Legislative changes - Explanatory statementStatutory Rules 2003, No 201
Statutory Rules 2003, No 201
Issued by the authority of the Minister for Transport and Regional Services
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.
- 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 stat201attach.pdf.
The Regulations commenced on gazettal.