House of Representatives

Explanatory Memorandum

(Circulated by authority of the Minister for Foreign Affairs, The Honourable Alexander Downer MP)

GENERAL OUTLINE

The Bill amends eleven Foreign Affairs and Trade portfolio statutes by inserting new provisions and amending existing provisions to harmonise various offences within those statutes 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 by various pieces of legislation are by no means consistent 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 elements 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 effect of the Bill is to harmonise offence-creating and related provisions within the Foreign Affairs and Trade 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 Foreign Affairs and Trade portfolio legislation;

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deleting references in Foreign Affairs and Trade portfolio legislation to some Crimes Act 1914 general offence provisions (sections 5, 7, 7A and 86) which duplicate provisions of the Criminal Code and replacing these with references to equivalent Criminal Code provisions where appropriate;

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applying strict 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 some offence-creating provisions which duplicate 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. There will, however, be no direct financial benefit or detriment to the Commonwealth through the Bill.