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This is a Bill, not an Act. For current law, see the Acts databases.
1998-1999-2000-2001
The
Parliament of the
Commonwealth of
Australia
HOUSE OF
REPRESENTATIVES
Presented and read a first
time
Migration
Legislation Amendment (Application of Criminal Code) Bill
2001
No. ,
2001
(Immigration and Multicultural
Affairs)
A Bill for an Act to amend the law
relating to migration, and for related purposes
ISBN: 0642 468672
Contents
A Bill for an Act to amend the law relating to migration,
and for related purposes
The Parliament of Australia enacts:
This Act may be cited as the Migration Legislation Amendment
(Application of Criminal Code) Act 2001.
(1) Subject to this section, this Act commences on the latest of the
following days:
(a) the 28th day after the day on which this Act receives the Royal
Assent;
(b) the 28th day after the day on which the Law and Justice Legislation
Amendment (Application of Criminal Code) Act 2001 receives the Royal
Assent.
(2) If the Migration Legislation Amendment (Immigration Detainees) Act
2001 commences before this Act, item 98 of Schedule 1 does not
commence.
Subject to section 2, 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Schedule to this Act is amended or repealed as set out in the applicable items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.
(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.
1 After section 4
Insert:
Chapter 2 of the Criminal Code (except Part 2.5) applies
to all offences against this Act.
Note: Chapter 2 of the Criminal Code sets out
the general principles of criminal responsibility.
2 Subsection 5(1) (definition of offence
against this Act)
Repeal the definition, substitute:
offence against this Act includes:
(a) an offence against section 6 of the Crimes Act 1914 that
relates to an offence against a provision of this Act; and
(b) an ancillary offence (within the meaning of the Criminal Code)
that is, or relates to, an offence against a provision of this Act.
3 Subsection 21(1)
Omit “, without reasonable excuse,”.
4 Subsection 21(1)
Omit “to the extent that the person is capable of complying with
it”.
5 After subsection 21(1)
Insert:
(1A) Subsection (1) does not apply:
(a) to the extent that the person is not capable of complying with the
notice; or
(b) if the person has a reasonable excuse.
Note: A defendant bears an evidential burden in relation to
the matters in subsection (1A) (see subsection 13.3(3) of the Criminal
Code).
6 After subsection 21(2) (before the
penalty)
Insert:
(3) An offence against subsection (1) is an offence of strict
liability.
Note: For strict liability, see
section 6.1 of the Criminal Code.
7 Subsection 137(7)
Omit “, without reasonable excuse,”.
8 After subsection 137(7)
Insert:
(7A) Subsection (7) does not apply if the person has a reasonable
excuse.
Note: A defendant bears an evidential burden in relation to
the matter in subsection (7A) (see subsection 13.3(3) of the Criminal
Code).
(7B) An offence against subsection (7) is an offence of strict
liability.
Note: For strict liability, see
section 6.1 of the Criminal Code.
9 At the end of subparagraph
203(1)(c)(i)
Add “or”.
10 Subparagraph
203(1)(c)(ii)
Repeal the subparagraph, substitute:
(ii) an offence against section 6 of that Act that relates to an
offence mentioned in subparagraph (i) of this paragraph; or
(iia) an offence against section 11.1 or 11.5 of the Criminal
Code that relates to an offence mentioned in subparagraph (i) of this
paragraph; or
11 At the end of
section 217
Add:
(3) An offence against subsection (2) is an offence of strict
liability.
Note: For strict liability, see
section 6.1 of the Criminal Code.
12 At the end of
section 218
Add:
(3) An offence against subsection (2) is an offence of strict
liability.
Note: For strict liability, see
section 6.1 of the Criminal Code.
13 Section 219
After “against section”, insert “217 or”.
14 At the end of
section 219
Add:
Note: A defendant bears a legal burden in relation to the
matters in this section (see section 13.4 of the Criminal
Code).
15 Subsection 222(8)
Omit “, without reasonable excuse,”.
16 After subsection 222(8)
Insert:
(8A) Subsection (8) does not apply if the person has a reasonable
excuse.
Note: A defendant bears an evidential burden in relation to
the matter in subsection (8A) (see subsection 13.3(3) of the Criminal
Code).
