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1998-1999-2000-2001
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HEALTH AND AGED CARE LEGISLATION AMENDMENT
(APPLICATION OF CRIMINAL CODE) BILL 2001
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EXPLANATORY MEMORANDUM
(Circulated by authority of the Minister for Health and Aged
Care,
the Hon Dr Michael Wooldridge MP)
Outline and Financial Impact
............................................ 2
1 Short Title
.................................................................. 2
2
Commencement
.......................................................................... 2
3 Schedule(s)
.................................................................................
2
4 Application of amendments
......................................................... 2
Schedule
1 - Amendment of Acts ....................................................
3
Aged or Disabled Persons Care Act 1954
.................................... 5
Australia New
Zealand Food Authority Act
1991........................... 5
Australian Hearing Services Act
1991.......................................... 5
Epidemiological
Studies (Confidentiality) Act
1981........................ 6
Health and Other Services
(Compensation) Act 1995..................... 6
Health Insurance
Act
1973......................................................... 7
Health
Insurance Commission Act
1973....................................... 12
Hearing Services
Administration Act 1997.................................
13
Narcotic Drugs Act
1967.........................................................
14
National Health Act
1953.........................................................
14
National Health and Medical Research Council Act
1992............... 18
Nursing Homes Assistance Act
1974.......................................... 18
Therapeutic
Goods Act 1989...................................................
18
Tobacco Advertising Prohibition Act
1992.................................... 21
Health and Aged Care Legislation Amendment
(Application of Criminal Code) Bill 2001
These amendments harmonise offence-creating and related provisions in
Health and Aged Care portfolio legislation with the general principles of
criminal responsibility as codified in Chapter 2 of the Criminal
Code.
There is no financial impact.
Clause 1 sets out how the Act may be cited.
Commencement
Clause 2 provides that the Act commences on the day on which
it receives the Royal Assent.
Schedule(s)
Clause 3
provides that each Act specified in a Schedule to this Act is amended or
repealed as set out in that Schedule and any other item in a Schedule to this
Act has effect according to its terms.
Subclause 4(1) provides that each amendment made by this Act
applies to acts and omissions that take place after the amendment commences.
The amendments will not operate retrospectively.
Subclause 4(2)
provides that, for the purposes of this section, if an act or omission is
alleged to have taken place between two 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.
These amendments to Health and Aged Care portfolio legislation
harmonise a number of offence-creating and related provisions with the
general principles of criminal responsibility as codified in Chapter 2 of the
Criminal Code
(the Code).
The Code,
which is contained in the schedule to the Criminal Code Act 1995 (Cth),
will alter the way in which Commonwealth criminal offence provisions are
interpreted, including offences contained in legislation in the Health &
Aged Care portfolio. When the Code was passed in 1995, it commenced to apply to
new offences from 1 January 1997, and all new offences are now drafted according
to the requirements of the Code. Staggered implementation was considered
necessary in relation to existing offences to provide departments with
sufficient time to assess the effect of the Code on their offence provisions,
and to make any amendments necessary to their legislation. The Code is scheduled
to apply to pre-existing offences from 15 December 2001.
If legislation
containing offence provisions is not amended to conform with Chapter 2 of the
Code, the Code may alter the interpretation of existing offence provisions.
Chapter 2 of the Code contains subjective, fault-based principles of
criminal responsibility. A defendant’s guilt will depend on what he or she
thought or intended at the time of the offence, rather than what a
‘reasonable person’ would have thought or intended in the
defendant’s circumstances. The changes to be brought about by Chapter 2 of
the Code reflect the view that proof of a ‘guilty mind’ is generally
necessary before a person can be found guilty of an offence.
The most
significant effect of the Code is that it clarifies the traditional distinction
between the actus reus (the physical act, now referred to as the
‘physical element’) and the mens rea (what the defendant
thought or intended, now referred to as the ‘fault element’) and
sets out this distinction.
The prosecution bears the onus of proving
each of the physical elements of an offence. The physical elements provided in
the Code are the conduct, the circumstance in which it occurs, and the result of
the conduct. Each offence must contain at least one of these physical elements,
but any combination of physical elements may be present in an offence provision.
For every physical element of an offence, the prosecution must also prove a
corresponding fault element. The Code does not prevent an offence from
specifying an alternative fault element, but the Code establishes a
“default fault” element that will apply in the absence of a
specified fault element. The Code establishes two default fault elements:
intention and recklessness. The Code provides that, for conduct, the default
fault element is intention. For circumstance or result, the default fault
element is recklessness.
