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Criminal Code Amendment (Food Contamination) Bill 2018

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2016 - 2017 - 2018

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

HOUSE OF REPRESENTATIVES

 

 

CRIMINAL CODE AMENDMENT (FOOD CONTAMINATION) BILL 2018

 

 

EXPLANATORY MEMORANDUM

 

 

 

(Circulated by authority of the

Attorney-General, the Honourable Christian Porter MP)

 

                                                                                                        



 

criminal code amendment (food contamination) bill 2018

General Outline

1.       This Bill amends the Criminal Code (which is a schedule to the Criminal Code Act 1995 ) to strengthen the protections for Australians from the harms caused by food contamination.

2.       The Bill contains one schedule with two parts.

3.       Part 1 amends Part 9.6 of the Criminal Code to strengthen existing offences for contaminating goods. These amendments:

·          increase the maximum penalties available for the offences of contaminating goods (section 380.2), threatening to contaminate goods (section 380.3) and making false statements about contamination of goods (section 380.4) from 10 years’ imprisonment to 15 years’ imprisonment, and

·          introduce new offences that will apply where a person contaminates goods, threatens to contaminate goods or makes a false statement about contaminating goods in circumstances where the person is reckless as to whether their actions will cause public alarm or anxiety, economic loss or harm (or risk of harm) to public health.

4.       Part 2 will expand the application of the Division 82 sabotage offences in the Criminal Code by expanding the definition of ‘public infrastructure’ to include:

·          services and utilities relating to food, under existing paragraph 82.2(1)(e), and

·          food that is intended for the public, and is produced, distributed or sold by a constitutional corporation or for the purposes of, or in the course of, constitutional trade and commerce.

5.       The effect of Part 2 of the Bill is the expansion of conduct that may engage the following sabotage offences under Division 82 of the Criminal Code:

·          section 82.3 - Offence of sabotage involving foreign principal with intention as to national security

·          section 82.4 - Offence of sabotage involving foreign principal reckless as to national security

·          section 82.5 - Offence of sabotage with intention as to national security

·          section 82.6 - Offence of sabotage reckless as to national security

·          section 82.7 - Offence of introducing vulnerability with intention as to national security

·          section 82.8 - Offence of introducing vulnerability reckless as to national security

·          section 82.9 - Preparing for or planning sabotage offence

6.       However, it is a defence to a prosecution for an offence by a person against Division 82 where the person was a public official or owner or operator of the public infrastructure, and engaged in the conduct in good faith, with lawful authority and the conduct was reasonable in the circumstances. This is an existing defence. Furthermore, the Attorney-General’s consent is required under existing section 82.13 prior to the commitment of a person for an offence against Division 82.

7.       Existing section 82.2A clarifies that the expansion of the meaning of public infrastructure to include food and services and utilities related to food for the purpose of sabotage offences will not affect the interpretation of such terms in the Australian Security Intelligence Organisation Act 1979 (Cth), unless that Act expressly provides otherwise. 

FINANCIAL IMPACT

8.       The Bill is unlikely to have a significant impact on consolidated revenue.

 

 

 

 

 

 

 



 

STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

Criminal Code Amendment (Food Contamination) Bill 2018

9.       This Bill is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 .

Overview of the Bill

10.   The Bill is proposed to strengthen Australia’s food contamination offences in the wake of recent events involving the contamination of strawberries.

11.   The Bill will increase the maximum penalty for existing offences in the Criminal Code 1995 (Criminal Code) (sections 380.1- 380.5) that deal with the contamination of  goods with the intention of causing public alarm or anxiety, economic loss or harm or a risk of harm to public health in Australia from 10 years’ to 15 years’ imprisonment.

12.   The Bill will create new offences in the Criminal Code that will apply where a person is reckless as to whether they will cause public alarm or anxiety, economic loss or harm or a risk of harm to public health in Australia. These recklessness-based offences will mirror the intention-based offences. The maximum penalty for these offences will be 10 years’ imprisonment.

13.   The Bill will also amend the existing definition of ‘public infrastructure’ within the sabotage offences in Division 82 of the Criminal Code to cover food intended for public consumption, and services and utilities relating to food.

Human rights implications

14.   This Bill engages the following rights:

·          Article 11 International Covenant on Economic Social and Cultural Rights (ICESCR) - Right to an adequate standard of living

·          Article 12 ICESCR - Right to health

·          Article 14 International Covenant on Civil and Political Rights (ICCPR) - Presumption of innocence

·          Article 19(2) ICCPR - Right to freedom of expression

Right to an Adequate Standard of Living and the Right to Health

15.   The right to an adequate standard of living is contained in article 11 ICESCR, which states that all people have a right to “an adequate standard of living for himself and his family, including adequate food, clothing and housing, and to the continuous improvement of living conditions.” The United Nations Committee has stated that in relation to food, the concept of adequacy is linked to food security.

16.   The right to health is contained in article 12 ICESCR. The right states that all people have the right to the “highest attainable standard of physical and mental health”, and that States Parties should take measures to “improv[e] all aspects of environmental and industrial hygiene”.

17.   The United Nations Committee on Economic, Social and Cultural Rights have stated that the right to health extends to “a wide range of socio-economic factors that promote conditions in which people can lead a healthy life, extends to the underlying determinants of health, such as food and nutrition, housing, access to safe and potable water and adequate sanitation, safe and healthy working conditions, and a healthy environment.”

18.   The Bill promotes the right to an adequate standard of living and the right to health by ensuring a safer food system within Australia by strengthening and extending protections against sabotage and contamination of food products. These measures will act as a strong deterrent to actors planning to maliciously or recklessly contaminate or interfere with food products and ensure that perpetrators can be appropriately punished.

