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Wednesday, 11 October 2000
Page: 21323


Mr SLIPPER (Parliamentary Secretary to the Minister for Finance and Administration) (6:30 PM) —by leave—I move government amendments Nos 1 to 127:

(1) Clause 2, page 1 (line 8) to page 2 (line 13), omit subclauses (1), (2), (3) and (4), substitute:

(1) The following provisions of this Act commence on the day on which this Act receives the Royal Assent:

(a) sections 1, 2 and 3;

(b) items 1, 4, 6, 7, 9, 10, 11 and 32 of Schedule 1.

(2) Subject to this section, the provisions of this Act that are not covered by subsection (1) commence on a day to be fixed by Proclamation.

(3) If item 15 of Schedule 1 to this Act does not commence under subsection (2) within the period of 6 months beginning on the day on which this Act receives the Royal Assent, the provisions of this Act that are not covered by subsection (1) commence on the first day after the end of that period. This subsection has effect subject to the following subsections of this section.

(2) Clause 2, page 2 (lines 14 and 15), omit “Human Rights Legislation Amendment Act (No. 2) 1999”, substitute “Human Rights Legislation Amendment Act 2000.

(3) Clause 2, page 2 (line 16), omit “section 1 of”, substitute “item 15 of Schedule 1 to”.

(4) Clause 2, page 2 (lines 21 to 35), omit subclauses (6), (7) and (8).

(5) Clause 2, page 3 (line 2), omit “section 1 of”, substitute “item 15 of Schedule 1 to”.

(6) Clause 2, page 3 (lines 6 and 7), omit “Superannuation Legislation (Commonwealth Employment—Saving and Transitional Provisions) Act 1999”, substitute “Superannuation Legislation (Commonwealth Employment—Saving and Transitional Provisions) Act 2000”.

(7) Schedule 1, page 4 (before line 5), before item 1, insert:

1A Section 3B

Omit “An installation”, substitute “Unless the contrary intention appears, an installation”.

(8) Schedule 1, item 7, page 5 (line 3), after “by”, insert “or under”.

(9) Schedule 1, page 5 (after line 3), after item 7, insert:

7A After subsection 11.1(3)

Insert:

(3A) Subsection (3) has effect subject to subsection (6A).

7B After subsection 11.1(6)

Insert:

(6A) Any special liability provisions that apply to an offence apply also to the offence of attempting to commit that offence.

(10) Schedule 1, page 5 (after line 7), after item 8, insert:

8A After subsection 11.2(3)

Insert:

(3A) Subsection (3) has effect subject to subsection (6).

8B At the end of section 11.2

Add:

(6) Any special liability provisions that apply to an offence apply also to the offence of aiding, abetting, counselling or procuring the commission of that offence.

(11) Schedule 1, page 5, after item 8B, insert:

8C After subsection 11.4(2)

Insert:

(2A) Subsection (2) has effect subject to subsection (4A).

8D After subsection 11.4(4)

Insert:

(4A) Any special liability provisions that apply to an offence apply also to the offence of incitement in respect of that offence.

(12) Schedule 1, page 5, after item 8D, insert:

8E After subsection 11.5(2)

Insert:

(2A) Subsection (2) has effect subject to subsection (7A).

8F After subsection 11.5(7)

Insert:

(7A) Any special liability provisions that apply to an offence apply also to the offence of conspiracy to commit that offence.

(13) Schedule 1, item 12, page 7 (line 4), at the end of the heading to subsection (3), add “—primary offence”.

(14) Schedule 1, item 12, page 7 (after line 6), before paragraph (a), insert:

(aa) the alleged offence is a primary offence; and

(15) Schedule 1, item 12, page 7 (after line 22), at the end of section 14.1, add:

Defence—ancillary offence

(5) If this section applies to a particular offence, a person is not guilty of the offence if:

(a) the alleged offence is an ancillary offence; and

(b) the conduct constituting the alleged offence occurs wholly in a foreign country, but not on board an Australian aircraft or an Australian ship; and

(c) the conduct constituting the primary offence to which the ancillary offence relates, or a result of that conduct, occurs, or is intended by the person to occur, wholly in a foreign country, but not on board an Australian aircraft or an Australian ship; and

(d) there is not in force in:

(i) the foreign country where the conduct constituting the primary offence to which the ancillary offence relates, or a result of that conduct, occurs, or is intended by the person to occur; or

(ii) the part of the foreign country where the conduct constituting the primary offence to which the ancillary offence relates, or a result of that conduct, occurs, or is intended by the person to occur;

a law of that foreign country, or a law of that part of that foreign country, that creates an offence that corresponds to the primary offence.

Note: A defendant bears an evidential burden in relation to the matters in subsection (5). See subsection 13.3(3).

