Explanatory Memorandum(Circulated by authority of the Minister for Justice and Customs Senator the Honourable Chris Ellison)
Schedule 4 - Other Amendments of the Criminal Code
Schedule 4 makes a number of important clarifying amendments to the Criminal Code . Most of the amendments are to Chapter 2, which establishes the general principles of criminal responsibility. The principles in Chapter 2 now apply to all Commonwealth criminal offences.
The purpose of this amendment is to clarify the operation of section 11.2 of the Criminal Code which extends criminal responsibility to persons who aid, abet, counsel or procure the commission of an offence by another person. The clarification is necessary because section 11.2 commences with the distinction that an accomplice is taken to have committed an offence and is punishable accordingly. Section 11.2 does not require a person to be charged as an accomplice, it just provides an additional means of attaching criminal responsibility to a person for an offence. However, that section does not assist the court in cases where the court is unable to determine whether the person committed the offence or whether the person aided, abetted, counselled or procured the commission of the offence.
Item 1 inserts an instructive provision into section 11.2 to assist the trier of fact (the jury) when it is unsure whether an accused has committed the offence or aided, abetted, counselled or procured the commission of the offence. Such cases are most likely to occur where two persons are each charged with the primary offence and with complicity and common purpose in the alternative.
It is important to note that proposed subsection 11.2(7) is not an alternative verdict provision. The effect of the subsection - that a person can be found to have committed an offence on different bases - is contemplated by subsection 11.2(1).
Item 2 provides that the amendment in Item 1 will only apply to prosecutions brought after the commencement of the provision (which is 28 days after the Bill receives Royal Assent). The amendment in Item 1 will not apply to prosecutions already commenced, but could apply to an offence committed before the provision commences (if the prosecution is not brought until after commencement).
Section 135.2 of the Criminal Code establishes two offences of obtaining a financial advantage. There is some concern that as currently drafted section 135.2 does not make it clear that "obtains a financial advantage" in paragraphs (1)(a) consists of a conduct element and a result element.
Item 3 amends subsection 135.2(1) by repealing paragraph (a) of that subsection and replacing it with three paragraphs which make it clear that there is a conduct and a result element in the offence. Although clarified, the substance and effect of the offence is not changed by this amendment.
The amendments in Item 3 are for the same purpose and effect as those in Item 3. Item 4 amends subsection 135.2(2) by repealing paragraph (a) of that subsection and replacing it with three paragraphs which make it clear that there is a conduct and a result element in the offence. Again, the substance and effect of the offence is not changed by this amendment.
Subsection 9.3(1) of the Criminal Code codifies the fundamental common law principle that ignorance of, or mistake about, the law is not an excuse for criminal conduct. This principle applies to all Commonwealth criminal offences.
Existing subsection 9.3(2) provides that the general principle in subsection 9.3(1) does not apply where the offence is either expressly or impliedly to the contrary effect, or the ignorance or mistake negates the fault element of the offence . In those circumstances, a person is not criminally responsible for the offence.
There is concern that existing subsection 9.3(2) could operate to mean that a simple cross-reference in an offence to another provision would 'impliedly' require the person to have knowledge of that particular provisions to be criminally liable for the offence. For example, it may be an offence for a person to contravene a direction given under a particular section of an Act. Generally, the prosecution is not required to establish that the person knew or was aware that the direction was given under a particular section of a particular Act - only that the person was given a direction. If the offence was read to imply that the person needed to have knowledge that the direction was made pursuant to the particular section of the particular Act the prosecution would be required to prove this element for the person to be criminally liable. This would in most cases be difficult or impossible.
Cross-referencing in legislation is a common drafting device, and such an interpretation would cause the Commonwealth criminal law to operate in an unintended fashion. To date, this problem has been overcome by imposing absolute liability on the 'cross-referencing' element of the offence. However, this is not desirable because it involves over-use of a term which should be used sparingly and adds to drafting complexity. A longer term solution is required.
Item 5 will clarify the intended operation of subsection 9.3(2) by repealing it and replacing it with proposed subsection 9.3(2). Proposed subsection 9.3(2) requires that the general principle applies except if the Act creating the offence is expressly to the contrary. 'Expressly' will be evidenced where a fault element as provided in sections 5.1 of the Criminal Code is specifically included in the relevant physical element of the criminal offence.
Accordingly, where a criminal offence provision does contain an express fault element which together with the relevant physical element requires the defendant to know or have an awareness of the law, the general principle in subsection 9.3(1) will not apply. When creating these types of offences, a note should be inserted beneath the offence provisions indicating that subsection 9.3(1) does not apply. This note will ensure that readers of the offence are clear that subsection 9.3(1) is not intended to apply.
Item 6 affects section 9.4 of the Criminal Code , which establishes general principles about ignorance of or mistake about subordinate legislation. The principles mirror those in section 9.3, which addresses statute law.
Item 6 omits the words 'or impliedly' from subparagraph 9.4(2)(a). Item 7 repeals all of subparagraph 9.4(2)(b). Taken together, these amendments have the same effect as the amendment to section 9.3 discussed above at Item 5.
The effect of the amendments mean that the general principle in subsection 9.4(1) will not apply to subordinate legislation where the subordinate legislation is expressly to the contrary effect. As with the statute offences, a note should be inserted into relevant subordinate to provide clarity that the principle in subsection 9.4(1) does not apply to the relevant physical element in that criminal offence provision.
Paragraph 9.4(2)(c) will remain. That paragraph provides that the general principle does not apply if at the time of the conduct constituting the offence copies of the subordinate legislation had not been made available to the public or to persons likely to be affected by it, and the person could not have been aware of its content even if he or she exercised due diligence.
Item 7 repeals paragraph 9.4(2)(b). The effect of this Item is discussed above at Item 6.
Item 8 provides that the amendments in Items 5,6 and 7 will apply to all existing and new Commonwealth criminal offences. However, the amendments will only apply to conduct that has occurred after the commencement date of the amendments, and will not apply to proceedings or connected matters where the offence is alleged to have been committed prior to these Items commencing.