Presumption of Innocence

19.   The Bill applies absolute liability to the jurisdictional elements of the new offences (contained within paragraphs 380.2(2A)(c), 380.3(2A)(c) and 380.4(2A)(d)). The Bill also applies absolute liability to the elements that food is produced, distributed or sold by a constitutional corporation or for the purposes of, or in the course of, constitutional trade and commerce in proposed paragraph 82.2(1)(f). The effect of applying absolute liability to an element or elements of an offence means that no fault element needs to be proved, and the defence of mistake of fact is not available. As such, the presumption of innocence is engaged by the Bill.

20.   The presumption of innocence is contained in article 14(2) ICCPR and states that “[e]veryone charged with a criminal offence shall have the right to be presumed innocent until proved guilty according to law”.

21.   The presumption of innocence imposes on the prosecution the burden of proving the charge and guarantees that no guilt can be presumed until the charge has been proved beyond reasonable doubt. Generally, consistency with the presumption of innocence requires the prosecution to prove each element of a criminal offence beyond reasonable doubt. However, absolute liability offences will not be inconsistent with the presumption of innocence provided that they are within reasonable limits which take into account the importance of the objective being sought and maintain the defendant's right to a defence.

22.   Absolute liability is appropriate and required for these elements of the offences because they are jurisdictional elements that go towards the Commonwealth’s power to legislate and do not relate to the substance of the offence or the culpability of the defendant. This is consistent with Commonwealth criminal law practice, as described in the Guide to Framing Commonwealth Offences, Civil Penalties and Enforcement Powers (the Guide).

23.   There are safeguards in the Bill which help ensure that the application of absolute liability is a reasonable and proportionate approach to achieving the Bill's objective. The prosecution will still need to prove other elements of the offences beyond a reasonable doubt, including that the accused contaminated goods, threatened to contaminated goods, or made false statements about the contamination of goods, and that the accused either intended, or were reckless as to causing, public alarm or anxiety, economic loss or harm or a risk of harm to public health in Australia.

24.   In light of the above, the Bill is consistent with the presumption of innocence.

Right to Freedom of Expression

25.   Article 19(2) of the ICCPR provides that all people 'shall have the right to freedom of expression'. While the right to freedom of expression is of fundamental importance, it is not an absolute or unfettered right and therefore may be subject to certain restrictions.

26.   Under article 19(3) ICCPR, freedom of expression may be limited as provided for by law and when necessary to protect the rights or reputations of others, national security, public order, or public health or morals. Limitations must be prescribed by legislation, necessary to achieve the desired purpose and proportionate to the need on which the limitation is predicated.

27.   The Bill limits the individuals’ right to freedom of expression by creating offences in sections 380.4(1A) and 380.4(2A) criminalising making a false statement about the contamination of goods where the person is reckless as to causing harm to public health, public alarm or panic, or economic loss.

28.   The desired purpose of the offences in the Bill is to prevent harm (including actual harm arising from public alarm and panic, and harm arising from economic loss) to public order and public health, arising from an individual making a false statement which is intended to make people believe that the goods have been contaminated.

29.   False statements suggesting that a product has been contaminated, or inducing another person to believe they, or the public, are at risk from a contaminated product, could cause public alarm or anxiety or economic loss. There are myriad dangerous consequences stemming from such statements, including individuals refusing to use essential products (for example, infant formula) on the induced belief that they are contaminated, shortages in essential products resulting from “panic buying” behaviour, and widespread public anxiety about the safety of related goods and products. Criminalising the deliberate expression of false statements with the intention of inducing another person to believe they are accurate is a reasonable and proportionate measure to uphold public health and order. 

30.   Additionally, the measure contains a safeguard that an individual is only guilty of an offence if they make a statement they believe to be false to induce someone else to believe product contamination has occurred. This means that individuals with a legitimate belief that their statement is accurate (even it if is factually incorrect) will not be criminally liable for that statement. By limiting criminal liability to those who are making statements they believe to be false, individuals remain free to express their legitimately held beliefs.

31.   In light of the above, the Bill is consistent with the right to freedom of expression. While this right is limited, that limitation is in pursuit of upholding public health, is reasonable, necessary and proportionate in the circumstances.

Conclusion

32.   The measures in the Bill are compatible with the human rights and freedoms recognised or declared in the international instruments listed in the definition of human rights in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 . To the extent that these measures may limit those rights and freedoms, such limitations are reasonable, necessary and proportionate in achieving the intended outcome of the Bill.

 

 



NOTES ON CLAUSES

Preliminary

Clause 1 - Short title

33.   This clause provides for the short title of the Act to be the Criminal Code Amendment (Food Contamination) Act 2018 .

Clause 2 - Commencement

34.   This clause provides for the commencement of each provision in the Bill, as set out in the table.  Item 1 in the table provides that all provisions in the Bill will commence on the day after the Act receives the Royal Asset.  

Clause 3 - Schedules

35.   Clause 3 provides that legislation that is specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Act has effect according to its terms.

 

 

 



 

Schedule 1 - Amendments

Part 1 - Contamination offences

Criminal Code Act 1995

Item 1 - Subsection 380.2(1) of the Criminal Code (heading)

36.   Item 1 amends the heading at subsection 380.2(1) to refer to ‘offences’ rather than to a single ‘offence’. This reflects the fact that, if the Bill is passed, the title will refer to two offences: the existing offence at subsection 380.2(1), and the new offence at item 3.

Item 2 - Subsection 380.2(1) of the Criminal Code (penalty)

37.   Item 2 increases the penalty for the existing offence at subsection 380.2(1) of the Criminal Code from 10 years’ imprisonment to 15 years’ imprisonment.