(6) For the purposes of the application of subsection 13.3(3) to an offence, subsection (5) of this section is taken to be an exception provided by the law creating the offence.

(16) Schedule 1, item 12, page 8 (line 21), at the end of the heading to subsection (2), add “—primary offence”.

(17) Schedule 1, item 12, page 8 (after line 23), before paragraph (a), insert:

(aa) the alleged offence is a primary offence; and

(18) Schedule 1, item 12, page 9 (after line 8), at the end of section 15.1, add:

Defence—ancillary offence

(4) If a law of the Commonwealth provides that this section applies to a particular offence, a person is not guilty of the offence if:

(a) the alleged offence is an ancillary offence; and

(b) the conduct constituting the alleged offence occurs wholly in a foreign country, but not on board an Australian aircraft or an Australian ship; and

(c) the conduct constituting the primary offence to which the ancillary offence relates, or a result of that conduct, occurs, or is intended by the person to occur, wholly in a foreign country, but not on board an Australian aircraft or an Australian ship; and

(d) the person is neither:

(i) an Australian citizen; nor

(ii) a body corporate incorporated by or under a law of the Commonwealth or of a State or Territory; and

(e) there is not in force in:

(i) the foreign country where the conduct constituting the primary offence to which the ancillary offence relates, or a result of that conduct, occurs, or is intended by the person to occur; or

(ii) the part of the foreign country where the conduct constituting the primary offence to which the ancillary offence relates, or a result of that conduct, occurs, or is intended by the person to occur;

a law of that foreign country, or a law of that part of that foreign country, that creates an offence that corresponds to the primary offence.

Note: A defendant bears an evidential burden in relation to the matters in subsection (4). See subsection 13.3(3).

(5) For the purposes of the application of subsection 13.3(3) to an offence, subsection (4) of this section is taken to be an exception provided by the law creating the offence.

(19) Schedule 1, item 12, page 10 (line 5), at the end of the heading to subsection (2), add “—primary offence”.

(20) Schedule 1, item 12, page 10 (after line 7), before paragraph (a), insert:

(aa) the alleged offence is a primary offence; and

(21) Schedule 1, item 12, page 10 (after line 27), at the end of section 15.2, add:

Defence—ancillary offence

(4) If a law of the Commonwealth provides that this section applies to a particular offence, a person is not guilty of the offence if:

(a) the alleged offence is an ancillary offence; and

(b) the conduct constituting the alleged offence occurs wholly in a foreign country, but not on board an Australian aircraft or an Australian ship; and

(c) the conduct constituting the primary offence to which the ancillary offence relates, or a result of that conduct, occurs, or is intended by the person to occur, wholly in a foreign country, but not on board an Australian aircraft or an Australian ship; and

(d) the person is neither:

(i) an Australian citizen; nor

(ii) a body corporate incorporated by or under a law of the Commonwealth or of a State or Territory; and

(e) there is not in force in:

(i) the foreign country where the conduct constituting the primary offence to which the ancillary offence relates, or a result of that conduct, occurs, or is intended by the person to occur; or

(ii) the part of the foreign country where the conduct constituting the primary offence to which the ancillary offence relates, or a result of that conduct, occurs, or is intended by the person to occur;

a law of that foreign country, or a law of that part of that foreign country, that creates an offence that corresponds to the primary offence.

Note: A defendant bears an evidential burden in relation to the matters in subsection (4). See subsection 13.3(3).

(5) For the purposes of the application of subsection 13.3(3) to an offence, subsection (4) of this section is taken to be an exception provided by the law creating the offence.

(22) Schedule 1, item 12, page 11 (line 3), at the end of the heading to subsection (2), add “—primary offence”.

(23) Schedule 1, item 12, page 11 (after line 5), before paragraph (a), insert:

(aa) the alleged offence is a primary offence; and

(24) Schedule 1, item 12, page 11 (after line 25), at the end of section 15.3, add:

Defence—ancillary offence

(4) If a law of the Commonwealth provides that this section applies to a particular offence, a person is not guilty of the offence if:

(a) the alleged offence is an ancillary offence; and

(b) the conduct constituting the alleged offence occurs wholly in a foreign country, but not on board an Australian aircraft or an Australian ship; and

(c) the conduct constituting the primary offence to which the ancillary offence relates, or a result of that conduct, occurs, or is intended by the person to occur, wholly in a foreign country, but not on board an Australian aircraft or an Australian ship; and

(d) the person is neither:

(i) an Australian citizen; nor

(ii) a body corporate incorporated by or under a law of the Commonwealth or of a State or Territory; and

(e) there is not in force in:

(i) the foreign country where the conduct constituting the primary offence to which the ancillary offence relates, or a result of that conduct, occurs, or is intended by the person to occur; or

(ii) the part of the foreign country where the conduct constituting the primary offence to which the ancillary offence relates, or a result of that conduct, occurs, or is intended by the person to occur;

a law of that foreign country, or a law of that part of that foreign country, that creates an offence that corresponds to the primary offence.

