Criminal Code to offences contained in the Regulations prior to 15 December 2001. The item also inserts a standard note after the section drawing attention to the provisions of Chapter 2 of the Criminal Code relating to general principles of criminal responsibility.
Item [3] - Regulation 10
This item substitutes the previous Regulation 10 with new subregulations 10(1) and 10(2). Regulation 10 was reconstructed so that, following the application of the Criminal Code, it continues to operate in the same manner.
Regulation 10 of the Regulations
Regulation 10 provides that a licence holder must not, without reasonable excuse, knowingly give to a Designated Authority an exploration report, or information under regulation 5, that is significantly false or misleading. Regulation 10 therefore uses the fault element of knowledge ("knowingly") in relation to the physical element of conduct of "give to Designated Authority".
Proposed amendments of Regulation 10 and their basis
Following application of the Criminal Code, the fault element of knowledge will be restricted to physical elements of circumstance or result, and 'intention' will be the sole Criminal Code fault element that can be applied to a physical element of conduct: (sections 5.2 and 5.3 of the Criminal Code refer).
Accordingly, this item deletes "knowingly" in its application to the physical element of conduct in Regulation 10. In the reconstruction of Regulation 10, a fault element is not specified in relation to the physical element of conduct of "gives an exploration report, ..., to a Designated Authority" in new subregulation 10(1)(b) as the default fault element of 'intention' automatically applies to this physical element of conduct (subsection 5.6(1) of the Criminal Code refers).
The issue of the physical element of conduct concerning a person giving information to a Designated Authority under Regulation 5 is dealt with below in relation to subregulation 10(2).
The earlier Regulation 10 contained a physical element of circumstance, namely that the report is "...significantly false or misleading." As it is intended that a fault element of 'knowingly" should be retained for the physical element of circumstance, the fault element of "knowledge" has been preserved in relation to the physical element of circumstance in the new subregulation 10(1)(c).
As part of the reconstruction of Regulation 10, the defence of reasonable excuse has been separated from the elements of the offence. This is to make clear that the defence is not to be interpreted as being a part of the elements of the offence. Regulation 10 contains a standard note about proof of criminal responsibility. The note provides that a defendant bears an evidential burden in relation to the defence of reasonable excuse, and refers to subsection 13.3 of the Criminal Code. An evidential burden means that the defendant has to adduce or point to the evidence that suggests a reasonable possibility that the matter exists or does not exist. If the defendant is able to do this, the prosecution is required to prove beyond reasonable doubt that there was no such reasonable excuse. The reconstruction of Regulation 10 and the insertion of the note concerning the defendant's evidential burden of proof in relation to whether he or she has a reasonable excuse makes clear that the defence is not to be interpreted as being part of the elements of the offence.
The penalty of 10 penalty units in the previous Regulation 10 is maintained in Regulation 10(1). (A penalty unit is currently $110: see section 4AA of the Crimes Act 1914).
This item also inserts a new subregulation 10(2) which provides that for an offence against subregulation (1), strict liability will apply to the physical element that the information is information under Regulation 5. This is because it would be difficult for the prosecution to establish that a defendant knew of Regulation 5 and it would be contrary to the general rule that ignorance of the law is no excuse.
This physical element is an appropriate candidate for the application of strict liability because in most applicable instances the person concerned will not possess any fault element concerning this part of the physical element of conduct referred to in Regulation 10 of the Regulations, (ie the defendant gave the Designated Authority information under regulation 5 of the Regulations), and accordingly the offence would become almost unenforceable if the prosecution were obliged to demonstrate fault. Further, the person's degree of culpability under this offence is not materially affected by the absence of the subject fault.
Where strict liability applies to an element of an offence or the complete offence, there is a defence of mistake of fact under section 9.2 of the Criminal Code. Section 9.2 provides that the person is not criminally responsible for an offence of this nature if at, or before the time of the conduct, the person considered whether or not a relevant fact existed and is under a mistaken but reasonable belief about that fact and, had that fact existed, the conduct would not constitute an offence. This would cover the situation where the defendant made a mistake about some matter of fact. If there is a mistake of fact, the evidential burden of proof is on the defence. An evidential burden means that the defendant has to adduce or point to the evidence that suggests a reasonable possibility that the matter exists or does not exist. If the defendant is able to do this, the prosecution is required to prove beyond reasonable doubt that there was no such mistake of fact. The defence of mistake of fact would be available to the defendant, as this provision should not operate so as to criminalise the conduct of persons who made a reasonable mistake of fact in relation to the identified physical element of conduct. Accordingly specifying strict liability to that element of the offence is the appropriate action.
The standard note referring to section 6.1 of the Criminal Code, which governs strict liability, is also added after this provision. Strict liability is defined in section 6.1 of the Criminal Code and provides that where an offence is intended to be one of strict liability, then it should be identified as such in the statute.