Amendments arising from this
Bill
The Health and Aged Care Legislation (Application of Criminal
Code)
Bill 2001 amends the following Acts:
Aged Care Act
1997
Aged or Disabled Persons Care Act 1954
Australia New Zealand Food Authority Act
1991
Australian Hearing Services Act
1991
Epidemiological Studies (Confidentiality) Act
1981
Health and Other Services (Compensation) Act
1995
Health Insurance Act 1973
Health Insurance
Commission Act 1973
Hearing Services Administration Act
1997
Narcotic Drugs Act 1967
National Health Act
1953
National Health and Medical Research Council Act
1992
Nursing Homes Assistance Act 1974
Therapeutic
Goods Act 1989
Tobacco Advertising Prohibition Act
1992
Amendments made by the Bill include:
• specifying
clearly the physical elements of an offence and corresponding fault elements
(where these fault elements vary from those specified by the Code);
• specifying that an offence is one of strict liability; and
• converting penalties currently expressed as dollar amounts to
penalty units, where appropriate.
Item 1 inserts a note at the end of section 96-9 of the Aged Care Act 1997
which informs the reader that the Code creates offences which can
apply in relation to the regulation of providers of aged care.
This item inserts section 5A at the end of Part 1 of the Aged or Disabled
Persons Care Act 1954 which provides that Chapter 2 of the Code
applies to all offences under the Act.
This item repeals section 10JA(2) because the Code contains an equivalent
provision.
Section 10JB is amended by omitting the phrase “knowingly or
recklessly”.
Section 10JB currently applies the fault element of
knowledge or recklessness in relation to the proscribed physical element of
conduct, namely furnishing information or giving evidence that is false or
misleading in a material particular.
Following application of the Code,
the fault element of knowledge will be restricted to physical elements of
circumstance or result, and intention will be the usual Code
fault element that applies to a physical element of conduct: see Division 5
of the Code.
Applying “knowingly” to a physical element of conduct in the pre-Code
environment is equivalent to applying the
Code
fault element of intention. Accordingly this item proposes the omission of
“knowingly or recklessly” in section 10JB so that the appropriate
and equivalent Code
fault element, namely, intention will apply. It is intended that subsection 10JB
will continue to operate, following this amendment, in the same manner as at
present.
This item inserts section 5A which provides that Chapter 2 of the Code
applies to all offences under the Act.
Item 6
This item
repeals section 65 which deals with corporate and employer criminal
responsibility. Part 2.5 of the Code will apply instead.
This item inserts section 6A which provides that Chapter 2 of the Code
applies to all offences under the Act.
This item inserts section 3A which provides that Chapter 2 of the Code
applies to all offences under the Act.
Section 4 of the Epidemiological Studies (Confidentiality) Act 1981
creates an offence if a person divulges information or documents acquired in the
course of a prescribed study under the Act. Section 5 enables the Minister to
authorise a person to give access to documents prepared or obtained in the
conduct of a prescribed study under the Act to persons assisting another
prescribed study. These items amend section 5 to provide that the defendant
bears an evidential burden of proof in relation to a defence that the giving of
access to another person was authorised under this provision. The defendant
will need to point to evidence that indicates a reasonable possibility that the
access was authorised.
This item inserts section 6A which provides that Chapter 2 of the Code
applies to all offences under the Act.
Subsection 26(1) provides that a person must not, “without reasonable
excuse”, refuse or fail to comply with a requirement of section 11, 12,
13, 15 or 23 that the person give a notice to the Health Insurance Commission
under that section. A penalty of 6 months imprisonment applies. Sections 11,
12, 13, 15 and 23 concern notice of compensation claims and related matters.
Item 12 removes the reasonable excuse defence from subsection 26(1) and item 13
relocates it to new subsection 26(1A). The rationale for this amendment is to
prevent any future interpretation that the reasonable excuse element of this
provision is an element of the offence, which would have to be disproved in the
negative by the prosecution, and puts it beyond doubt that it is a defence to
the offence.
Item 13 also inserts new subsection 26(1B) which states that
an offence under subsection 26(1) is an offence of strict liability.
Where strict liability applies to an offence the prosecution does not
have to prove fault on the part of the defendant (see section 6.1 of the
Code). The prosecution need only prove that the physical element of the
offence did occur. However, there is a defence of mistake of fact under section
9.2 of the Code. Section 9.2 provides that the person is not criminally
responsible for an offence of this nature if, at or before the time of the
conduct, the person considered whether or not a relevant fact existed and is
under a mistaken but reasonable belief about the fact and, had that fact
existed, the conduct would not constitute an offence. If there is a mistake of
fact, the evidential burden of proof is on the defence. This means that the
defendant has to adduce or point to the evidence that suggests a reasonable
possibility that the matter exists or does not exist. If the defendant is able
to do this, the prosecution is required to prove beyond a reasonable doubt that
there was no such mistake.
Item 15 makes a change consequential to the
insertion of new subsection 26(1A).
This item repeals subsection 26(2) of the Act because this provision is
duplicated by section 137.1 of the Code. Subsection 26(2) relates to
the provision of false or misleading information to the Health Insurance
Commission in relation to a claim for compensation.
