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Thursday, 25 August 1994
Page: 349

Senator VANSTONE (12.13 p.m.) —The Criminal Code Bill 1994 and the Crimes Amendment Bill 1994 are easily, and quite properly, dealt with together. The coalition parties are in support of both of these bills, but we do have some concerns. It might be helpful if I outline the basis of the Criminal Code Bill 1994. Obviously, it concerns Commonwealth criminal law, which encompasses offences created by federal legislation and regulations, and the principles of criminal responsibility applicable to those offences.

  There are, however, some difficulties with our federal system, and I will briefly outline some of those. At the state and territory level, there are two main approaches to criminal law—the common law approach and the code approach. Criminal law in New South Wales, Victoria, the Australian Capital Territory and my state of South Australia is based on the common law approach. In those jurisdictions, while there are obviously a significant proportion of offences that are contained in specific acts and regulations, many are nonetheless based on non-legislative common law principles. On the other hand, criminal law in Western Australia, Queensland, Tasmania and the Northern Territory is based on comprehensive codes. There is no recourse in these jurisdictions to common law.

  In the early years following Federation, most criminal law was contained in the Crimes Act 1914. That has now changed and criminal offences are contained throughout every conceivable area of Commonwealth legislation. When a person is charged with a Commonwealth offence in a state or federal court, principles of criminal responsibility need to be applied when determining that person's guilt or innocence.

  At present, the principles applicable to Commonwealth offences are disparate and unsatisfactory. That is because common law principles apply if the offence is contained in the Crimes Act 1914. For the remainder of Commonwealth offences—and I understand this is the majority—the Judiciary Act 1903 provides that the relevant state or territory laws apply. That means that two people convicted of the same Commonwealth offence in different states may be subject to different rules. Those rules can have a substantive impact on the outcome of any prosecution.

  The Gibbs review of Commonwealth criminal law recommended that there be general principles of criminal responsibility for Commonwealth law. This legislation represents the first phase in the implementation of that recommendation, which is expected to take five years. My understanding is that, in order to achieve consistency while the reform process continues, the government has determined that there should be an interim position whereby common law principles are applicable to all Commonwealth offences. That requires an amendment to the Crimes Act 1914, which is included in the Crimes Amendment Bill 1994 which we are debating cognately with the Criminal Code Bill 1994 today.

  Ultimately, the reform agenda is much wider than an attempt to codify Commonwealth criminal law. The aim is to achieve uniformity across all jurisdictions of criminal law principles by the year 2001. That goal has been endorsed by SCAG, the Standing Committee of Attorneys-General. SCAG has established the Model Criminal Code Officers Committee made up of criminal law experts from various jurisdictions. The government has indicated that that committee has developed agreed principles for an Australian model criminal code, and a draft is expected by 1998.

  This legislation sets out principles of criminal responsibility which will apply to all Commonwealth offences within five years. These principles are contained in chapter two of the code. I could go into the details of what is in the Criminal Code Bill, but it might be more appropriate if I go straight to the concern that we want the Senate Standing Committee on Legal and Constitutional Affairs to look at. I understand that other parties have broader concerns with the code and want the whole bill referred to the committee rather than asking the committee to look at one part.

  We are particularly concerned with part 2.5 of the Criminal Code Bill, which deals with corporate criminal responsibility. As we understand it—by what the government has indicated in the bill—part 2.5 of the bill takes corporate criminal responsibility a step further than the Tesco case. That is a significant step to take, and we certainly think it is worth hearing the views of a broad range of people in the community who might be affected.

  We understand that corporations are designed so that numerous people—namely, the shareholders—can pool their assets, make investments and work as a company. The intention was not to establish a separate corporate self to act as a veil to criminality so that people would be able to get away with things as a company because of the difficulty of proving who was responsible for what. There are difficulties there.

  The government is basically saying, `When the people who are responsible in a corporation condone and generate a culture that encourages criminality, they have got to be responsible for that.' We are not unsympathetic to that approach.

