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Wednesday, 6 June 2001
Page: 27341


Mr RUDDOCK (Minister for Immigration and Multicultural Affairs and Minister for Reconciliation and Aboriginal and Torres Strait Islander Affairs) (9:39 AM) —I move:

That the bill be now read a second time.

The purpose of the Reconciliation and Aboriginal and Torres Strait Islander Affairs Legislation Amendment (Application of Criminal Code) Bill 2001 is to amend certain offence provisions in the Reconciliation and Aboriginal and Torres Strait Islander Affairs portfolio to provide for the application of the Criminal Code.

Chapter 2 of the Criminal Code, contained in the Criminal Code Act 1995, establishes general principles of criminal responsibility. It provides a standard approach to the formulation of Commonwealth criminal offences.

The code will apply to all Commonwealth offence provisions from 15 December 2001. Many offence provisions in the Reconciliation and Aboriginal and Torres Strait Islander Affairs portfolio legislation predate the code, and their meaning and operation may change following the application of the Criminal Code if the appropriate amendments are not made. Those provisions must be harmonised with the code to preserve their current meaning and operation, and to ensure compliance and consistency with the general principles of the Criminal Code.

This bill harmonises offences in the Reconciliation and Aboriginal and Torres Strait Islander Affairs portfolio legislation by making a number of largely technical amendments.

First, the bill makes it clear that the Criminal Code applies to offence provisions within the portfolio legislation.

Second, the bill clarifies whether certain offences are strict liability offences—that is, an offence where the prosecution does not need to prove any fault on the part of the defendant. The bill does not create any new strict liability offences.

Third, the bill clarifies the physical and fault elements for certain offences, including removing and replacing inappropriate fault elements where appropriate. The code envisages that offences will comprise three physical elements—conduct, circumstance or result—each of which attracts a corresponding fault element. Some provisions in the Reconciliation and Aboriginal and Torres Strait Islander Affairs portfolio currently use inappropriate fault elements and the bill removes and replaces these. The bill will improve the efficient and fair prosecution of offences by clarifying these elements.

Fourth, the bill will change the burden of proving matters relating to certain defences in the Aboriginal Councils and Associations Act 1976 and the Aboriginal and Torres Strait Islander (Queensland Reserves and Communities Self Management) Act 1978. At present, the legal burden of proving those defences rests with the defendant. The bill amends those provisions to change the burden on the defendant from a legal burden to an evidential burden. This will ensure conformity with the policy underlying the code that defendants should bear only an evidential burden.

Fifth, the bill removes parts of offences, such as aiding and abetting and the defence of lawful excuse, which duplicate the general offence provisions in the Criminal Code. The bill will repeal these superfluous provisions and instead place reliance on the Criminal Code's provisions.

Finally, the bill makes certain changes consequential to the expected passage of the Law and Justice Legislation Amendment (Application of the Criminal Code) Bill 2000, as well as removing gender specific language in the Aboriginal Councils and Associations Act 1976, the Aboriginal Land Rights (Northern Territory) Act 1976 and the Aboriginal and Torres Strait Islander (Queensland Reserves and Communities Self Management) Act 1978.

This bill does not change the current law and does not create any new strict or absolute liability offences. Rather, it ensures that the current law is maintained following the application of the Criminal Code in December this year.

The Criminal Code is a significant step in the reform of our system of justice, and the harmonisation process will bring greater consistency and clarity to Commonwealth criminal law.

I table the explanatory memorandum.

Debate (on motion by Mr Horne) adjourned.