Subsection 26(5) of the Act provides that evidence of information given under
sections 11, 12, 13, 15, or 23 of the Act cannot be used against the person.
However, the existing provision provides that this exclusion does not apply
where the proceedings are in respect of an offence under subsection 26(1) or
26(2) of the Act. As subsection 26(2) is to be repealed by item 14, 26(5) is
to be amended to refer to section 137.1 of the Code.
Item 17 and item 18 removes the defences of reasonable excuse and
incapability. These defences are relocated by item 19 as subsections 44(1B) and
(1A) respectively. The rationale for this is similar to that for item 12. Item
19 also inserts a new subsection 44(2) which states that an offence under
subsection 44(1) is an offence of strict liability. See item 13 for an
explanation of strict liability. The offence occurs in section 44(1) if a
person who has been required by the Managing Director of the Health Insurance
Commission to produce a document in relation to a claim for compensation before
the Commission, fails to comply with the requirement.
This item inserts a reference to the provisions of the Code which are to
operate in place of existing subsection 44(2), which is to be repealed by item
19. Existing subsection 44(2) penalises a person for giving false or misleading
information in complying with a requirement to provide information under section
42; the Code contains equivalent provisions.
This item inserts section 7B which provides that Chapter 2 of the Code
applies to all offences under the Act.
Item 22 omits the words “without reasonable excuse” from
subsection 19CB(4). The defence is recreated in new subsection 19CB(5), by item
23. The rationale for this amendment is the same as for item 12. The offence
occurs if a medical practitioner fails to comply with a notice in writing from
the Minister directing the practitioner not to render a service, where the
medical practitioner is not authorised to provide that service under a
practitioner’s licence in a particular State or Territory.
Item 23 provides a defence to an offence under subsection 19CB(4) and
includes the standard note that the defendant bears an evidential burden of
proof under section 13.3(3) of the Code if a defendant relies on the
“reasonable excuse” defence established by the new subsection
19CB(5).
Item 23 also inserts subsection 19CB(6) which provides that an
offence under subsection 19CB(4) is an offence of strict liability. See item 13
for an explanation of strict liability.
Item 24 amends subsection 19CC by providing that an offence under subsection
(1) is an offence or strict liability. See item 13 for an explanation of strict
liability.
Section 19CC creates an offence where a medical practitioner
renders a service for which a medicare benefit is not payable and fails to take
reasonable steps, before rendering the service, to inform the person that a
medicare benefit would not be payable.
Item 25 omits the words “without reasonable excuse” from
subsection 19D(2). The defence is recreated in new subsection 19D(2)A, by item
26. The rationale for this amendment is the same as for item 12.
Item 26 provides a defence to an offence under subsection 19D(2) and includes
the standard note that the defendant bears an evidential burden of proof under
section 13.3(3) of the Code if a defendant relies on the reasonable excuse
defence established by 19D(2A).
Item 26 also inserts subsection 19D(2B)
which provides that an offence under subsection 19D(2) is an offence of strict
liability. See item 13 for an explanation of strict liability.
Section
19D creates an offence where a medical practitioner who is disqualified from
providing a particular service fails to comply with a notice issued by the
Minister directing that practitioner to provide a notice to the recipient of the
service explaining the effects of that disqualification.
Item 27 omits the words “without reasonable excuse” from
subsection 19D(7). It removes the defence of reasonable excuse from subsection
19D(7). The defence is recreated in new subsection 19D(7A) by item 28. The
rationale for this amendment is the same as for item 12.
Item 28 provides a defence to an offence under subsection 19D(7).
Item 28 also inserts subsection 19D(7B) which provides that an offence
under subsection 19D(7B) is an offence of strict liability. See item 13 for an
explanation of strict liability.
Item 29 omits the words “without reasonable excuse” from
subsection 20BA(2). It removes the defence of reasonable excuse from
subsection 20BA(2). The defence is recreated in new subsection 20BA(2A), by
item 30. The rationale for this amendment is the same as for item 12. The
offence occurs where a physician or specialist fails to comply with a request of
the Managing Director of the Health Insurance Commission to produce a referral
which resulted in the provision of a specialist service.
Item 30 provides a defence to an offence under subsection 20BA(2).
Item 31 omits the words “without reasonable excuse” from
subsection 20BA(4). It removes the defence of reasonable excuse from
subsection 20BA(4). The defence is recreated in new subsection 20BA(4), by
item 32. The rationale for this amendment is the same as for item 12. The
offence occurs where a consultant physician or specialist fails to produce
information to the Health Insurance Commission when requested, in relation to a
service provided in an emergency situation without a referral, or where the
referral is retained by the hospital.
Item 32 provides a defence to an offence under subsection 20BA(4)
Item 33 inserts a new subsection 20BA(6A) which provides that an offence
under subsections 20BA(2) or (4) is an offence of strict liability. See item 13
for an explanation of strict liability.
