Senate

Explanatory Memorandum

(Circulated by authority of the Minister for Justice, the Honourable Brendan O'Connor MP)

Schedule 2 - Crimes Act 1914

Schedule 2 amends Part III of the Crimes Act 1914 , which contains offences relating to the administration of justice. The administration of justice offences are directed at conduct that would undermine the integrity of Australian courts and prisons. These offences include fabricating evidence, intimidating witnesses and aiding a prisoner to escape from lawful criminal detention.

An explanation of key amendments made to the administration of justice offences is set out below. The explanation of the key amendments is followed by notes on clauses.

Reframing the administration of justice offences to bring them into line with Chapter 2 of the Criminal Code

The amendments in Schedule 2 reframe the administration of justice offences to bring them into line with Chapter 2 of the Criminal Code Act 1995 .

Chapter 2 of the Criminal Code contains the general principles that form the basis for interpreting and applying criminal offence provisions in Commonwealth legislation. Under the Criminal Code, Commonwealth offences consist of physical elements and fault elements (section 3.1).

The physical elements may involve conduct, a circumstance, or a result of conduct (section 4.1). Conduct includes an act, an omission (failure to act) or a state of affairs. An offence commonly has more than one physical element.

To ensure alignment with the Criminal Code, the administration of justice offences have been reframed so that each physical element of an offence is in a separate paragraph. In particular, conduct, circumstances and results constituting each offence are set out in separate paragraphs.

Applying absolute liability to jurisdictional elements of the offences to bring the offences into line with Commonwealth criminal law policy

The amendments in Schedule 2 apply absolute liability to the jurisdictional elements of the administration of justice offences. Applying absolute liability to a jurisdictional element of an offence is a settled principle of Commonwealth criminal law policy as described in the Guide to Framing Commonwealth Offences, Civil Penalties and Enforcement Powers .

A jurisdictional element of an 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, States or Territories. For example, the administration of justice offences contain jurisdictional elements that confine the offences to matters arising in connection with:

•

federal judicial proceedings

•

lawful Commonwealth criminal detention, and

•

offences against the law of the Commonwealth or Territory.

The effect of applying absolute liability to these elements would mean that no fault element needs to be proved and the defence of mistake of fact is not available. As a result, in relation to the administration of justice offences, the prosecution would no longer need to prove that a defendant knew that:

•

a judicial proceeding was a federal judicial proceeding, or

•

criminal detention or an offence was related to the Commonwealth or a Territory's legislative power.

Currently, because absolute liability does not apply to the jurisdictional element in the offence of destroying evidence (section 39), a defendant can avoid being convicted of this offence because he or she did not know the relevant judicial proceeding was a federal proceeding. This occurred in the recent case, R v JS [2007] NSWCCA 272. At first instance, the Court directed the jury to return of verdict of not guilty because there was no evidence that the defendant knew that the material would be required in evidence in federal judicial proceedings. On appeal, the NSWCCA confirmed that, in the absence of a specific provision not requiring proof of fault, the prosecution must prove that the defendant knew both that the material may be required in evidence in judicial proceedings, and that the proceedings were federal judicial proceedings.

Limiting offences directed at escape from criminal detention to lawful criminal detention

Each offence directed at escape from criminal detention (in Division 5 of Schedule 2) has been amended to include a physical element that requires the prisoner's detention to be 'lawful federal criminal detention'.

This amendment reflects the policy decision that the Division 5 offences should only be charged where the prisoner's criminal detention was lawful. For example, this would avoid the potential unfairness and inconsistency that could flow from charging a defendant with the offence of assisting a prisoner to escape, where that prisoner was not in lawful criminal detention. The amendment also promotes consistency between the offences - some of the former escape from criminal detention offences applied the 'lawfulness' requirement, while others did not. This amendment will require the prosecution to prove that a prisoner was in lawful detention to establish the offence.

Absolute liability will apply to the 'lawfulness requirement' in the offences directed at escape from criminal detention, because it is a jurisdictional element of the offences. Applying absolute liability to a jurisdictional element of an offence is consistent with Commonwealth criminal law approaches to date, as outlined in the Guide to Framing Commonwealth Offences, Civil Penalties and Enforcement Powers .

The effect of applying absolute liability to the lawfulness requirement would mean that no fault element needs to be proved and the defence of mistake of fact is not available. As a result, while the prosecution would need to prove that a prisoner was in lawful criminal detention, the prosecution would not need to prove that a defendant knew that the detention was lawful. This is a desirable result, as the offence should not depend on the defendant's knowledge of the lawfulness of the detention.

Item 1: definition of criminal detention

This item inserts a reference to the definition of 'criminal detention' into subsection 3(1) of the Crimes Act 1914 . 'Criminal detention' is defined at new section 45A.

Item 2: definition of federal criminal detention

This item inserts a reference to the definition of 'federal criminal detention' into subsection 3(1) of the Crimes Act 1914 . 'Federal criminal detention' is defined at new section 45A.

Item 3: definition of federal judicial proceeding

This item inserts a reference to the definition of 'federal judicial proceeding' into subsection 3(1) of the Crimes Act 1914 . 'Federal judicial proceeding' is defined at new section 31.

Item 4: definition of judicial proceeding

This item inserts a reference to the definition of 'judicial proceeding' into subsection 3(1) of the Crimes Act 1914 . 'Judicial proceeding' is defined at new section 31.

Item 5: definition of judicial tribunal

This item inserts a reference to the definition of 'judicial tribunal' into subsection 3(1) of the Crimes Act 1914 . 'Judicial tribunal' is defined at new section 31.

