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Crimes and Other Legislation Amendment Bill 1994



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House: Senate

Portfolio: Justice

Commencement: As outlined in the "Main Provisions" section of this Digest

Purpose

This is an omnibus Bill which will amend a number of Acts administered within the Justice portfolio. The major amendments:

* provide for a federal offenders cultural background to be taken into account when a court is passing sentence and determining whether to proceed to a conviction;

* extend the range of options available to a court where a person has breached a recognisance;

* remove radio scanners from the scope of the offence created by 85ZKB of the Crimes Act 1914; and

* extend a courts discretion under the Director of Public Prosecutions Act 1983 to prohibit or restrict publication of information.

Background

As there is no central theme to this Bill, a brief background to each major amendment will be outlined below.

Main Provisions

"Cultural Background" amendments:

Subsection 16A(2) of the Crimes Act 1914 (the Crimes Act) lists matters which a court must take into account when passing sentence or making an order in respect

of a person convicted of a federal offence. These matters listed in subsection 16A(2) include:

* the nature and circumstances of the offence [subsection 16A(2)(a)];

* the personal circumstances of any victim of the offence [subsection 16A(2)(d)];

* the character, antecedents, age, means and physical or mental condition of the person [subsection 16A(2)(m)]; or

* the probable effect that any sentence or order under consideration would have on any of the person's family or dependants [subsection 16A(2)(p)].

Clause 10 will insert the words "cultural background" in subsection 16A(2)(m). The effect of this amendment will be make the "cultural background" of a federal offender a matter which a court must take into account when passing sentence or making an order. Clause 10 will commence 28 days after the Bill receives Royal Assent ( clause 2).

Under section 19B of the Crimes Act where a charge for a federal offence is proved, the court may dismiss the charge or discharge the offender if it is of the opinion, having regard to matters listed in subsection 19B(1)(b), that it is inexpedient to inflict any punishment, inflict any punishment other than a nominal penalty, or that it is expedient to release the offender on probation. The matters listed in subsection 19B(1)(b) include:

* the character, antecedents, age, health or mental condition of the person [subsection 19B(1)(b)(i)];

* the extent (if any) to which the offence is of a trivial nature [subsection 19B(1)(b)(ii)]; or

* the extent (if any) to which the offence was committed under extenuating circumstances [subsection 19B(1)(b)(iii)].

Clause 11 will insert the words "cultural background" in subsection 19B(1)(b)(i). The effect of this amendment will be to make federal offenders "cultural background" a factor which a court may take into account in determining whether to proceed to a conviction. Clause 11 will commence 28 days after the Bill receives Royal Assent ( clause 2).

Remarks: It should be emphasised that clauses 10 and 11 do not provide a defence from criminal liability. All that the proposed amendments do is add to the already long list of factors which a court takes into account when passing sentence and determining whether to proceed to a conviction. The foregoing remark is made because of a tendency for such amendments to be construed as violating the principles of equality before the law and equal protection of the law.

As noted in the Second Reading Speech and Explanatory Memorandum, clauses 10 and 11 implement recommendations of the Australian Law Reform Commission (ALRC) report number 57 entitled Multiculturalism and the Law. The ALRC unequivocally rejected "cultural background" as a defence that would completely absolve a defendant from criminal liability. The principal rationale given by the ALRC for rejecting such a defence was:

"that such a defence would violate the principles of equality before the law and equal protection of the law. ... The parameters of a cultural defence, applying to all communities in Australia, would be so hard to establish that the law would not be certain. The Commission's view was widely endorsed in submissions. Accordingly, the Commission does not recommend such a defence."

1

The ALRC also unequivocally rejected "cultural background" as a partial defence from criminal liability. The principal rationale given by the ALRC for rejecting a partial defence was:

"there is adequate scope within the existing framework of criminal law to take account of cultural factors without creating a defence, either complete or partial."

2

It may be noted that the ALRC in report number 31 entitled The Recognition of Aboriginal Customary Laws recommended:

"A partial customary law defence should be created, similar to diminished responsibility, reducing murder to manslaughter. It should be provided that, where the accused is found to have done an act that caused the death of the victim in the well- founded belief that the customary laws of an Aboriginal community to which the accused belonged required that he do the act, the accused should be liable to be convicted for manslaughter rather than murder. Thus it must be shown (the onus being on the accused on the balance of probabilities) that the accused's belief actuated his conduct, (ie that he was not acting for some extraneous motive using Aboriginal customary laws as an excuse), and that the belief in question was well- founded in the customary laws of the community."

3

The ALRC in report number 57 argued that the above recommendation was a response to particular circumstances, including the social and geographic isolation of many Aboriginal communities and the extent to which they depend on customary law to continue to function as communities, and that equivalent considerations do not apply in other contexts. The ALRC said:

"So far as the Commission is aware, there are no requirements of the same kind [ie many Aboriginal Communities depend on customary law to continue to function as communities] in other cultures here. The Commission does not recommend such a defence in cases involving members of other ethnic or cultural values.