Item 34 omits the words “without reasonable excuse” from
subsection 23DKA(6). It removes the defence of reasonable excuse from
subsection 23DKA(6). The defence is recreated in new subsection 23DKA(6A), by
item 35. The rationale for this amendment is the same as for item 12. The
offence occurs where an approved pathology authority fails to comply with record
keeping requirements imposed by the Act or regulations, or fails to produce
records for the Health Insurance Commission when requested.
Item 35 provides a defence to an offence under subsection 23DKA(6).
Item
35 also inserts subsection 23DKA(6B) which provides that an offence under
subsection 23DKA(6) is an offence of strict liability. See item 13 for an
explanation of strict liability.
Item 36 clarifies that a defendant bears an evidential burden of proof in
relation to an offence involving a failure to display a notice indicating that a
pathology collection centre is licensed.
Item 37 repeals subsection 23DNK(3) as the note inserted by item 36 covers
the same ground. The substituted subsection makes the failure to display a
notice an offence of strict liability. See item 13 for an explanation of strict
liability.
Item 38 omits the phrase “without reasonable excuse” from
subsections 23DP(1), (1A), (2) and (3). This amendment removes the defence of
“without reasonable excuse” from the offence in those subsections.
The defence is recreated consistently with the Code in subsection 23DP(3A). The
rationale for this is the same as for item 12. The offence relates to the
requirement of an approved pathology provider to retain a request for a service
by a medical practitioner for record keeping purposes.
Item 39 inserts subsection 23DP(3A) which recreates the defence of reasonable
excuse.
Subsection 23DP(3B) provides that an offence in section 23DP is
an offence of strict liability. See item 13 for an explanation of strict
liability.
Section 23DQ creates an offence in relation to compliance with requirements
for the making of a request to an approved pathology provider by a practitioner.
Items 40 and 42 remove the words “without reasonable excuse” and
items 41 and 43 insert new subsections (2A) and (3A) which carry the appropriate
defence consistently with the Code. The rationale for this amendment is the
same as for item 12.
Item 43 also provides that an offence in section
23DQ is an offence of strict liability. See item 13 for an explanation of
strict liability.
Subsections 23DR(4) and 23DS(6) each create offences in relation to
compliance with requirements that medical practitioners retain records in
relation to the provision of R type diagnostic imaging services.
Items 44
and 46 remove the words “without reasonable excuse” and items 45 and
47 insert new subsections which carry the appropriate defence consistently with
the Code. The rationale for this is the same as for item 12.
Subsections
23DR(6) and 23DS(6B) provide that offences under subsections 23DR(4) and 23DS(6)
respectively are offences of strict liability. See item 13 for an explanation
of strict liability.
Section 106D creates an offence in relation to the failure of a person to
appear before a Committee appointed under the Act. Item 48 omits the words
without “reasonable excuse” and item 49 inserts the appropriate
defence consistently with the Code. The rationale for this is the same as for
item 12. Item 49 inserts subsection 106D(3) which provides that the offence is
an offence of strict liability. See item 13 for an explanation of strict
liability.
Subsection 106E(1) creates offences where a witness to a Committee refuses to
be sworn or make an affirmation, refuses or fails to answer a question, or
refuses or fails to produce a document, where required to do so. Further,
subsection 106E(2) provides that a person must not give an answer or produce a
document which is false or misleading in a material particular.
This item recasts subsection 106E(2) so that it is consistent with the
principles in Chapter 2 of the Code.
Item 53 omits the reference in subsection 106E(6) to “it is proved
that”, as the reference is unclear. Item 54 provides that the defendant
bears an evidential burden.
Items 55 and 56 amend the definition of “relevant offence” in
subsection 124B(1) to refer to relevant offences of the Code and insert a
further reference to those offences.
Section 124L enables a Committee to summons a person to appear at a hearing
and produce documents. A person commits an offence if he or she fails to appear
as required by the summons, or fails to appear and report from day to day until
released from further attendance.
Items 57 and 58 remove the reference to
“without reasonable excuse” and substitute the appropriate defence
consistently with the Code. The rationale for this is the same as for item
12.
Item 58 also provides that the offence in section 124L is an offence
of strict liability. See item 13 for an explanation of strict
liability.
Section 124M creates an offence where a person refuses to be sworn for the
purposes of appearance before a Committee. Items 59 and 60 omit the phrase
“without reasonable excuse”, and substitute the appropriate defence
under the Code. The rationale for this is the same as for item 12. They also
add a note stating that the defendant bears an evidential burden in relation to
the reasonable excuse. Item 62 provides that subsection 124M(1) is an offence
of strict liability. See item 13 for an explanation of strict
liability.
Section 127 creates an offence in relation to the assignment of a Medicare
benefit unless particulars of the service to be provided are set out in the
agreement before the patient signs.