Note: A defendant bears an evidential burden in relation to the matters in subsection (4). See subsection 13.3(3).

(5) For the purposes of the application of subsection 13.3(3) to an offence, subsection (4) of this section is taken to be an exception provided by the law creating the offence.

(25) Schedule 1, item 15, page 20 (after line 29), after subsection (2), insert:

(2A) In a prosecution for an offence against subsection (1), it is not necessary to prove that the defendant knew or believed that the property belonged to a Commonwealth entity.

(26) Schedule 1, item 15, page 21 (after line 4), after paragraph (3)(a), insert:

(aa) it is previously received property (as defined by subsection (5A)); or

(27) Schedule 1, item 15, page 21 (after line 24), after subsection (5), insert:

Previously received property

(5A) For the purposes of this section, previously received property is property that:

(a) was received in the course of an offence against subsection (1); and

(b) is in the possession or custody of the person who received the property in the course of that offence.

(28) Schedule 1, item 15, page 21 (line 26), after “property”, insert “or previously received property”.

(29) Schedule 1, item 15, page 22 (lines 6 and 7), omit paragraph (7)(a), substitute:

(a) is (in whole or in part) the proceeds of sale of, or property exchanged for:

(i) original stolen property; or

(ii) previously received property; and

(30) Schedule 1, item 15, page 22 (line 8), before “is”, insert “if subparagraph (a)(i) applies—”.

(31) Schedule 1, item 15, page 22 (line 15), omit “obtained.”, substitute “obtained; and”.

(32) Schedule 1, item 15, page 22 (after line 15), at the end of subsection (7), add:

(c) if subparagraph (a)(ii) applies—is in the possession or custody of the person who received the previously received property in the course of an offence against subsection (1).

(33) Schedule 1, item 15, page 24 (after line 13), at the end of section 132.2, add:

(3) In a prosecution for an offence against subsection (1), it is not necessary to prove that the defendant knew that the property belonged to a Commonwealth entity.

(34) Schedule 1, item 15, page 24 (after line 27), after subsection (2), insert:

(2A) In a prosecution for an offence against subsection (1), it is not necessary to prove that the defendant knew that the property belonged to a Commonwealth entity.

(35) Schedule 1, item 15, page 25 (lines 2 to 10), omit subsections (1) and (2), substitute:

(1) A person is guilty of an offence if:

(a) the person enters, or remains in, a building, as a trespasser, with intent to commit theft of a particular item of property in the building; and

(b) the property belongs to a Commonwealth entity.

Penalty: Imprisonment for 13 years.

(2) For the purposes of this Code, an offence against subsection (1) is to be known as the offence of burglary.

(2A) In a prosecution for an offence against subsection (1), it is not necessary to prove that the defendant knew that the property belonged to a Commonwealth entity.

(36) Schedule 1, item 15, page 25 (lines 12 to 16), omit paragraph (3)(a), substitute:

(a) the person enters, or remains in, a building, as a trespasser, with intent to commit an offence in the building that involves causing harm to another person or damage to property; and

(aa) the offence referred to in paragraph (a) is an offence against a law of the Commonwealth; and

(37) Schedule 1, item 15, page 25 (after line 19), after subsection (3), insert:

(3A) In a prosecution for an offence against subsection (3), it is not necessary to prove that the defendant knew that the offence referred to in paragraph (3)(a) is an offence against a law of the Commonwealth.

(38) Schedule 1, item 15, page 25 (lines 27 to 32), omit paragraph (6)(a), substitute:

(a) the person enters, or remains in, a building, as a trespasser, with intent to commit an offence in the building that involves causing harm to another person or damage to property; and

(aa) the offence referred to in paragraph (a) is an offence against a law of the Commonwealth, a State or a Territory; and

(39) Schedule 1, item 15, page 26 (after line 3), after subsection (6), insert:

(6A) In a prosecution for an offence against subsection (6), it is not necessary to prove that the defendant knew that the offence referred to in paragraph (6)(a) is an offence against a law of the Commonwealth, a State or a Territory.

(40) Schedule 1, item 15, page 26 (lines 20 and 21), omit subsection (11).

(41) Schedule 1, item 15, page 27 (after line 5), after subsection (2), insert:

(3) In a prosecution for an offence against subsection (1) in relation to the offence of burglary created by subsection 132.4(1), it is not necessary to prove that the defendant knew that the property concerned belonged to a Commonwealth entity.

