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Criminal Code Amendment (Anti-hoax and Other Measures) Bill 2002

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2002

 

 

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

 

 

 

THE HOUSE OF REPRESENTATIVES

 

 

 

 

 

 

CRIMINAL CODE AMENDMENT (ANTI-HOAX AND OTHER MEASURES) BILL 2002

 

 

 

 

 

 

 

EXPLANATORY MEMORANDUM

 

 

 

 

 

 

 

 

 

 

 

(Circulated by authority of the Attorney-General,

the Honourable Daryl Williams AM QC MP)

 

 



 

CRIMINAL CODE AMENDMENT (ANTI-HOAX AND OTHER MEASURES) BILL 2002

 

 

OUTLINE

 

This Bill would amend Part 10.5 of the Criminal Code Act 1995 by adding new offences relating to the sending of dangerous, threatening or hoax material through the post or similar services .  The new offences would replace the existing outdated postal offences in sections 85S, 85X and 85Y of the Crimes Act 1914

The amendments would ensure that federal offences cover the use of all postal and other like services and not just Australia Post as at present.  Services which would be covered by the proposed amendments include commercial courier and parcel and packet carrying services.  The amendments would also increase the penalties for the offences to more appropriate levels to properly reflect the harm that can be caused by the sending of threatening, dangerous or hoax material.

 

 

 

 

FINANCIAL IMPACT STATEMENT

 

There are no direct financial impacts from this Bill.

 



NOTES ON CLAUSES

 

Clause 1: Short title

This clause sets out the short title by which this Act may be cited. 

 

Clause 2: Commencement

This clause provides that sections 1 to 3 and Schedule 2 to the Act commence on the day on which the Act receives Royal Assent. 

The clause also provides that Schedule 1 to the Act is taken to have commenced at 2pm on 16 October 2001.  This is the time and date at which the Prime Minister publicly announced the proposed new offence for sending hoax material, which is contained in the Schedule.  The Prime Minister indicated that the offence would commence from the time of the announcement.

The Government does not lightly pursue retrospective legislation.  However, in this case there were exceptional circumstances justifying retrospectivity.  During October 2001, hoaxes were causing significant concern and disruption.  It was necessary to ensure that such conduct was adequately deterred in the period before the resumption of Parliament.  The Prime Minister’s announcement provided this deterrence.  Furthermore, one of the criticisms that can be directed at retrospective criminal legislation is that people will be unaware that their conduct is an offence.  In this case, the Prime Minister’s announcement was in very clear terms, and received immediate, widespread publicity.  The amendments operate only from the time of that announcement. 

An additional consideration is that there is no circumstance in which the perpetration of a hoax that a dangerous or harmful thing has been sent could be considered a legitimate activity in which a person was entitled to engage pending these amendments.  The amendments do not retrospectively abrogate a legitimate right or entitlement.  For all these reasons, the retrospective application of these amendments is not considered to contravene fundamental principles of fairness or due process.

Clause 3: Schedule(s)

This clause provides that each Act that is specified in a Schedule is amended or repealed as set out in that Schedule.



Schedule 1 - Amendments commencing on 16 October 2001

 

This Schedule inserts into the Criminal Code a new offence dealing with the use of the post or a similar service to send hoax material.  This offence is dealt with in a separate schedule to the other proposed offences because it has retrospective operation, whereas the other offences commence on Royal Assent. 

 

The amendments contained in Schedule 1 are taken to have commenced at 2pm on 16 October 2001.  This is the time and date at which the Prime Minister publicly announced the proposed new offence for sending hoax material, which is contained in the Schedule.  The Prime Minister stated that the offence would commence from the time of the announcement.

 

Criminal Code Act 1995

 

Item 1

 

This Item inserts a definition of the term constitutional corporation into section 470.1 of the Criminal Code.  A “constitutional corporation” is a foreign, trading or financial corporation as referred to in paragraph 51(xx) of the Constitution.  The new offences would extend to courier services and parcel or packet carrying services that are provided by a constitutional corporation.  This definition is one of the mechanisms that aligns the ambit of the offences with the scope of Commonwealth legislative power under the Constitution.

 

Item 2

 

This Item inserts a definition of the term postal or similar service into section 470.1 of the Criminal Code.  The definition is designed to extend the application of the new offences in proposed sections 471.10, 471.11, 471.12 and 471.13 to all postal services, courier services and parcel or packet carrying services, to the extent they are within Commonwealth constitutional power.  The definition provides a number of links with Commonwealth constitutional power, namely, Commonwealth power with respect to postal and other like services; overseas and interstate trade and commerce; and foreign, trading and financial corporations.  This definition, and hence the offence, draw on these particular heads of power   because they have a clear relationship to commercial postal, courier and parcel carrying services.

