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Prime Minister and Cabinet Legislation Amendment (Application of Criminal Code) Bill 2001

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1998-1999-2000-2001

 

 

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

 

 

SENATE

 

 

 

 

 

 

 

PRIME MINISTER AND CABINET LEGISLATION AMENDMENT (APPLICATION OF THE CRIMINAL CODE) BILL 2001

 

 

 

 

 

 

 

EXPLANATORY MEMORANDUM

 

 

 

 

 

 

 

(Circulated by authority of the Prime Minister,

the Honourable John Howard, MP)

 

 

PRIME MINISTER AND CABINET LEGISLATION AMENDMENT (APPLICATION OF THE CRIMINAL CODE) BILL 2001

 

 

 

OUTLINE

 

The Bill amends offence and related provisions in the Prime Minister’s portfolio to provide for the application 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. 

 

The Code will govern the interpretation of all Commonwealth offence provisions from 15 December 2001.  As many older offence provisions in Commonwealth legislation were drafted without reference to the Code, their meaning and operation may change following that date.  Those provisions must be ‘harmonised’ with the Code in order to preserve their current meaning and operation.

 

The Bill harmonises offence and related provisions in the Prime Minister’s portfolio by:

 

·         applying the Criminal Code to those provisions;

·         clarifying whether certain provisions create offences of strict liability;

·         clarifying whether the defence of reasonable excuse applies to certain offences;

·         ensuring that the prosecution bears the legal burden of proof in relation to certain defences;

·         removing and replacing inappropriate fault elements for certain offences; and

·         removing parts of offence provisions which duplicate the general offence provisions in the Criminal Code. 

 

The Bill is largely intended to preserve the existing meaning and operation of the provisions, although in some cases it is intended to change the provisions to ensure that they comply with the broader policy underlying the Code. 

In addition, the Bill also makes certain amendments consequential to the expected passage of the Law and Justice Legislation Amendment (Application of Criminal Code) Bill 2000, re-numbers sections of the Ombudsman Act 1976 and removes gender specific language in the Royal Commissions Act 1902 .

 

 

FINANCIAL IMPACT STATEMENT

 

The Bill makes minor amendments to offence provisions in the Prime Minister’s portfolio and is not expected to have any financial impact. 

 



NOTES ON CLAUSES

 

Clause 1: Short title

 

The clause sets out the Bill’s short title.

 

Clause 2: Commencement

 

The clause provides for the Bill’s commencement.

 

The Bill needs to commence by 15 December 2001, which is the day from which Chapter 2 of the Criminal Code is expected to apply to all Commonwealth offence provisions.  However, as some of the provisions of the Bill are dependent on the commencement of other legislation, namely the Law and Justice Legislation Amendment (Application of Criminal Code) Bill 2000 and the Criminal Code Amendment (Theft, Fraud, Bribery and Related Offences) Act 2000 , the clause provides for the Bill to commence on the latest of three dates:

 

·         immediately after the commencement of Item 15 of Schedule 1 of the Criminal Code Amendment (Theft, Fraud, Bribery and Related Offences) Act 2000 ;

·         the start of the 28 th day after the day on which the Law and Justice Legislation Amendment (Application of Criminal Code) Act 2001 receives the Royal Assent; or

·         the start of the 28 th day after the day on which the Act receives the Royal Assent.

 

Clause 3:  Schedule(s)

 

The clause provides that each Act specified in the Schedules to the Bill is amended or repealed as set out in the Schedules. 

 

Clause 4: Application of the Amendments

 

The clause is a transitional clause which deals with the temporal application of the amendments made by the Bill.

 

Where an act or omission allegedly giving rise to an offence takes place before an amendment commences, the amendment made by the Bill does not apply. 

 

Where an act or omission allegedly giving rise to an offence takes place after an  amendment commences, the amendment made by the Bill does apply. 