Item 6: division 1 heading

This item inserts a heading 'Division 1 - Preliminary' into Part III of the Crimes Act 1914 .

Item 7: definition of federal judicial proceeding, judicial proceeding and judicial tribunal

This item repeals former section 31, and inserts new definitions of 'federal judicial proceeding', 'judicial proceeding' and 'judicial tribunal' into the Crimes Act 1914 .

'Federal judicial proceeding' is defined as a judicial proceeding in or before a federal court, a court exercising federal jurisdiction or a court of a Territory. The definition also covers judicial proceedings before a body or person acting under a law of the Commonwealth or a Territory.

'Judicial proceeding' is defined as a proceeding in or before a court. The definition also covers proceedings before a body or a person acting under a law of the Commonwealth, State or Territory, in which evidence may be taken on oath.

'Judicial tribunal' is defined as a body or person (other than a court) before whom a judicial proceeding is conducted.

Item 8: division 2 heading

This item inserts a heading 'Division 2 - Judges and Magistrates' into Part III of the Crimes Act 1914 .

Item 9: judge or magistrate acting oppressively or when interested

This item reframes former section 34 so that it is aligned with Chapter 2 of the Criminal Code Act 1995 . The physical elements of, and penalties for the new section 34 offences, are identical to the former section 34 offence.

New section 34 creates two offences directed against judges or magistrates acting oppressively or when they have personal interests at stake in the matter.

Subsection 34(1) creates an offence directed at judges or magistrates that require excessive and unreasonable bail, where the requirement is an abuse of the judge's or magistrate's office. The penalty for this offence is imprisonment for two years.

Subsection 34(2) provides a defence to the offence in subsection 34(1). The defence would apply where a judge or magistrate has a reasonable excuse. The defendant bears an evidential burden in relation to subsection 34(2). Section 13.3 of the Criminal Code Act 1995 provides that in the case of a standard 'evidential burden' defence, the defendant bears the burden of pointing to evidence that suggests a reasonable possibility that the defence is made out. If this is done, the prosecution must refute the defence beyond reasonable doubt (section 13.1).

An evidential burden defence has been used because a defendant would be better placed to point to evidence that they had a reasonable excuse for ordering excessive and unreasonable bail. For example, a magistrate may have acted oppressively or when interested because they were under duress. Evidence relating to whether the defendant had a reasonable excuse would not be available to the prosecution. The evidential burden defence attaching to subsection 34(2) is identical to the defence used in former subsection 34(2).

The use of the evidential burden defence in subsection 34(2) is consistent with Commonwealth criminal law policy, as described in the Guide to Framing Commonwealth Offences, Civil Penalties and Enforcement Powers . The Guide refers to the settled principle that it is legitimate to cast a matter as an evidential burden defence where a matter is peculiarly within the defendant's knowledge and is not available to the prosecution.

Subsection 34(3) provides that absolute liability applies to the paragraph (1)(e) element of the subsection 34(1) offence. Absolute liability applies because paragraph (1)(e) is a jurisdictional element that confines the offence to matters arising in connection with offences against a law of the Commonwealth. This is consistent with Commonwealth criminal law policy, as described in the Guide to Framing Commonwealth Offences, Civil Penalties and Enforcement Powers .

Subsection 34(4) provides an offence directed at judges or magistrates who perversely exercise jurisdiction in a matter, where they have a personal interest in the matter. The penalty for this offence is imprisonment for two years.

Subsection 34(5) provides that absolute liability applies to the paragraph (4)(d) element of the subsection 34(4) offence. Absolute liability applies because paragraph (4)(d) is a jurisdictional element that confines the offence to situations where the judge or magistrate is exercising federal jurisdiction. This is consistent with Commonwealth criminal law policy, as described in the Guide to Framing Commonwealth Offences, Civil Penalties and Enforcement Powers .

Item 10: division 3 heading

This item inserts a heading 'Division 3 - Evidence and witnesses' into Part III of the Crimes Act 1914 .

Item 11: offences about evidence and witnesses

This item repeals former sections 35 - 40, and inserts new sections 35 - 40.

New section 35

This item reframes former section 35 so that it is aligned with Chapter 2 of the Criminal Code Act 1995 . The physical elements of, and penalty for the new section 35 offence are identical to the former section 35 offence.

New section 35 creates an offence directed against persons who give false testimony about a matter that is material in a judicial proceeding. The offence applies where the testimony is given in a judicial proceeding, or when the person intends to institute a judicial proceeding. The penalty for this offence is imprisonment for five years.

Paragraph 35(1)(c) confines the offence to situations in which the false testimony is about a matter that is material in the judicial proceeding. This protects a defendant from being charged with an offence if the defendant gave false testimony about a matter that was immaterial or unrelated to the proceedings.

Subsection 35(2) provides that strict liability applies to the paragraph 35(1)(c) element of the offence. Strict liability has been used because the paragraph 35(1)(c) element is a precondition of the offence that the prosecution must prove, it is not a substantive element of the offence. The defendant's state of mind about whether a matter on which they have given false testimony is material to the proceeding is not relevant to proving the offence.

The use of strict liability in subsection 35(2) is consistent with Commonwealth criminal law policy, as described in the Guide to Framing Commonwealth Offences, Civil Penalties and Enforcement Powers , and the Senate Scrutiny of Bills Committee Report 6/2002 Application of absolute and strict liability offences in Commonwealth legislation . The Guide refers to the principle that it is acceptable to apply strict liability to a physical element that is essentially a precondition of an offence and the state of mind of the offender is not relevant.