 

Item 3

 

This Item amends section 471.9 of the Criminal Code to ensure that Category C geographical jurisdiction only applies to the existing postal offences in Part 10.5 of the Criminal Code and not to the proposed offences in this Bill (excepting the offence in proposed section 471.15). 

 

Category C geographical jurisdiction is unrestricted and applies whether or not the conduct or the result of the conduct constituting the alleged offence occurs in Australia.  It is not appropriate to apply Category C geographical jurisdiction to the proposed offences because, unlike the existing offences, the new offences in proposed sections 471.11, 471.12 and 471.13 would apply to all postal and like services and not just Australia Post.  The application of Category C geographical jurisdiction to the proposed offences would mean that they would cover conduct which has no relevance to Australia, for example, where a person posts dangerous goods within the United States.  Proposed section 471.14 would apply the more limited Category A geographical jurisdiction to the proposed offences (see Item 4). 

 

Item 4

 

This Item inserts proposed sections 471.10 and 471.14 into the Criminal Code.  Proposed section 471.10 contains the new anti-hoax offence and proposed section 471.14 sets out the geographical jurisdiction for that offence.

 

Proposed section 471.10 - Hoaxes-explosives and dangerous substances

Proposed section 471.10 would make it an offence to cause an article to be carried by a postal or similar service with the intention of inducing a false belief in another person that the article contains an explosive, dangerous or harmful thing or that an explosive, dangerous or harmful thing will be left in any place. A maximum penalty of 10 years imprisonment would apply.  The maximum fine would be $66,000 for a natural person and $330,000 for a body corporate under the existing $110 value for a penalty unit in section 4AA of the Crimes Act, and the provisions for calculating maximum fines in section 4B of that Act.

Following the terrorist acts of 11 September 2001, there have been a significant number of false alarms involving packages or letters containing apparently hazardous material, which have highlighted the need for tough penalties to deter such malicious and irresponsible actions.  The new hoax offence would attract a higher penalty (in place of the existing 5 year penalty offence) and would also apply more broadly to any postal or similar service, rather than being limited to Australia Post.  For that reason, the limited definition of “carry by post” under the Australian Postal Corporation Act 1989 , as applied by section 470.1 of the Criminal Code, is expressed not to apply to this offence.   

The new offence would operate retrospectively to 16 October 2001 (see section 2).  This is the time and date at which the Prime Minister publicly announced the new offence.

 

Proposed section 471.14 - Geographical jurisdiction

 

Proposed section 471.14 would apply Category A geographical jurisdiction, as set out in section 15.1 of the Criminal Code, to the offence in proposed section 471.10.  Category A geographical jurisdiction would also apply to the offences in proposed sections 471.11, 471.12 and 471.13 (Item 5 of Schedule 2 inserts references to those offences into section 471.14).

 

Category A geographical jurisdiction will be satisfied if (i) the conduct constituting the offence occurs wholly or partly in Australia, or wholly or partly on board an Australian aircraft or an Australian ship; (ii) a result of the conduct occurs wholly or partly in Australia or wholly or partly on board an Australian aircraft or an Australian ship; or (iii) at time of the alleged offence the person charged with the offence was an Australian citizen or body corporate.  Where the conduct constituting an offence occurs wholly in a foreign country and only a result occurs in Australia, there is a defence available if there is no corresponding offence in that foreign country.  However, that defence is not available if jurisdiction is to be exercised on the basis of the person's nationality.

 

The application of Category A jurisdiction to the offences in this Bill would mean that, regardless of where conduct constituting an offence occurs, if the results of that conduct affect Australia the person responsible would generally be able to be prosecuted in Australia.  For example, a person in the United States who sends a letter containing a death threat to a recipient in Australia would commit the offence. 

 



Schedule 2 - Amendments commencing on Royal Assent

 

Crimes Act 1914

 

Item 1

 

This Item would repeal section 85S of the Crimes Act, which deals with the sending of menacing, harassing or offensive material through Australia Post.  This offence would be replaced with the new offences in proposed sections 471.11 and 471.12 (see Item 4).

 

Item 2

 

This Item would repeal section 85X of the Crimes Act.  Section 85X makes it an offence to post dangerous or deleterious substances and things through Australia Post.  This offence would be replaced with the new offences in proposed sections 471.13 and 471.15 (see Items 4 and 6).

 

Item 3

 

This Item would repeal section 85Y of the Crimes Act, which deals with the sending of hoax material.  The offence in section 85Y would be replaced by the offence in proposed section 471.10 (see Item 4 of Schedule 1).  Although the offence in proposed section 471.10 would be taken to have commenced 16 October 2001, the repeal of the existing offence in section 85Y would not take effect until the day after Royal Assent.  This is necessary to ensure that prosecutions instituted under the existing provision for offences committed after 16 October 2001 but before Royal Assent are not affected.