 

Where the act or omission is alleged to have taken place between two dates, one date being before an amendment commences and the other date being after an amendment commences, the act or omission is deemed to have taken place before the amendment commenced.  In other words, the amendment made by the Bill does not apply. 

 

Schedule 1 - Application of the Criminal Code

 

Inspector-General of Intelligence and Security Act 1986

 

Item 1

 

The item adds a new section 5A to the Act.  The new section applies Chapter 2 of the Criminal Code, which establishes general principles of criminal responsibility, to all offences against the Act.

 

Items 2 to 5

 

These items amend section 18 of the Act, which deals with the Inspector-General’s power to obtain information and documents. 

 

Item 2 amends paragraph 18(6)(d) to remove the references to sections 7, 7A and 86 of the Crimes Act 1914 .  Those sections, which deal with attempt, incitement and conspiracy, will be repealed by the Law and Justice Legislation Amendment (Application of Criminal Code) Bill 2000.  The item replaces those references with references to the equivalent provisions in the Criminal Code.

 

Subsection 18(7) of the Act makes it an offence to refuse or fail to be sworn or give information or documents to the Inspector-General without reasonable excuse.  Items 3 and 5 restructure section 18 to make it clear that a defence of reasonable excuse applies to an offence against subsection 18(7).  Item 3 removes the reference to reasonable excuse from subsection 18(7). Although those words suggest that a defence of reasonable excuse applies, there is a possibility that they could be interpreted as creating an element of the offence which needs to be proved by the prosecution.  Item 5 adds a new subsection 18(7B), which creates a defence of reasonable excuse in relation to an offence against subsection 18(7).   Item 5 also adds a standard note which makes it clear that the defendant only bears an evidential burden in relation to this defence.

 

Items 4 and 5 make it clear that subsection 18(7) creates a strict liability offence.  The subsection, in its current form, is likely to create a strict liability offence given the nature of the offence, the presence of a defence of reasonable excuse and the relatively small penalty involved.  Item 4 removes the words ‘refuses or’ from paragraphs 18(7)(a) and (b) of the Act.  These words suggest that some fault on the part of the defendant is required and are inconsistent with the strict liability nature of the offence.  Item 5 adds a new subsection 18(7A) to the Act which states that subsection 18(7) is an offence of strict liability.  The item also adds a standard note which refers to the provisions concerning strict liability in the Criminal Code.  These items are not intended to create a new strict liability offence.  They are merely intended to make it clear that subsection 18(7) creates a strict liability offence.

 

Ombudsman Act 1976

 

Item 6

 

The item adds a new section 3D to the Act.  The new section applies Chapter 2 of the Criminal Code, which establishes general principles of criminal responsibility, to all offences against the Act.

 

Items 7 and 8

 

These items amend section 36 of the Act which makes it an offence to refuse or fail to attend before the Ombudsman, be sworn, furnish information or produce documents to the Ombudsman without reasonable excuse.  Item 7 removes the reference to reasonable excuse from subsection 36(1).  Although those words suggest that a defence of reasonable excuse applies, there is a possibility that they could be interpreted as creating an element of the offence which needs to be proved by the prosecution.  Item 8 adds a new subsection 36(2A).  The new subsection creates a defence of reasonable excuse in relation to an offence against subsection 36(1).  The item also adds a standard note which makes it clear that the defendant only bears an evidential burden in relation to this defence. 



Parliamentary Commission of Inquiry (Repeal) Act 1986

 

Item 9

 

The item adds a new section 4A to the Act.  The new section applies Chapter 2 of the Criminal Code, which establishes general principles of criminal responsibility, to all offences against the Act.

 

Resource Assessment Commission Act 1989

 

Item 10

 

The item adds a new section 4A to the Act.  The new section applies most of Chapter 2 of the Criminal Code, which establishes general principles of criminal responsibility, to all offences against the Act. 

 

The section makes it clear that Part 2.5 of the Code, which deals with corporate criminal responsibility, does not apply to offences against the Act.  The corporate criminal responsibility provision in section 55 of the Act will continue to apply instead.

