Ordinances Amendment (Application of Criminal Code) Ordinance 2002 (No. 1) (HIMI)

Administered by Department of the Environment and Energy

Legislation au F2008B00477 Not in force Legislative Instrument

Legislation content

Territory of Heard Island AND McDonald Islands

Ordinances Amendment (Application of Criminal Code) Ordinance 2002 (No. 1)1

No. 1 of 20022

I, PETER JOHN HOLLINGWORTH, Governor-General of the Commonwealth of Australia, acting with the advice of the Federal Executive Council, make the following Ordinance under the Heard Island and McDonald Islands Act 1953.

Dated 14 February 2002

PETER HOLLINGWORTH

Governor-General

By His Excellency’s Command

DAVID KEMP

Minister for the Environment and Heritage

Contents

 1 Name of Ordinance 

 2 Commencement 

 3 Amendment of Criminal Procedure Ordinance 1993

 4 Amendment of Environment Protection and Management Ordinance 1987

 5 Amendment of Weapons Ordinance 2001

Schedule 1 Amendments of Criminal Procedure Ordinance 1993

Schedule 2 Amendments of Environment Protection and Management Ordinance 1987

Schedule 3 Amendment of Weapons Ordinance 2001

 

 

 

An Ordinance to amend various Ordinances to enable the application of the Criminal Code

1 Name of Ordinance

  This Ordinance is the Ordinances Amendment (Application of Criminal Code) Ordinance 2002 (No. 1).

2 Commencement

  This Ordinance commences on gazettal.

3 Amendment of Criminal Procedure Ordinance 1993

  Schedule 1 amends the Criminal Procedure Ordinance 1993.

4 Amendment of Environment Protection and Management Ordinance 1987

  Schedule 2 amends the Environment Protection and Management Ordinance 1987.

5 Amendment of Weapons Ordinance 2001

  Schedule 3 amends the Weapons Ordinance 2001.

Schedule 1 Amendments of Criminal Procedure Ordinance 1993

(section 3)

 

[1] After section 4

insert

4A Application of the Criminal Code

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

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

[2] Subsection 5 (2)

omit

without reasonable excuse,

insert

unless he or she has a reasonable excuse,

[3] After subsection 5 (2), including the penalty

insert

 (3) An offence under subsection (2) is an offence of strict liability.

Note 1   For strict liability, see section 6.1 of the Criminal Code.

Note 2   A defendant bears an evidential burden in relation to whether or not he or she had a reasonable excuse (see section 13.3 of the Criminal Code).

[4] Subsection 21 (5)

substitute

 (5) A person must not fail to give effect to a requirement of a special constable under subsection (2), unless he or she has a reasonable excuse.

Penalty:   10 penalty units.

 (6) An offence under subsection (5) is an offence of strict liability.

Note 1   For strict liability, see section 6.1 of the Criminal Code.

Note 2   A defendant bears an evidential burden in relation to whether or not he or she had a reasonable excuse (see section 13.3 of the Criminal Code).

[5] Paragraph 50 (2) (a)

omit

refuse or

[6] After subsection 50 (2), including the penalty

insert

 (3) An offence under subsection (2) is an offence of strict liability.

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

[7] Section 51

omit

Schedule 2 Amendments of Environment Protection and Management Ordinance 1987

(section 4)

 

[1] Section 4, definition of take, paragraph (a)

omit

, trap or kill;

insert

or trap;

[2] After section 5

insert

5A Application of the Criminal Code

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

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

[3] Subsection 12 (1)

omit

knowingly or recklessly

[4] Paragraph 12 (1) (a)

omit

$10,000

insert

100 penalty units

[5] Paragraph 12 (1) (b)

omit

$50,000.

insert

500 penalty units.

[6] Subsection 12 (2), at the foot

insert

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

[7] Section 13

omit

knowingly or recklessly

[8] Paragraph 13 (c)

omit

$10,000

insert

100 penalty units

[9] Paragraph 13 (d)

omit

$50,000.

insert

500 penalty units.

[10] Subsection 14 (1)

substitute

 (1) Subject to subsection (2), a person must not:

 (a) bring any organism into the Territory; or

 (b) bring any dead poultry or poultry products into the Territory; or

 (c) take any organism in the Territory; or

 (d) engage in conduct that results in death or injury to, or interference with, any organism in the Territory; or

 (e) remove from the Territory any organism indigenous to the Territory; or

 (f) land an aircraft, drive a vehicle or sail a vessel in the Territory; or

 (g) leave any equipment, material or refuse in the Territory; or

 (h) remove any soil or other geological matter from the Territory; or

 (i) introduce any soil or other geological matter to the Territory; or

 (j) engage in conduct that results in interference to any soil or other geological matter in the Territory; or

 (k) collect any material in the Territory; or

 (l) engage in conduct that results in a living organism that has been introduced into the Territory escaping in the Territory; or

 (m) engage in conduct that results in interference to any buildings, historical relics, equipment, supplies or survey markers in the Territory; or

 (n) engage in conduct that results in interference to the conduct of a scientific experiment that is the subject of a permit in the Territory.

Penalty:   

 (a) in the case of an individual — 100 penalty units or imprisonment for 5 years, or both; or

 (b) in the case of a body corporate — 500 penalty units.

[11] Subsection 14 (2), at the foot

insert

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

[12] Paragraph 16 (1) (a)

after

taken

insert

or killed

[13] Section 18

substitute

 18 Contravening conditions of permits

   A person who holds a permit must not engage in conduct               that contravenes a provision of the permit.