17 After subsection 223(7)
Insert:
(7A) An offence against subsection (7) is an offence of strict
liability.
Note: For strict liability, see
section 6.1 of the Criminal Code.
18 Subsection 223(8)
(penalty)
Omit “By imprisonment”, substitute
“Imprisonment”.
19 Subsection 225(5)
Omit “, without reasonable excuse,”.
20 At the end of
section 225
Add:
(6) Subsection (5) does not apply if the person has a reasonable
excuse.
Note: A defendant bears an evidential burden in relation to
the matter in subsection (6) (see subsection 13.3(3) of the Criminal
Code).
(7) An offence against subsection (5) is an offence of strict
liability.
Note: For strict liability, see
section 6.1 of the Criminal Code.
21 Subsection 226(5)
Omit “, without reasonable excuse,”.
22 At the end of
section 226
Add:
(6) Subsection (5) does not apply if the person has a reasonable
excuse.
Note: A defendant bears an evidential burden in relation to
the matter in subsection (6) (see subsection 13.3(3) of the Criminal
Code).
(7) An offence against subsection (5) is an offence of strict
liability.
Note: For strict liability, see
section 6.1 of the Criminal Code.
23 Subsection 227(5)
Omit “, without reasonable excuse,”.
24 At the end of
section 227
Add:
(6) Subsection (5) does not apply if the person has a reasonable
excuse.
Note: A defendant bears an evidential burden in relation to
the matter in subsection (6) (see subsection 13.3(3) of the Criminal
Code).
(7) An offence against subsection (5) is an offence of strict
liability.
Note: For strict liability, see
section 6.1 of the Criminal Code.
25 At the end of
section 228
Add:
(2) An offence against subsection (1) is an offence of strict
liability.
Note: For strict liability, see
section 6.1 of the Criminal Code.
26 After subsection 229(2)
Insert:
(3) An offence against subsection (1) is an offence of absolute
liability.
Note: For absolute liability, see
section 6.2 of the Criminal Code.
27 At the end of
section 229
Add:
(6) A defendant bears a legal burden in relation to the matters in
subsection (5).
28 After subsection 230(1A)
Insert:
(1B) An offence against subsection (1) or (1A) is an offence of
strict liability.
Note: For strict liability, see
section 6.1 of the Criminal Code.
29 At the end of subsection
230(2)
Add:
Note: A defendant bears an evidential burden in relation to
the matters in subsection (2) (see subsection 13.3(3) of the Criminal
Code).
30 At the end of subsection
230(2A)
Add:
Note: A defendant bears an evidential burden in relation to
the matters in subsection (2A) (see subsection 13.3(3) of the Criminal
Code).
31 After subsection 232(1)
Insert:
(1A) An offence against subsection (1) is an offence of absolute
liability.
Note: For absolute liability, see
section 6.2 of the Criminal Code.
32 At the end of
section 232
Add:
(3) A defendant bears a legal burden in relation to the matters in
subsection (2).
33 Subsection 233(2)
Repeal the subsection, substitute:
(2) A person is guilty of an offence if:
(a) the person harbours another person; and
(b) the other person is an unlawful non-citizen, a removee or a
deportee.
34 At the end of subsection
235(4A)
Add:
Note: A defendant bears an evidential burden in relation to
the matters in subsection (4A) (see subsection 13.3(3) of the Criminal
Code).
35 After subsection 235(4A)
Insert:
(4B) An offence against subsection (1), (3) or (4) is an offence of
strict liability.
Note: For strict liability, see
section 6.1 of the Criminal Code.
36 Section 236
Repeal the section, substitute:
(1) A person is guilty of an offence if:
(a) the person uses a visa with the intention of:
(i) travelling to Australia; or
(ii) remaining in Australia; or
(iii) identifying himself or herself; and
(b) the visa is a visa that was granted to another person.
Penalty: Imprisonment for 10 years or 1,000 penalty units, or
both.
(2) A person is guilty of an offence if:
(a) the person has a visa in his or her possession or under his or her
control; and
(b) the visa is a visa that was not granted to the person.
Penalty: Imprisonment for 10 years or 1,000 penalty units, or
both.
