Explanatory Memorandum(Circulated by authority of the Minister for Financial Services and Regulation, the Hon Joe Hockey, MP)
General outline and financial impact statement
The purpose of this bill is to make consequential amendments to certain offence provisions in legislation administered by the Treasurer to reflect the application of the Criminal Code Act 1995 .
The Criminal Code Act 1995 (the Code) is a Commonwealth Act which will alter the way in which criminal offence provisions are interpreted, including offences contained in legislation for which the Treasury portfolio is responsible. While the Code was passed in 1995, it commenced to apply to new offences from 1 January 1997, and all new offences are now drafted according to the requirements of the Code. Staggered implementation was considered necessary in relation to existing offences to provide departments with sufficient time to assess the effect of the Code on their offence provisions, and to make any amendments necessary to their legislation. The Code is scheduled to apply to pre-existing offences from 15 December 2001.
If legislation containing offence provisions is not amended to have regard to the Code, the Code may alter the interpretation of existing offence provisions.
The Code contains subjective, fault-based principles of criminal responsibility. The defendants guilt will depend on what he or she thought or intended at the time of the offence, rather than what a reasonable person would have thought or intended in the defendants circumstances. The changes to be brought about by the Code reflect the view that proof of a guilty mind is generally necessary before a person can be found guilty of an offence.
The most significant effect of the Code is that it clarifies the traditional distinction between the actus reus (the physical act, now referred to as the physical element) and the mens rea (what the defendant thought or intended, now referred to as the fault element) and sets out this distinction in the Code.
The prosecution bears the onus of proving each of the physical elements. The physical elements provided in the Code are the conduct, the circumstance in which it occurs, and the result of the conduct. Each offence must contain at least one of these physical elements, but any combination of physical elements may be present in an offence provision. For every physical element of an offence, the prosecution must also prove a corresponding fault element. The Code does not prevent an offence from specifying an alternative fault element, but the Code indicates that the default fault element will apply in the absence of a specified fault element. The Code establishes four default fault elements: intention, knowledge, recklessness and negligence. The Code provides that for conduct, the default fault element is intention. For circumstance or result, the default fault element is recklessness.
The Treasury Legislation (Application of Criminal Code) Bill 2000 makes amendments to the Financial Sector Shareholdings Act 1998, Foreign Acquisitions and Takeovers Act 1975 , Insurance Act 1973 , Insurance Acquisitions and Takeovers Act 1991 , Life Insurance Act 1995 , Prices Surveillance Act 1983 , Productivity Commission Act 1998 , Retirement Savings Accounts Act 1997 , the Superannuation Industry (Supervision) Act 1993 , the Productivity Commission Act 1998 , and aspects of the Trade Practices Act 1974 which do not require consultation with the States.
Amendments arise from:
- Specifying the physical elements of an offence and corresponding fault elements (where these fault elements vary from those specified by the Code);
- Specifying that an offence is one of strict or absolute liability; and
Converting penalties expressed as dollar amounts to penalty units.
In addition, the Bill makes a number of amendments to the Corporations Law made necessary by changes included in the Corporate Law Economic Reform Program Act 1999 .
It is proposed to introduce a second bill in the Spring Sittings to make consequential amendments to taxation laws, the Corporations Law, the Australian Securities and Investments Commission Act 1989 ,and aspects of the Trade Practices Act 1974 which require consultation with the States, reflecting the application of the Criminal Code to these acts
As the bill makes consequential amendments to the criminal law there is no financial impact.