Item 63 omits the reference to
“without reasonable excuse” and item 64 substitutes the appropriate
defence consistently with the Code. The rationale for this is the same as for
item 12. Item 64 also provides that the offence in section 127 is an offence of
strict liability. See the item 13 for an explanation of strict
liability.
Section 128 creates an offence in relation to the failing to furnish a return of information required under the Act. Item 65 provides that the offence is an offence of strict liability. See item 13 for an explanation of strict liability.
Section 128A creates offences in relation to false or misleading statements
in connection with the making of a claim for Medicare benefit. Item 66 provides
that the offences are offences of strict liability. See item 13 for an
explanation of strict liability.
This item repeals section 129(2A) as it is duplicated by the Code.
Section 129 relates to the provision of false and misleading information.
Section 129AA relates to the offering of an inducement by a pathology provider.
These items omit the phrase “the person proves that” in sections
129(3) and 129AA(5) and provide that the burden of proof imposed on the
defendant is evidential rather than legal.
Paragraphs 129AAB(2)(a) and (b) refer to offences which are to be repealed by
this Bill and item 72 inserts references to the relevant equivalent provisions
of the Crimes Act 1914 and the Code.
Subsection 130(3F) creates an offence where a prescribed body to whom
information is disclosed, fails to ensure that the information is protected by
reasonable safeguards against unauthorised access, use, modification or
disclosure. Item 73 provides that this provision is an offence of strict
liability. See item 13 for an explanation of strict liability.
Subparagraph 130(6)(a)(i) refers to section 129. Section 129 is to be
repealed by this Bill. Item 75 substitutes references to the relevant
equivalent provisions of the Crimes Act 1914 and the Code.
Item 76 repeals subsection 130(16) because the defence of lawful authority is
provided in the Code.
Item 77 provides that the offence in subsection 130(17) is an offence of
strict liability. See item 13 for an explanation of strict liability.
Item 78 deletes the phrase “it is established that” in subsection
130(18) because it imposes a legal burden of proof on the defendant. Item 79
provides that the defendant bears an evidential burden in relation to this
provision. Subsection 130(18) relates to an offence where an employee or agent
is acting outside of the scope of their authority, in soliciting the disclosure
of information.
Subsection 130(19) provides that where a person is acting as an employee or
agent of another person when soliciting information, that other person is guilty
of an offence. Item 80 provides that this offence is an offence of strict
liability. See item 13 for an explanation of strict liability.
Item 81 deletes the phrase “it is established that” in subsection
130(20) because it imposes a legal burden of proof on the defendant. Item 82
provides that the defendant bears an evidential burden in relation to this
provision. Subsection 130(20) relates to an offence where an employee or agent
is acting outside of the scope of their authority, in soliciting the disclosure
of information.
Item 83 omits the phrase “without lawful excuse” because that
defence is provided in the Code. This ensures that the defendant will bear the
evidential burden of establishing that defence, rather than the prosecution
having to disprove it as an element of the offence.
Items 84 and 85
Paragraph 3A(l)(c) and paragraph 3A(2A)(d)
define certain relevant offences for the purposes of the Act. However, this
Bill replaces those offences with relevant equivalent offences from the
Crimes Act 1914 and the Code. The amendment inserts references to those
equivalent offences.
Item 86 inserts section 3B which provides that Chapter 2 of the Code applies
to all offences under this Act.
Section 8N creates an offence where a person ceases to be an authorised
officer of the Health Insurance Commission and fails to return an identity card.
Items 87 and 88 remove the phrase “without reasonable excuse” and
insert the appropriate defence consistent with the Code. The rationale for this
is the same as for item 12. Item 88 also inserts subsection 8N(6) which
provides that an offence under subsection 8N(4) is an offence of strict
liability. See item 13 for an explanation of strict liability.
Section 8R creates an offence where a person fails to comply with a notice to
produce information. Item 89 removes the phrase “without reasonable
excuse” and item 91 inserts the same defence consistently with the Code.
The rationale for this is the same as for item 12.
Subsection 8R(2) creates an offence in relation to the giving of false or
misleading information or the production of a document which is false or
misleading, unless the person identifies the respects in which the information
is false or misleading.
Item 91 repeals this subsection because its
content is covered by the Code and inserts defences consistent with the Code.
The rationale for the relocation of defences is the same as for item
12.
Item 91 also provides that the offence in subsection 8R(1) is an
offence of strict liability. See item 13 for an explanation. Item 92 is a
consequential amendment.
Section 8S provides that a person is not excused from producing a document on
the grounds that it may tend to incriminate that person. Subsection 85(2)
provides an exception in respect of particular offences under the Act. The
amendment provides a reference to the relevant offence under the Code.
Paragraph 41C(2)(c) creates an offence where an association uses the name
“medicare” or a prescribed symbol in a manner which implies that the
association is associated with the Commonwealth. The amendment clarifies the
provision.
Item 95
Item 95 inserts section 6A which provides that Chapter
2 of the Code applies to all offences under the Act.