38.   The existing offence at subsection 380.2(1) of the Criminal Code criminalises the action of contaminating goods with the intention of causing public alarm or anxiety in Australia, causing widespread or nationally significant economic loss in Australia, or causing harm or creating a risk of harm to public health in Australia. 

39.   The increased penalty for subsection 380.2(1) reflects the principle in the Guide to Framing Offences, Civil Penalties and Enforcement Powers that an offence should have a ‘maximum penalty that is adequate to deter and punish a worst case offence’ (page 37). The offence in subsection 380.2 criminalises a spectrum of conduct. Conduct at the most significant end of this spectrum can have detrimental impacts on the Australian economy by deterring consumers from purchasing Australian products (for example, as occurred in the wake of Australian strawberries being contaminated with sewing needles in September 2018). Furthermore, conduct in this category may result in actual harm being experienced by consumers who consume contaminated products. The most significant conduct that falls within the scope of this offence could also cause calamitous public health outcomes by spreading infectious diseases or causing toxic and hazardous materials to be ingested by consumers.  It is appropriate that offending that intentionally causes a widespread and significant impact on Australians in these ways is capable of attracting a higher penalty than it would under the existing provision.

Item 3 - After subsection 380.2(1) of the Criminal Code

40.   Item 3 establishes a new recklessness-based offence with the same physical elements as the existing offence in subsection 380.2(1) of the Criminal Code. This new offence will be contained in new section 380.2(1A), and will apply where a person contaminates goods and, in doing so, is reckless as to causing

·          public alarm or anxiety in Australia

·          widespread, or nationally significant, economic loss in Australia through public awareness of the contamination, or possible contamination, of the goods, or

·          harm to, or creating a risk of harm to, public health in Australia.

41.   It is not necessary for public alarm or anxiety, economic loss or a harm (or risk of harm) to public health to actually occur in order for this offence to apply. Rather, it is sufficient for the accused person to be reckless as to causing these effects. This ensures that law enforcement agencies are able to charge a person once the contamination occurs, rather than waiting for public alarm or anxiety, economic loss or harm to public health to occur before being able to lay charges.

42.   This offence captures contamination that is conducted with an intention other than that of causing public alarm or anxiety, economic loss or harm to public health (but where a person is reckless as to these outcomes). For example, this offence will apply where a person contaminates goods with the intention of seeking vengeance on an employer or customer, or where it is not possible to prove a specific intention beyond reasonable doubt in a criminal trial.   

43.   The new offence at item 3 attracts a maximum penalty of 10 years’ imprisonment. This penalty appropriately reflects the significance of the misconduct captured by the offence. The fact that the penalty for this offence is lower than the proposed increased penalty for the existing offence in subsection 380.2(1) reflects the higher level of culpability that attaches to conduct perpetrated with a specific intention to cause widespread alarm or anxiety, loss or harm to public health in contrast to conduct that is reckless to the likelihood of these effects. 

Item 4 - Subsection 380.2(2) of the Criminal Code (penalty)

44.   Item 4 increases the penalty for the existing offence in subsection 380.2(2) of the Criminal Code from 10 years’ imprisonment to 15 years’ imprisonment.

45.   The offence at subsection 380.2(2) of the Criminal Code applies to the contamination of goods with intent to cause public alarm or anxiety or economic loss. Unlike the offence in subsection 380.2(1) of the Criminal Code, the offence in subsection 380.2(2) does not require an intention to cause public alarm, anxiety or economic loss in Australia . However, for the offence to be made out one of the factual situations set out in the alternate provisions in paragraph 380.2(2)(c) must also exist. These factual situations provide constitutional bases for the offence.  

46.   The increased penalty for subsection 380.2(2) is justified on the same bases as the proposed increased penalty for subsection 380.2(1). Namely, conduct at the most significant end of the spectrum covered by subsection 380.2(2) can have detrimental impacts on the Australian economy by deterring consumers from purchasing Australian products (for example, as occurred in the wake of Australian strawberries being contaminated with sewing needles in September 2018). The most significant conduct that falls within the scope of this offence could also cause calamitous public health outcomes by spreading infectious diseases or causing toxic and hazardous materials to be ingested by consumers leading to injury or illness. It is appropriate that offending that intentionally causes a widespread and significant impact on Australians attracts a higher penalty than it does under the existing provision.

Item 5 - After subsection 380.2(2) of the Criminal Code

47.   Item 5 establishes a new recklessness-based offence with the same physical elements as the existing offence in subsection 380.2(2). This new offence will be contained in new subsection 380.2(2A) and apply where a person contaminates a good and, in doing so, is reckless as to causing

·          public alarm or anxiety in Australia, or

·          economic loss through public awareness of the contamination, or possible contamination, of the goods.

48.   In order for this offence to be made out, one of the factors listed at proposed paragraph 380.2(2A)(c) must apply. These factors provide a constitutional basis for the offence and are identical to those factors currently listed in the existing offence based on the intention fault element (at paragraph 380.2(2)(c) of the Criminal Code).

49.   It is not necessary for public alarm or anxiety or economic loss to actually occur in order for this offence to apply. Rather, it is sufficient for the accused person to be reckless as to causing these effects. This ensures that law enforcement agencies are able to charge a person once the contamination occurs, and do not need to wait for public alarm or anxiety or economic loss to occur before being able to lay charges.

50.   This offence captures contamination that is conducted with an intention other than that of causing public alarm or anxiety or economic loss (but where a person is reckless as to these outcomes), in circumstances where one of the factors at proposed paragraph 380.2(2)(c) applies. For example, this offence will apply where a person contaminates goods with the intention of seeking vengeance on a constitutional corporation, or where it would not be possible to prove a specific intention beyond reasonable doubt in a criminal trial. 