As already noted, the principal argument against recognition of "cultural background" as a defence from criminal liability is that it would violate the principles of equality before the law and equal protection of the law. Or in plain English, it could be said that recognition of "cultural background" may make the law an instrument of social and economic inequality and even racism.

There are of course equally valid arguments for recognition of "cultural background" as a defence from criminal liability. These arguments include:

* formal equality before the law has severe limitations in a culturally diverse society characterised by social and economic inequality; 4

* criminal law and procedure should be applied in an even- handed way so that no individual or group is more vulnerable to arrest, prosecution or conviction by virtue of his/her ethnic or cultural background; 5 and

* every Australian is entitled to receive equal protection, that is protection on equal terms, which means compensating for disadvantage which affects a particular person or group.

Amendment relating to a failure to comply with a condition of discharge or release:

Subsection 20A(1) of the Crimes Act provides that where a person, by court order, has been discharged or released, and information is laid before a magistrate alleging

that the person has, without reasonable cause or excuse failed to comply with a condition of the order, the magistrate may:

* issue a summons directing the person to appear before the court which issued the order; or

* if the information is provided on oath and the magistrate believes proceedings against the person by summons might be ineffective, issue a warrant for their apprehension.

A new subsection 20A(1A) will be inserted into the Crimes Act by subclause 13(b) providing that subsection 20A(1) (see outline above) does not apply to a failure to comply with a condition of an order, other than a failure arising by reason of an offence being committed, unless the information is laid before the magistrate before the end of the period for which the person is required to give security to be of good behaviour. Subclause 13(b) will commence 28 days after the Bill receives Royal Assent ( clause 2).

Subsection 20A(5)(c) of the Crimes Act provides that where a person, by court order, has been released, appears or is brought before the court which made the order, the court if satisfied the person has without reasonable cause or excuse not complied with a condition of the order, may:

* revoke the order and deal with the person for the offence or offences for which the order was made by ordering that they be imprisoned for that part of each sentence of imprisonment that the person had not served at the time of his/her release; or

* take no action.

New subsections 20A(5)(c)(ia)- 20A(5)(c)(ic) will be inserted into the Crimes Act by subclause 13(c) providing that where a person, by court order, has been released, appears or is brought before the court which made the order, the court if satisfied the person has without reasonable cause or excuse not complied with a condition of the order, may:

* impose on the person a maximum penalty of $1 000 [proposed subsection 20A(5)(c)(ia)];

* subject to proposed subsection 20A(5A) (see below), extend the period for which the person is required to give security to be of good behaviour [proposed subsection 20A(5)(c)(ib)]; or

* revoke the order and make an order under section 20AB (section 20AB provides additional sentencing alternatives) [proposed subsection 20A(5)(c)(ic)].

Subclause 13(c) will commence 28 days after the Bill receives the Royal Assent ( clause 2).

A new subsection 20A(5A) will be inserted into the Crimes Act by subclause 13(d) providing that the court may not under subsection 20A(5)(c)(ib) (see outline above) extend the period for which a person is required to give security to be of good behaviour beyond five years. Subclause 13(d) will also insert a new subsection 20A(5B) into the Crimes Act, providing that where a court, under proposed subsection 20A(5)(c)(ib) (see outline above), amends an order under subsection 20(1)(b) 6, the security given by that person is to be taken to be that they will be of

good behaviour for the period stated in the order. Subclause 13(d) will commence 28 days after the Bill receives the Royal Assent ( clause 2).

Interception devices amendments:

Under subsection 85ZKB(1) of the Crimes Act, it is an offence, punishable by a maximum penalty of five years imprisonment, for a person to:

* manufacture;

* advertise, display or offer for sale;

* sell; or

* posses;

an apparatus or device that they know is capable of being used to intercept a communication in breach of subsection 7(1) of the Telecommunications (Interception Act) 1979 (the Interception Act).

Subsection 7(1) of the Interception Act provides that a person shall not:

* intercept;

* authorise, suffer or permit another person to intercept; or

* do any act or thing that will allow them or another person to intercept;

a communication passing over a telecommunication system.

The term "interception" is defined in section 6 of the Interception Act, and consists of listening to, or recording, a communication passing over the telecommunications system. Exceptions are provided for communications legally intercepted by members of the Australian Federal Police and other agencies, and for other exigencies such as crossed phone lines.

A new subsection 85ZKB(1A) will be inserted into the Crimes Act by clause 21 providing that subsection 85ZKB(1) (see above outline) does not apply to an apparatus or device designed principally for the reception of messages transmitted by radiocommunications. Clause 21 will commence when the Bill receives the Royal Assent ( clause 2).

The Explanatory Memorandum states that the amendment is aimed at removing scanners, which are radio receivers which can automatically scan all broadcast radiocommunications and tune into whatever may interest the operator, from the scope of section 85ZKB of the Crimes Act. The Government considers that it is not reasonable to prohibit the manufacture, sale or possession of a device which is readily available (it is said that there are some three million scanners in use in Australia) and has legitimate uses apart from the interception of telecommunications. While clause 21 removes scanners from the scope of subsection 85ZKB(1) of the Crimes Act, it remains an offence under the Interception Act to use a scanner to intercept telecommunications without authority.

