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Legislative changes - Explanatory statementStatutory Rules 2002 No. 268

Explanatory statement
Statutory Rules 2002 No. 268

Civil Aviation Act 1988
Civil Aviation Legislation Amendment (Application of Criminal Code) Regulations 2002 (No. 1) (193K Adobe Acrobat file)
Attachment - Details of the amending regulations (255K Adobe Acrobat file)

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

Explanatory Statement

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 Regulations ensure that the existing offence provisions in the Civil Aviation Regulations 1998 and the Civil Aviation (Buildings Control) Regulations 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 strict liability a fault element can only be dispensed with in relation to the offence (or in relation to a particular element of the offence) if the offence specifies that it is an offence of strict liability (or that a particular element is a strict liability element). Offences of strict liability are offences where proof of a fault element is not required. The defence of mistake of fact is available for a strict liability 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 an offence provision 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 1998 and the Civil Aviation (Buildings Control) Regulations.

The Regulations, where necessary to:

  • clarify the physical elements of an offence;
  • clarify the fault elements of an offence (especially where the fault elements vary from those specified by the Criminal Code);
  • separate defences from offences and identify the evidential burden in relation to the defence;
  • specify that an offence is one of strict liability;
  • repeal provisions so as to allow the application of section 5.3 of the Criminal Code which relates to a knowledge of circumstances or results;
  • repeal offence provisions that duplicate general provisions in the Criminal Code;
  • give effect to current drafting protocols, and introduce numbering for the provisions;
  • place the applicable penalty after each offence provision; and
  • update pecuniary penalties by converting them to penalty units.

The Criminal Code harmonisation process has received prior approval of the Office of Regulation Review (ORR). Further, the ORR has determined that, in respect of those proposed incidental amendments that are beyond the harmonisation process, they 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 commence on gazettal.