 

Item 11 to 17

 

These items amend section 53 of the Act, which makes it an offence to refuse or fail to comply with a notice, to take an oath or answer questions without reasonable excuse.

 

Items 11 and 13, along with items 14 and 15, restructure section 53 to make it clear that a defence of reasonable excuse applies to offences against subsections 53(1) and (2).  Items 11 and 14 remove the references to reasonable excuse in subsections 53(1) and (2).  Although those words suggest that a defence of reasonable excuse applies, there is a possibility that they could be interpreted as creating elements of the offences which need to be proved by the prosecution.  Items 13 and 15 add new subsections 53(1B) and 53(2B), which create defences of reasonable excuse in relation to offences against subsections 53(1) and (2).  Item 15 also adds a standard note which makes it clear that the defendant only bears an evidential burden in relation to these defences.

 

Items 12 and 13, along with items 14 and 15, make it clear that subsections 53(1) and (2) create strict liability offences.  Subsections 53(1) and (2), in their current form, are likely to create strict liability offences given the nature of the offences, the presence of a defence of reasonable excuse and the relatively small penalties involved.  Items 12 and 14 remove the words ‘refuses or’ from paragraphs 53(1)(a) and (b) and subsection 53(2) of the Act.  These words suggest that some fault on the part of the defendant is required and are inconsistent with the strict liability nature of the offences.  Items 13 and 15 add new subsections 53(1A) and (2A) to the Act, which state that subsections 53(1) and (2) are offences of strict liability.  Item 13 also adds a standard note which refers to the provisions concerning strict liability in the Criminal Code.  These items are not intended to create new strict liability offences.  They are merely intended to make it clear that subsections 53(1) and (2) create strict liability offences.

 

Item 16 amends subsection 53(3) consequent to the amendments made by items 11 and 13.  Subsection 53(3) currently refers to the words ‘reasonable excuse’ in subsection 53(1).  However, item 11 will remove the references to reasonable excuse in that subsection and item 13 will create a new subsection 53(1B) dealing with reasonable excuse.  Accordingly, the item replaces the reference to subsection 53(1) with a reference to the new subsection 53(1B).

 

Item 17 amends subsection 53(3) consequent to the amendment made by item 12.  Item 12 removes the words ‘refuses or’ from subsection 53(1).  This item removes the corresponding words ‘refuse or’ in subsection 53(3).

 

Royal Commissions Act 1902

 

Item 18

 

The item adds a new section 1C to the Act.  The new section applies Chapter 2 of the Criminal Code, which establishes general principles of criminal responsibility, to all offences against the Act. 

 

Items 19 to 25

 

These items amend section 3 of the Act, which makes it an offence to fail to attend before a Commission, or to refuse or fail to produce a document which the Commission requires to be produced without reasonable excuse.  

 

Items 20, 21 and 22 make it clear that subsections 3(1) and (2) create strict liability offences.  Subsections 3(1) and (2), in their current form, are likely to create strict liability offences given the nature of the offences, the presence of a defence of reasonable excuse and the relatively small penalties involved.  Item 21 removes the words ‘refuse or’ subsection 3(2).  These words suggest that some fault on the part of the defendant is required and are inconsistent with the strict liability nature of the offences.  Items 20 and 22 add new subsections 3(1A) and (2A) to the Act which state that subsections 3(1) and (2) are offences of strict liability.  The items also add standard notes which refer to the provisions concerning strict liability in the Criminal Code.  The items are not intended to create new strict liability offences.  They are merely intended to make it clear that subsections 3(1) and (2) create strict liability offences.

 

Items 19 and 20, along with items 21 and 22, restructure section 3 to make it clear that a defence of reasonable excuse applies to offences against subsection 3(1) and (2).  Items 19 and 21 remove the references to reasonable excuse in subsections 3(1) and (2).  Although those words suggest that a defence of reasonable excuse applies, there is a possibility that they could be interpreted as creating elements of the offences which need to be proved by the prosecution.  Items 20 and 22 add new subsections 3(1B) and (2B), which create defences of reasonable excuse in relation to offences against subsections 3(1) and (2). 