The amendment to paragraph 19(6)(a) substitutes references to existing
offence provisions with a reference to the equivalent provisions in the
Code.
Section 22 of the Act is to be repealed as the Code applies an appropriate
provision. The amendment to section 47 then omits the reference to section 22
which is no longer required.
Item 99
Item 99 inserts section 8A which provides that Chapter
2 of the Code applies to all offences against the Act.
Provides that the offence in section 23 is an offence of strict liability.
See item 13 for an explanation of strict liability.
The offences in section 24(3) relate to the obstruction or hindering of an
authorised inspector and the provision, by the owner or occupier of premises, or
reasonable facilities and assistance, to the inspector.
Item 101 repeals
those offences and restates them, consistently with the Code. New subsection
24(3D) provides that, in relation to the offences in subsection 24(3) and (3B),
strict liability applies to the physical element of circumstance, namely that
the inspector is acting in accordance with the authority. See item 13 for an
explanation of strict liability.
Item 102
This item inserts section 7A which provides that
Chapter 2 (other than part 2.5) of the Code applies to all offences under the
Act. Part 2.5 deals with the corporate criminal responsibility. Section 134E
of the National Health Act deals with that matter and also non-corporate
(eg employer) criminal liability. Because of its greater breadth, section 134E
is retained.
Section 61B(3) relates to the provision of information which is false or
misleading in a material particular. The provision is repealed because the Code
provides an equivalent provision.
Section 61E(1) relates to the requirement that a person attend before an
authorised officer to take an oath or affirmation, answer questions and produce
documents.
The amendment removes the phrase “without reasonable
excuse” and inserts the appropriate defence consistent with the Code. The
rationale for this is the same as for item 12.
Section 62 relates to the making of a statement or the presentation of a
document which is false or misleading in a material particular and which is
capable of being used in connection with certain applications under the Act in
relation to nursing homes.
The provision is to be repealed because the
Code contains equivalent relevant offences.
Subsection 62(3) provides a defence where a person establishes that he or she
did not know that a document or statement, to which a prosecution relates, was
false or misleading. The amendment provides that the person bears an evidential
burden in rleation to the defence.
Section 74 creates offences in relation to the duties of a public officer of
a registered organisation. A registered organisation is an organisation
involved in the provision of private health insurance. The amendment clarifies
that the offences are offences of strict liability. See item 13 for an
explanation of strict liability.
Section 74BA relates to the offering of inducements to, or imposition of
penalties on, a contributor for the purposes of persuading a contributor to
transfer to another health benefits fund, or to cease contributing to a health
benefits fund.
The amendment deletes “for the purpose of” and
inserts the appropriate text “if doing so has the result”. This
amendment clarifies that the prosecution has to prove the result rather than the
intent of the organisation in offering the inducement or imposing the
penalty.
Subsection 75(5) relates to the failure of a person who is or has been an
officer of a registered organisation, to furnish information, to attend and give
evidence, or to produce books and records.
The amendment provides that
this offence is an offence of strict liability. See item 13 for an explanation
of strict liability.
Subsection 82(1) relates to the making of a statement which is false or
misleading in a material particular. The provision is to be repealed because
the Code provides an equivalent offence.
Item 112
Section 82K
relates to the failure of a person to comply with a notice to furnish
information, to attend and give evidence, or to produce books and records. The
amendment provides that this offence is an offence of strict liability. See
item 13 for an explanation of strict liability.
Section 82L(2) relates to the provision of accounts and statements to the
Private Health Insurance Advisory Council. The amendment provides that the
offence is an offence of strict liability. See item 13 for an explanation of
strict liability.
Subsection 82U(1) relates to the failure of a person to comply with a
requirement of an inspector that the person furnish information; or the
provision of false or misleading information where the person knows that
information to be false or misleading; and the making of a false or misleading
statement, which the person knows to be false or misleading. The amendment
repeals subsection 82U(1) because offences relating to the provision of false
and misleading statements are incorporated in the Code. The offence of failing
to comply with a reasonable requirement of an inspector is redrafted to include
relevant defences consistent with the Code. The rationale for this is similar to
that for item 12. Strict liability applies to a limited aspect of the offence,
namely that of the physical element of circumstance. The amendment provides
that the offences are offences of strict liability, and inserts a defence which
is consistent with the Code. See item 13 for an explanation of strict
liability.
Section 82V(5) provides that a person shall not, without reasonable excuse,
hinder of obstruct an inspector. The amendment removes the phrase
“without reasonable excuse” and inserts the appropriate defence
consistent with the Code. The rationale for this is the same as for item
12.
Subsection 82WC(1) relates to the concealment, destruction, mutilation or
alteration of records of a private health organisation where that organisation
is under investigation.
The amendment to subsection 82WC(1) repeals the
existing subsection and rewords the offence consistently with the Code. The
amendment to subsection 82WC(2) removes the requirement that a defendant prove
the elements of the defence. The amendment provides that the defendant bears an
evidential burden in relation to the defence.
