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Thursday, 1 March 2001
Page: 24852


Mrs VALE (10:23 AM) —The purpose of the Veterans' Affairs Legislation Amendment (Application of Criminal Code) Bill 2000 is to revise the criminal offence provisions in legislation administered by the Department of Veterans' Affairs, with reference to chapter 2 of the Criminal Code Act 1995, which sets out criminal responsibility. Since 1995, a staggered program has been under way whereby the principles of criminal responsibility contained in chapter 2 of the code have been applied to all Commonwealth legislation dealing with criminal offences. From 1 January 1997, all new Commonwealth offences were covered; and, from 15 December 2001, the criminal code will apply to all pre-existing Commonwealth offences. Pursuant to the provisions of chapter 2 of the criminal code, the Commonwealth government departments have been assessing all existing offence provisions to ensure compatibility with the code. I fully support the application of the criminal code to the veterans' affairs legislation, and consequently I support this bill. If I may borrow a little from the Department of Veterans' Affairs' vision statement, this bill will do the right thing the right way.

The amendments contained in this bill provide that chapter 2 will apply to all offence provisions in legislation administered by the Department of Veterans' Affairs. These amendments will identify strict liability offences. They will clarify defences and fault elements and remove references to the Crimes Act ancillary provisions and replace them with references to equivalent provisions in the criminal code so that they will have the same operation as before. Legislation administered under the Department of Veterans' Affairs includes the Defence Service Homes Act of 1918 and the Veterans' Entitlements Act 1986. The Department of Veterans' Affairs exists to serve Australia's veterans, their war widows, widowers and dependants through programs of care, compassion, compensation and commemoration.

The department disburses large amounts of public money each year. In this year's budget, around $290 million underpinned its services to the benefit of a large number of Australians. It is not just those who receive a service pension or disability health care who are affected. It also affects those who have lost past members of their families or other loved ones and who are comforted by visits to commemorative memorials that list the names amongst those who have given their lives in defence of our land, or by visits to war graves located in many distant lands.

This bill is needed in order to protect the tens of thousands of the veterans' community who are recipients of benefits and who may be threatened by breakdowns in the integrity of the system caused by any offenders. I do not believe the scale of the benefit program is widely known and understood. Since 1996 more than 10,000 additional veterans have had their service recognised with eligibility for pensions and treatment benefits. More than 38,000 veterans have benefited from the government's decision to extend treatment benefits to eligible World War II veterans over the age of 70. For these reasons it is very important that the legislation is administered correctly.

This bill will align a number of offence creating and related provisions with the general principles of criminal responsibility as codified in the criminal code. Prior to this act the problem had been recognised for almost a century. In 1897 Sir Samuel Griffiths, who had drafted the Queensland criminal code, called for a collected and explicit statement of the criminal law. In 1990 and 1991 there was a review of the criminal law that recommended a complete overhaul of the Crimes Act of 1914. At about the same time, state and territory governments were looking to reform their laws which had come to be regarded as too cumbersome, outdated, too numerous and unnecessarily complex. Consequently, all governments committed themselves to developing a model criminal code, and this national goal was achieved with the Criminal Code Act of 1995.

The amendments contained in this legislation have not been rushed and have been carefully weighed and considered. The time taken has been deliberately designed. Although the criminal code was a 1995 bill it did not take effect until 1 January 1997, as I mentioned earlier. The staggered implementation of the criminal code across the range of portfolios was designed to give officials and ministers sufficient time to assess the effect of the criminal code on their departments' operations and to identify the necessary amendments.

The bill does not change the offence creating or related provisions of the veterans' affairs legislation, which mirrored those contained in legislation administered by the Health and Aged Care portfolio and by the Family and Community Services portfolio. The bill will clarify important elements of offences, particularly fault elements. In dealing with criminal intention, existing laws have opted for abstract definitions. This provides a fertile ground for academics and lawyers. Hours of precious court time can be wasted in legal argument about the meaning of particular fault elements or to what extent to which the prosecution should have the burden of proving those fault elements.

Under the existing law there are mixed or combined standards of objectivity and subjectivity. Objectivity requires fault to be determined on the basis of whether the defendant has realised, according to the ordinary standards of the reasonable person test, that what they were doing was wrong. Under the criminal code that will apply to this bill, a defendant's guilt will depend on what he or she thought or intended at the time of the offence and not what a reasonable person would have thought or intended if they had been in the defendant's shoes. In other words, for conduct the fault element is intention. The code provides for the fault element not only of intention but also of knowledge, recklessness and negligence. It does not prevent particular laws creating other fault elements. However, in harmonising the veterans' affairs legislation with the code, the non-code fault element of wilfulness is eliminated, because it is considered to be an equivalent of intention and there should be no obligation on any future court to distinguish between the two. It is intended that these changes will lead to improvements in the efficiency and fairness of prosecutions. It is important that, if our laws are to allow us to efficiently and effectively deal with offenders, the laws be clear and certain in their terms.

Australia has the most generous repatriation system in the world with record funding for the veterans community in the year 2000 budget. I remind the House that in the budget there was a record $32.3 million package for the support of Vietnam veterans and their families to address the validated findings of the Vietnam veterans health study. Some $26.6 million was provided to extend full repatriation benefits to more than 2,600 Australian Defence Force personnel who served in South-East Asia between 1955 and 1975. Some personnel have had to wait up to 55 years for their entitlements, and I am sure that we all join in thanking them for their service and in according them our respect and gratitude for their patience.

There was the introduction of the veterans home care program, and also $17.2 million provided to extend the successful Their Service—Our Heritage commemorative program for a further four years. Some $6.8 million was provided to extend the residential care development scheme for another year, and there was a capital injection of $18.3 million over four years to further develop a database to capture health related data. In addition, income testing arrangements for residential aged care fees were simplified.

The amendments in this bill will allow the efficient application of the offence provisions of the veterans affairs legislation by harmonising the fault elements with the Criminal Code. By such application the amendments in this bill will provide a greater consistency and certainty in the prosecution of the criminal laws of the Commonwealth. I commend the bill to the House.