51.   The new offence at item 5 attracts a maximum penalty of 10 years’ imprisonment. This penalty appropriately reflects the significance of the misconduct captured by the offence for the same reasons that apply in relation to the offence at subsection 380.2(1A).



 

Item 6 - subsection 380.2(3) of the Criminal Code

52.   Item 6 applies absolute liability to new paragraph 380.2(2A)(c). As such, it will not be necessary for the prosecution to prove a fault element for the physical elements listed in this paragraph.

53.   It is appropriate that absolute liability applies to the elements in paragraph 380.2(2A)(c). This is because these elements do not go to the culpability of an accused person’s actions, but rather provide the constitutional bases for offences involving the conduct described in paragraphs 380.3(2A)(a)-(b). This approach is consistent with the existing approach for the analogous offence based on the intention fault element (in section 380.2(2) of the Criminal Code).

Item 7 - Subsection 380.3(1) of the Criminal Code (heading)

54.   Item 7 amends the heading at subsection 380.3(1) to refer to ‘offences’ rather than to a single ‘offence’. This reflects the fact that, if the Bill is passed, the title will refer to two offences: the existing offence at subsection 380.3(1), and the new offence at item 9.

Item 8 - Subsection 380.3(1) of the Criminal Code (penalty)

55.   Item 8 increases the penalty for the existing offence at subsection 380.3(1) of the Criminal Code from 10 years’ imprisonment to 15 years’ imprisonment.

56.   Under subsection 380.3(1) of the Criminal Code, it is an offence for a person to make a threat to contaminate goods with the intent to cause public alarm or anxiety in Australia, widespread or nationally significant economic loss in Australia, or harm (or a risk of harm) to public health in Australia.

57.   The increased penalty for subsection 380.3(1) reflects the principle in the Guide that an offence should have a ‘maximum penalty that is adequate to deter and punish a worst case offence’ (page 37). Like the offences in subsection 380.2(1) of the Criminal Code, the offence at subsection 380.3(1) criminalises a broad spectrum of conduct. Conduct at the most significant end of this spectrum can have detrimental impacts on the Australian economy by, for example, deterring consumers from purchasing or using particular products. It is appropriate that offending that intentionally causes a widespread and significant impact on Australians and/or the Australian economy attracts a higher penalty than it does under the existing provision.

Item 9 - After subsection 380.3(1) of the Criminal Code

58.   Item 9 establishes a new recklessness-based offence with the same physical elements as the existing offence in subsection 380.3(1) of the Criminal Code. This new offence will be contained in new subsection 380.3(1A) and will apply where a person threatens that goods will be contaminated and, in doing so, is reckless as to causing

·          public alarm or anxiety in Australia

·          widespread, or nationally significant, economic loss in Australia through public awareness of the contamination, or possible contamination, of the goods, or

·          harm to, or creating a risk of harm to, public health in Australia.

59.   It is not necessary for public alarm or anxiety, economic loss or a harm or risk of harm to public health to actually occur in order for this offence to apply. Rather, it is sufficient for the accused person to be reckless as to causing these effects. This ensures that law enforcement agencies are able to charge a person once the threat occurs, rather than waiting for public alarm or anxiety, economic loss or harm to public health to occur before being able to lay charges.

60.   This offence is designed to capture contamination that cannot be shown was conducted with an intention other than that of causing public alarm or anxiety, economic loss or harm to public health (but where a person is demonstrably reckless as to these outcomes). For example, this offence will apply where a person threatens contamination with the intention of seeking vengeance on an employer or customer, or where it is not possible to prove a one of the enumerated intentions beyond reasonable doubt in a criminal trial. It is appropriate that this conduct be subject to the criminal law where it is conducted in a manner that is reckless as to causing widespread harm.

61.   The new offence at item 9 attracts a maximum penalty of 10 years’ imprisonment. This penalty appropriately reflects the significance of the misconduct captured by the offence, and is identical to the proposed penalties for the similar offences at items 3 and 15.

Item 10 - Subsection 380.3(2) of the Criminal Code (penalty)

62.   Item 10 increases the penalty for the existing offence in subsection 380.3(2) of the Criminal Code from 10 years’ imprisonment to 15 years’ imprisonment.

63.   Under subsection 380.3(2) of the Criminal Code it is an offence to make a threat to contaminate goods with the intent to cause public alarm or anxiety or economic loss through public awareness of the contamination or possible contamination. Unlike the offence in subsection 380.3(1), the person does not need to have intended for the alarm, anxiety, economic loss or possible contamination to occur in Australia . Rather, in order for the offence to be made out, one of the factual situations set out in the alternate provisions in paragraph 380.3(2)(c) must also exist. This paragraph provides the constitutional bases for the offence.

64.   The increased penalty for subsection 380.3(2) is justified on the same bases as the proposed increased penalty for subsection 380.3(1). Namely, conduct at the most significant end of the spectrum covered by subsection 380.3(2) can have detrimental impacts on the Australian economy by deterring consumers from purchasing and using particular products. It is appropriate that offending which intentionally causes a widespread and significant impact on Australians attracts a higher penalty than it does under the existing provision.  

Item 11 - After subsection 380.3(2) of the Criminal Code

65.   Item 11 establishes a new recklessness-based offence with the same physical elements as subsection 380.3(2). This new offence will be contained in new subsection 380.3(2A) and will apply where a person threatens that goods will be contaminated and is reckless as to causing public alarm or anxiety or economic loss.

66.   In order for this offence to be made out, one of the factors listed at proposed paragraph 380.3(2A)(c) must apply. These factors provide a constitutional basis for the offence and are identical to those factors currently listed in the existing offence based on the fault element of intention (at paragraph 380.3(2)(c) of the Criminal Code).