Subsection 82XR(4) relates to the failure, without reasonable excuse, of a
director to deliver records to the administrator of a health benefits
fund.
The amendment to subsection 82WC(1) omits the phrase “without
reasonable excuse” and inserts the appropriate defence consistent with the
Code. The rationale for this is the same as for item 12.
Section 84L creates offences in relation to the issuing by a pharmacist of a
concession card to a person who is not entitled to receive such a card. Item
119 deletes the word “knowingly” because that defence is applied by
the Code.
Items 123 and 124 omit the phrase “without reasonable
excuse” from subsections 84L(3) and (4) and substitute the appropriate
defence, consistently with the Code. The rationale for this is the same as for
item 12.
Paragraphs 103(5)(a) and (aa) relate to the making of false or misleading
statements in relation to concession cards. The provisions are repealed because
the Code contains equivalent provisions.
Items 126 and
127
Subsection 128(1) relates to the failure of a person to appear before
a Committee and produce documents required by summons. The amendment omits the
phrase “without reasonable excuse” and inserts the appropriate
defence, consistently with the Code. The rationale for this is the same as for
item 12.
Subsection 128(2) provides a defence for the purposes of subsection 128(1).
The defence relates to the relevance of the documents subpoenaed. The
amendment rewords the defence to be consistent with the Code. The amendment
also provides that the offence is one of strict liability. See item 13 for an
explanation of strict liability.
Section 134C provides a defence for certain prosecutions under the Act
relating to the provision of false or misleading statements.
The
amendment omits the phrase “the person shows that” and clarifies
that the defendant bears an evidential burden in relation to the matter.
Subparagraph 135A(6)(a)(ii) refers to the conviction of a person of an
offence under the Act or the Crimes Act 1914. The amendment substitutes
references to the relevant equivalent offences in the Code and the Crimes
Act.
Subsection 135A(14) makes it an offence to disclose, or solicit the
disclosure of, protected information in certain circumstances. Subsection
135A(15) provides that it is a defence to a prosecution for an offence against
subsection 135A(14) if it is established that the person had lawful authority
for his or her action. The defence of lawful authority is contained in the
Code. Accordingly, subsection 135A(15) is no longer necessary and is to be
repealed.
Subsection 135A(16) relates to the commission of an offence by an employee or
agent of another person and applies that offence to that other
person.
The amendment provides that this offence is an offence of strict
liability. See item 13 for an explanation of strict liability.
Subsection 135A(17) provides a defence where a person establishes that that
person’s employee or agent acted outside of authority when committing an
offence. The amendment omits “it is established that” as it is
unclear as to whether the prosecution would have to disprove the availability of
the defence. The amendment provides that the defendant has an evidential burden
in relation to the defence.
Subsection 135(18) provides that where a person is convicted of an offence
and acted as the employee or agent of another in obtaining the information
concerned, that other person is guilty of an offence. The amendment provides
that the latter offence is an offence of strict liability. See item 13 for an
explanation of strict liability.
Subsection 135(A)(19) provides a defence where a person establishes that that
person’s employee or agent acted outside of authority in committing an
offence. The amendment omits “it is established that” as it is
unclear as to whether the prosecution would have to disprove the availability of
the defence. The amendment provides that the defendant has an evidential burden
in relation to the defence.
Item 140
The amendment inserts section 5A which provides that
Chapter 2 of the Code applies to all offences under the Act.
Item 141
The amendment inserts section 3AA which provides that
Chapter 2 of the Code applies to all offences under the Act.
Section 8 creates offences in relation to failing to display certificates of
approval of nursing homes and failing to return to the Minister the certificates
where they have been revoked or have expired. This item adds subsection 8(7)
which provides that an offence under section 8 is an offence of strict
liability. See item 13 for an explanation of strict liability.
Subsection 9(3) obliges a proprietor of a nursing home to return to the
Minister certificates of approval in certain circumstances. This item adds
subsection 9(4) which provides that an offence under subsection 9(3) is an
offence of strict liability. See item 13 for an explanation of strict
liability.
Subsection 30(1) relates to the requirement that the Minister be notified
within a particular time period where a nursing home is to be sold, or if the
proprietor dies.
The amendments clarify that the penalty applies to each
of the offences in the section and provides that the offences are offences of
strict liability. See item 13 for an explanation of strict liability.
Subsection 30A(3) provides a defence where a person did not know or had no
reason to suspect that a statement or document to be used in respect of certain
applications under the Act could be false or misleading. The amendment provides
that the defendant has an evidential burden in relation to this defence.
Item 149
Paragraph 3(7)(b) of the Act defines further offences
other than those specified in the Act which apply in relation to the Therapeutic
Goods Act. The amendment repeals part of the definition and substitutes
references to relevant equivalent offences in the Code.