Subsection 35(3) provides that absolute liability applies to the paragraph (1)(d) element of the offence. Absolute liability applies because paragraph (1)(d) is a jurisdictional element that confines the offence to situations in which the judicial proceeding is a federal judicial proceeding. This is consistent with Commonwealth criminal law policy, as described in the Guide to Framing Commonwealth Offences, Civil Penalties and Enforcement Powers .

Subsection 35(4) provides that the following factors are not relevant to the offence:

•

testimony - whether given, on oath, or not on oath, in orally or in writing

•

whether the court or judicial tribunal to which the testimony is given is properly constituted or held in the proper place

•

whether the person who gave the testimony is a competent witness, and

•

whether the testimony is admissible.

New section 36

This item reframes former section 36 so that it is aligned with Chapter 2 of the Criminal Code Act 1995 . The physical elements of, and penalty for the new section 36 offence are identical to the former section 36 offence.

New section 36 creates an offence directed against persons who fabricate evidence with the intention of misleading a court or judicial tribunal in a judicial proceeding. The penalty for this offence is imprisonment for five years.

Subsection 36(2) provides that absolute liability applies to the paragraph (1)(c) element of the offence. Absolute liability applies because paragraph (1)(c) is a jurisdictional element that confines the offence to situations where the judicial proceeding is a federal judicial proceeding. This is consistent with Commonwealth criminal law policy, as described in the Guide to Framing Commonwealth Offences, Civil Penalties and Enforcement Powers .

New section 36A

This item reframes former section 36A so that it is aligned with Chapter 2 of the Criminal Code Act 1995 . The physical elements of, and penalty for the new section 36A offence are identical to the former section 36A offence.

New section 36A creates an offence directed against persons who intimidate another person who has appeared or is about to appear as a witness in a judicial proceeding. The offence is directed at the following conduct:

•

threatening, intimidating or restraining another person

•

using violence or inflicting an injury upon another person

•

causing or procuring violence, damage, loss or disadvantage to another person, and

•

causing or procuring the punishment of another person.

The penalty for this offence is imprisonment for five years.

Subsection 36A(2) provides that absolute liability applies to the paragraph (1)(c) element of the offence. Absolute liability applies because paragraph (1)(c) is a jurisdictional element that confines the offence to situations where the judicial proceeding is a federal judicial proceeding. This is consistent with Commonwealth criminal law policy, as described in the Guide to Framing Commonwealth Offences, Civil Penalties and Enforcement Powers .

New section 37

This item reframes former section 37 so that it is aligned with Chapter 2 of the Criminal Code Act 1995 .

New section 37 creates two offences directed against the corruption of witnesses. The physical elements of and penalties for the new section 37 offences are identical to the former section 37 offences.

Subsection 37(1) creates an offence directed against persons who engage in particular conduct on the basis of an agreement or understanding that a witness in a judicial proceeding will give false testimony or withhold true testimony. The offence is directed at the following conduct:

•

giving, conferring or procuring property or benefits upon another person, or promising to do so, and

•

asking for, receiving or obtaining any property or benefit, or agreeing to do so.

The penalty for this offence is imprisonment for five years.

Subsection 37(2) provides that absolute liability applies to the paragraph (1)(c) element of the offence. Absolute liability applies because paragraph (1)(c) is a jurisdictional element that confines the offence to situations where the judicial proceeding is a federal judicial proceeding. This is consistent with Commonwealth criminal law policy, as described in the Guide to Framing Commonwealth Offences, Civil Penalties and Enforcement Powers .

Subsection 37(3) creates an offence directed against persons who engage in particular conduct with the intention of inducing a witness in a judicial proceeding to give false testimony or withhold true testimony. The penalty for this offence is imprisonment for five years.

Subsection 37(4) provides that absolute liability applies to the paragraph (3)(c) element of the offence. Absolute liability applies because paragraph (3)(c) is a jurisdictional element that confines the offence to situations where the judicial proceeding is a federal judicial proceeding. This is consistent with Commonwealth criminal law policy, as described in the Guide to Framing Commonwealth Offences, Civil Penalties and Enforcement Powers .

New section 38

This item reframes former section 38 so that it is aligned with Chapter 2 of the Criminal Code Act 1995 . The physical elements of, and penalty for the new section 38 offence are identical to the former section 38 offence.

New section 38 creates an offence directed at persons who deceive witnesses with the intention of affecting the testimony of the witness. The offence is directed at the following conduct:

•

practicing fraud or deceit on a witness, and

•

making or exhibiting any false statement, representation, token or writing to a witness.

The penalty for this offence is imprisonment for two years.

Subsection 38(2) provides that absolute liability applies to the paragraph (1)(c) element of the offence. Absolute liability applies because paragraph (1)(c) is a jurisdictional element that confines the offence to situations where the judicial proceeding is a federal judicial proceeding. This is consistent with Commonwealth criminal law policy, as described in the Guide to Framing Commonwealth Offences, Civil Penalties and Enforcement Powers .

New section 39

This item reframes former section 39 so that it is aligned with Chapter 2 of the Criminal Code Act 1995 . The physical elements of, and penalty for the new section 39 offence are identical to the former section 39 offence.

New section 39 creates an offence directed at persons who destroy evidence with the intention of preventing the evidence from being used in a judicial proceeding. The offence is directed at the following conduct:

•

destroying a book, document or thing required in evidence, and

•

rendering a book, document or thing illegible, undecipherable or incapable of identification.

