Commonwealth of Australia Explanatory Memoranda Commonwealth of Australia Explanatory Memoranda[Index] [Search] [Download] [Bill] [Help]
2004-2005-2006
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF REPRESENTATIVES
ANTI-MONEY LAUNDERING AND COUNTER-TERRORISM
FINANCING BILL 2006
CORRECTION TO THE
REPLACEMENT EXPLANATORY MEMORANDUM
(Circulated by authority of the Minister for Justice and Customs,
Senator the Honourable Chris Ellison)
The following changes provide additional reasons for the application of strict and
absolute liability to offences, and elements of offences within the Bill. Changes also
provide additional justification for the abrogation of the privilege against
self-incrimination in certain provisions within the Bill.
At page 93, clause 53, after paragraph 3 insert:
Strict liability is provided because paragraph 53(1)(c) involves a knowledge of law
issue. This is one of the justifications indicated in the Report 6/2002 of the Senate
Standing Committee for the Scrutiny of Bills: Application of Absolute and Strict
Liability Offences in Commonwealth Legislation at 285:
strict liability may be appropriate to overcome the `knowledge of law' problem, where a
physical element of the offence expressly incorporates a reference to a legislative provision;
in such cases the defence of mistake of fact should apply
The defence of reasonable mistake of fact will still be available in relation to this
physical element.
At page 95, after the first paragraph insert:
The physical elements of the offence in sub-clause 55(1) are set out in paragraphs (a),
(b), (c) and (d). Sub-clause 55(2) provides that strict liability applies to the elements
in paragraphs 55(1)(c) and (d). This means that the prosecution will not have to
prove any fault element for the physical elements in paragraphs 55(1)(c) and (d).
Strict liability has been applied to (c) because the fault element would be difficult to
prove, as the knowledge of whether a person knew or ought to have known that a
report had been lodged under clause 53 will be solely within the defendant's
knowledge.
Strict liability has been applied to element (d) to overcome the problem of the
prosecution needing to prove that the defendant had knowledge of the clause under
which he or she was required to provide a report.
This is consistent with the justifications for strict liability indicated by Report 6/2002
of the Senate Standing Committee for the Scrutiny of Bills: Application of Absolute
and Strict Liability Offences in Commonwealth Legislation at 285:
strict liability may be appropriate to overcome the `knowledge of law' problem, where a
physical element of the offence expressly incorporates a reference to a legislative provision;
in such cases the defence of mistake of fact should apply
The defence of mistake of fact under section 9.2 of the Criminal Code is available in
relation to these elements, as stated in 6.1 of the Criminal Code.
At page 97, after the last paragraph for clause 61; and
at page 98 after the first paragraph, before `Part 5';
insert the paragraphs:
Strict liability is consistent with the regulatory nature of the offence, and is likely to
significantly enhance the effectiveness of the enforcement regime in deterring
offences. This is particularly important because compliance with this provision
ensures that notices are displayed to passengers entering or leaving Australia so that
they are put on notice regarding their obligations under Part 4.
A convicted person does not face imprisonment and the maximum fine is 50 penalty
units which is under the threshold for strict liability offences suggested by the Report
6/2002 of the Senate Standing Committee for the Scrutiny of Bills: Application of
Absolute and Strict Liability Offences in Commonwealth Legislation at 284.
The defence of mistake of fact under section 9.2 of the Criminal Code is available in
relation to the physical element, as stated in 6.1 of the Criminal Code.
At page 108, after the second line, insert a new paragraph with the following
text:
It is necessary to apply strict liability to the element of the offence in 74(2)(a) in order
to overcome a knowledge of law difficulty. This is consistent with the justifications
for strict liability indicated by Report 6/2002 of the Senate Standing Committee for
the Scrutiny of Bills: Application of Absolute and Strict Liability Offences in
Commonwealth Legislation at 285:
strict liability may be appropriate to overcome the `knowledge of law' problem, where a
physical element of the offence expressly incorporates a reference to a legislative provision;
in such cases the defence of mistake of fact should apply
At page 108, after the second full paragraph, insert a new paragraph with the
following text:
In addition to the justification provided under 74(3), strict liability is further justified
in relation to the 74(4) offence by the fact that the element for paragraph 74(4)(d)
requires that the AUSTRAC CEO had previously given a direction under clause
191(2) or accepted an undertaking under clause 197. This means that the defendant
has been put on notice to guard against the possibility of contravention.
At page 108, after the fourth full paragraph, insert a new paragraph with the
following text:
In addition to the justification provided under 74(3), strict liability is further justified
in relation to the 74(7) offence by the fact that the element in paragraph 74(6)(d)
requires that the AUSTRAC CEO had previously given a direction under sub-clause
191(2) or accepted an undertaking under clause 197. This means that the defendant
has been put on notice to guard against the possibility of contravention. Paragraph
74(6)(e) requires that this was not the first occasion that the AUSTRAC CEO had
issued such a direction or accepted such an undertaking referred to in paragraph
74(6)(e). This means that the defendant has been put on notice to guard against the
possibility of contravention on more than one occasion.
At page 108, after the sixth full paragraph, insert a new paragraph with the
following text:
In addition to the justification provided under sub-clause 74(3), strict liability is
further justified in relation to the 74(8) offence by the fact that paragraph 74(8)(d)
requires that the defendant has been previously convicted of an offence against
sub-clause (2), (4) or (6) or that an order has been made against the person under
section 19B of the Crimes Act 1914 in respect of one of these offences. This indicates
that the defendant has been previously put on notice to guard against the possibility of
contravention.
In relation to all of the above offences the defence of mistake of fact under section 9.2
of the Criminal Code is available in relation to that physical element, as stated in
section 6.1 of the Criminal Code. Also see the explanatory memorandum on
sub-clauses 74(11) and 74(12) for additional defences for criminal proceedings for an
offence against sub-clauses 74(2), (4), (6), or (8) or in civil penalty proceedings for a
contravention of sub-clause 74(1).
At page 150, before the 2nd last paragraph, insert two new paragraphs containing
the following text:
The application of absolute liability was included to overcome the knowledge of law
difficulty in relation to this element.
The application of absolute liability is consistent with a similar offence under section
137.1 of the Criminal Code.
Insert the sentence below at each of the following places:
At page 151, 2nd last paragraph, 3rd line from the end of the paragraph, after the
sentence ending `...knowledge of the defendant.'
At page 154, 2nd full paragraph under clause 140, line 10, after the sentence
ending `...provision of the designated service.'
At page 155, 2nd full paragraph, line 10, after the sentence ending `provision of
the designated service.'
The application of absolute liability was included to overcome the knowledge of law
issue in relation to this element.
Insert the paragraph below at each of the following places:
At page 171, after the last paragraph under clause 169; and
At page 186, after the last paragraph under clause 205:
This clause does not extend the immunity to derivative use because to do so would
unacceptably fetter the effective investigation and prosecution of offences under the
Bill. However, the inclusion of direct use immunity within this clause provides greater
immunity than provisions in other corporate regulation as recommended by the Joint
Standing Committee on Companies and Securities (1992) and the Review of the
Derivative Use Immunity Reforms (1997).
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