Document ID: chunk:federal_register_of_legislation:C2025C00060:section:5:p3
Version: federal_register_of_legislation:C2025C00060
Segment Type: section
Provision Reference: s 5 (pt 3/31)
Character Range: 42612–45149

creating the offence impliedly provides that the offence is committed by an omission to perform an act that there is a duty to perform by a law of the Commonwealth, a State or a Territory, or at common law.

Division 5—Fault elements

5.1  Fault elements
 (1) A fault element for a particular physical element may be intention, knowledge, recklessness or negligence.
 (2) Subsection (1) does not prevent a law that creates a particular offence from specifying other fault elements for a physical element of that offence.

5.2  Intention
 (1) A person has intention with respect to conduct if he or she means to engage in that conduct.
 (2) A person has intention with respect to a circumstance if he or she believes that it exists or will exist.
 (3) A person has intention with respect to a result if he or she means to bring it about or is aware that it will occur in the ordinary course of events.

5.3  Knowledge
  A person has knowledge of a circumstance or a result if he or she is aware that it exists or will exist in the ordinary course of events.

5.4  Recklessness
 (1) A person is reckless with respect to a circumstance if:
 (a) he or she is aware of a substantial risk that the circumstance exists or will exist; and
 (b) having regard to the circumstances known to him or her, it is unjustifiable to take the risk.
 (2) A person is reckless with respect to a result if:
 (a) he or she is aware of a substantial risk that the result will occur; and
 (b) having regard to the circumstances known to him or her, it is unjustifiable to take the risk.
 (3) The question whether taking a risk is unjustifiable is one of fact.
 (4) If recklessness is  a fault element for a physical element of an offence, proof of intention, knowledge or recklessness will satisfy that fault element.

5.5  Negligence
  A person is negligent with respect to a physical element of an offence if his or her conduct involves:
 (a) such a great falling short of the standard of care that a reasonable person would exercise in the circumstances; and
 (b) such a high risk that the physical element exists or will exist;
that the conduct merits criminal punishment for the offence.

5.6  Offences that do not specify fault elements
 (1) If the law creating the offence does not specify a fault element for a physical element that consists only of conduct, intention is the fault element for that physical element.
 (2) If the law creating the offence does not specify a fault element for a physical element that consists of a circumstance or a result,