 

Item 23 amends subsection 3(3) consequent to the amendment made by item 21.  Item 21 removes the word ‘refuse or’ from subsection 3(2).  This item removes the corresponding words ‘refusal or’ in subsection 3(3).

 

Item 24 transfers the legal burden of proving the defence in subsection 3(3) from the defendant to the prosecution.  The words ‘it is proved that’ in existing subsection 3(3) suggest that the defendant currently bears the legal burden of proving this defence.  The Criminal Code envisages that a defendant should only bear an evidential burden in relation to a defence.  This item, along with item 25, makes it clear that the defendant only bears an evidential burden in relation to this defence. 

 

Item 25 adds a standard note to section 3 which makes it clear that a defendant only bears an evidential burden in relation to the defences in subsections 3(1B), (2B) and (3). 

 



Item 26

 

The item amends section 6 of the Act, which makes it an offence to refuse to be sworn or answer questions.

 

The item makes it clear that subsection 6(1) creates a strict liability offence.  Subsection 6(1), in its current form, is likely to create a strict liability offence given the nature of the offence and the relatively small penalty involved.  The item adds a new subsection 6(3) to the Act which provides that subsection 6(1) creates a strict liability offence.  The item also adds a standard note which refers to the provisions concerning strict liability in the Criminal Code.  The item is not intended to create a new strict liability offence.  It is merely intended to make it clear that subsection 6(1) creates a strict liability offence.

 

Item 27

 

The item amends section 6A of the Act, which deals with the application of the privilege against self-incrimination. 

 

The item amends subsection 6A(1) consequent to the amendment made by items 21 and 22.  Subsection 6A(1) currently refers to the words ‘reasonable excuse’ in subsection 3(2) of the Act.  However, item 21 removes the reference to reasonable excuse in subsection 3(2), and item 22 adds a new subsection 3(2B) which creates a defence of reasonable excuse.  Accordingly, this item replaces the reference to subsection 3(2) in subsection 6A(1) and replaces it with a reference to new subsection 3(2B).

 

Item 28

 

The item amends section 6H of the Act, which makes it an offence for a person to give false or misleading evidence to a Royal Commission.

 

The item restructures subsection 6H(1) to remove inappropriate fault elements currently contained in the offence. 

 

The physical elements of this offence are conduct (ie. giving evidence) and circumstance (ie. the evidence is false or misleading).  The subsection, as currently drafted, uses knowledge as the fault element for both of these physical elements.  However, following the application of the Criminal Code, intention will be the only fault element that can be used where a physical element is conduct. 

 

The item removes the fault element of knowledge in relation to giving evidence and replaces it with the fault element of intention.  The fault element of knowledge will continue to apply in relation to whether the evidence is false or misleading. 

 

Item 29

 

The item amends section 6I of the Act, which makes it an offence to bribe a witness.

 

The item amends paragraph 6I(c) to repeal that part of the offence relating to attempts to receive or obtain property or a benefit on an agreement or understanding that the person will give false testimony or withhold true testimony.  Section 11.1 of the Criminal Code creates a general offence of attempt and there is no need for a specific offence in the Act dealing with this matter. 

 

Item 30

 

The item amends section 6J of the Act, which makes it an offence to deceive a person with intent to affect his or her testimony as a witness. 

 

The item restructures that part of section 6J which deals with making or exhibiting false statements, representations, tokens or writings to remove inappropriate fault elements.

 

The physical elements of this part of the offence are conduct (ie. making or exhibiting any statement, representation, token or writing) and circumstance (ie. the statement, representation, token or writing is false).  The subsection, as currently drafted, uses knowledge as the fault element for both of these physical elements.  However, following the application of the Criminal Code, intention will be the only fault element that can be used where a physical element is conduct. 