This amendment inserts section 5A which applies Chapter 2 (other than Part
2.5) of the Code to the Act.
Subsection 6AA(3) provides that it is an offence to breach a condition of
approval to import restricted goods.
The amendment restates the offence
consistent with the Code by setting out clearly the relevant elements of the
offence.
Subsection 8(3) relates to the provision of information which is false or
misleading in a material particular in response to a notice. Subsection 8(3) is
repealed because the Code covers the same ground.
The amendment to
subsection 8(2) omits the phrase “without reasonable excuse”. The
defence is relocated in subsection 8(3). The rationale for this is the same as
for item 12. Item 153 also provides that the offence in subsection 8(2) is an
offence of strict liability. See item 13 for an explanation of strict
liability.
Subsection 15(2) provides an offence where a person breaches a condition of
consent in relation to section 14 of the Act. The amendment repeals subsection
15(2) and restates the offence in a manner consistent with the Code by setting
out clearly the elements of the offence.
These amendments delete the words “intentionally” and
“intentionally or recklessly” because “intention” is the
ordinary fault element for conduct and is applied to the correct elements of the
offence by the Code.
Subsection 20(1A) provides a defence if the defendant proves that the
defendant was not the sponsor of particular goods. The amendment clarifies that
the defendant bears a legal burden of proof in relation to this
defence.
Items 158 to 161
Sections 21 and 22 use the phrase
“intentionally or recklessly”. The amendment omits this phrase
because “intention” is the ordinary fault element for conduct and is
applied to the correct elements of the offences by the Code.
Subsection
22(2) creates an offence in relation to making a false or misleading statement.
As Division 136 of the Code covers the same ground as subsection 22(2), there is
no need to retain subsection 22(2) and it is, accordingly, repealed.
Section 22 creates offences in relation to the registration or listing of
therapeutic goods. The amendment to subsection 22(3) repeals the provision and
restates the offence consistent with the Code by setting out clearly the various
elements of the offence.
Subsections 22(4), (5) and (6) use the phrase
“intentionally or recklessly”. The amendment omits this phrase
because the fault element of intention is applied by the Code. For similar
reasons, the amendment to subsection 22(7)(a) omits the word
“intentionally”.
The amendment to paragraph 22(8) omits the
references to intention or recklessness for the same reasons, namely that these
concepts are applied by the Code.
For the reasons outlined in relation to items 162 to 166 the phrase
“intentionally or recklessly” is omitted.
The offences in
these items relate to false statements in relation to an application for
registration (section 22A); the giving of false information where an application
is withdrawn (section 29B); failure to comply with a requirement where
registration of goods is cancelled (section 30(7); and the failure to comply
with a requirement where goods supplied are not registered (section
30A).
Subsection 31(4) relates to the failure by a person to comply with a notice
in relation to therapeutic goods. The amendment deletes the phrase
“without reasonable excuse” and inserts the appropriate defence
consistent with the Code. The rationale for this is the same as for item
12.
The amendment also provides that an offence under subsection 31(4) is
an offence of strict liability. See item 13 for an explanation of strict
liability.
The amendments omit the phrase “intentionally or recklessly” for
the reasons explained in relation to items 162 to 166 above.
The offences in subsections 35(2) and (3) relate to the breaching of a
condition of licence of manufacture, and the making of false or misleading
statements in relation to manufacture.
The amendment repeals the
subsections and in the case of subsection 35(2), restates the offence consistent
with the Code. The offence in subsection 35(3) is repealed because the Code
covers the same ground.
Subsection 48(3) provides a defence in relation to failure to comply with a
requirement that a person answer questions and produce records. The amendment
omits the phrase “without reasonable excuse” and inserts the
appropriate defence consistent with the Code. The rationale for this is the
same as for item 12.
Section 52 creates an offence where a person ceases to be an officer but
fails to return an identity card to the Secretary. The amendment provides that
this offence is an offence of strict liability. See item 13 for an explanation
of strict liability
Subsection 54AA(1) creates an offence where the holder of a licence or
permission to import or export therapeutic goods contravenes a condition of the
licence or permission.
The amendment repeals the existing provision and
restates the offences consistent with the Code so that the elements of the
offence are clear.
Item 181
The amendment inserts section 5A which applies Chapter
2 (other than Part 2.5) of the Code to offences under the Act.
Sections 13 and 15 of the Act use the phrase “knowingly or
recklessly”. The amendments omit this phrase in each case as the
appropriate fault elements are applied by the Code.
Sections 13 and 15
create offences in relation to the broadcasting and publishing of tobacco
advertisements respectively.
Subsection 31(3) relates to offences committed by partnerships and
unincorporated bodies and provides a defence for a partner or controlling
officer of an incorporated body where that person can show that the person did
not aid, abet, counsel or procure the offence, and was not knowingly involved in
the commission of the offence.
The amendment provides that the defendant
has an evidential burden in relation to this offence.