67.   It is not necessary for public alarm or anxiety or economic loss to actually occur in order for this offence to apply. Rather, it is sufficient for the accused person to be reckless as to causing these effects. This ensures that law enforcement agencies are able to charge a person once the threat of contamination occurs, and do not need to wait for public alarm or anxiety or economic loss to occur before being able to lay charges.

68.   This offence captures threats that are made with an intention other than that of causing public alarm or anxiety or economic loss (but where a person is reckless as to these outcomes), in circumstances where one of the factors at proposed paragraph 380.3(2A)(c) applies. For example, this offence will apply where a person makes a threat of contamination with the intention of seeking vengeance on a constitutional corporation, or where it is not possible to prove a specific intention beyond reasonable doubt in a criminal trial. 

69.   The new offence at item 11 attracts a maximum penalty of 10 years’ imprisonment. This penalty appropriately reflects the significance of the misconduct captured by the offence for the same reasons that apply in relation to the 380.3(1A).

Item 12 - Subsection 380.3(3) of the Criminal Code

70.   Item 12 applies absolute liability to paragraph 380.3(2A)(c). As such, it will not be necessary for the prosecution to prove a fault element for the physical elements listed in this paragraph.

71.   It is appropriate that absolute liability applies to the elements in paragraph 380.3(2A)(c). This is because these elements do not go to the culpability of an accused person’s actions, but rather provide the constitutional bases for offences involving the conduct described in paragraphs 380.3(2A)(a)-(b). This approach is consistent with the existing approach for the analogous offence based on the intention fault element (in section 380.2(2) of the Criminal Code).

Item 13 - Subsection 380.4(1) of the Criminal Code (heading)

72.   Item 13 amends the heading at subsection 380.4(1) to refer to ‘offences’ rather than to a single ‘offence’. This reflects the fact that, if the Bill is passed, the title will refer to two offences: the existing offence at subsection 380.4(1) and the new offence at item 15 (see below).

Item 14 - Subsection 380.4(1) of the Criminal Code (penalty)

73.   Item 14 increases the penalty for the existing offence at subsection 380.4(1) of the Criminal Code from 10 years’ imprisonment to 15 years’ imprisonment.

74.   Subsection 380.4(1) of the Criminal Code contains an offence for making false statements with the intention of inducing someone to believe goods have been contaminated and with the intention of causing public alarm or anxiety in Australia, causing widespread or nationally significant economic loss in Australia, or causing harm or creating a risk of harm to public health in Australia.

75.   The increased penalty for subsection 380.4(1) reflects the principle in the Guide that an offence should have a ‘maximum penalty that is adequate to deter and punish a worst case offence’ (page 37). The offence in subsection 380.4(1) criminalises a spectrum of conduct. Conduct at the most significant end of this spectrum can have detrimental impacts on the Australian economy by deterring consumers from purchasing Australian products (for example, as occurred in the wake of Australian strawberries being contaminated with sewing needles in September 2018). It is appropriate that offending that intentionally causes a widespread and significant impact on Australians attracts a higher penalty than it does under the existing provision.

Item 15 - After subsection 380.4(1) of the Criminal Code

76.   Item 15 establishes a new recklessness-based offence with the same physical elements as the existing offence in subsection 380.4(1). This new offence will be contained in new subsection 380.4(1A) and will apply where a person makes a statement they believe to be false to induce another person to believe goods have been contaminated and, in doing so, is reckless as to causing

·          public alarm or anxiety in Australia

·          widespread, or nationally significant, economic loss in Australia through public awareness of the contamination, or possible contamination, of the goods, or

·          harm to, or creating a risk of harm to, public health in Australia.

77.   It is not necessary for public alarm or anxiety, economic loss or a harm or risk of harm to public health to actually occur in order for this offence to apply. Rather, it is sufficient for the accused person to be reckless as to causing these effects. This ensures that law enforcement agencies are able to charge a person once the false statement occurs, and do not need to wait for public alarm or anxiety, economic loss or harm to public health to occur before being able to lay charges.

78.   This offence captures contamination that is conducted with an intention other than that of causing public alarm or anxiety, economic loss or harm to public health (but where a person is reckless as to these outcomes). For example, this offence will apply where a person makes false statements intended to lead another person to believe goods have been contaminated with the intention of seeking vengeance on an employer or customer, or where it is not possible to prove a specific intention beyond reasonable doubt in a criminal trial. 

79.   The new offence at item 15 attracts a maximum penalty of 10 years imprisonment. This penalty appropriately reflects the significance of the misconduct captured by the offence, and is consistent with the proposed penalties for the similar new offences at items 9 and 11. The fact that the penalty for this offence is lower than the proposed increased penalty for the existing offence in subsection 380.4(1) reflects the higher level of culpability that attaches to conduct perpetrated with a specific intention to cause widespread anxiety, alarm or loss in contrast to conduct that is reckless to the likelihood of these effects.

Item 16 - Subsection 380.4(2) of the Criminal Code (heading)

80.   Item 16 amends the heading at subsection 380.4(2) to refer to ‘offences’ rather than to a single ‘offence’. This reflects the fact that, if the Bill is passed, the title will refer to multiple offences: the existing offence at subsection 380.4(2), and the new offence at item 18 (see below).

Item 17 - Subsection 380.4(2) of the Criminal Code (penalty)

81.   Item 17 increases the penalty for the existing offence at subsection 380.4(2) of the Criminal Code from 10 years’ imprisonment to 15 years’ imprisonment.