(4) In a prosecution for an offence against subsection (1) in relation to the offence of burglary created by subsection 132.4(3), it is not necessary to prove that:

(a) the defendant knew that the offence referred to in paragraph 132.4(3)(a) is an offence against a law of the Commonwealth; or

(b) the defendant knew that the offence referred to in paragraph 132.4(3)(a) is punishable by imprisonment for life or for a term of 5 years or more.

(5) In a prosecution for an offence against subsection (1) in relation to the offence of burglary created by subsection 132.4(6), it is not necessary to prove that:

(a) the defendant knew that the offence referred to in paragraph 132.4(6)(a) is an offence against a law of the Commonwealth, a State or a Territory; or

(b) the defendant knew that the offence referred to in paragraph 132.4(6)(a) is punishable by imprisonment for life or for a term of 5 years or more; or

(c) the defendant knew that the building was owned or occupied by a Commonwealth entity.

(42) Schedule 1, item 15, page 27 (line 6), subsection (3), renumber as subsection (6).

(43) Schedule 1, item 15, page 28 (lines 1 and 2), omit subsection (2), substitute:

(2) In a prosecution for an offence against subsection (1) in relation to:

(a) theft; or

(b) robbery; or

(c) aggravated robbery; or

(d) the offence of burglary created by subsection 132.4(1); or

(e) the offence of aggravated burglary that relates to the offence of burglary created by subsection 132.4(1); or

(f) an offence against section 134.1;

it is not necessary to prove that the defendant knew that the property concerned belonged to a Commonwealth entity.

(3) In a prosecution for an offence against subsection (1) in relation to:

(a) the offence of burglary created by subsection 132.4(3); or

(b) the offence of aggravated burglary that relates to the offence of burglary created by subsection 132.4(3);

it is not necessary to prove that:

(c) the defendant knew that the offence referred to in paragraph 132.4(3)(a) is an offence against a law of the Commonwealth; or

(d) the defendant knew that the offence referred to in paragraph 132.4(3)(a) is punishable by imprisonment for life or for a term of 5 years or more.

(4) In a prosecution for an offence against subsection (1) in relation to:

(a) the offence of burglary created by subsection 132.4(6); or

(b) the offence of aggravated burglary that relates to the offence of burglary created by subsection 132.4(6);

it is not necessary to prove that:

(c) the defendant knew that the offence referred to in paragraph 132.4(6)(a) is an offence against a law of the Commonwealth, a State or a Territory; or

(d) the defendant knew that the offence referred to in paragraph 132.4(6)(a) is punishable by imprisonment for life or for a term of 5 years or more; or

(e) the defendant knew that the building was owned or occupied by a Commonwealth entity.

(44) Schedule 1, item 15, page 28 (line 3), subsection (3), renumber as subsection (5).

(45) Schedule 1, item 15, page 35 (line 27) to page 36 (line 32), omit section 135.3.

(46) Schedule 1, item 15, page 37 (lines 29 and 30), omit subsection (6), substitute:

(6) In a prosecution for an offence against subsection (5), it is not necessary to prove that the defendant knew that the third person was a Commonwealth entity.

(47) Schedule 1, item 15, page 42 (after line 27), at the end of section 137.1, add:

(4) Subsection (1) does not apply as a result of subparagraph (1)(c)(i) if, before the information was given by a person to the Commonwealth entity, the Commonwealth entity did not take reasonable steps to inform the person of the existence of the offence against subsection (1).

Note: A defendant bears an evidential burden in relation to the matter in subsection (4). See subsection 13.3(3).

(5) Subsection (1) does not apply as a result of subparagraph (1)(c)(ii) if, before the information was given by a person (the first person) to the person mentioned in that subparagraph (the second person), the second person did not take reasonable steps to inform the first person of the existence of the offence against subsection (1).

Note: A defendant bears an evidential burden in relation to the matter in subsection (5). See subsection 13.3(3).

(6) For the purposes of subsections (4) and (5), it is sufficient if the following form of words is used:

“Giving false or misleading information is a serious offence”.

(48) Schedule 1, item 15, page 47 (lines 24 to 26), omit paragraph (b), substitute:

(b) the official does so with the intention:

(i) that the exercise of the official's duties as a Commonwealth public official will be influenced; or

(ii) of inducing, fostering or sustaining a belief that the exercise of the official's duties as a Commonwealth public official will be influenced.

(49) Schedule 1, item 15, page 60 (line 1), omit “lawful excuse”, substitute “reasonable excuse”.

(50) Schedule 1, item 15, page 60 (after line 3), at the end of subsection (3), add:

Note: A defendant bears an evidential burden in relation to the matter in paragraph (3)(c). See subsection 13.3(3).

(51) Schedule 1, item 15, page 60 (line 10), omit “purpose); and”, substitute “purpose).”.

(52) Schedule 1, item 15, page 60 (lines 11 and 12), omit paragraph (c).