 

Item 4

 

This Item would insert proposed sections 471.11, 471.12, 471.13 and 471.15 into the Part 10.5 of the Criminal Code.  Sections 471.11, 471.12 and 47.13 contain new offences directed at the use of postal and similar services to make threats or to send material which is menacing, harassing, offensive or dangerous.  Section 471.15 applies to the posting of dangerous goods through Australia Post.

 

Proposed section 471.11 - Using a postal or similar service to make a threat

 

Proposed section 471.11 contains offences dealing with threats to kill and threats to cause serious harm.

Proposed subsection 471.11(1) would make it an offence for a person to use a postal or like service to make to another person a threat to kill that other person or a third person with the intention of causing the other person to fear that the threat will be carried out.  A maximum penalty of 10 years imprisonment would apply.  The maximum fine would be $66,000 for a natural person and $330,000 for a body corporate under the existing $110 value for a penalty unit in section 4AA of the Crimes Act, and the provisions for calculating maximum fines in section 4B of that Act.  The proposed offence is drawn from section 5.1.20 of the Model Criminal Code ( Non Fatal Offences Against the Person Report ).

Proposed subsection 471.11(2) would make it an offence for a person to use a postal or like service to make to another person a threat to cause serious harm to that other person or a third person with the intention of causing the other person to fear that the threat will be carried out.  A maximum penalty of 7 years imprisonment would apply.  The maximum fine would be $46,200 for a natural person and $231,000 for a body corporate under the existing $110 value for a penalty unit in section 4AA of the Crimes Act, and the provisions for calculating maximum fines in section 4B of that Act.  The proposed offence is based on section 5.1.21 of the Model Criminal Code ( Non Fatal Offences Against the Person Report ).

The key fault element of the threat offences is the intention to intimidate or instil fear in the victim.  However, there is no requirement that the threats actually instil fear in the victim.  A threat can be express or implied and may be conditional or unconditional (proposed subsection (3)).

 

At present, the Crimes Act only contains an offence relating to the sending of menacing, harassing or offensive material, which attracts a penalty of 1 year imprisonment (section 85S).  The new offences would target those who use postal services to make serious threats and provide for higher penalties to reflect the seriousness of the conduct involved.

 

Proposed section 471.12 - Using a postal or similar service to menace, harass or cause offence

Proposed section 471.12 would make it an offence for a person to use a postal or like service in such a way as would be regarded by a reasonable person as being, in all the circumstances, menacing, harassing or offensive.  A maximum penalty of imprisonment for 2 years would apply.  The maximum fine would be $13,200 for a natural person and $66,000 for a body corporate under the existing $110 value for a penalty unit in section 4AA of the Crimes Act, and the provisions for calculating maximum fines in section 4B of that Act.

This offence draws on the terms of the existing section 85S offence, but broadens the scope of the offence in relation to menacing or harassing material by removing the requirement that the recipient be in fact menaced or harassed and replacing it with an objective standard.  The new offence also increases the existing penalty of 1 year imprisonment to 2 years, in line with the suggested penalty for the draft Model Criminal Code “threat to cause harm” offence ( Non Fatal Offences Against the Person Report ) .

 

In practice, the offence would cover material that would make a person apprehensive as to his or her safety or well-being or the safety of his or her property as well as material containing offensive or abusive language or derogatory religious, racial or sexual connotations. 

 

Proposed section 471.13 - Causing a dangerous article to be carried by a postal or similar servic e

 

Proposed section 471.13 would make it an offence for a person to use a postal or similar service to send an article in a way that gives rise to a danger of death or serious harm to another person, where the first person is reckless as to the danger of death or serious harm.  A maximum penalty of 10 years imprisonment would apply.  The maximum fine would be $66,000 for a natural person and $330,000 for a body corporate under the existing $110 value for a penalty unit in section 4AA of the Crimes Act, and the provisions for calculating maximum fines in section 4B of that Act.

 

Proposed subsections (2), (3), (4) and (5) clarify the meaning of the phrase “danger of death or serious harm”.  Subsection (2) provides that exposing a person to a disease that may give rise to a danger of death or serious harm to that person is to be treated as equivalent to exposing them to that danger.  Subsection (3) specifies that for the offence to be committed the danger must be real and not merely theoretical.  However, subsection (4) provides that a person’s conduct may give rise to a danger of death or serious harm whatever the degree of risk involved, and subsection (5) makes it clear that the offence is concerned with potential rather than actual danger. 

 

“Serious harm” is harm that endangers, or is likely to, endanger a person’s life or that is likely to be significant and longstanding and includes harm to a person’s mental health (section 475.1, Criminal Code).