82.   Subsection 380.4(2) of the Criminal Code contains an offence for making a false statement about the contamination of goods with the intention of causing public alarm or anxiety in Australia, causing widespread or nationally significant economic loss in Australia, or causing harm or creating a risk of harm to public health in Australia.

83.   The increased penalty for subsection 380.2(1) reflects the principle in the Guide that an offence should have a ‘maximum penalty that is adequate to deter and punish a worst case offence’ (page 37). The offence in subsection 380.4(2) criminalises a spectrum of conduct. Conduct at the most significant end of this spectrum can have detrimental impacts on the Australian economy by deterring consumers from purchasing Australian products (for example, as occurred in the wake of Australian strawberries being contaminated with sewing needles in September 2018). It is appropriate that offending that intentionally causes a widespread and significant impact on Australians attracts a higher penalty than it does under the existing provision.

Item 18 - After subsection 380.4(2) of the Criminal Code

84.   Item 18 establishes a new recklessness-based offence with the same physical elements as the existing offence in subsection 380.4(2). This new offence will be contained in new subsection 380.4(2A) and will apply where a person makes a statement they believe to be false to induce another person to believe goods have been contaminated and, in doing so, is reckless as to causing

·          public alarm or anxiety, or

·          economic loss through public awareness of the contamination, or possible contamination, of the goods.

85.   In order for this offence to be made out, one of the factors listed at proposed paragraph 380.4(2A)(d) must apply. These factors provide a constitutional basis for the offence and are identical to those factors currently listed in the existing offence based on the intention fault element (at paragraph 380.4(2)(d) of the Criminal Code).

86.   It is not necessary for public alarm or anxiety or economic loss to actually occur in order for this offence to apply. Rather, it is sufficient for the accused person to be reckless as to causing these effects. This ensures that law enforcement agencies are able to charge a person once the false statement occurs, and do not need to wait for public alarm or anxiety or economic loss to occur before being able to lay charges.

87.   This offence captures contamination that is conducted with an intention other than that of causing public alarm or anxiety or economic loss (but where a person is reckless as to these outcomes), in circumstances where one of the factors at proposed paragraph 380.4(2)(c) applies. For example, this offence will apply where a person makes false statements with the intention of seeking vengeance on an employer or customer, or where it is not possible to prove a specific intention beyond reasonable doubt in a criminal trial. 

88.   The new offence at item 18 attracts a maximum penalty of 10 years imprisonment. This penalty appropriately reflects the significance of the misconduct captured by the offence for the same reasons outlined in relation to 380.4(1A).

Item 19 - Subsection 380.4(3) of the Criminal Code

89.   Item 19 applies absolute liability to paragraph 380.4(2A)(d). As such, it will not be necessary for the prosecution to prove a fault element for the physical elements listed in this paragraph.

90.   This approach is consistent with the existing approach for the analogous offence based on the intention fault element (in section 380.4(2) of the Criminal Code).

Item 20 - Section 380.5 of the Criminal Code

91.   Item 20 amends section 380.5 of the Criminal Code to ensure that Category D extended geographical jurisdiction applies to all offences in sections 380.2 - 380.4 of the Criminal Code. As such, the offences extend to conduct by any person outside Australia regardless of whether the result of the conduct constituting the alleged offence occurs in Australia. This is consistent with the current arrangements for the existing offences in these provisions.

92.   The practical operation of the application of Category D jurisdiction has been modified by the content of the offence provisions. Specifically, each offence is somehow linked back to Australia - for example, through the person who commits the offence, the characteristics of the goods, the nature of the loss or the characteristics of affected persons or corporations.

93.   It was necessary to apply (and then appropriately restrict) Category D jurisdiction because of the nature of the offences. Standard geographic jurisdiction (Division 14 of the Criminal Code) has some extraterritorial effect, but only covers conduct which occurs wholly outside of Australia when a result of that conduct occurs wholly or partly within Australia. This would be problematic for the threatening to contaminate (section 380.3) and false statement offences (380.4) as they have a physical element of conduct but no physical element of result. Application of standard geographic jurisdiction would result in those offences not covering threats or false statements made outside of Australia. It is important that such threats and false statements be covered by the offences.

94.   Applying either Category A or Category B extended jurisdiction (sections 15.1 and 15.2 of the Criminal Code respectively) would also be problematic, as these categories of extended jurisdiction also apply only in a restricted way to conduct which occurs wholly outside of Australia. Category C extended jurisdiction (section 15.3 of the Code) does not have such restrictions, but provides a defence where the conduct (eg the threat) is not also an offence in the country in which the conduct occurred. It is likely that a number of countries would not have contamination of goods legislation. In such circumstances, Category D jurisdiction is the most appropriate option when coupled with the restrictions articulated in the content of the offences.

Part 2 - Sabotage offences

Expansion of the definition of public infrastructure for the purpose of Division 82 sabotage offences

95.   Part 2 will expand the application of the Division 82 sabotage offences in the Criminal Code by expanding the definition of ‘public infrastructure’ to include:

·          services and utilities relating to food, under existing subparagraph 82.2(1)(e), and

·          food that is intended for the public, and is produced, distributed or sold by a constitutional corporation or for the purposes of, or in the course of, constitutional trade and commerce.

96.   Existing 82.2A clarifies that the expansion of public infrastructure to include food and services and utilities related to food for the purpose of sabotage offences will not affect the interpretation of key terms in the Australian Security Intelligence Organisation Act 1979 , unless that Act expressly provides otherwise.

97.   Under section 82.13 of the Criminal Code, proceedings for the commitment of a person for trial for an offence against Division 82 must not be instituted without the Attorney-General’s written consent. This ensures appropriate oversight of prosecutions for these offences, given their seriousness and the potential for national security and international considerations to arise.  