 

The item removes the fault element of knowledge in relation to making or exhibiting the statement, representation, token or writing, and replaces it with the fault element of intention.  The fault element of knowledge will continue to apply in relation to whether the statement, representation, token or writing is false.



 

Item 31

 

The item amends section 6K of the Act, which makes it an offence to destroy documents or things that are or may be required in evidence. 

 

The item repeals and replaces subsection 6K(1) to remove inappropriate fault elements.  

 

The subsection, as currently drafted, uses wilfulness as the fault element in relation to physical elements of conduct and result specified in paragraphs (a), (b) and (c).  Following the application of the Criminal Code, intention will be the only fault element that can be used where a physical element is conduct.  Although wilfulness is akin to the fault element of intention, there is a possibility that a court may attempt to distinguish between the two.  The Code envisages that recklessness will apply as the fault element where the physical element is a result. 

 

The item ensures that the appropriate fault elements apply by restructuring subsection 6K(1) to separate the physical elements of conduct, result and circumstance.  In relation to the physical element of conduct (which will be contained in paragraph 6K(1)(a)), the fault element of intention will apply instead of wilfulness.  In relation to the physical element of result (which will be contained in paragraph 6K(1)(b)), recklessness will apply as the fault element under section 5.6(2) of the Criminal Code.  In relation to the physical element of circumstance (which will be contained in paragraph 6K(1)(c)), knowledge or having reasonable grounds to believe will continue to apply as the fault element.  

 

Item 32

 

The item amends section 6L of the Act, which makes it an offence to prevent witnesses from attending before a Royal Commission. 

 

The item amends section 6L to repeal that part of the offence relating to endeavours to prevent a witness from attending before a Commission or producing anything in evidence.  Section 11.1 of the Criminal Code creates a general offence of attempt and there is no need for a specific offence in the Act dealing with this matter.

 

The item also amends section 6L to remove an inappropriate fault element. The subsection, as currently drafted, uses wilfulness as the fault element.  Although wilfulness is akin to the fault element of intention, there is a possibility that a court may attempt to distinguish the two.  The item clarifies this issue by removing the reference to wilfulness and replacing it with the fault element of intention.  It is expected that the section 6L will continue to operate in the same way following this amendment. 

 

Item 33

 

The item amends section 6M of the Act, which makes it an offence to injure or punish a witness for giving evidence.

 

The item amends section 6M to repeal that part of the offence relating to procuring.  Section 11.2 of the Criminal Code creates a general offence of aiding, abetting, counselling and procuring, and there is no longer a need for a specific offence in the Act dealing with this matter.

 

Item 34

 

The item amends section 6N of the Act, which makes it an offence for an employer to dismiss a witness from employment.

 

The item transfers the legal burden of proving the defence in subsection 6N(2) from the employer to the prosecution.  The subsection, as currently drafted, suggests that the defendant currently bears the legal burden of proving this defence.  The Criminal Code envisages that a defendant will only bear an evidential burden in relation to a defence.  The item adds a standard note which makes it clear that, in accordance with the policy underlying the Code, a defendant only bears an evidential burden in relation to this defence.

 

Items 35 and 36

 

The item amends section 6O of the Act, which deals with contempt of a Royal Commission.

 

The items amend subsection 6O(1) to remove inappropriate fault elements. The subsection, as currently drafted, uses wilfulness as the fault element.  Although wilfulness is akin to the fault element of intention, there is a possibility that a court may attempt to distinguish the two.  The item clarifies this issue by removing the references to wilfulness and replacing them with the fault element of intention.  It is expected that the subsection will continue to operate in the same way following this amendment.

 

Schedule 2 - Other amendments

 

Ombudsman Act 1976

 

Items 1, 2 and 3

 

These items renumber sections 3AB, 3AA and 3A of the Act in accordance with current drafting practice. 

 

Royal Commissions Act 1902

 

Items 4 to 38

 

These items amend various sections in the Act to replace gender specific words with gender neutral words.