(3) 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 (3) (see subsection 13.3(3) of the Criminal
Code).
(4) The fault element for paragraph (2)(a) is intention.
Note: Section 5.2 of the Criminal Code defines
intention.
37 Subsection 240(1)
Omit “for the purpose”, substitute “with the
intention”.
38 Subsection 240(2)
Omit “purpose”, substitute “intention”.
39 At the end of subsection
240(3)
Add:
Note: A defendant bears a legal burden in relation to the
matter in subsection (3) (see section 13.4 of the Criminal
Code).
40 Subsection 241(1)
Omit “for the purpose of assisting”, substitute “with the
intention of assisting”.
41 Subsection 241(2)
Omit “purpose”, substitute “intention”.
42 Subsection 242(1)
Omit “for the purpose”, substitute “with the
intention”.
43 Subsection 242(2)
Omit “purpose”, substitute “intention”.
44 Subsection 245(1)
Omit all the words after paragraph (c) and before the penalty,
substitute:
if:
(d) the person knows that the statement or information is false or
misleading in a material particular; and
(e) the statement is made, or the information is given, in a document that
describes, and shows the penalty for, an offence against this
subsection.
45 Subsection 245(2)
Repeal the subsection.
46 At the end of subsection 245(3) (before the
penalty)
Add:
; and (f) the statement is made, or the information is given, in a
document that describes, and shows the penalty for, an offence against this
subsection.
47 Subsection 245(4)
Repeal the subsection.
48 Subsection 245B(10)
Omit “unless he or she has a reasonable excuse”.
49 At the end of
section 245B
Add:
(11) Subsection (10) does not apply if the master has a reasonable
excuse.
Note: A defendant bears an evidential burden in relation to
the matter in subsection (11) (see subsection 13.3(3) of the Criminal
Code).
50 Subsection 245E(6)
Omit “unless he or she has a reasonable excuse”.
51 At the end of
section 245E
Add:
(7) Subsection (6) does not apply if the pilot has a reasonable
excuse.
Note: A defendant bears an evidential burden in relation to
the matter in subsection (7) (see subsection 13.3(3) of the Criminal
Code).
52 Subsection 245F(15)
Omit “, without reasonable excuse,”.
53 After subsection
245F(15)
Insert:
(15A) Subsection (15) does not apply if the person has a reasonable
excuse.
Note: A defendant bears an evidential burden in relation to
the matter in subsection (15A) (see subsection 13.3(3) of the Criminal
Code).
(15B) An offence against subsection (15) is an offence of strict
liability.
Note: For strict liability, see
section 6.1 of the Criminal Code.
54 Subsection 247(1)
Omit “unless from stress of weather or other reasonable
cause”.
55 Paragraph 247(2)(b)
Omit “, except for the purpose of leaving that
port,”.
56 After subsection 247(2)
Insert:
(2A) Subsection (2) does not apply if the master moves the vessel
from the boarding station with the intention of leaving the port.
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 247(5)
Omit “a provision of subsection (3)”, substitute
“subsection (1), (3)”.
58 Subsection 247(5)
Omit “provision by”, substitute “subsection
by”.
59 At the end of subsection
247(5)
Add:
Note: A defendant bears a legal burden in relation to the
matters in subsection (5) (see section 13.4 of the Criminal
Code).
60 After subsection 247(5)
Insert:
(5A) An offence against any of subsections (1) to (4) is an offence
of strict liability.
Note: For strict liability, see
section 6.1 of the Criminal Code.
61 At the end of
section 247
Add:
(8) An offence against subsection (7) is an offence of strict
liability.
Note: For strict liability, see
section 6.1 of the Criminal Code.
62 After subsection 251(2)
Insert:
(2A) An offence against subsection (2) is an offence of strict
liability.
Note: For strict liability, see
section 6.1 of the Criminal Code.
63 After subsection 257(2)
Insert:
(2A) An offence against subsection (2) is an offence of strict
liability.
Note: For strict liability, see
section 6.1 of the Criminal Code.
64 At the end of
section 259
Add:
(3) An offence against subsection (2) is an offence of strict
liability.
Note: For strict liability, see
section 6.1 of the Criminal Code.
65 Section 268AC
Repeal the section.