Item 21 - Subparagraph 82.2(1)(e)(i) of the Criminal Code

98.   Paragraph 82.2(1)(e) of the current definition of ‘public infrastructure’ deals with any infrastructure, facility, premises, network or electronic system (including an information, telecommunications or financial system) that:

·          provides or relates to providing the public with utilities or services (including transport of people or goods) of any kind

·          is located in Australia, and

·          belongs to or is operated by a constitutional corporation or used to facilitate constitutional trade and commerce.

99.   Item 21 inserts ‘or related to food intended for the public’ within existing subparagraph 82.2(1)(e)(i) of the definition of ‘public infrastructure’. This will have the effect of capturing any infrastructure, facility, premises, network or electronic system (including an information, telecommunications or financial system), that provides or relates to providing the public with utilities or services (including the transport of people or goods) of any kind or relates to food intended for the public, and is located in Australia, and belongs to or is operated by a constitutional corporation or is used to facilitate constitutional trade and commerce.

100.           The terms ‘infrastructure, facility, premises, network or electronic system’ are not defined and are intended to take their ordinary meanings. ‘Infrastructure’ would include the structures and facilities needed for the operation of society. ‘Facilities’ would include a place, amenity or piece of equipment. ‘Premises’ would include a building, together with its land, occupied by a business or used in an official context. ‘Network’ is primarily intended to cover networks of interconnected computers or other machines. ‘Electronic system’ would include a physical interconnection of components or parts that gather various amounts of information together.  This may include databases or software and may or may not be connected to other computers or machines as part of a network.

101.           Food is defined in section 5 of the Food Standards Australia New Zealand Act 1991 (FSANZ Act) to include:

a.        any substance or thing of a kind used, capable of being used, or represented as being for use, for human consumption (whether it is live, raw, prepared or partly prepared); and

b.       any substance or thing of a kind used, capable of being used, or represented as being for use, as an ingredient or additive in a substance or thing referred to in paragraph (a); and

c.        any substance used in preparing a substance or thing referred to in paragraph (a); and

d.       chewing gum or an ingredient or additive in chewing gum, or any substance used in preparing chewing gum; and

e.        any substance or thing declared to be a food under a declaration in force under section 6.

102.           Paragraph 82.2(1)(e) is intended to cover essential services that are provided to the Australian community but do not necessarily belong to the Government.  This would include private companies that are a constitutional corporation or are engaged in activities that facilitate constitutional trade and commerce within the existing definitions of ‘constitutional corporation’ and ‘constitutional trade and commerce’ in the Dictionary to the Criminal Code.

103.           Following passage of the Bill, paragraph 82.2(1)(e) will include services related to food. This is intended to cover infrastructure used for the manufacture, production and transport of food.

104.           The Dictionary to the Criminal Code defines constitutional corporation as meaning a corporation to which paragraph 51(xx) of the Constitution applies.

105.           The term ‘constitutional trade and commerce’ is also defined in the Dictionary to the Criminal Code to mean trade and commerce:

·          with other countries

·          among the States

·          between a State and Territory, or

·          between two Territories.

106.           Existing subsection 82.2(3) provides that, for the purposes of a reference in an element of an offence to public infrastructure (within the meaning of Division 82), absolute liability applies in relation to public infrastructure within the meaning of paragraph (1)(e) - to the element that the infrastructure, facility, premises, network or electronic system belongs to or is operated by a constitutional corporation or is used to facilitate constitutional trade and commerce.

107.           It is appropriate to apply absolute liability to this element under 82.2(1)(e) because this is a jurisdictional element.  A jurisdictional element of the offence is an element that does not relate to the substance of the offence, but marks a jurisdictional boundary between matters that fall within the legislative power of the Commonwealth and those that do.

108.           The application of absolute liability to the element of the offence that the infrastructure ‘belongs’ to the Commonwealth is consistent with other offences dealing with property belonging to the Commonwealth.  For example, section 131.1 of the Criminal Code (dealing with theft of Commonwealth property) applies absolute liability to the element of the offence that the property belongs to a Commonwealth entity.

109.           Similarly, it is consistent with existing offences in the Criminal Code to apply absolute liability to offences dealing with activities undertaken by constitutional corporations or that facilitate constitutional trade and commerce.  For example, section 380.2 of the Criminal Code (dealing with contaminating goods) applies absolute liability to the element of the offence relevant to constitutional corporations and facilitating constitutional trade and commerce (subsection 380.2(3)).

110.           The inclusion of utilities or services related to food under the definition of ‘public infrastructure’ recognises the importance of protecting the safety, quality and integrity of food alongside water, electricity and other essential public needs, and deterring conduct that would seek to cause prejudice to Australia’s national security (whether intentionally or recklessly) through causing to damage to utilities and services related to food within the definition of ‘public infrastructure’.

111.           Although item 21 amends the definition of ‘public infrastructure’, its application is not confined to public entities but applies to both private and public infrastructure, facilities, premises, networks or electronic systems alike. The Explanatory Memorandum to the National Security Legislation Amendment (Espionage and Foreign Interference) Act 2018 , which introduced the current sabotage offences including the definition of ‘public infrastructure’, noted that it is essential that the definition of ‘public infrastructure’ cover privately owned infrastructure within the definition of public infrastructure because the consequences flowing from damage to these types of infrastructure could be as damaging as damage to infrastructure owned by the Commonwealth. Item 21 is consistent with this position.

112.           Amended paragraph 82.2(1)(e) is intended to capture damage to, for example, a machine or supply chain related to food even where damage to food under new paragraph 82.2(1)(f) is not made out (for example, because the food itself is not immediately damaged or is not at risk of damage). For example, paragraph 82.2(1)(e) might apply to conduct that results in a cold storage facility being destroyed or rendered ineffective, causing the food to perish before it can be delivered. Equally, it could apply to conduct which sabotages the packaging of food in such a way that harmful inedible substances, like metal shavings, come into contact with the food.