The penalty for this offence is imprisonment for five years.

Subsection 39(2) provides that absolute liability applies to the paragraph (1)(d) element of the offence. Absolute liability applies because paragraph (1)(d) is a jurisdictional element that confines the offence to situations where the judicial proceeding is a federal judicial proceeding. This is consistent with Commonwealth criminal law policy, as described in the Guide to Framing Commonwealth Offences, Civil Penalties and Enforcement Powers .

New section 40

This item reframes former section 40 so that it is aligned with Chapter 2 of the Criminal Code Act 1995 . The physical elements of, and penalty for the new section 40 offence are identical to the former section 40 offence.

New section 40 creates an offence directed at persons who prevent witnesses from:

•

attending court pursuant to a subpoena or summons, or

•

from producing anything in evidence, pursuant to a subpoena or summons.

The penalty for this offence is imprisonment for one year.

Subsection 40(2) provides that absolute liability applies to the paragraph (1)(c) element of the offence. Absolute liability applies because paragraph (1)(c) is a jurisdictional element that confines the offence to situations where the judicial proceeding is a federal judicial proceeding. This is consistent with Commonwealth criminal law policy, as described in the Guide to Framing Commonwealth Offences, Civil Penalties and Enforcement Powers .

Item 12: division 4 heading

This item inserts a heading 'Division 4 - Perverting the course of justice' into Part III of the Crimes Act 1914 .

Item 13: conspiracy to bring false accusation

This item repeals former subsection 41(1), and inserts new subsections 41(1) and 41(1A). This item reframes former subsection 41(1) so that it is aligned with Chapter 2 of the Criminal Code Act 1995 . The physical elements of, and penalty for the new subsection 41(1) offence, are identical to the former subsection 41(1) offence.

New subsection 41(1) creates an offence directed at persons who conspire to charge any person falsely or cause any person to be falsely charged. The penalty for the offence is imprisonment for ten years.

Subsection 41(1A) provides that absolute liability applies to the paragraph (1)(b) element of the subsection 41(1) offence. Absolute liability applies because paragraph (1)(b) is a jurisdictional element that confines the offence to situations where a person has been falsely charged with an offence against a law of the Commonwealth, or Territory. This is consistent with Commonwealth criminal law policy, as described in the Guide to Framing Commonwealth Offences, Civil Penalties and Enforcement Powers .

Existing subsections 41(2) to 41(7) have been retained in the Crimes Act, and operate together with new subsections 41(1) and 41(1A).

Item 14: conspiracy to defeat justice

This item repeals former subsections 42(1) and 42(2), and inserts new subsections 42(1) and 42(2). This item reframes former subsection 42(1) so that it is aligned with Chapter 2 of the Criminal Code Act 1995 . The physical elements of the new subsection 42(1) offence are identical to the physical elements of the former subsection 42(1) offence.

New subsection 42(1) creates an offence directed at persons who conspire to obstruct, prevent, pervert or defeat justice in relation to a judicial power of the Commonwealth.

Subsection 42(2) provides that absolute liability applies to the paragraph (1)(b) element of the subsection 42(1) offence. Absolute liability applies because paragraph (1)(b) is a jurisdictional element that confines the offence to the judicial power of the Commonwealth. This is consistent with Commonwealth criminal law policy, as described in the Guide to Framing Commonwealth Offences, Civil Penalties and Enforcement Powers .

This item increases the penalty for the offence from imprisonment for 5 years to imprisonment for 10 years.

A penalty of imprisonment for 10 years reflects the seriousness of the offence. The offence is directed at conduct that undermines the court's authority and limits its ability to carry out the administration of justice. In some cases, commission of the offence would be directed at changing the outcome of court proceedings and therefore parties in court proceedings may also be affected.

The amendment will bring the penalty for this offence into closer alignment with the penalty for other similar offences in the Commonwealth and other jurisdictions. For example, the section 41 offence of conspiracy to bring false accusation (which is also a Commonwealth administration of justice offence) carries a maximum penalty of 10 years imprisonment. A survey of other jurisdictions by the Commonwealth Director of Public Prosecutions in 2008 revealed that the penalties for similar offences are much greater than the Commonwealth's current penalty. For example, the current maximum penalties for similar State offences are 14 years imprisonment in New South Wales and 25 years imprisonment in Victoria.

Item 15: attempting to pervert course of justice

This item repeals former subsections 43(1) and 43(2), and inserts new subsections 43(1) and 43(2). This item reframes former subsection 42(1) so that it is aligned with Chapter 2 of the Criminal Code Act 1995 .

New subsection 43(1) creates an offence directed at persons who obstruct, prevent, pervert or defeat justice in relation to a judicial power of the Commonwealth. The penalty for the offence is imprisonment for 10 years.

Subsection 43(2) provides that absolute liability applies to the paragraph (1)(b) element of the subsection 43(1) offence. Absolute liability applies because paragraph (1)(b) is a jurisdictional element that confines the offence to the judicial power of the Commonwealth. This is consistent with Commonwealth criminal law policy, as described in the Guide to Framing Commonwealth Offences, Civil Penalties and Enforcement Powers .

The new subsection 43(1) offence is not identical to the former subsection 43(1) offence. This item removes the words 'in any way not specifically defined in this Act' from the attempt to pervert the course of justice offence. The item also increases the penalty for the offence from imprisonment for 5 years to imprisonment for 10 years.

