Criminal Code Amendment (Theft, Fraud, Bribery and Related Offences) Bill 2000

Second Reading Speech

Campbell, Sen Ian (Parliamentary Secretary to the Minister for Communications, Information Technology and the Arts, LP, Western Au, Government)

That these bills be now read a second time.

I seek leave to have the second reading speeches incorporated in Hansard.

Leave granted.

The speeches read as follows

In 1825, British clergyman and writer, Charles Caleb Colton, observed:

"There are some frauds so well conducted that it would be stupidity not to be deceived by them".

I am sure many would consider this to be as true today as it ever was.

Fraudsters, thieves, blackmailers and corrupt officials are rapidly developing the means to deprive the Commonwealth Government and its public officials of vast sums of money.

This Bill introduces a wide range of modern offences to protect the Commonwealth Government and public officials from criminals who would cause them financial harm or seek to obstruct, threaten or harm them.

The Bill achieves many long standing goals of this Government:

it replaces existing Crimes Act 1914 offences with a modern and transparent scheme for preventing and punishing theft, fraud, bribery, forgery and related offences;
it provides a new scheme for the geographical jurisdiction of the Commonwealth criminal law by replacing the existing situation where the scope of offences is often uncertain;
it provides additional protection for Commonwealth public officials from violence and harassment; and
it simplifies and reduces the size of the Commonwealth statute book by repealing over 250 offences which cover conduct dealt with by the new offences.

It has been 10 years since the Review of Commonwealth Criminal Law was conducted by Sir Harry Gibbs, GCMG, AC, KBE, the Honourable Justice Ray Watson and the late Mr Andrew Menzies, AM, OBE.

That review recommended a complete overhaul of the theft, fraud and corruption offences in the Crimes Act 1914.

Significantly, that Review found that a number of offences in the legislation, including regular and usually straight forward offences such as `stealing' and `defrauding' were overly complex and reliant on obscure common law terminology.

For instance, the key fraud offence, section 29D, currently relies heavily on the meaning of the word "defraud" which can only be ascertained through reading a series of English and Australian cases on the related offence of conspiracy to defraud. As a result, the offence is uncertain, and subject to unpredictable interpretation by judges in a variety of jurisdictions.

This Bill updates these offences, reduces their complexity and introduces more certainty.

The Bill also gives Australia a system of offences ready to meet the criminal activities of the new Millennium. Significantly, it introduces a number of key amendments to cope with all the changes that technology has brought to criminal activity. The language of the legislation will be brought into line with that of the new Electronic Transactions Act 1999. This is particularly important in relation to the fraud and forgery offences. The Government considers these new offences will go hand in hand with its commitment to conduct business electronically.

The Bill also brings about uniformity in penalties for key offences, which have long differed between State and Federal jurisdictions, and between different Acts. For instance, under the Crimes Act the offence of stealing carries a maximum penalty of 7 years, when State theft offences and the fraud offence have a maximum penalty of 10 years. There is no reason why stealing Commonwealth property should receive a lighter punishment than stealing from a business, a State Government or an individual.

The existing corruption offences raise even more concerns. The current bribery and secret commissions offences have maximum penalties of only 2 years imprisonment. You will recall that in June last year this Parliament passed legislation prohibiting the bribery of foreign public officials. The maximum penalty was set at 10 years imprisonment - the same as that which applies to theft and fraud. It follows that the domestic bribery offence should have the same maximum penalty.

The Bill also addresses the use of violence and threatened violence in dealings with the Government. It covers robbery and burglary and deals with threats and attacks against those who work for the Commonwealth. These offences include an additional penalty where the threat or attack is against a law enforcement officer. At the moment the Crimes Act and other legislation only have obstruction offences with a maximum penalty of 2 years imprisonment. Under the Bill the maximum penalty will be 13 years imprisonment where the person assaulted is a law enforcement officer.

The Bill will also repeal many unnecessary and outdated offences. Schedule 2 to the Bill indicates our concerted effort to prune down some of the unacceptable duplication which exists in the Commonwealth statute book. This will contribute to delivery on the Government's commitment when it was elected to conduct a `statute stocktake' with the aim of reducing the number of offences and making Commonwealth law less complex.

The opportunity has also been taken to provide clarity on the fundamental issue of who is included within the definition of `Commonwealth public official'. It may surprise you, but the Crimes Act 1914 definition of `Commonwealth official' does not indicate clearly whether Ministers are covered by the definition. The new definition ensures all Federal members of Parliament, Ministers, judges, employees and consultants are covered by the proposed offences. This is particularly important in relation to the corruption offences. Another important overdue change is the proposed regime which will govern the application of Commonwealth laws overseas. New Part 2.7 deals with geographical jurisdiction, that is when jurisdiction will be exercised over offences against Commonwealth law occurring overseas.