 Penalty:   

  (a) in the case of an individual — 50 penalty units or                             imprisonment for 2 years, or both; or

  (b) in the case of a body corporate — 250 penalty                             units.

[14] Section 21

substitute

21 Return of inspectors’ identity cards

 (1) If a person:

 (a) has been issued with an identity card under subsection 20 (3); and

 (b) ceases to be an inspector;

the person must immediately return the identity card to the Minister.

Penalty:   2 penalty units.

 (2) An offence under subsection (1) is an offence of strict liability.

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

[15] Subparagraph 25 (3) (a) (i)

omit

$2,000

insert

20 penalty units

[16] Subparagraph 25 (3) (a) (ii)

omit

$10,000;

insert

100 penalty units;

[17] Subparagraph 25 (3) (b) (i)

omit

$1,000

insert

10 penalty units

[18] Subparagraph 25 (3) (b) (ii)

omit

$5,000.

insert

50 penalty units.


Schedule 3 Amendment of Weapons Ordinance 2001

(section 5)

 

[1] After section 5

insert

5A Application of the Criminal Code

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

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

Notes

1. This Ordinance amends (in Schedule 1) Ordinance No. 2, 1993.

 This Ordinance also amends (in Schedule 2) Ordinance No. 1, 1987, as amended by No. 1, 1990.

 This Ordinance also amends (in Schedule 3) Ordinance No. 1, 2001.

2. Notified in the Commonwealth of Australia Gazette on 21 February 2002.

 

 

Overview

The Territory of Heard Island and McDonald Islands Ordinances Amendment (Application of Criminal Code) Ordinance 2002 (No. 1) was enacted to amend various ordinances on the Territory to enable the application of the Criminal Code. This legislative instrument was made by the Governor-General, acting with the advice of the Federal Executive Council, under the Heard Island and McDonald Islands Act 1953. The primary problem it addresses is the need to align the criminal law framework of the Territory with the broader principles set out in the Criminal Code, ensuring consistency and clarity in the enforcement of criminal laws in the Territory. The policy objective is to provide a unified and comprehensive legal framework for criminal responsibility, penalties, and enforcement mechanisms on the Territory, thereby protecting its unique environment and scientific research activities.

Scope and Application

The Territory of Heard Island and McDonald Islands Ordinances Amendment (Application of Criminal Code) Ordinance 2002 (No. 1) applies to the territories of Heard Island and McDonald Islands, aiming to ensure consistency in the enforcement of criminal law within these territories. This legislative instrument extends the application of Chapter 2 of the Criminal Code to various existing ordinances, thereby incorporating general principles of criminal responsibility and strict liability for certain offences. The amendment applies to all individuals and entities present within or conducting activities in these territories, as well as to any conduct or transactions occurring within their jurisdictional reach. This includes the amendment of the Criminal Procedure Ordinance 1993, the Environment Protection and Management Ordinance 1987, and the Weapons Ordinance 2001, each modified to align with the provisions of the Criminal Code. There are no explicit exclusions or exemptions mentioned in the text, suggesting that the application of the Criminal Code is broad and intended to cover most activities within these territories. The Ordinance's scope is further extended through subordinate instruments, which may provide additional rules and definitions to clarify the application of the Criminal Code within these territories.

Key Provisions

The main operative sections of the Territory of Heard Island and McDonald Islands Ordinances Amendment (Application of Criminal Code) Ordinance 2002 (No. 1) include the amendments to the Criminal Procedure Ordinance 1993, the Environment Protection and Management Ordinance 1987, and the Weapons Ordinance 2001. These amendments are aimed at ensuring the application of the Criminal Code to offences under these Ordinances. Specifically, Schedule 1 amends the Criminal Procedure Ordinance 1993 to include the application of Chapter 2 of the Criminal Code, which outlines the general principles of criminal responsibility, and modifies certain provisions to reflect strict liability offences and the burden of proof. Schedule 2 revises the Environment Protection and Management Ordinance 1987 to similarly incorporate the Criminal Code and redefines penalties in terms of penalty units. It also introduces new prohibitions and offences related to the protection of the environment and management of activities within the Territory. Schedule 3 amends the Weapons Ordinance 2001 to apply the Criminal Code, and adjusts the fines associated with violations in penalty units. The Ordinance imposes several obligations and requirements on parties and entities governed by it. These include the requirement to comply with the provisions of permits issued under the Environment Protection and Management Ordinance 1987, to refrain from engaging in activities that interfere with the environment or protected species, and to return identity cards issued to inspectors upon ceasing to hold that position. Individuals and corporate bodies must also ensure compliance with the amended provisions, particularly those related to strict liability offences where a reasonable excuse must be demonstrated. Inspectors, under the amended Ordinance, have the duty to enforce compliance and may take action against violators. Breaches of the amended Ordinances can lead to both civil and criminal consequences. Under the Criminal Code, strict liability offences mean that the prosecution does not need to prove intent, but the defendant must prove a reasonable excuse. Penalties for such offences can include fines up to 500 penalty units for individuals and 250 penalty units for corporate bodies, as well as potential imprisonment. For example, under the Environment Protection and Management Ordinance 1987, individuals can face up to 100 penalty units or imprisonment for five years, or both, for various environmental protection offences. Corporate bodies face higher fines, up to 500 penalty units. Additionally, failing to return an inspector's identity card carries a penalty of 2 penalty units. These provisions ensure that violators are held accountable and that the environmental and procedural regulations are enforced effectively within the Territory.

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