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Monday, 27 August 2001
Page: 26669

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Senator IAN CAMPBELL (Parliamentary Secretary to the Minister for Communications, Information Technology and the Arts) (4:02 PM) —I table a revised explanatory memorandum relating to the Treasury Legislation Amendment (Application of Criminal Code) Bill (No. 2) 2001 and» «move» :

That these bills «be» «now» «read» «a» «second» «time .

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

Leave granted.

The speeches read as follows—

CUSTOMS TARIFF AMENDMENT BILL (NO. 5) 2001

The Customs Tariff Amendment Bill (No. 5) 2001 contains approximately 800 amendments to the Customs Tariff Act 1995 (the Customs Tariff).

These amendments implement changes resulting from the second review of the Harmonized Commodity Description and Coding System, commonly referred to as the Harmonized System.

The Harmonized System provides a hierarchical system of headings and subheadings to uniquely identify all traded goods and commodities.

It is reviewed periodically by the World Customs Organization with changes resulting from the first major review being implemented in 1996.

Australia's commodity classifications for traded goods have been based on the Harmonized System since 1988, with most other countries in the world having now also adopted the system.

As a signatory to the International Convention, Australia and other signatory countries are required to implement the changes arising from the second review, from 1 January 2002.

The second review of the Harmonized System has focused on deleting those headings and subheadings where there are low levels of international trade.

The review also introduces amendments to reflect changes in industry practices and technological developments.

It provides new headings and subheadings to allow signatory parties to separately identify new products such as certain categories of waste, including chemical and clinical waste and narcotic substances.

Finally, many of the amendments are designed to clarify existing descriptions and terminology in the Harmonized System.

While giving effect to the changes to the Harmonized System, the Customs Tariff Amendment Bill (No. 5) 2001 also ensures that existing duty rates and levels of tariff protection for Australian industries and margins of tariff preference accorded to Australia's trading partners are preserved.

The Customs Tariff Amendment Bill (No. 5) 2001 will also align Australia's tariff structure with the international standard.

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AGRICULTURE, FISHERIES AND FORESTRY LEGISLATION AMENDMENT (APPLICATION OF CRIMINAL CODE) BILL 2001

The purpose of this Bill is to amend certain offence provisions in the Agriculture, Fisheries and Forestry 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 a cohesive set of general principles of criminal responsibility. It provides a standard approach to the formulation of Commonwealth criminal offences and will apply to all Commonwealth offence provisions from 15 December 2001.

A key feature of the Criminal Code is the division of each criminal offence into physical elements of conduct, circumstance and result, each of which has an attaching fault element. Fault elements are either directly prescribed in the body of an offence provision or are imposed by default by the Criminal Code in the absence of express provision. The standard fault elements dealt with in the Criminal Code are intention, knowledge, recklessness and negligence. To prove an offence, the prosecution is required to prove both the specified physical elements and the related fault elements. The purpose behind this structure is to provide clarity in relation to the scope and effect of each offence, which has been an uncertain matter since the beginning of the common law system, and to give consistency as to how criminal offences are to be interpreted by courts.

An important component of the Bill is to provide clarity about the application of strict liability to some offence-creating provisions. Under the Criminal Code an offence must specifically identify strict liability, or the prosecution will be required to prove fault in relation to each element of the offence. This is necessary to ensure that the strict liability nature of some provisions is not lost in the transition to application of the Criminal Code's general principles. If relevant offences are not adjusted in this manner then many will become more difficult for the prosecution to prove, which will therefore reduce the protection which was originally intended to be provided by the offence. It should be noted that it is not proposed to create any new strict liability offences in this Bill.

In addition the Bill makes a number of other amendments, including:

· Applying the Criminal Code to AFFA portfolio Acts except, in some cases, the part of the Code dealing with corporate criminal liability;

· Clarifying provisions that use the phrase 'for the purpose of...';

· Amending fault elements which, when applied to certain physical elements, are inconsistent with the Criminal Code;

· Putting defences into separate provisions to clarify that they are defences rather than elements of the offence; and

· Replacing references to old Crimes Act provisions with references to the corresponding Criminal Code provisions.

The amendments in this Bill will ensure that existing criminal offences and related provisions in the Agriculture, Fisheries and Forestry portfolio continue to operate after application of the Criminal Code as they do at present.

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TREASURY LEGISLATION AMENDMENT (APPLICATION OF CRIMINAL CODE) BILL (No 2) 2001

The purpose of this bill is to make consequential amendments to certain offence provisions in legislation administered by the Treasurer to reflect the application of the Criminal Code Act 1995 to existing offence provisions from 15 December 2001.

The bill proposes amendments to the range of taxation legislation, the Superannuation (Resolution of Complaints Act) 1993 and aspects of the Trade Practices Act 1974 that required consultation with the States. For reasons of convenience, the bill also includes proposed amendments to the Trade Practices Act 1974 in relation to provisions administered by the Minister for Communications, Information Technology and the Arts.

The Treasury Legislation (Application of Criminal Code) Act (No. 1) 2001 has passed the Parliament and made amendments to the Financial Sector Shareholdings Act 1998, Foreign Acquisitions and Takeovers Act 1975, Insurance Act 1973, Life Insurance Act 1995, Prices Surveillance Act 1983, Productivity Commission Act 1998, Retirement Savings Accounts Act 1997, Superannuation Industry (Supervision) Act 1993 and aspects of the Trade Practices Act 1974 which did not require consultation with the States.

A final bill, the Treasury Legislation (Application of Criminal Code) Bill (No. 3) 2001, has also been introduced and makes consequential amendments to the Corporations Act 2001, the Financial Sector Shareholdings Act 1998, the Insurance Contracts Act 1984,and the Commonwealth Places (Mirror Taxes) Act 1998.

This bill provides for amendments that clarify the physical elements of an offence and corresponding fault elements (where these fault elements vary from those specified by the Code) and specify whether an offence is one of strict or absolute liability. In the absence of such an amendment, offences previously interpreted as being one of strict or absolute liability would be interpreted as not being one of strict or absolute liability. In addition, any defences to an offence are being re-stated separately from the words of the offence. Use is being made of this opportunity to convert penalties expressed as dollar amounts to penalty units.

The bill does not change the criminal law. Rather, it ensures that the current law is maintained following application of the Criminal Code Act to Commonwealth legislation.

Debate (on motion by Senator O'Brien) adjourned.

Ordered that the bills be listed on the Notice Paper as separate orders of the day.