(53) Schedule 1, item 15, page 60 (after line 13), at the end of subsection (4), add:

Note: See also section 10.5 (lawful authority).

(54) Schedule 1, item 15, page 60 (after line 28), after subsection (1), insert:

(1A) Absolute liability applies to the paragraph (1)(b) element of the offence.

(55) Schedule 1, item 15, page 60 (line 33), omit “a Commonwealth entity”, substitute “another person”.

(56) Schedule 1, item 15, page 61 (line 1), omit “a Commonwealth entity.”, substitute “another person; and”.

(57) Schedule 1, item 15, page 61 (after line 1), after paragraph (b), insert:

(c) the other person is a Commonwealth entity.

(58) Schedule 1, item 15, page 61 (after line 2), at the end of section 145.4, add:

(3) In a prosecution for an offence against subsection (2), it is not necessary to prove that the defendant knew that the other person was a Commonwealth entity.

(59) Schedule 1, item 15, page 61 (line 6), after “the person”, insert “dishonestly”.

(60) Schedule 1, item 15, page 61 (after line 20), after subsection (1), insert:

(1A) Absolute liability applies to the paragraph (1)(c) element of the offence.

(61) Schedule 1, item 15, page 61 (line 22), after “the person”, insert “dishonestly”.

(62) Schedule 1, item 15, page 61 (line 27), omit “a Commonwealth entity”, substitute “another person”.

(63) Schedule 1, item 15, page 61 (line 28), omit “a Commonwealth entity.”, substitute “another person; and”.

(64) Schedule 1, item 15, page 61 (after line 28), after paragraph (c), insert:

(d) the other person is a Commonwealth entity.

(65) Schedule 1, item 15, page 61 (after line 29), at the end of section 145.5, add:

(3) In a prosecution for an offence against subsection (2), it is not necessary to prove that the defendant knew that the other person was a Commonwealth entity.

(66) Schedule 1, item 15, page 62 (lines 14 and 15), omit the definition of deception.

(67) Schedule 1, item 15, page 63 (line 20), omit “Commonwealth”.

(68) Schedule 1, item 15, page 63 (line 26), omit “Commonwealth”.

(69) Schedule 1, item 15, page 63 (line 29), omit “Commonwealth public official.”, substitute “public official; and”.

(70) Schedule 1, item 15, page 63 (after line 29), after paragraph (e), insert:

(ea) the public official is a Commonwealth public official; and

(eb) if subparagraph (e)(i) applies—the status mentioned in that subparagraph was status as a Commonwealth public official; and

(ec) if subparagraph (e)(ii) applies—the conduct mentioned in that subparagraph was engaged in by the official in the official's capacity as a Commonwealth public official.

(71) Schedule 1, item 15, page 64 (after line 4), after subsection (1), insert:

(1A) Absolute liability applies to the paragraphs (1)(ea), (eb) and (ec) elements of the offence.

(72) Schedule 1, item 15, page 64 (line 30), omit “Commonwealth”.

(73) Schedule 1, item 15, page 65 (line 4), omit “Commonwealth”.

(74) Schedule 1, item 15, page 65 (line 7), omit “Commonwealth public official.”, substitute “public official; and”.

(75) Schedule 1, item 15, page 65 (after line 7), after paragraph (d), insert:

(da) the official is a Commonwealth public official; and

(db) if subparagraph (d)(i) applies—the status mentioned in that subparagraph was status as a Commonwealth public official; and

(dc) if subparagraph (d)(ii) applies—the conduct mentioned in that subparagraph was engaged in by the official in the official's capacity as a Commonwealth public official.

(76) Schedule 1, item 15, page 65 (after line 12), after subsection (1), insert:

(1A) Absolute liability applies to the paragraphs (1)(da), (db) and (dc) elements of the offence.

(77) Schedule 1, item 15, page 65 (line 18), omit “Commonwealth”.

(78) Schedule 1, item 15, page 65 (line 26), omit “Commonwealth”.

(79) Schedule 1, item 15, page 65 (line 29), omit “Commonwealth public official.”, substitute “public official; and”.

(80) Schedule 1, item 15, page 65 (after line 29), after paragraph (d), insert:

(e) the official is a Commonwealth public official; and

(f) if subparagraph (d)(i) applies—the status mentioned in that subparagraph was status as a Commonwealth public official; and

(g) if subparagraph (d)(ii) applies—the conduct mentioned in that subparagraph was engaged in by the official in the official's capacity as a Commonwealth public official.

(81) Schedule 1, item 15, page 65 (after line 30), after subsection (2), insert:

(2A) Absolute liability applies to the paragraphs (2)(e), (f) and (g) elements of the offence.

(82) Schedule 1, item 15, page 67 (line 6), omit “, by a deception,”.

