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Wednesday, 6 June 2001
Page: 27490


Ms GAMBARO (11:39 AM) —I rise to speak to the Migration Legislation Amendment (Application of Criminal Code) Bill 2001. As the member for Bowman mentioned in his short speech, it is a highly technical bill. The bill provides that, as from 15 December this year, chapter 2 of the Criminal Code will apply to all offences against the law of the Commonwealth. The purpose of the bill is to make all the necessary amendments to offence provisions in the portfolio legislation to ensure compliance and consistency with the general principles of the Criminal Code. It will also ensure that the meaning and operation of the offence provisions do not change following the application of the Criminal Code. It has two elements, as the member who spoke previously said. Firstly, it will bring greater clarity and consistency to Commonwealth criminal law. The Criminal Code establishes a cohesive set of general principles of criminal responsibility. The application of these general principles to offence provisions in the portfolio legislation will give Australians greater certainty, protection and confidence under criminal law.

Secondly, the bill will improve the efficient and fair prosecution of offences by clarifying their physical and fault elements. This measure alone will save hundreds of hours of court time otherwise spent in complicated and sometimes inconsistent interpretation of offence provisions. The bill will not change the way existing offence provisions will operate. It will make all the necessary amendments to offence provisions in the portfolio legislation to ensure compliance and consistency with the general principles of the Criminal Code. While most offences will operate as they always have without amendment, there are some that do require some amendment, and these amendments will not change the meaning or the operation of the relevant offences.

The bill does not create new strict liability offences. As mentioned previously, the bill will only preserve the status quo in relation to existing offences within the Migration Act of 1958. In conformity with the Commonwealth Criminal Code the bill amends certain offences to explicitly state that they are offences of strict liability and none of the offences currently have any fault element.

These amendments are necessary because upon the application of the Criminal Code offences which do not state that they are offences of strict liability shall be presumed to have a fault element. The bill also does not create new absolute liability offences. What it does is keep the status quo again in relation to the Migration Act. There have been some offences in subsections 229(1) and 232(1) that do not currently have any fault element. They are wholly regulatory in nature and the offences serve broader public policy interest by having the effect of ensuring that carriers check the visa status of non-citizens wishing to travel to Australia. Although the two offences have no fault element, they do have express defences of mistake of fact and in order to maintain the status quo in relation to these offences it was necessary to make these offences absolute liability rather than strict liability. It is important also to determine whether an offence is one of strict or absolute liability, and there are lawyers in this Main Committee that could probably explain the technical aspects of those better than I can. But they are strictly technical provisions.

I am very happy to speak on the bill. There are some necessary changes to clarify those physical and fault elements. I believe the bill will ensure that there will be clarity and it will seek to do that, as I have mentioned, by firstly making clear the Criminal Code applies to all offences against migration law. The bill clarifies the physical and fault elements. Also time will be saved in ensuring that there is more consistency. I commend the bill to the House.