The words 'in any way not specifically defined in this Act', in the former offence, require the prosecution to charge a more specific offence in Part III if one is available. This means that the attempt to pervert course of justice offence is an offence of last resort - the prosecution may only use it if no other offence can be charged.

Removing these words promotes certainty as to the scope of this offence. There is a significant body of case law on offences of attempting to pervert the course of justice, whereas many of the other administration of justice offences do not have the benefit of detailed judicial consideration. The amendment does not affect the ability of the prosecution to charge the other administration of justice offences.

As discussed above, this item increases the penalty for the offence from imprisonment for 5 years to imprisonment for 10 years.

A penalty of imprisonment for 10 years reflects the seriousness of the offence. The offence is directed at conduct that undermines the court's authority and limits its ability to carry out the administration of justice. In some cases, commission of the offence would be directed at changing the outcome of court proceedings and therefore parties in court proceedings may also be affected.

The amendment will bring the penalty for this offence into closer alignment with the penalty for other similar offences in the Commonwealth and other jurisdictions. For example, the section 41 offence of conspiracy to bring false accusation (which is also a Commonwealth administration of justice offence) carries a maximum penalty of 10 years imprisonment. A survey of other jurisdictions by the Commonwealth Director of Public Prosecutions in 2008 revealed that the penalties for similar offences are much greater than the Commonwealth's current penalty. For example, the current maximum penalties for similar State offences are 14 years imprisonment in New South Wales and 25 years imprisonment in Victoria.

Item 16: compounding offences and unauthorised or false advertisements

This item repeals former sections 44 and 45, and inserts new sections 44 and 45.

New section 44

This item reframes former section 44 so that it is aligned with Chapter 2 of the Criminal Code Act 1995 . The physical elements of, and penalty for the new section 44 offence are identical to the former section 44 offence.

New section 44 creates an offence directed at persons who engage in particular conduct upon any understanding that they will:

•

compound or conceal an offence

•

abstain from, discontinue or delay a prosecution for an offence, and

•

withhold evidence of an offence.

The offence applies to the following conduct:

•

asking for, receiving, or obtaining any property or benefit for themselves or another person, and

•

agreeing to receive or obtain any property or benefit for themselves or another person.

The penalty for the offence is imprisonment for three years.

New section 45

This item reframes former section 45 so that it is aligned with Chapter 2 of the Criminal Code Act 1995 . The physical elements of, and penalty for the new section 45 offence are identical to the former section 45 offence.

New section 45 creates an offence directed at persons who insert an advertisement purporting to be published under the authority of a court, where the person does so:

•

without authority, or

•

knowing that the advertisement is false.

The penalty for this offence is imprisonment for two years.

Subsection 45(2) provides that absolute liability applies to the paragraph (1)(c) element of the offence. Absolute liability applies because paragraph (1)(c) is a jurisdictional element that confines the offence to situations where the advertisement purports to be published under the authority of a federal court, a court exercising federal jurisdiction, or a court of a Territory. This is consistent with Commonwealth criminal law policy, as described in the Guide to Framing Commonwealth Offences, Civil Penalties and Enforcement Powers .

Item 17: criminal detention definitions

This item inserts a heading 'Division 5 - Escape from criminal detention' into Part III of the Crimes Act 1914 .

This item also inserts a new section 45A that contains criminal detention definitions that are used throughout Division 5.

Criminal detention is defined to mean arrest or custody in respect of an offence, or detention due to:

•

being unfit to be tried

•

acquittal because of mental illness, and

•

receiving treatment for mental illness that contributed to the commission of the offence.

Federal criminal detention is defined to mean criminal detention in respect of an offence against a law of the Commonwealth, or a Territory (other than the Australian Capital Territory).

The Australian Capital Territory has been excluded from the definition of federal criminal detention because it did not have prison facilities at the time of introduction.

Item 18: - sections 46 - 48

This item repeals former sections 46 to 48, and inserts new sections 46, 46A, 47, 47A, 47B, 47C and 48. New section 46

This item reframes former section 46 so that it is aligned with Chapter 2 of the Criminal Code Act 1995 . The physical elements of, and penalty for the new section 46A offence are identical to physical elements and penalty used in the former paragraph 46(1)(a), 46(1)(aa) and 46(1)(ab) offences.

This item creates an offence directed against persons that aid a prisoner to escape or attempt from criminal detention. The penalty for this offence is imprisonment for five years.

Subsection 46(2) provides that absolute liability applies to the paragraph (1)(d) element of the offence. Absolute liability applies because paragraph (1)(d) is a jurisdictional element that confines the offence to situations where the detention is lawful federal criminal detention. This is consistent with Commonwealth criminal law policy, as described in the Guide to Framing Commonwealth Offences, Civil Penalties and Enforcement Powers .

Subsection 46(3) provides a defence to the offence in subsection 46(1). The defence would apply where a defendant terminates aid to the prisoner and otherwise takes all reasonable steps to prevent the prisoner from escaping or attempting to escape. The defendant bears an evidential burden in relation to subsection 46(3). Section 13.3 of the Criminal Code Act 1995 provides that in the case of a standard 'evidential burden' defence, the defendant bears the burden of pointing to evidence that suggests a reasonable possibility that the defence is made out. If this is done, the prosecution must refute the defence beyond reasonable doubt (section 13.1).

An evidential burden defence has been used because a defendant would be better placed than the prosecution to point to evidence that they terminated their aid to the prisoner or took reasonable steps to prevent the prisoner from escaping or attempting to escape. Evidence relating to whether the defendant terminated aid or took reasonable steps to prevent the prisoner from escaping would not be available to the prosecution.