Until recently, the general rule in common law countries, such as Australia, has been that criminal laws apply to conduct in the territory of that country. However in recent years, that rule has been subject to variation for a number of reasons. International treaties now recognise that many kinds of personal or business transactions take place across national boundaries. They call for member countries to exercise jurisdiction even though the conduct in question has occurred beyond their boundaries. This enables these countries to effectively deal with serious transnational crime.

A problem can arise when particular conduct for the purpose of committing an offence in jurisdiction X takes place or is set in train in jurisdiction Y, where the organising or inciting of the offence, or a conspiracy to commit the offence, takes place. This raises issues about appropriate rules to govern the application of the general criminal law, which have been sought to be addressed by legislation in various jurisdictions, including some of the Australian States. The matter of drafting general principles that can be readily applied by the courts is under consideration by the Model Criminal Code Officers Committee at the direction of the Standing Committee of Attorneys -General.

Turning to Commonwealth legislation we find a rather different requirement.

Commonwealth legislation does not deal with the general criminal law (except where it needs to be applied for specific Commonwealth situations) but with particular interests and concerns that, being of a national character, fall within the Commonwealth sphere. The practice has been for the application of Commonwealth offence provisions to be addressed case by case, depending on the purpose of the legislation.

Sometimes a formulation has been used to the effect that a Commonwealth statute `applies within and outside Australia'. From such a formulation it might be assumed, and sometimes is, that offence provisions in the Act apply to any conduct by any person anywhere in the world. When such a provision was introduced in the Crimes Act 1914 in 1960 it was certainly intended to assert jurisdiction over some conduct beyond Australia. In the parliamentary debate, although it was suggested that some limitations applied, these were only indicated rather vaguely by some illustrations.

Another example might be found in the Proceeds of Crime Act 1987, which applies throughout the whole of Australia and also outside Australia, and thus, some might think, to the laundering of the proceeds of a foreign offence entirely outside Australia. Such lack of precision is undesirable, and can cause confusion when the question arises in the courts, as shown by the case of McDonald v Bojkovic [1987] VR 387.

For all those reasons, there is a need for Part 2.7. The Code's aims of achieving clarity and consistency of principle will not be met without workable provisions on geographical jurisdiction. The Part sets out five different kinds of geographical jurisdiction that might apply to Commonwealth offences. One of these is called `standard geographical jurisdiction' and will apply by way of default unless one of the other specified kinds of jurisdiction, or perhaps yet another kind of jurisdiction, is designated by statute.

Naturally, it is intended that extended forms of jurisdiction will only be applied where there is justification for this, having regard to considerations of international law, comity and practice. Moreover, where an offence is alleged to have been committed wholly in a foreign country by a person who is not an Australian citizen, consent to a prosecution by the Attorney-General will be required.

The proposed Bill is not only needed - it is essential for the proper administration of the government of the Commonwealth.

I am also pleased to note that by enacting this Bill the Government will implement a significant segment of the Model Criminal Code which has been developed by State, Territory and Commonwealth officials over the past decade. The proposed offences will eventually dovetail with equivalent offences at the State and Territory level when other jurisdictions implement the model.

I wish to give credit to Mr Justice Rod Howie QC of the Supreme Court of New South Wales who has chaired the Model Criminal Code Officers Committee for most of its existence, Dr David Neal who was the main author of the Theft, Fraud and Bribery Chapter of the Model Criminal Code, the late Mr Andrew Menzies AM OBE (who was also a member of the Gibbs Committee) and other representatives on the Committee who have been participants in what has been a most exciting and ambitious criminal law reform project which is now recognised for its work throughout the common law world.

Also deserving congratulations is the House of Representatives Standing Committee on Legal and Constitutional Affairs, which under the Chairmanship of the Member for Menzies, Mr Kevin Andrews MP, reviewed the Bill and tabled an advisory report on 26 June 2000 containing a number of important recommendations taken up by the Government in the House of Representatives. These include the preparation of draft prosecution guidelines concerning charging under the proposed general dishonesty offence (section 135.1); the repeal of the proposed organised fraud offence (section 135.3); provision for a defence to the proposed false or misleading information offence where the reasonable steps have not been taken to advise the defendant of the existence of the offence (proposed section 137.1); adding the fault element of dishonesty to the proposed offence of giving information derived from false or misleading documents (proposed section 145.5); and improving the proposed burglary offence to ensure that it is not effectively restricted to those who burgle Commonwealth buildings with the aim of specifically stealing Commonwealth property (section 132.4). The Government has also agreed to amendments proposed by the Opposition in the House of Representatives which provide clarification that the proposed impersonation offence does not extend to conduct engaged in solely for satirical purposes (sections 148.1 and 148.2). These were all sensible proposals which reflect well on those who proposed them.

This Bill is proof that the Federal system can work well when expert resources across the country, and not just those of the Commonwealth, can be applied to work for the improvement of laws that are important to all Australians.

I commend the Bill to the Senate.