Explanatory Memorandum
(Circulated by authority of the Treasurer, the Hon Peter Costello, MP)General outline and financial impact statement
General outline
The Bill amends 50 Attorney-Generals portfolio statutes by harmonising various offences and related provisions with Chapter 2 of the Criminal Code Act 1995 . The amendments are to ensure that the relevant offences continue to have much the same meaning and to operate in the same manner as they do at present. The Criminal Code contains a standard approach to the formulation of criminal offences. Offences developed over many years as part of the Commonwealth statute book are by no means standard and it is therefore necessary to make adjustment for when the Criminal Code applies to all Commonwealth offences on 15 December 2001 (as provided for in Criminal Code Amendment (Application) Act 2000 ). The Bill is one of a number being prepared for offences administered by other Ministers (for example: Treasury Legislation Amendment (Application of Criminal Code) Bill 2000 which was introduced in the House of Representatives on 29 June 2000).
The application of the Criminal Code to all offences will improve Commonwealth criminal law by clarifying important element of offences, in particular, the fault elements. At present many hours of practitioners and court time are wasted in litigation about the meaning of particular fault elements or the extent to which the prosecution should have the burden of proving those fault elements. The proposed amendments have been kept to a minimum because to completely harmonise all offences in every aspect of the policy of the Criminal Code would be such an enormous task that it would take considerably more time to complete. The aim of the Bill is to simply ensure that existing offences operate in much the same way as they do now. However, there will be occasions where the operation of existing offences will be uncertain. The amendments will therefore sometimes involve judgment about the likely effect of existing offences. Where this occurs it will provide much needed clarification of the meaning of the relevant provisions.
The effect of the Bill is to harmonise all offences-creating and related provisions within the Attorney-Generals portfolio with the general principles of criminal responsibility as codified in Chapter 2 of the Criminal Code . The major forms of amendment effected by this Bill are:
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- applying the Criminal Code to all offence-creating and related provisions in the Attorney-Generals portfolio;
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- removing the defences of lawful excuse and lawful authority specific to individual provisions and instead placing reliance on the Criminal Codes general defence of lawful authority and lawful excuse (section 10.5);
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- disapplying some Crimes Act 1914 general offence provisions (sections 4, 5, 7, 7A, 14, 15D and 86) which duplicate provisions of the Criminal Code in relation to provisions to which the Criminal Code has been applied, and later repealing these Crimes Act sections;
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- consequentially deleting references in Attorney-Generals portfolio legislation to sections 4, 5, 7, 7A, 14, 15D and 86 of the Crimes Act and replacing these with references to equivalent Criminal Code provisions where appropriate;
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- amending the Criminal Code to enable it to be applied to regulations;
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- repealing or amending provisions to remove ancillary offences, with reliance instead being placed upon the ancillary offence provisions of the Criminal Code (sections 11.1, 11.2, 11.4 and 11.5);
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- applying strict liability or absolute liability to individual offences or specified physical elements of offences where appropriate;
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- reconstructing provisions in order to clarify physical elements of conduct, circumstance and result;
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- removing or replacing inappropriate fault elements; and
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- repealing offence-creating provisions which duplicate any of the general offence provisions in the Criminal Code .
Financial impact statement
It is not possible to assess what impact the Bill will have on Commonwealth expenditure or revenue except that it should be positive. This is because the Bill will contribute to a clarification of the law and therefore less lengthy court proceedings.