(83) Schedule 1, item 15, page 67 (line 10), omit “duty.”, substitute “duty; and”.

(84) Schedule 1, item 15, page 67 (after line 10), after paragraph (b), insert:

(c) the first-mentioned person does so with intent to deceive.

(85) Schedule 1, item 15, page 67 (after line 20), after subsection (2), insert:

(2A) For the purposes of subsection (2), it is immaterial:

(a) whether the other person exists or is fictitious; and

(b) whether the other person's capacity as a Commonwealth public official exists or is fictitious.

(86) Schedule 1, item 15, page 67 (line 24), omit “by a deception,”.

(87) Schedule 1, item 15, page 67 (line 33), omit “function.”, substitute “function; and”.

(88) Schedule 1, item 15, page 67 (after line 33), after paragraph (b), insert:

(c) if subparagraph (a)(i) applies—the first-mentioned person also does so with intent to deceive.

(89) Schedule 1, item 15, page 68 (after line 1), after subsection (3), insert:

(3A) For the purposes of subparagraph (3)(a)(ii), it is immaterial:

(a) whether the other person exists or is fictitious; and

(b) whether the other person's capacity as a Commonwealth public official exists or is fictitious.

(90) Schedule 1, item 15, page 68 (line 6), omit “, by a deception,”.

(91) Schedule 1, item 15, page 68 (line 10), omit “duty.”, substitute “duty; and”.

(92) Schedule 1, item 15, page 68 (after line 10), after paragraph (b), insert:

(c) the first-mentioned official does so with intent to deceive.

(93) Schedule 1, item 15, page 68 (after line 19), after subsection (2), insert:

(2A) For the purposes of subsection (2), it is immaterial:

(a) whether the other person exists or is fictitious; and

(b) whether the other person's capacity as a Commonwealth public official exists or is fictitious.

(94) Schedule 1, item 15, page 68 (line 22), omit “by a deception,”.

(95) Schedule 1, item 15, page 68 (line 30), omit “function.”, substitute “function; and”.

(96) Schedule 1, item 15, page 68 (after line 30), after paragraph (b), insert:

(c) if subparagraph (a)(i) applies—the first-mentioned official also does so with intent to deceive.

(97) Schedule 1, item 15, page 68 (after line 31), after subsection (3), insert:

(3A) For the purposes of subparagraph (3)(a)(ii), it is immaterial:

(a) whether the other person exists or is fictitious; and

(b) whether the other person's capacity as a Commonwealth public official exists or is fictitious.

(98) Schedule 1, item 16, page 80 (lines 6 to 13), omit Chapter 11.

(99) Schedule 1, page 87 (after line 12), after item 39, insert:

39A The Dictionary in the Criminal Code

Insert:

special liability provision means:

(a) a provision that provides that absolute liability applies to one or more (but not all) of the physical elements of an offence; or

(b) a provision that provides that, in a prosecution for an offence, it is not necessary to prove that the defendant knew a particular thing; or

(c) a provision that provides that, in a prosecution for an offence, it is not necessary to prove that the defendant knew or believed a particular thing.

(100) Schedule 2, item 1, page 88 (line 11), omit “135.3,”.

(101) Schedule 2, item 2, page 88 (line 20), omit “135.3,”.

(102) Schedule 2, item 5, page 88 (line 29), omit “135.3,”.

(103) Schedule 2, item 33, page 92 (line 8), omit “135.3,”.

(104) Schedule 2, item 45, page 93 (line 22), omit “135.3,”.

(105) Schedule 2, heading referring to the Australian Security Intelligence Organization Act 1979, page 94 (line 18), omit “Organization”, substitute “Organisation”.

(106) Schedule 2, heading referring to the Child Care Payments Act 1997, page 104 (line 8), omit the heading.

(107) Schedule 2, item 128, page 104 (lines 9 to 12), omit the item.

(108) Schedule 2, item 194, page 111 (line 19), omit “135.3,”.

(109) Schedule 2, item 197, page 111 (line 28), omit “135.3,”.

(110) Schedule 2, item 199, page 112 (line 6), omit “135.3,”.

(111) Schedule 2, item 215, page 114 (line 10), omit “19(1)”, substitute “49(1)”.

(112) Schedule 2, item 216, page 114 (line 12), omit “19(2)(b)”, substitute “49(2)(b)”.

(113) Schedule 2, page 114 (after line 14), after item 216, insert:

216A Subregulation 49(3)

Repeal the subregulation, substitute:

(3) Subregulation (2) applies to an application for an authorisation as if references in that subregulation to a permission were references to an authorisation.

(114) Schedule 2, item 219, page 114 (line 25), omit “135.3,”.

(115) Schedule 2, item 220, page 115 (line 4), omit “135.3,”.

(116) Schedule 2, item 221, page 115 (line 10), omit “135.3,”.

