Transport and Regional Services Legislation Amendment (Application of Criminal Code) Act 2002

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Transport and Regional Services Legislation Amendment (Application of Criminal Code) Act 2002

 

No. 8, 2002

 

 

 

 

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

 

 

Contents

1 Short title...................................

2 Commencement...............................

3 Schedule(s)..................................

4 Application of amendments........................

Schedule 1—Amendments

Aircraft Noise Levy Collection Act 1995

Air Navigation Act 1920

Airports Act 1996

Civil Aviation Act 1988

 

Transport and Regional Services Legislation Amendment (Application of Criminal Code) Act 2002

No. 8, 2002

 

 

 

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

[Assented to 4 April 2002]

The Parliament of Australia enacts:

1  Short title

  This Act may be cited as the Transport and Regional Services Legislation Amendment (Application of Criminal Code) Act 2002.

2  Commencement

  This Act commences on the day after it receives the Royal Assent.

3  Schedule(s)

  Each Act that is specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Act has effect according to its terms.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


Schedule 1—Amendments

 

Aircraft Noise Levy Collection Act 1995

1  Subsection 15(4)

Omit “knowingly”.

Air Navigation Act 1920

2  Subsection 19(3)

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

3  After subsection 19(3)

Insert:

 (3A) Subsection (3) does not apply if the operator 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).

4  Subsection 19(5)

Omit “intentionally or recklessly”.

5  Subsection 20(2)

Omit “, without reasonable excuse,”.

6  After subsection 20(2)

Insert:

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

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

7  Subsection 20(2A)

Omit “intentionally or recklessly”.

8  Subsection 20(5)

Omit “, without reasonable excuse,”.

9  After subsection 20(5)

Insert:

 (5A) Subsection (5) does not apply if the operator 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).

10  Subsection 20A(2)

Omit “, without reasonable excuse,”.

11  Subsection 20A(4)

Omit “, without reasonable excuse,”.

12  Subsection 20A(9)

Omit “, without reasonable excuse,”.

13  After subsection 20A(9)

Insert:

 (9A) Subsection (2), (4) or (9) does not apply if the operator has a reasonable excuse.

Note: A defendant bears an evidential burden in relation to the matter in subsection (9A) (see subsection 13.3(3) of the Criminal Code).

14  Subsection 21B(2)

Omit “, without reasonable excuse,”.

15  After subsection 21B(2)

Insert:

 (2A) Subsection (2) does not apply if the authority 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).

16  Subsection 21C(3)

Omit “, without reasonable excuse,”.

17  After subsection 21C(3)

Insert:

 (3A) Subsection (3) does not apply if the authority 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).

18  Subsection 22(1)

Omit “intentionally or recklessly” (wherever occurring).

19  Subsection 22A(1)

Omit “intentionally or recklessly”.

20  Subsection 22A(2)

Omit “intentionally or recklessly”.

21  Subsection 22A(3)

Omit “intentionally or recklessly”.

22  Subsection 22A(6)

Omit “, without reasonable excuse,”.

23  Subsection 22A(8)

Omit “, without reasonable excuse,”.

24  Subsection 22A(12)

Omit “, without reasonable excuse,”.

25  After subsection 22A(12)

Insert:

 (12A) Subsection (6), (8) or (12) does not apply if the authority has a reasonable excuse.

Note: A defendant bears an evidential burden in relation to the matter in subsection (12A) (see subsection 13.3(3) of the Criminal Code).

26  Subsection 22B(4)

Omit “, without reasonable excuse,”.

27  After subsection 22B(4)

Insert:

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

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

28  Subsection 22C(2)

Omit “, without reasonable excuse,”.

29  Subsection 22C(4)

Omit “, without reasonable excuse,”.

30  Subsection 22C(5)

Omit “, without reasonable excuse,”.

31  Subsection 22C(7)

Omit “, without reasonable excuse,”.

32  Subsection 22C(9)

Omit “, without reasonable excuse,”.

33  After subsection 22C(11)

Insert:

 (11A) Subsection (2), (4), (5), (7) or (9) does not apply if the operator has a reasonable excuse.