 

The proposed offence draws on the endangerment offences in sections 5.1.25 and 5.1.26 of the Model Criminal Code ( Non Fatal Offences Against the Person Report ).   The offence is designed to prohibit in general terms the sending of dangerous goods through a postal or like service in a manner which creates a risk of death or serious harm, but to allow for goods to be sent where they are safely packaged. 

 

The offence would extend to all postal and similar services rather than being limited to Australia Post, a limitation that applies under the existing offence in section 85X of the Crimes Act.  However, a separate offence specific to Australia Post would be retained in proposed section 471.15.  As the offence applies to the use of services other than Australia Post, the limited definition of “carry by post” in the Australian Postal Corporation Act 1989 is expressed not to apply to this offence.

 

The offence, together with the offence in proposed section 471.15, would replace the existing offences in section 85X of the Crimes Act.  Section 85X currently contains three offences dealing with the carriage of dangerous or deleterious substance or things by Australia Post.  Under the existing offences, causing a “totally prohibited substance or thing” to be carried by Australia Post attracts a penalty of up to ten years.  Causing a “standard regulated substance or thing” to be carried by Australia Post otherwise than in accordance with terms and conditions set by Australia Post carries a penalty of up to 5 years imprisonment.  Causing a “specially regulated substance or thing” to be carried other than in accordance with permission granted by Australia Post attracts a penalty of up to 2 years imprisonment. 

 

The terms of the existing offences were not appropriate for general application to all postal and similar services for a number of reasons.  First, the offence was not designed to cover services other than Australia Post.  Some courier and parcel and packet carrying services carry goods that could be regarded as dangerous or deleterious, provided the goods are properly packaged and labelled.  Accordingly, it is not possible to continue the complete prohibition on the sending of specified "dangerous and deleterious" substances.  The new offence would allow postal services to continue to carry certain "dangerous goods" but would require the goods to be packaged in such a way that they do not present any risk of serious harm.

 

Second, under the existing offence, if Australia Post permits certain types of goods to be posted in accordance with specified conditions, those goods fall into the category of “standard regulated substances or things” and a failure to comply with those conditions can only attract a penalty of up to 5 years imprisonment.  As a consequence, posting anthrax, for example, would only be punishable by up to 5 years imprisonment under the existing offence because Australia Post terms and conditions permit the postage of infectious biological substances in certain circumstances.  Under the amendments, a 10 year imprisonment maximum penalty would apply in all cases.

 

Item 5

 

This Item inserts references to proposed sections 471.11, 471.12, 471.13 into section 471.14.  Section 471.14 would apply Category A geographical jurisdiction to the offences in those sections (see the discussion in relation to Item 4 of Schedule 1).

 

Item 6

 

This Item inserts proposed section 471.15 into Part 10.5 of the Criminal Code. 

 

Proposed section 471.15 - Causing an explosive, or a dangerous or harmful substance, to be carried by post

 

P roposed section 471.15 would make it an offence for a person to cause to be carried by post an explosive or a dangerous or harmful substance or thing that is prescribed in the regulations.  The maximum penalty for the offence would be 10 years imprisonment.  The maximum fine would be $66,000 for a natural person and $330,000 for a body corporate under the existing $110 value for a penalty unit in section 4AA of the Crimes Act, and the provisions for calculating maximum fines in section 4B of that Act. 

 

It is necessary to have the scope to add items by regulation, because the specific items that are prohibited for posting with Australia Post may change at short notice, including where new types of goods come into existence

 

The proposed offence replicates the existing offence in subsection 85X(2) of the Crimes Act.  Like the existing offence, the proposed offence would only apply where the dangerous goods are lodged for carriage by Australia Post, because the term “carry by post” is given the same meaning as in the Australian Postal Corporation Act 1989 (s ection 470.1, Criminal Code ) where it means “ carried by or through Australia Post” (section 4) .

 

It is necessary to include this offence in addition to the broader dangerous goods offence in proposed section 471.13 in order to maintain the current prohibition on posting explosives and other prescribed dangerous substances through Australia Post while also ensuring that all postal and similar services are covered by a general offence.  It is not appropriate to completely prohibit the sending of explosives or other specified substances in the general offence as some postal and courier services carry explosives and other dangerous articles provided they are packaged in such a way that they do not present any risk of harm.  However, a more prescriptive offence is justified in relation to Australia Post, as Australia Post specifically prohibits the carriage of explosives and also deals with a high volume of mail. 

 

Proposed subsection (2) would apply Category C geographical jurisdiction, as set out in section 15.3 of the Criminal Code, to the offence.  Category C geographical jurisdiction is unrestricted and applies whether or not the conduct or the result of the conduct constituting the alleged offence occurs in Australia.  It is appropriate to apply Category C geographical jurisdiction to the proposed offence because the offence only applies where articles are posted through Australia Post.