(117) Schedule 2, item 242, page 119 (line 5), omit “, 135.3”.

(118) Schedule 2, page 130 (before line 17), before item 325, insert:

324A After subsection 4(3)

Insert:

(3A) For the purposes of this Act, in determining whether a person has derived substantial benefit from the commission of 2 or more public fraud offences, have regard to the aggregate of the benefits derived by the person from the commission of those offences.

(119) Schedule 2, page 130, after item 324A, insert:

324B Subsection 7(1)

Insert:

public fraud offence means any of the following:

(a) an offence against section 134.1, 134.2, 135.1 or 135.4 of the Criminal Code;

(b) an offence against repealed section 29D or 86A of the Crimes Act committed after the commencement of this Act;

(c) an offence against section 5, 6, 7 or 8 of the Crimes (Taxation Offences) Act 1980 committed after the commencement of this Act;

(d) an ancillary offence in relation to an offence covered by paragraph (b) or (c).

Note: The heading to section 7 of the Proceeds of Crime Act 1987 is altered by inserting “public fraud offence and” after “Meaning of”.

324C Subsection 7(1) (definition of serious offence)

Repeal the definition, substitute:

serious offence means:

(a) a serious narcotics offence; or

(b) a money laundering offence in relation to the proceeds of a serious narcotics offence; or

(c) an ancillary offence in relation to an offence covered by paragraph (a) or (b); or

(d) an offence that is the subject of a declaration under section 96A.

324D After subsection 7(1)

Insert:

(1A) Paragraph (d) of the definition of serious offence in subsection (1) has effect subject to subsections 96A(2), (4) and (6).

(120) Schedule 2, item 325, page 130 (lines 18 to 20), omit all the words from and including “, substitute” to the end of the item.

(121) Schedule 2, page 130 (after line 20), after item 325, insert:

325A At the end of section 7

Add:

(3) To avoid doubt, express references in this section to ancillary offences do not imply that section 11.6 of the Criminal Code has no application to a particular provision of this Act.

(122) Schedule 2, item 326, page 130 (line 24), omit “135.3,”.

(123) Schedule 2, page 130 (after line 25), after item 326, insert:

326A At the end of subsection 73(4)

Add:

; or (d) both:

(i) has committed, or is about to commit, 3 or more public fraud offences; and

(ii) has derived, or is about to derive, substantial benefit from the commission of any or all of those offences.

(124) Schedule 2, page 131 (after line 1), after item 328, insert:

328A Before section 97

Insert:

96A Organised fraud orders

Convictions of public fraud offences

(1) If:

(a) a person has, at the same sitting, been convicted by a court of 3 or more public fraud offences; and

(b) the DPP applies to the court for an order under this subsection in relation to each of those offences; and

(c) the court is satisfied that the person has derived substantial benefit from the commission of any or all of those offences;

the court must, by order, declare each of those offences to be a serious offence.

(2) A declaration under subsection (1) only has effect in relation to the convictions concerned.

Charges and proposed charges of public fraud offences

(3) If:

(a) a person has been charged with 3 or more public fraud offences; and

(b) the DPP applies to the relevant Supreme Court for an order under this subsection in relation to each of those offences; and

(c) the application for the order is supported by an affidavit of a police officer stating that the officer believes that the person has derived substantial benefit from the commission of any or all of those offences; and

(d) the court is satisfied, having regard to the matters contained in the affidavit, that there are reasonable grounds for holding that belief;

the court must, by order, declare each of those offences to be a serious offence.

(4) A declaration under subsection (3) only has effect in relation to the charges concerned.

(5) If:

(a) a person is about to be charged with 3 or more public fraud offences; and

(b) the DPP applies to the relevant Supreme Court for an order under this subsection in relation to each of those offences; and

(c) the application for the order is supported by an affidavit of a police officer stating that the officer believes that the person has derived substantial benefit from the commission of any or all of those offences; and

(d) the court is satisfied, having regard to the matters contained in the affidavit, that there are reasonable grounds for holding that belief;

the court must, by order, declare each of those offences to be a serious offence.

(6) A declaration under subsection (5) only has effect in relation to the proposed charges concerned.

(7) If:

(a) a restraining order is granted in reliance on the charging, or proposed charging, of a person with an ordinary indictable offence; and

(b) the person is subsequently convicted of the offence; and

(c) a court makes an order under subsection (1) in relation to the offence;

this Act has effect as if the restraining order had been granted in reliance on the charging, or proposed charging, of the person with a serious offence.

(125) Schedule 2, item 395, page 139 (line 26), omit “, 135.3”.

(126) Schedule 2, item 396, page 140 (line 2), omit “, 135.3”.

(127) Schedule 2, item 398, page 140 (line 7), omit “, 135.3”.

