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Wednesday, 22 August 2001
Page: 30059

Dr SOUTHCOTT (11:38 AM) —The Health and Aged Care Legislation Amendment (Application of Criminal Code) Bill 2001 is a technical bill and it applies the Criminal Code across Commonwealth legislation in the health and aged care area. It has been occurring in other portfolio areas, and this bill harmonises health and aged care legislation with the Criminal Code. This bill amends 15 statutes in the Health and Aged Care portfolio.

The Criminal Code, which was created by the Criminal Code Act 1995, codifies the most serious offences against Commonwealth law and establishes a cohesive set of general principles of criminal responsibility. From 1 January 1997, the Criminal Code applied to all new Commonwealth offences. Now this legislation is to ensure as part of this agreement that, from 15 December 2001, the Criminal Code will apply to pre-existing Commonwealth offences. In order to meet this deadline, the Commonwealth has been reviewing the pre-existing provisions. Similar amendments, as I said, have been made to other Commonwealth legislation containing criminal offence provisions.

The bill applies the Criminal Code to all offence creating and related provisions in acts within the Health and Aged Care portfolio. It makes amendments to these provisions to ensure compliance and consistency with the Criminal Code general principles. Further, the bill ensures provisions of the code are interpreted as they are intended.

While a majority of offences in the Health and Aged Care portfolio will operate as they previously have, without amendment, there are some that require amendment. One of the most important amendments is the express application of strict liability to some offence creating provisions. These offences must be expressly identified and then the prosecution does not have to find fault elements. At present most strict liability criminal offences under Commonwealth law do not expressly state they are offences of strict liability and a judge decides their interpretation. This bill amends each existing strict liability offence provision to expressly state that the offence is one of strict liability. In addition, the bill amends provisions to expressly apply strict liability to individual physical elements of offences where that is appropriate.

The bill will also improve the prosecution of offences by clarifying the physical elements, correcting inappropriate fault elements and by clarifying provisions relating to proof of criminal responsibility. Where there is an offence, first of all the code establishes that there is a physical element, which covers the conduct, circumstances or result under which the criminal offence occurred. There is also a fault element, which covers intention, knowledge, recklessness and negligence.

Several provisions in health and aged care legislation require a defendant to bear an onus of proof where they have to prove beyond reasonable doubt. This is unnecessarily demanding and inconsistent with the Criminal Code. The bill amends the health and aged care legislation so that where an evidential burden is placed on the defendant it must be discharged on the balance of probabilities. Where a provision in the Health and Aged Care portfolio is duplicated in the Criminal Code, the bill will repeal the provision in the portfolio legislation. If relevant offences are not revised as set out in the bill, many will become more difficult for the prosecution to prove and therefore reduce the protection which was intended by parliament for the people against criminal acts within health and aged care.

The bill covers key amendments: strict and absolute liability; correcting inappropriate fault elements; substituting equivalent Criminal Code fault elements; lawful authority and lawful excuse defences; better identifying defences and exceptions; clarifying physical elements in offences; and implementing the Criminal Code ancillary provisions. It also retains, within the health and aged care legislation, corporate criminal responsibility. There is one exception where it has been applied to ANZFA. It also codifies defences such as reasonable excuse or inability to comply with the statutory requirement. Ancillary offences have been moved from the Crimes Act to the Criminal Code. False and misleading statements are removed from the health and aged care legislation, and part 7.4 of the Criminal Code applies instead.

This bill raises a number of issues. The bill overall is a technical application of the Criminal Code to health and aged care legislation. There are some questions that have been raised. For example, why are there some penalties in dollar values and not penalty units? Dollar values do not keep their value over time. For example, with the Health Insurance Act, you have in one section 19CC one penalty unit for an offence and a penalty against subsection 19D(2) of $100. There are some inconsistencies within the act. Some penalties are less than one penalty unit.

In the area of strict liability, another question that has been raised is why `failing' or `refusing' are included in strict liability offences. `Refusing' implies that there is some fault, which is not necessary to prove with a strict liability offence. When the legislation covering Prime Minister and Cabinet was debated, refusal was deleted as it was inconsistent with strict liability. That having been said, this is a technical bill that applies the Criminal Code to health and aged care legislation. It is hard to see what immediate implications there will be from this bill. It is more just harmonising the bill across all Commonwealth portfolios.