113.           The effect of item 21 is the expansion of conduct that may engage the following sabotage offences under Division 82:

·          82.3 Offence of sabotage involving foreign principal with intention as to national security

·          82.4 Offence of sabotage involving foreign principal reckless as to national security

·          82.5 Offence of sabotage with intention as to national security

·          82.6 Offence of sabotage reckless as to national security

·          82.7 Offence of introducing vulnerability with intention as to national security

·          82.8 Offence of introducing vulnerability reckless as to national security

·          82.9 Preparing for or planning sabotage offence

 

114.           However, it is a defence to a prosecution for an offence by a person against Division 82 if the person was a public official or owner or operator of the public infrastructure, and engaged in the conduct in good faith, with lawful authority and the conduct was reasonable in the circumstances.

Item 22 - At the end of subsection 82.2(1) of Criminal Code

115.           Item 2 of the Bill inserts a new subparagraph of the definition of public infrastructure under subsection 82.2(1) of the Criminal Code. This subparagraph has the effect of including food (within the meaning of the Food Standards Australia New Zealand Act 1991 ) that is intended for the public and is produced, distributed or sold by a constitutional corporation or for the purposes of, or in the course of, constitutional trade and commerce.

116.           Food is defined in the Food Standards Australia New Zealand Act 1991 (FSANZ Act) to mean

a.        any substance or thing of a kind used, capable of being used, or represented as being for use, for human consumption (whether it is live, raw, prepared or partly prepared); and

b.       any substance or thing of a kind used, capable of being used, or represented as being for use, as an ingredient or additive in a substance or thing referred to in paragraph (a); and

c.        any substance used in preparing a substance or thing referred to in paragraph (a); and

d.       chewing gum or an ingredient or additive in chewing gum, or any substance used in preparing chewing gum; and

e.        any substance or thing declared to be a food under a declaration in force under section 6.

117.           Under section 5(1) of the FSANZ Act it does not matter whether the substance, thing or chewing gum is in a condition fit for human consumption. However, food does not include a therapeutic good within the meaning of the Therapeutic Goods Act 1989 . To avoid doubt, food may include live animals and plants.

118.           This clause limits food within the definition of ‘public infrastructure’ to food that is intended for the public. A further limitation is that the food is produced, distributed or sold by a constitutional corporation or for the purposes of, or in the course of, constitutional trade and commerce. This is to exclude food which is grown or supplied privately, for consumption by a small group of individuals (such vegetables grown in a private garden, or a meal cooked in a family home). 

119.           Inclusion of food as an aspect of public infrastructure recognises the importance of protecting the safety, quality and integrity of food alongside water, electricity and other essential public needs, and deterring conduct that would seek to cause prejudice to Australia’s national security (whether intentionally or recklessly) through causing damage to food within the definition of ‘public infrastructure’.

120.           Although item 21 amends the definition of ‘public infrastructure’, its application is not confined to public entities but applies to both private and public infrastructure, facilities, premises, networks or electronic systems alike. As noted above, the Explanatory Memorandum to the National Security Legislation Amendment (Espionage and Foreign Interference) Act 2018 , which introduced the current sabotage offences including the definition of ‘public infrastructure’, noted that it is essential that the definition of ‘public infrastructure’ cover privately owned infrastructure within the definition of public infrastructure because the consequences flowing from damage to these types of infrastructure could be as damaging as damage to infrastructure owned by the Commonwealth. Item 22 is consistent with this position.

121.           The term ‘constitutional trade and commerce’ is defined in the Dictionary to the Criminal Code to mean trade and commerce:

·          with other countries

·          among the States

·          between a State and Territory, or

·          between two Territories.

122.           The effect of item 22 is the expansion of conduct that may engage the following sabotage offences under Division 82:

·          82.3 Offence of sabotage involving foreign principal with intention as to national security

·          82.4 Offence of sabotage involving foreign principal reckless as to national security

·          82.5 Offence of sabotage with intention as to national security

·          82.6 Offence of sabotage reckless as to national security

·          82.7 Offence of introducing vulnerability with intention as to national security

·          82.8 Offence of introducing vulnerability reckless as to national security

·          82.9 Preparing for or planning sabotage offence

 

123.           However, it is a defence to a prosecution for an offence by a person against Division 82 if the person was a public official or owner or operator of the public infrastructure, and engaged in the conduct in good faith, with lawful authority and the conduct was reasonable in the circumstances.

Item 23 - At the end of subsection 82.2(3) of the Criminal Code

124.           Item 23 provides that absolute liability will apply to the element of the offence that the food is produced, distributed or sold by a constitutional corporation, or was produced, distributed or sold for the purposes of, or in the course of, constitutional trade and commerce, under new subparagraph 82.2(1)(f) of the definition of public infrastructure.

125.           It is appropriate to apply absolute liability to this element under paragraph 82.2(1)(f) because this is a jurisdictional element.  A jurisdictional element of the offence is an element that does not relate to the substance of the offence, but marks a jurisdictional boundary between matters that fall within the legislative power of the Commonwealth and those that do not. According to the Guide to Framing Commonwealth Offences, absolute liability should apply to all jurisdictional elements.

126.           This clause is consistent with the application of absolute liability to the elements of paragraphs 82.2(1)(a) and (e) that the infrastructure, facility premises, network or electronic system belongs to the Commonwealth (82.2(3)(a)), or belongs to or is operated by a constitutional corporation or is used to facilitate constitutional trade or commerce (82.2(3)(b)).