The use of the evidential burden defence in subsection 46(3) is consistent with Commonwealth criminal law policy, as described in the Guide to Framing Commonwealth Offences, Civil Penalties and Enforcement Powers . The Guide refers to the settled principle that it is legitimate to cast a matter as an evidential burden defence where a matter is peculiarly within the defendant's knowledge and is not available to the prosecution.

Subsection 46(4) provides that it is possible to use the offence to charge a person who aids a prisoner to escape, even in circumstances where the prisoner was not prosecuted for, or found guilty of an offence in relation to the escape or attempt to escaping.

New section 46A

This item reframes former paragraph 46(1)(b) so that it is aligned with Chapter 2 of the Criminal Code Act 1995 . The penalty for the new section 46A offence is identical to the former paragraph 46(1)(b) offence.

This item creates an offence directed against persons that convey a thing into a prison or other place of criminal detention with the intention of aiding a prisoner to escape from that detention. The penalty for this offence is imprisonment for five years.

Subsection 46A(2) provides that absolute liability applies to the paragraph (1)(d) element of the offence. Absolute liability applies because paragraph (1)(d) is a jurisdictional element that confines the offence to situations where the detention is lawful federal criminal detention. This is consistent with Commonwealth criminal law policy, as described in the Guide to Framing Commonwealth Offences, Civil Penalties and Enforcement Powers .

While the new offence is directed at the same conduct as the former offence, the physical elements of the former offence have been amended to extend the new offence to conduct that would assist a prisoner who is under arrest. This amendment ensures that a defendant can be charged with conveying a thing into a prison to assist a prisoner that is under arrest. The former offence did not apply to prisoners under arrest.

This amendment promotes consistency between the offences about escape from criminal detention. All new offences concerning escape from criminal detention apply to prisoners under arrest, because of the consistent application of the 'criminal detention' physical element.

New section 47

This item reframes former section 47 so that it is aligned with Chapter 2 of the Criminal Code Act 1995 . The physical elements of, and penalty for the new section 47 offence, are identical to the former section 47 offence.

This item creates an offence directed against persons who escape from criminal detention. The penalty for this offence is imprisonment for five years.

Subsection 47(2) provides that absolute liability applies to the paragraph (1)(c) element of the offence. Absolute liability applies because paragraph (1)(c) is a jurisdictional element that confines the offence to situations where the detention is lawful federal criminal detention. This is consistent with Commonwealth criminal law policy, as described in the Guide to Framing Commonwealth Offences, Civil Penalties and Enforcement Powers .

New section 47A

This item reframes former section 47A so that it is aligned with Chapter 2 of the Criminal Code Act 1995 . The physical elements of, and penalty for the new section 47A offence are identical to the former section 47A offence.

This item creates an offence directed against persons who rescue a prisoner from criminal detention by force. The penalty for this offence is imprisonment for 14 years.

Subsection 47A(2) provides that absolute liability applies to the paragraph (1)(c) element of the offence. Absolute liability applies because paragraph (1)(c) is a jurisdictional element that confines the offence to situations where the detention is lawful federal criminal detention. This is consistent with Commonwealth criminal law policy, as described in the Guide to Framing Commonwealth Offences, Civil Penalties and Enforcement Powers .

New section 47B

This item reframes former section 47B so that it is aligned with Chapter 2 of the Criminal Code Act 1995 . The penalty for the new section 47B offence is identical to the penalty for the former section 47B offence.

This item creates an offence directed against persons who leave a place of criminal detention with permission, but fail to comply with the terms of that permission by refusing to return to that place of criminal detention. The penalty for this offence is imprisonment for five years.

Subsection 47B(2) provides that absolute liability applies to the paragraph (1)(b) element of the offence. Absolute liability applies because paragraph (1)(b) is a jurisdictional element that confines the offence to situations where the detention is lawful federal criminal detention. This is consistent with Commonwealth criminal law policy, as described in the Guide to Framing Commonwealth Offences, Civil Penalties and Enforcement Powers .

Subsection 47B(3) provides a defence to the offence in subsection 47B(1). The defence would apply where a prisoner had a reasonable excuse to breach the conditions of their permission by failing to return to the place of criminal detention. The defendant bears an evidential burden in relation to subsection 47B(3). Section 13.3 of the Criminal Code Act 1995 provides that in the case of a standard 'evidential burden' defence, the defendant bears the burden of pointing to evidence that suggests a reasonable possibility that the defence is made out. If this is done, the prosecution must refute the defence beyond reasonable doubt (section 13.1).

An evidential burden defence has been used because a defendant would be better placed than the prosecution to point to evidence that they had a reasonable excuse for failing to return to the place of criminal detention. For example, the defendant may point to evidence that they did not return to the place of criminal detention because they were injured or hospitalised. Evidence relating to whether the defendant had a reasonable excuse would not be available to the prosecution. The evidential burden defence used in subsection 47B(3) is identical to the defence used in former section 47B(1A).

The use of the evidential burden defence in subsection 47B(3) is consistent with Commonwealth criminal law policy, as described in the Guide to Framing Commonwealth Offences, Civil Penalties and Enforcement Powers . The Guide refers to the settled principle that it is legitimate to cast a matter as an evidential burden defence where a matter is peculiarly within the defendant's knowledge and not available to the prosecution.