Note: A defendant bears an evidential burden in relation to the matter in subsection (11A) (see subsection 13.3(3) of the Criminal Code).

34  Subsection 22D(1)

Omit “intentionally or recklessly”.

35  Subsection 22D(4)

Omit “, without reasonable excuse,”.

36  After subsection 22D(4)

Insert:

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

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

37  Subsection 22F(2)

Omit “, without reasonable excuse,”.

38  After subsection 22F(2)

Insert:

 (2A) Subsection (2) does not apply if the employee 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).

39  Subsection 22G(3)

Omit “, without reasonable excuse,”.

40  After subsection 22G(3)

Insert:

 (3A) Subsection (3) does not apply if the operator 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).

41  Subsection 22H(3)

Omit “, without reasonable excuse,”.

42  After subsection 22H(3)

Insert:

 (3A) Subsection (3) does not apply if the operator 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).

43  Subsection 22J(3)

Omit “, without reasonable excuse,”.

44  After subsection 22J(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).

45  Subsection 22L(1)

Omit “, without reasonable excuse,”.

46  After subsection 22L(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).

47  Subsection 22W(3)

Omit “, without reasonable excuse,”.

48  After subsection 22W(3)

Insert:

 (3A) Subsection (3) does not apply if the operator 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).

49  Subsection 22X(4)

Omit “, without reasonable excuse,”.

50  After subsection 22X(4)

Insert:

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

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

51  Subsection 22Y(2)

Omit “, without reasonable excuse,”.

52  After subsection 22Y(2)

Insert:

 (2A) Subsection (2) does not apply if the operator 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).

53  Subsection 22ZB(2)

Omit “, without reasonable excuse,”.

54  After subsection 22ZB(2)

Insert:

 (2A) Subsection (2) does not apply if the operator 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).

55  Subsection 22ZJ(2)

Omit “, without reasonable excuse,”.

56  After subsection 22ZJ(2)

Insert:

 (2A) Subsection (2) does not apply if the operator 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).

57  Subsection 22ZL(2)

Omit “, without reasonable excuse,”.

58  After subsection 22ZL(2)

Insert:

 (2A) Subsection (2) does not apply if the operator 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).

59  Subsection 22ZM(2)

Omit “, without reasonable excuse,”.

60  After subsection 22ZM(2)

Insert:

 (2A) Subsection (2) does not apply if the operator 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).

61  Subsection 22ZN(2)

Omit “, without reasonable excuse,”.

62  After subsection 22ZN(2)

Insert:

 (2A) Subsection (2) does not apply if the operator 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).

63  Subsection 22ZO(2)

Omit “, without reasonable excuse,”.

64  After subsection 22ZO(2)

Insert:

 (2A) Subsection (2) does not apply if the operator 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).

65  Subsection 22ZP(2)

Omit “, without reasonable excuse,”.

66  After subsection 22ZP(2)

Insert:

 (2A) Subsection (2) does not apply if the operator 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).

67  Subsection 22ZQ(3)

Omit “, without reasonable excuse,”.

68  After subsection 22ZQ(3)

Insert:

 (3A) Subsection (3) does not apply if the operator 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).

69  Subsection 22ZR(1)

Omit “intentionally or recklessly”.

70  Subsection 22ZS(9)

Omit “, without reasonable excuse,”.

71  After subsection 22ZS(9)

Insert:

 (9A) Subsection (9) does not apply if the person has a reasonable excuse.

Note: A defendant bears an evidential burden in relation to the matter in subsection (9A) (see subsection 13.3(3) of the Criminal Code).

72  Subsection 22ZV(3)

Omit “, without reasonable excuse,”.

73  After subsection 22ZV(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).

Airports Act 1996

74  Subsection 132(2)

Omit “knowingly or recklessly”.

75  After subsection 132(2)

Insert:

 (2A) Strict liability applies to the element of an offence against subsection (2) that regulations were made for the purposes of subsection (1).