66 Subsection 268BH(1)
(note)
Repeal the note.
67 At the end of
section 268BH
Add:
(3) An offence against subsection (1) is an offence of strict
liability.
Note: For strict liability, see
section 6.1 of the Criminal Code.
68 Section 268BI
(note)
Repeal the note.
69 Subsections 268BJ(1) and 268CL(1)
(notes)
Repeal the notes.
70 At the end of
section 268CL
Add:
(3) An offence against subsection (1) is an offence of strict
liability.
Note: For strict liability, see
section 6.1 of the Criminal Code.
71 Section 268CM
(note)
Repeal the note.
72 Subsection 268CN(1)
(note)
Repeal the note.
73 Subsection 268CV(2) (notes 1 and
2)
Repeal the notes.
74 Subsection 268CZA(2) (notes 1 and
2)
Repeal the notes.
75 Section 279A
Repeal the section.
76 Subsection 280(1) (note)
Repeal the note.
77 After subsection 280(1)
Insert:
(1A) An offence against subsection (1) is an offence of strict
liability.
Note: For strict liability, see
section 6.1 of the Criminal Code.
78 Subsections 281(1) and (2), 282(1) and (2),
283(2), 284(1) and 285(1) (notes)
Repeal the notes.
79 Section 306H (note)
Repeal the note.
80 At the end of
section 306H
Add:
(2) An offence against subsection (1) is an offence of strict
liability.
Note: For strict liability, see
section 6.1 of the Criminal Code.
81 Section 312 (note)
Repeal the note.
82 At the end of
section 312
Add:
(2) An offence against subsection (1) is an offence of strict
liability.
Note: For strict liability, see
section 6.1 of the Criminal Code.
83 Section 334
Repeal the section, substitute:
(1) A person is guilty of an offence if:
(a) the person makes a statement; and
(b) the statement is about:
(i) the person’s ability or power; or
(ii) another person’s ability or power;
to induce or influence the making of decisions, or of a particular
decision, under this Act; and
(c) the statement is false or misleading.
(2) A person is guilty of an offence if:
(a) the person makes a statement; and
(b) the statement is about the effect of:
(i) the person’s actions; or
(ii) another person’s actions;
on the making of a decision under this Act; and
(c) the statement is false or misleading.
Penalty: Imprisonment for 2 years.
84 Subsection 370(1)
Omit “, without reasonable excuse”.
85 After subsection 370(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).
(1B) An offence against subsection (1) is an offence of strict
liability.
Note: For strict liability, see
section 6.1 of the Criminal Code.
86 Subsection 371(1)
Omit “, without reasonable excuse”.
87 After subsection 371(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).
88 Subsection 371(2)
Omit “, without reasonable excuse,”.
89 After subsection 371(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).
(2B) An offence against subsection (1) or (2) is an offence of strict
liability.
Note: For strict liability, see
section 6.1 of the Criminal Code.
90 Subsection 371(3)
Omit “knowingly”, substitute
“intentionally”.
91 Subsection 432(1)
Omit “, without reasonable excuse”.
92 After subsection 432(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).
(1B) An offence against subsection (1) is an offence of strict
liability.
Note: For strict liability, see
section 6.1 of the Criminal Code.
93 Subsection 433(1)
Omit “, without reasonable excuse”.
94 After subsection 433(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).
95 Subsection 433(2)
Omit “, without reasonable excuse,”.
96 After subsection 433(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).
(2B) An offence against subsection (1) or (2) is an offence of strict
liability.
Note: For strict liability, see
section 6.1 of the Criminal Code.
97 Subsection 433(3)
Omit “knowingly”, substitute
“intentionally”.
98 Subsection 491(1)
Omit “or attempt to escape”.
99 Subsection 493(9)
Repeal the subsection.
1 After section 2
Insert:
Chapter 2 of the Criminal Code applies to all offences
against this Act.
Note: Chapter 2 of the Criminal Code sets out
the general principles of criminal responsibility.
2 Section 49
Omit “, without lawful authority,”.
1 After section 2
Insert:
Chapter 2 of the Criminal Code applies to all offences
against this Act.
Note: Chapter 2 of the Criminal Code sets out
the general principles of criminal responsibility.