While the new offence is directed at the same conduct as the former offence, the physical elements of the former offence have been amended to extend the new offence to situations where the prisoner is under arrest. This amendment ensures that a defendant can be charged with refusing to return to a place of criminal detention when they are being held under arrest. The former offence did not apply to prisoners under arrest.

This amendment promotes consistency between the offences about escape from criminal detention. All new offences concerning escape from criminal detention apply to prisoners under arrest, because of the consistent application of the 'criminal detention' physical element.

New section 47C

This item reframes former section 47C so that it is aligned with Chapter 2 of the Criminal Code Act 1995 . The penalty for the new section 47C offence is identical to the former section 47C offence.

This item creates an offence directed against persons who intentionally or negligently permit a prisoner to escape from criminal detention. The penalty for this offence is imprisonment for five years.

Subsection 47C(2) provides that absolute liability applies to the paragraph (1)(d) element of the offence. Absolute liability applies because paragraph (1)(d) is a jurisdictional element that confines the offence to situations where the detention is lawful federal criminal detention. This is consistent with Commonwealth criminal law policy, as described in the Guide to Framing Commonwealth Offences, Civil Penalties and Enforcement Powers .

While the new offence is directed at the same conduct as the former offence, the physical elements of the former offence have been amended to extend the new offence to situations where the prisoner is under arrest. This amendment ensures that a defendant can be charged with permitting a prisoner to escape, where that prisoner is under arrest. The former offence did not apply to prisoners under arrest.

This amendment promotes consistency between the offences about escape from criminal detention. All new offences concerning escape from criminal detention apply to prisoners under arrest, because of the consistent application of the 'criminal detention' physical element.

New section 48

This item reframes former section 48 so that it is aligned with Chapter 2 of the Criminal Code Act 1995 . The penalty for the new section 48 offence is identical to the former section 48 offence. The physical elements of the former offence have been amended to extend the new offence to situations where the prisoner is under arrest.

This item creates an offence directed against persons who harbour, maintain or employ a person who escaped from criminal detention, knowing that the person is an escapee. The penalty for this offence is imprisonment for five years.

Subsection 48(2) provides that absolute liability applies to the paragraph (1)(c) element of the offence. Absolute liability applies because paragraph (1)(c) is a jurisdictional element that confines the offence to situations where the detention is lawful federal criminal detention. This is consistent with Commonwealth criminal law policy, as described in the Guide to Framing Commonwealth Offences, Civil Penalties and Enforcement Powers .

While the new offence is directed at the same conduct as the former offence, the physical elements of the former offence have been amended to extend the new offence to situations where the prisoner is under arrest. This amendment ensures that a defendant can be charged with harbouring maintaining or employing a prisoner that has escaped from a place of criminal detention, where that prisoner was being held under arrest. The former offence did not apply to prisoners under arrest.

This amendment promotes consistency between the offences about escape from criminal detention. All new offences concerning escape from criminal detention apply to prisoners under arrest, because of the consistent application of the 'criminal detention' physical element.

Item 19: division 6 heading

This item inserts a heading 'Division 6 - Seized property' into Part III of the Crimes Act 1914 .

Item 20: removing property under seizure

This item reframes former section 49 so that it is aligned with Chapter 2 of the Criminal Code Act 1995 . The physical elements of, and penalty for the new section 49 offence are identical to the former section 49 offence.

This item creates an offence directed against persons who interfere with property that has been attached or taken under the process or authority of a court, with the intention of hindering or defeating the attachment or process. The penalty for this offence is imprisonment for two years.

Subsection 49(2) provides that absolute liability applies to the paragraph (1)(b) element of the offence. Absolute liability applies because paragraph (1)(b) is a jurisdictional element that confines the offence to situations where the detention is lawful federal criminal detention. This is consistent with Commonwealth criminal law policy, as described in the Guide to Framing Commonwealth Offences, Civil Penalties and Enforcement Powers .

Item 21 - consequential amendment of the Australian Federal Police Act 1979

This item amends subparagraph (a)(i) of the definition of 'protective service offence' in subsection 4(1) of the Australian Federal Police Act 1979 , to omit a reference to 'other than paragraph (b)'.

The definition of protective service offence includes Australian Federal Police functions performed in relation to some of the existing administration of justice offences including 'section 46 (other than paragraph (b)'.

Former section 46(b) provided an offence for conveying a thing into a prison with the intention of facilitating the escape of a prisoner. As a result of the amendment of the administration of justice offences, the offence in section 46(b) no longer exists. The offence in section 46(b) has been reframed and now appears in section 46A. Therefore, the reference to subsection 46(b) has been deleted from the definition of 'protective service offence'.

Item 22 - consequential amendment of the Federal Court of Australia Act 1976

This item amends subsection 32P(2) of the Federal Court of Australia Act 1976 to insert the word 'federal' before 'judicial proceeding'.

Subsection 32P(2) provides that 'evidence given by a person on oath or affirmation administered by the High Court of New Zealand under subsection (1) is, for the purposes of section 35 of the Crimes Act 1914 , testimony given in a judicial proceeding.'

The item updates subsection 32P to ensure that it refers to the new definition of 'federal judicial proceeding' provided by the amendments to the administration of justice offences.

Item 23 - consequential amendment of the International Criminal Court Act 2002

This item repeals section 183 of the International Criminal Court Act 2002 and replaces it with a new section 183.

New section 183 ensures that the amended administration of justice offences in Division 5 (sections 46, 46A, 47A, 47C and 48) continue to apply to circumstances where a person is held under arrest or in custody under the International Criminal Court Act.