Amendments relating to the entering into force and operation of certain conventions:

The effect of sections 43 and 44 of the Crimes (Aviation) Act 1991, section 13 of the Crimes (Hostages) Act 1989, sections 13 and 14 of the Crimes (Internationally Protected Persons) Act 1976, and section 20 of the Crimes (Traffic in Narcotic Drugs and Psychotropic Substances) Act 1990 is to:

* allow the Attorney- General, by notice in the Gazette, to declare that a specified convention entered into force for a specified country (including Australia) on a specified day, or that a specified country denounced a specified convention and the denunciation took effect on a specified day; and

* provide that a certificate signed by the Attorney- General certifying matters concerning notices given to the International Civil Aviation Organisation is prima facie evidence of matters certified and that the notices were given to the organisation.

Sections 43 and 44 of the Crimes (Aviation) Act 1991, section 13 of the Crimes (Hostages) Act 1989, sections 13 and 14 of the Crimes (Internationally Protected Persons) Act 1976, and section 20 of the Crimes (Traffic in Narcotic Drugs and Psychotropic Substances) Act 1990 will be repealed by the Bill and new sections substituted. The principal effects of the new provisions, which are contained in the Schedule to the Bill, will be to transfer the authority to issue notices and certificates from the Attorney- General to the Minister responsible for administering the relevant convention/s and remove the requirement for Gazettal of notices. The proposed amendments will commence 28 days after the Bill receives the Royal Assent ( clause 2).

Remarks: The power to make a treaty is an executive function, which derives from the Crown prerogative. The constitutional power to make treaties is section 61 of the Constitution, which provides that the executive power of the Commonwealth is exercisable by the Governor- General. The Governor- General acts upon the advice of the Federal Executive Council.

There is no requirement for the Parliament to become involved unless legislation is necessary to implement the treaty. In cases where a treaty will have a significant impact on domestic circumstances, it had been previous practice for the Government to seek the approval of the Parliament before ratifying the treaty. Between 19919 and 1963, there were at least 55 cases in which Parliamentary approval was sought before treaties were ratified. 7 This procedure appears to be no longer used.

The practice of tabling treaties before their ratification, in order to allow some Parliamentary scrutiny, was commenced by Prime Minister Menzies in 1961. He undertook to allow a treaty to lie on the table for at least 12 sitting days before the Government would ratify it, unless the circumstances required otherwise. 8

Various constitutional conventions and commissions have discussed the role of Parliament in the treaty making process, and have recommended that the Parliament's role, and consultation in general, would be enhanced by the establishment of a Treaties Council. See for example the reports of the Advisory Committee to the Constitutional Commission, on "Distribution of Powers", and the "Final Report of the Constitutional Commission".

Amendment relating to the prohibition on the publication of evidence etc in certain civil proceedings:

Section 16A of the Director of Public Prosecutions Act 1983 (the DPP Act) gives a court a discretion to prohibit or restrict the publication of such evidence or information as it thinks necessary to prevent prejudice to the administration of justice in certain proceedings to which the Director of Public Prosecutions (the DPP) is a party. The proceedings include:

* where the DPP takes civil remedies;

* where the DPP co- ordinates or supervises the taking of civil remedies;

* where the DPP institutes or carries on proceedings for the recovery of pecuniary penalties; or

* co- ordinates or supervises the institution or carrying on of proceedings for the recovery of pecuniary penalties.

The major amendment proposed by this Bill to the DPP Act is the insertion of a new subsection 16A(1B). The effect of proposed subsection 16A(1B), which is set out in the Schedule to the Bill, is to extend a courts discretion to prohibit or restrict publication of information to that obtained in the course of an application for a restraining order under subsection 43(1), or for an extension of a restraining order under subsection 57(3) of the Proceeds of Crime Act 1987. The amendment will commence on the day the Bill receives the Royal Assent ( clause 2).

Endnotes

1. Australian Law Reform Commission, Report No. 57, Multiculturalism and the Law, 1992, p. 171.

2. Ibid., p. 172.

3. Australian Law Reform Commission, Report No. 31, The Recognition of Aboriginal Customary Laws, 1985, p. 322.

4. Australian Law Reform Commission, Discussion Paper No. 48, Multiculturism: Criminal Law, 1991, p. 5.

5. Ibid.

6. Subsection 20(1)(b) of the Crimes Act allows a court, where a person is convicted of a federal offence, to order that the person upon giving security, be released either immediately or after they have served a specified period of imprisonment.

7. Ryan, K.W., International Law in Australia, 2nd ed., 1984, p. 54.

8. Ibid.

Ian Ireland (Ph. 06 2772438)

Bills Digest Service 10 August 1994

Parliamentary Research Service

This Digest does not have any official legal status. Other sources should be consulted to determine the subsequent official status of the Bill.

Commonwealth of Australia 1994.

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Published by the Department of the Parliamentary Library, 1994.