In my summing up, I referred to the excellent work carried out by the Standing Committee on Legal and Constitutional Affairs, ably chaired by the honourable member for Menzies. I am particularly pleased to advise of a positive response to the five recommendations in the advisory report which, together with some other issues, are addressed through government amendments (1) to (127), which I moved together a moment ago.

The government's response to the recommendations of the advisory report is as follows. The first recommendation was that the offence of general dishonesty at proposed section 135.1 not be proclaimed until the Attorney-General and the standing committee are satisfied by the Director of Public Prosecutions that prosecution guidelines will ensure the proposed offence is applied appropriately. The proposed amendment will not be necessary, because the Director of Public Prosecutions has prepared draft guidelines, which were provided to the chairman of the standing committee, the member for Menzies, and the honourable member for Denison before the commencement of this debate. The guidelines will be put in place before the bill commences.

It should be noted that recommendation 2 proposes the deletion of the offence of organised fraud at proposed section 135.3. The government accepts this recommendation and proposes that this be done by government amendment (45). The standing committee concluded that the offence was unnecessary, given that there are other fraud offences, such as proposed sections 134.1 and 134.2, which can be used to provide for appropriate sentences and that the trigger for the operation of automatic forfeiture and special restraining order provisions of the Proceeds of Crime Act 1987 can be achieved by other means.

Where there are three or more public fraud offences, such as in proposed sections 134.1 and 134.2, the prosecution can always ask the court to impose cumulative sentences. If this occurs, the court will be able to impose a maximum penalty of more than the 25 years imprisonment which is available with the organised fraud offence. This is because each of the public fraud offences has a maximum penalty of 10 years imprisonment. There is no need for a separate offence. Government amendments (118) to (124) provide a suitable mechanism for triggering the automatic forfeiture and special restraining order provisions of the Proceeds of Crime Act 1987. These amendments show that the organised fraud offence is not required to achieve the policy objectives of that act.

Recommendation 3 proposes that there be a defence to the false or misleading information offences in proposed section 137.1 which is available to those who have not been given notice of the existence of the offence. The standing committee concluded that there may be cases where people do not consider that by providing false information they may be committing a criminal offence. The government accepts this recommendation in relation to the offences referred to in subparagraphs (i) and (ii) of proposed section 137.1(1)(c) and proposes that this be done by government amendment (47). The proposed defence does not apply to subparagraph (iii) of proposed section 137.1(1)(c) because it deals with the situation where the defendant gives the false or misleading information in circumstances where he or she is aware it is being provided in compliance or purported compliance with the law.

Recommendation 4 is another good suggestion from the standing committee. The committee noted that the element of `dishonesty' had been omitted from the offence of giving information derived from false documents under proposed section 145.5 and recommended that it should be included. `Dishonesty' is an element in the equivalent model criminal code offence and is used in offences of similar seriousness elsewhere in this bill. Accordingly, government amendment (59) implements the recommendation. (Extension of time granted)

Government amendment (35) addresses recommendation 5 by making it clear that in the burglary offence at proposed section 132.4, where someone breaks in to steal a particular item of property, it is not necessary to prove the person knew that the property concerned belonged to a Commonwealth entity. This recognises that proof of awareness about jurisdictional elements, which would not need to be established under existing offences, should not be required under the criminal code offences because community knowledge of such matters is very limited and, regardless of whether the defendant knew of those matters, he or she would still have similar culpability. This issue arises elsewhere in the bill, so there are a number of other government amendments which deal with the same issue in other offences.

There are other government amendments which have been developed in recent months to improve the bill. Many of these address the requirements of proof of awareness in relation to jurisdictional elements of offences such as those in government amendments (36) to (44) and elsewhere detailed in the supplementary explanatory memorandum. Related to these are amendments (9) to (12) and (99), which ensure that those elements are not required to be proved where ancillary liability, such as attempt, complicity, incitement or conspiracy to commit those offences, is involved.

Other improvements are the clarification of the scope of lawfulness defences. The general defence of lawful authority is addressed by government amendment (8) and the defence, which concerns the law of other countries and operates where there is international geographical jurisdiction, is addressed by government amendments (13) to (24), by ensuring it applies where there is ancillary liability. Steps have been taken in government amendments (26) to (33) to ensure the offence of receiving covers those who have received property originally obtained by fraud in the same way it is dealt with where it is originally taken by theft.

Clarification has also been provided by government amendment (48) that the offence of bribery covers those who take a bribe with no intention of acting upon it, and government amendments (82) to (97) are to ensure that the impersonation offence at proposed section 148.1 covers the situation where the official being falsely represented does not exist. The offences in this bill have significant practical implications for the Commonwealth and the proposed government amendments have been developed to ensure we have the best possible outcome. I commend the amendments to the chamber.