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Thursday, 8 March 2001
Page: 22780


Senator IAN CAMPBELL (Parliamentary Secretary to the Minister for Communications, Information Technology and the Arts) (9:38 AM) —I table the explanatory memorandum relating to the bill and move:

That this bill be now read a second time.

I seek leave to have the second reading speech incorporated in Hansard.

Leave granted.

The speech read as follows—

The purpose of the Prime Minister and Cabinet Legislation (Application of Criminal Code) Bill 2001 is to amend certain offence provisions in the Prime Minister's portfolio to harmonise them with Chapter 2 of the Criminal Code.

Chapter 2 of the Criminal Code, contained in the Criminal Code Act 1995, establishes general principles of criminal responsibility and a standard approach to the formulation of Commonwealth criminal offences. It will govern the interpretation of all Commonwealth offence provisions from 15 December 2001.

Many Commonwealth offence provisions pre-date the Criminal Code, and there is a possibility that the application of the Code will change their meaning and operation. As a result, each portfolio is introducing legislation to amend offence provisions in their legislation, where necessary, to harmonise them with the Code. In most cases, this will preserve the current meaning and operation of offences.

This Bill harmonises offence and related provisions in the Prime Minister's portfolio in several ways. These amendments are largely of a technical nature.

First, the Bill makes it clear that the Criminal Code applies to offence provisions within the Prime Minister's portfolio.

Second, the Bill clarifies whether certain offences are strict liability offences - that is, an offence where the prosecution does not need to prove any fault on the part of the defendant. The Bill does not create any new strict liability offences.

Third, the Bill clarifies those offences where, if the defendant has a reasonable excuse for doing something or failing to do something, the prosecution will fail. The Attorney-General's Department has advised that there is some uncertainty about whether this defence applies to certain offences as they are currently drafted. The Bill will remove that uncertainty by creating separate provisions stating that it is a defence to a charge if the defendant had a reasonable excuse for doing what he or she did.

Fourth, the Bill replaces inappropriate fault elements for certain offences. The Code envisages that offences will comprise three physical elements - conduct, circumstance or result - each of which attracts a corresponding fault element. Some provisions in the Prime Minister's portfolio currently use inappropriate fault elements and the Bill removes and replaces these.

Fifth, the Bill removes parts of offences, such as attempt, which duplicate the general offence provisions in the Criminal Code.

Sixth, the Bill will transfer the legal burden of proving matters relating to two specific defences in the Royal Commissions Act 1902 to the prosecution. This will ensure conformity with the policy underlying the Code.

Finally, the Bill also makes certain changes consequential to the expected passage of the Law and Justice Legislation Amendment (Application of Criminal Code) Bill 2000, as well as renumbering some sections in the Ombudsman Act 1976 and removing gender specific language in the Royal Commissions Act 1902.

The harmonisation process will pay a substantial dividend by bringing greater consistency and clarity to Commonwealth criminal law.

Ordered that further consideration of this bill be adjourned to the first day of the 2001 Budget sittings, in accordance with standing order 111.