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Wednesday, 29 August 2001
Page: 30466

Mr BRUCE SCOTT (Minister for Veterans' Affairs and Minister Assisting the Minister for Defence) (9:37 AM) —I move:

That the bill be now read a second time.

The Defence Legislation Amendment (Application of Criminal Code) Bill 2001 proposes to apply the Criminal Code Act 1995 (the Criminal Code) to all offence creating and related provisions in acts administered within the Defence portfolio, and to make all necessary amendments to those provisions to ensure compliance and consistency with the general principles of the Criminal Code.

This bill advances the government's overall program to harmonise offence creating and related provisions in Commonwealth legislation with the Criminal Code. The Criminal Code will codify offences under Commonwealth criminal law and establish a cohesive set of general principles of criminal responsibility.

The bill will similarly improve the efficient and fair prosecution of offences by clarifying the physical elements of offences and amending inappropriate fault elements.

On 1 September 1993, the government agreed to develop a national uniform Criminal Code by 2001. The Commonwealth Criminal Code Act 1995 was enacted as part of the development of this nationwide system. Chapter 2 of the Criminal Code standardises the principles of criminal responsibility applicable to all Commonwealth offences. The Criminal Code also seeks to clarify or replace common law principles of criminal liability, which now apply to many offences created by Commonwealth legislation.

All Commonwealth agencies are required, as a matter of law, to review their legislation with a view to harmonising affected statutes with the Criminal Code. The harmonisation process is intended to achieve a balance between updating the principles of criminal responsibility in Commonwealth statute law and ensuring that existing offence creating provisions operate as intended by parliament.

The Criminal Code affects defence legislation containing criminal offence creating provisions. Amendments have been proposed for 10 defence statutes, as follows:

· Approved Defence Projects Act 1947;

· Control of Naval Waters Act 1918;

· Defence Act 1903;

· Defence Force Discipline Act 1982;

· Defence Force Retirement and Death Benefits Act 1973;

· Defence Forces Retirement Benefits Act 1948;

· Defence (Special Undertakings) Act 1952;

· Military Superannuation and Benefits Act 1991;

· Naval Defence Act 1910; and

· Weapons of Mass Destruction (Prevention of Proliferation) Act 1995.

The bill amends those acts among the identified Defence portfolio legislation, which specify the physical elements of an offence and corresponding fault elements (where these fault elements vary from those specified by the Criminal Code). The bill also amends those acts among the identified Defence portfolio legislation which specify whether an offence involves elements to which strict or absolute liability applies— that is, where the prosecution does not need to prove fault on the part of a defendant in respect of an element.

The Criminal Code is particularly relevant to the Defence Force Discipline Act 1982 (DFDA), which is the statutory basis of the discipline and military justice system of the Australian Defence Force (ADF). The DFDA is a key mechanism by which service discipline is maintained. The DFDA is used predominantly by ADF personnel who are not legally qualified. These ADF summary authorities, prosecuting officers, defending officers and discipline officers conduct approximately 7,000 summary trials per annum and some also conduct committal proceedings for matters referred to courts-martial and Defence Force magistrates.

Consequently, the bill sets out the offence creating provisions in the DFDA in a consistent format to ensure that they may be easily understood and applied by the non-legally qualified ADF personnel who must implement the DFDA. The bill has resulted in significant changes to the wording of some provisions of the DFDA, but it achieves a balance between the requirement of the Criminal Code to update the principles of criminal responsibility in Commonwealth law and the continuing consistent operation and effect of existing DFDA offence creating provisions. Accordingly, the bill will ensure a smooth transition for the military justice system, as represented by the DFDA, in harmonising with the Criminal Code and will guarantee that a consistent set of principles is maintained in the administration of military justice.

Under the Criminal Code, where it is intended that strict liability will apply to a further particular offence, this must be expressly stated in the provision in question. In all other cases, the prosecution will be required to prove fault in relation to each element of the offence. In the absence of the proposed amendments, offences previously interpreted as strict or absolute liability would be interpreted as not being of strict or absolute liability. Consequently without the bill, offences that would have been interpreted as offences of strict liability prior to the introduction of the Criminal Code would have become more difficult for the prosecution to prove.

There are two specific aspects to the bill. First, the bill reflects the requirements of chapter 2 of the code that comes into effect on 15 December 2001. From a defence legislation perspective, these requirements are:

· the replacement of common law notions of a criminal act or a guilty mind with physical and fault elements;

· the requirement to expressly state those elements of offences that are elements of strict liability and absolute liability; and

· the preservation of the legal burden of proof on the balance of probabilities in respect of statutory defences.

Second, the bill proposes the amendment of all offence-creating provisions in defence legislation, particularly the Defence Force Discipline Act 1982. The Defence Force Discipline Act reflects and incorporates common law notions of a criminal act and a guilty mind. The Criminal Code will replace these concepts with physical and fault elements. The physical element of an offence may be conduct, a circumstance in which conduct occurs, or a result of conduct. A fault element, or a description of the state of mind of the offender at the relevant time, may be intention, knowledge, recklessness or negligence, or another factor if specified; for example, dishonesty. The reason for the breadth of the amendments proposed for the Defence Force Discipline Act is because it establishes an internal disciplinary system, implemented by military tribunals that are required to act judicially, applicable to defence members and defence civilians. At summary level, the level at which most hearings occur, these service tribunals are staffed by lay Australian Defence Force personnel, who generally do not have legal officers appearing before them. While the higher tribunals, namely Defence Force magistrates and courts martial, are conducted or assisted by legal officers, they have no original jurisdiction and may hear and try matters only on referral from summary tribunals.

The bill does not change the effect of the criminal law provisions contained in Defence portfolio legislation. Rather, it preserves current law following application of the Criminal Code. The proposed amendments will ensure that the relevant offences continue to have much the same meaning and operate in much the same way as they do at present. The bill is consistent with a number of other bills that have been prepared in relation to criminal offence provisions administered by other portfolios.

The bill will modernise and improve defence legislation. In particular, it will generally bring the operation of the Defence Force Discipline Act into line with the civilian criminal law.

This harmonisation of offence-creating and related offences in defence legislation with the Criminal Code is an important step in the government's program of legislative reform that will achieve greater consistency, clarity and cohesion in Commonwealth criminal law. It can also confidently be expected that these improvements will save valuable military tribunal and court time.

This bill is one of the steps in a process that will give Australians greater certainty, protection and confidence under the criminal law.

I commend the bill to the House and present the explanatory memorandum.

Debate (on motion by Mr Horne) adjourned.