  In the explanatory memorandum, an example is given which states that if the paperwork for a firm says that employees have to obey all of the relevant occupational health and safety guidelines, but it is a known fact within the business that if an employee ever shuts down an assembly line, turns off a machine or whatever in order to comply with those guidelines and costs the company money, it will be `See you later, alligator.' A way will be found to get rid of that employee, who would lose his or her job. In other words, the culture says, `Look, we know what the law says but, nudge-nudge, wink-wink, don't do that because you're not going to get on or, worse still, you're going to get the sack' in the event that a person actually obeys the law. Nobody could agree with that as being an acceptable approach to take. But, on the other hand, a line has to be drawn somewhere.

  Look at the size of corporations we are dealing with now and who we will make responsible for what. When I was a kid, people used to say—of course, some people say I have a large child element in my personality remaining, but that is neither here nor there, and healthy, I think—

Senator Sherry —Not central to the bill, though.

Senator VANSTONE —No, not central to the bill; Senator Sherry is quite right. But when I was much younger, shall I say, people who were appointed to a board were looked up to and respected. That really meant something: that individual was a trusted person in the business community and could be relied on for advice, et cetera—and I do not need to expand on that.

  Sadly, that is not the view taken today. Corporations' senior management and board members are basically regarded by many as those who are out to put their snouts in the trough, to squeeze money out of the company, and who are interested not in the shareholders but in themselves. Management buy-outs, of course, invite that kind of speculation, as does insider trading and that type of activity. The whole business has changed: years ago, when I was much younger, being a corporate director had some status and was something in which to take some pride. It is now something which is quite tarnished, not the least by the activities of some corporations during the 1980s.

  We understand all of that, but in the end someone is sitting there as a director and all sorts of consequences flow for that person if the corporation is found guilty of some criminal activity. The question that we want looked at is: just how far can that go down the chain? How far down the chain could some criminality be that is in the end going to come back and affect the director of the company? It is not in anyone's interest and, of course, it is not in the public interest to have corporations encouraging a sort of criminal culture with respect to certain aspects of their work. Nor is it in our interest to have corporations bereft of talent because people who do have talent will not take the risk.

  I know people who have been offered board positions; and they think more than twice about whether they will take them because of the responsibilities placed on them and the risks they run, over and above just diligently doing their own work. This extension makes people who understand the balance, those two arguments, and who can see both sides of it very apprehensive. For that reason we want the section on corporate criminal responsibility referred to the legal and constitutional affairs committee for investigation.

  Other than that, we are supportive of the prospect of having a code. I do not think I have been able to find a criminal lawyer who says, `No, we want to stay as we are.' Wearing my other hat on the cost of justice committee, I hear time and again about the very great expense of the differences in laws all over the place and the complications. We just have to try to simplify these things. If this is a step towards that, well and good.

  Let me turn briefly to the Crimes Amendment Bill that goes with this. The government has apparently determined that some of the areas of reform contained in the criminal code should be implemented in the short term. One is the age of criminal responsibility. The provisions in this bill standardise the current situation such that persons under 10 years will not be liable for offences under Commonwealth law.

  The law of attempt is dealt with. The provision requires that the conduct said to constitute the attempt must be more than merely preparatory to the commission of the offence. The provisions allow a conviction even where committing the offence is impossible. I understand that a simple way to explain that is that, if someone tries to pick a pocket and there is no money there, they are still a pickpocket and they were still trying to pick a pocket, so we should still be able to have a go at them in the sense of `attempt'.

  Also the law relating to conspiracy is dealt with. The provisions here aim to reduce the abuse of conspiracy charges. These provisions apply only where the offence to which they relate has a penalty of more than 12 months imprisonment or a fine of more than $20,000, and proceedings may be commenced only with the consent of the DPP.

  Basically, we do not oppose that bill and look forward to its reference to the legal and constitutional affairs committee, in our sense particularly for the extension of corporate criminal responsibility, although I understand that perhaps the Democrats, and certainly the Greens, have some other concerns that they want referred.