House of Representatives

Explanatory Memorandum

(Circulated by authority of the Minister for Justice and Customs Senator the Honourable Chris Ellison)

Schedule 2 - Contamination Offences

Criminal Code Act 1995

Item 1 After Part 9.4 of the Criminal Code

The offences in the Criminal Code Act 1995 are contained in a Schedule (the Criminal Code ). This Item amends that Schedule by inserting Part 9.6, titled 'Contamination of goods'. Chapter 9 of the Criminal Code is titled 'Dangers to the community', and also contains cross-border trafficking of firearms offences. In the longer term Chapter 9 is likely to include serious drug and other community harm offences.

The contamination of goods offences are derived from the 1998 Model Criminal Code Officers' Committee (MCCOC) Report on Contamination of Goods. The offences follow the basic structure of those model offences, but have been modified due to the Commonwealth's Constitutional limitations. The offences have been designed to overlap and complement the State and Territory contamination of goods offences. The offences will also enable the Australian Government to use it jurisdictional advantages on this issue. This is particularly relevant where the conduct originates from overseas.

Three types of contamination of goods offences are established in Part 9.6 - contaminating goods (proposed section 380.2), threatening to contaminate goods (proposed section 380.3) and making false statements about goods being contaminated (proposed section 380.4). Two separate offences are provided for in each section. This reflects the Constitutional limitations on the Australian Government in this area. As indicated by the headings to each offence, the offences in subsections 380.2(1), 380.3(1) and 380.4(1) are based on the implied nationhood power, and the offences in subsections 380.2(2), 380.3(2) and 380.4(2) are based on other heads of power.

Proposed section 380.1 Definitions

Proposed section 380.1 contains a number of definitions which specifically apply to the contamination of goods offences.

Proposed subsection 380.1(1) contains the following definitions:

constitutional trade and commerce : this terms encompasses different types of trade and commence which the Commonwealth has power with under the Constitution. This term is used in some of the offences to make clear one of the constitutional bases.

contaminate : this term is not defined exhaustively, reflecting the variety of ways in which goods might be contaminated and the desirability of having offences flexible enough to deal with novel situations. This definition follows the definition of contaminate in the MCCOC Report model offences.

goods : this definition is not exhaustive, but indicates the breadth of goods that may be covered by these offences. Goods are deliberately defined not to be restricted to substances consumed by humans, and may cover a diverse range of things from cosmetics and beauty products to animal feed and fuel. Contamination - whether real, fabricated or threatened - of any of these things has the potential to cause economic loss, alarm or anxiety. This definition is derived from the definition of goods contained in the model offences.

Proposed subsection 380.1(2) sets out what is included by the phrase economic loss . As with the definitions of contaminate and goods , this is not an exhaustive definition. The provision make it clear that economic loss can be incurred both directly and indirectly. A direct economic loss may be incurred through the public not purchasing the contaminated goods; a more indirect economic loss may be the costs associated with issuing warnings or a product recall, or perhaps employees losing their jobs because of a significant reduction in sales.

Proposed section 380.2 Contaminating goods

Proposed section 380.2 contains two offences targeting persons who contaminate goods intending to cause public alarm or anxiety or economic loss. The offence in subsection 380.2(1) also captures persons who intend to cause harm or create a risk of harm to public health in Australia.

Subsection 380.2(1) Offence based on implied nationhood power

A person would be guilty of the offence in subsection 380.2(1) if he or she contaminated goods intending to cause public alarm or anxiety, widespread or nationally significant economic loss through public awareness of the contamination, or harm (or a risk of harm) to public health. The contamination of goods by a person involves physical elements of both conduct and result - the conduct is the act of causing the contamination, the actual contamination is the result.

This provision is intended to capture contamination which causes, or could cause, alarm, economic loss or harm to public health on a significant scale. For example, it might capture contamination of a commonly used good which then causes loss in several States and Territories. Alternatively, the loss might be geographically contained but be of such a scale that it is nationally significant, or affects a key export industry.

To commit the offence, the person must intend that the alarm, economic loss or harm will occur in Australia. This reflects the implied nationhood power underpinning these offences. (However, the fact that actual loss, alarm or harm occurs outside of Australia will not prevent the conduct being an offence under this provision - it is only the person's intent which is relevant.)