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

Civil Aviation Act 1988

76  Subsections 20AA(3), (4) and (5)

Repeal the subsections (but not the penalty), substitute:

 (3) An owner, operator, hirer (not being the Crown) or pilot of an Australian aircraft must not commence a flight or permit a flight to commence if either or both of the following paragraphs apply:

 (a) a certificate of airworthiness (however called) under the regulations is not in force in respect of the aircraft and the regulations do not authorise the flight without the certificate;

 (b) a maintenance release under the regulations that covers the duration of the flight is not in force in respect of the aircraft and the regulations do not authorise the flight without the release.

77  After subsection 23(2A)

Insert:

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

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

78  Paragraph 24(1)(a)

Omit “interfere”, substitute “do any act that interferes”.

79  Subsection 24(2)

Omit “tamper”, substitute “do any act that tampers”.

80  Subsection 32AJ(2)

Omit “, without reasonable excuse,”.

81  After subsection 32AJ(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).

 

(45/02)


 

[Minister’s second reading speech made in—

House of Representatives on 20 February 2002

Senate on 14 March 2002]

 

 

Overview

The Transport and Regional Services Legislation Amendment (Application of Criminal Code) Act 2002 was enacted by the Parliament of Australia to address the need for uniformity in the application of the Criminal Code to certain offences within specified transport and regional services legislation. The Act seeks to ensure consistency and clarity in the legal framework governing these areas by aligning the relevant provisions with the Criminal Code. This legislative amendment streamlines the legal standards and enforcement mechanisms, enhancing the effectiveness of compliance and prosecution processes within the transport and regional services sectors. The Act came into effect on the day after receiving Royal Assent, thereby expediting the integration of these changes into the existing legislative landscape.

Scope and Application

The Transport and Regional Services Legislation Amendment (Application of Criminal Code) Act 2002 applies to certain aviation-related legislation, including the Aircraft Noise Levy Collection Act 1995, the Air Navigation Act 1920, the Airports Act 1996, and the Civil Aviation Act 1988. This Act amends these specified Acts by applying the Criminal Code to certain offences within their purview. The amendments affect entities and persons involved in aviation operations, such as aircraft operators, pilots, and regulatory authorities. The jurisdictional reach of this Act is Commonwealth, given its application to federal legislation. The Act does not explicitly state any exclusions or exemptions but modifies the liability standards for certain offences, generally aligning them with the principles outlined in the Criminal Code. The application of these amendments is retroactive to acts and omissions occurring after the commencement of the Act, while any acts or omissions that occurred before the Act's commencement are deemed to have occurred before the amendment. The Act itself does not extend or restrict its application through subordinate instruments but relies on the specified amendments to the listed Acts to implement its changes.

Key Provisions

The Transport and Regional Services Legislation Amendment (Application of Criminal Code) Act 2002 (Act) primarily seeks to amend various transport-related Acts by applying the Criminal Code to certain offences and modifying the mens rea requirements for specific provisions. The Act specifically amends the Aircraft Noise Levy Collection Act 1995, Air Navigation Act 1920, Airports Act 1996, and Civil Aviation Act 1988. The amendments focus on modifying the mens rea elements in various subsections of these Acts, generally removing the terms "knowingly" or "intentionally" and introducing provisions that excuse an act if the operator or relevant authority has a reasonable excuse. Additionally, the Act introduces strict liability for certain offences, particularly in the Civil Aviation Act 1988. The obligations imposed on parties governed by the Act include adhering to the modified provisions concerning mens rea and strict liability as stipulated in the amended Acts. Operators, authorities, and other relevant persons must ensure compliance with the new legal standards, which often require them to demonstrate that they had a reasonable excuse for their actions when necessary. These changes necessitate a heightened awareness of the legal requirements and a proactive approach to mitigating risks associated with non-compliance. Breaches of the amended provisions may result in both civil and criminal consequences, depending on the specific offence and the jurisdiction. For instance, in the Civil Aviation Act 1988, commencing a flight without the necessary certificates or releases is an offence of strict liability, meaning the operator or other relevant person can be convicted regardless of their intent or knowledge. The penalties for such breaches can be substantial, although the exact penalties are not detailed within the Act itself and would be defined under the respective Acts being amended. Generally, penalties for aviation-related offences can include fines and, in severe cases, imprisonment. The precise penalties would be determined based on the specific offence and the applicable provisions of the Criminal Code and other relevant legislation.

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