Section 183 provides sections 46, 46A, 47A, 47C and 48 have effect as if custody, detention or arrest under the International Criminal Court Act were custody in respect of an offence against a law of the Commonwealth. As a result of the amendment, prisoners in custody under the Act would be in 'federal criminal detention'.

Item 115 also inserts a reference to section 47C of the Crimes Act into the revised section 183 of the International Criminal Court Act. Existing section 183 of the International Criminal Court Act only refers to sections 46, 46A , 47A and 48 of the Crimes Act. Section 47C of the Crimes Act makes it an offence for a prison officer, police officer or similar to permit a person to escape custody or detention.

The equivalent provisions in the International War Crimes Tribunals Act 1995 and the Mutual Assistance in Criminal Matters Act 1987 already refer to section 47C of the Crimes Act. This amendment ensures consistency between the relevant provisions of the International Criminal Court Act, International War Crimes Tribunals Act and Mutual Assistance in Criminal Matters Act.

Item 24 - amendment of the International Transfer of Prisoners Act 1997

This item adds a new section 56A to the International Transfer of Prisoners Act 1997 .

New section 56A ensures that the amended administration of justice offences in Division 5 (escape from criminal detention) apply to circumstances where a person is held under arrest or in custody under the International Transfer of Prisoners Act.

Section 56A provides that the administration of justice offences in Division 5 have effect as if custody, detention or arrest under the International Transfer of Prisoners Act were custody in respect of an offence against a law of the Commonwealth. As a result of the amendment, prisoners transferred under the Act would be in 'federal criminal detention'.

Item 25 - consequential amendment of the International War Crimes Tribunals Act 1995

This item repeals section 80 of the International War Crimes Tribunals Act 1995 and replaces it with a new section 80.

New section 80 ensures that the amended administration of justice offences in Division 5 (sections 46, 46A, 47A, 47C and 48) continue to apply to circumstances where a person is held under arrest or in custody under the International War Crimes Tribunals Act.

Section 80 provides sections 46, 46A, 47A, 47C and 48 have effect as if custody, detention or arrest under the International War Crimes Tribunals Act were custody in respect of an offence against a law of the Commonwealth. As a result of the amendment, prisoners in custody under the Act would be in 'federal criminal detention'.

Item 26 - consequential amendment of the Mutual Assistance in Criminal Matters Act 1987

This item repeals section 25A of the Mutual Assistance in Criminal Matters Act 1987 and replaces it with a new section 25A.

New section 25A ensures that the amended administration of justice offences in Division 5 (sections 46, 46A, 47A, 47C and 48) continue to apply to circumstances where a person is held under arrest or in custody under the Mutual Assistance in Criminal Matters Act.

Section 25A provides sections 46, 46A, 47A, 47C and 48 have effect as if custody, detention or arrest under the Mutual Assistance in Criminal Matters Act were custody in respect of an offence against a law of the Commonwealth. As a result of the amendment, prisoners in custody under the Act would be in 'federal criminal detention'.

Item 27 - consequential amendment of the Mutual Assistance in Criminal Matters Act 1987

This item repeals section 31A of the Mutual Assistance in Criminal Matters Act 1987 and replaces it with a new section 31A.

New section 31A ensures that the amended administration of justice offences in Division 5 (sections 46, 46A, 47A, 47C and 48), continue to apply to circumstances where a person is held under arrest or in custody under the Mutual Assistance in Criminal Matters Act.

Section 31A provides sections 46, 46A, 47A, 47C and 48 have effect as if custody, detention or arrest under the Mutual Assistance in Criminal Matters Act was custody in respect of an offence against a law of the Commonwealth. As a result of the amendment, prisoners in custody under the Act would be serving 'federal criminal detention'.

Item 28 - consequential amendment of the Telecommunications (Interception and Access) Act 1979

This item amends paragraph 5D(8)(b) of the Telecommunications (Interception and Access) Act 1979 to insert a reference to new section 46A.

Section 5D provides a list of Commonwealth offences that are 'serious offences' for the purposes of the Telecommunications (Interception and Access) Act 1979 . Paragraph 5D(8)(b) includes a reference to former section 46 of the Crimes Act 1914 .

Former section 46(b) provided an offence for conveying a thing into a prison with the intention of facilitating the escape of a prisoner. As a result of the amendments to the administration of justice offences, this offence has been reframed and now appears in section 46A. A reference to 46A has been added to paragraph 5D(8)(b) to ensure that the offence for conveying a thing into a prison remains a 'serious offence'.

Item 29 - consequential amendment of the Transfer of Prisoners Act 1983

This item amends subsection 26(1) of the Transfer of Prisoners Act 1983 to omit the phrase 'as if a reference in that section' and replaces it with 'of this Act as if a reference in the definition of federal criminal detention in section 45A'.

Subsection 26(1) applies former section 47 of the Crimes Act to a state prisoner in lawful custody.

This item updates subsection 26(1) to ensure that it refers to the new definition of 'federal criminal detention' provided by the amendments to the administration of justice offences.

Item 30 - consequential amendment of the Transfer of Prisoners Act 1983

This item amends subsection 26(2) of the Transfer of Prisoners Act 1983 to omit the phrase 'as if a reference in that section' and replaces it with 'of this Act as if a reference in the definition of federal criminal detention in section 45A'.

Subsection 26(2) applies former section 47 of the Crimes Act to a state prisoner in lawful custody.

This item updates subsection 26(2) to ensure that it refers to the new definition of 'federal criminal detention' provided by the amendments to the administration of justice offences.