House of Representatives

Explanatory Memorandum

(Circulated by authority of the Attorney-General, the Honourable Daryl Williams AM QC MP)

CRIMINAL CODE AMENDMENT (ANTI-HOAX AND OTHER MEASURES) BILL 2002

OUTLINE

This Bill would amend Part 10.5 of the Criminal Code Act 1995 by adding new offences relating to the sending of dangerous, threatening or hoax material through the post or similar services. The new offences would replace the existing outdated postal offences in sections 85S, 85X and 85Y of the Crimes Act 1914 .

The amendments would ensure that federal offences cover the use of all postal and other like services and not just Australia Post as at present. Services which would be covered by the proposed amendments include commercial courier and parcel and packet carrying services. The amendments would also increase the penalties for the offences to more appropriate levels to properly reflect the harm that can be caused by the sending of threatening, dangerous or hoax material.

FINANCIAL IMPACT STATEMENT

There are no direct financial impacts from this Bill.

NOTES ON CLAUSES

Clause 1: Short title

This clause sets out the short title by which this Act may be cited.

Clause 2: Commencement

This clause provides that sections 1 to 3 and Schedule 2 to the Act commence on the day on which the Act receives Royal Assent.

The clause also provides that Schedule 1 to the Act is taken to have commenced at 2pm on 16 October 2001. This is the time and date at which the Prime Minister publicly announced the proposed new offence for sending hoax material, which is contained in the Schedule. The Prime Minister indicated that the offence would commence from the time of the announcement.

The Government does not lightly pursue retrospective legislation. However, in this case there were exceptional circumstances justifying retrospectivity. During October 2001, hoaxes were causing significant concern and disruption. It was necessary to ensure that such conduct was adequately deterred in the period before the resumption of Parliament. The Prime Ministers announcement provided this deterrence. Furthermore, one of the criticisms that can be directed at retrospective criminal legislation is that people will be unaware that their conduct is an offence. In this case, the Prime Ministers announcement was in very clear terms, and received immediate, widespread publicity. The amendments operate only from the time of that announcement.

An additional consideration is that there is no circumstance in which the perpetration of a hoax that a dangerous or harmful thing has been sent could be considered a legitimate activity in which a person was entitled to engage pending these amendments. The amendments do not retrospectively abrogate a legitimate right or entitlement. For all these reasons, the retrospective application of these amendments is not considered to contravene fundamental principles of fairness or due process.

Clause 3: Schedule(s)

This clause provides that each Act that is specified in a Schedule is amended or repealed as set out in that Schedule.