Subsection 380.2(2) Offences based on other constitutional powers

The offence in proposed subsection 380.2(2) will capture a person who contaminates goods with intent to cause public alarm or anxiety, or economic loss through public awareness of the contamination (or possible contamination) of the goods. (This offence does not extend to intent to cause harm or create a risk of harm to public health.)

Further, one of the factual situations set out in the alternate provisions in paragraph 380.2(2)(c) must also exist. This limb of the offence does not contain substantive elements which should be present for the offender to be culpable for contaminating the goods. This limb is present to provide the constitutional bases for the offence, which operate in a separate and severable manner. Neither the MCCOC model offences or comparable State and Territory offences contain this type of provision, as the application of a particular offence provision in that instance is determined according to the jurisdiction in which the offence occurred

Because of the nature of the element in proposed paragraph 380.2(2)(c), proposed subsection 380.2(3) applies absolute liability to each of sub-paragraphs 380.2(2)(c)(i)-(vii). This means that it will not be necessary for the prosecution to prove a fault element for that particular physical element, and that the defence of mistake of fact will not be available to the defence. It will still be necessary to show that one of the factual situations set out in paragraph 380.2(2)(c) existed at the time of the offence.

Unlike the offence in proposed subsection 380.2(1), this offence is not limited to loss or harm on a national scale, but covers loss or harm regardless of the degree.

General

It is not necessary for the public to be alarmed or anxious, for economic loss or harm to public health to occur for the contamination to be an offence under subsection 380.2(1) or subsection 380.2(2). It is only necessary that at the time of the conduct causing the contamination the person intended one or more of those things to occur. This ensures that law enforcement agencies are able to charge a person once the contamination occurs, and do not need to wait for public alarm, economic loss or harm to public health to occur before being able to lay charges. It also recognises that the person's culpability for the offence occurs at the time of the contamination, when he or she had the relevant intention, whether or not the intended loss, harm or public alarm subsequently occurs.

The maximum penalty for each offence in proposed subsection 380.2 is 10 years imprisonment or a fine of 600 penalty units ($66,000), or both.

Proposed section 380.3 Threatening to contaminate goods

Separate offences of threatening to contaminate goods with the intent to cause public alarm or anxiety or economic loss are provided for in proposed section 380.3. (The offence in subsection 380.3(1) also captures persons who intend their threat to cause harm or create a risk of harm to public health in Australia.) These offences recognises that actual contamination of goods does not have to occur for significant loss to occur or the public to be alarmed or anxious. In many instances, the threat of contamination will cause the same level of fear and loss as actual contamination. It is therefore appropriate that such threats be expressly covered, and be subject to the same penalty.

Subsection 380.3(1) Offence based on implied nationhood power

A person would be guilty of the offence in proposed subsection 380.3(1) if he or she makes a threat to contaminate goods with the intent to cause public alarm or anxiety, widespread or nationally significant economic loss through public awareness of the contamination, or harm (or a risk of harm) to public health.

This offence is designed to capture threats which intend to cause economic loss, harm to public health or public alarm or anxiety on a significant scale. For example, it could capture a threat made in respect of goods available in all States and Territories, which was intended to cause public alarm across the country. Or it could cover a threat to contaminate blood supplies, made with the intention of causing harm to public health in Australia.

'Threat' is defined in the Dictionary of the Criminal Code , and includes a threat made by conduct, whether express or implied or conditional or unconditional. This definition enables a broad range of threats to be covered by the proposed offences. This definition was developed by the Commonwealth, State and Territory officers to be part of the Model Criminal Code.

As with the offences in proposed subsection 380.2(1), this offence is limited to threats made with the intent of causing public alarm, widespread or nationally significant economic loss or harm (or risk of harm) to public health in Australia. Further, the occurrence of any loss, alarm or harm outside of Australia will not prevent the conduct being an offence under this provision - it is only the person's intent which is relevant.

Subsection 380.3(2) Offences based on other constitutional powers

A person would be guilty of the offence in proposed subsection 380.3(2) if he or she makes a threat to contaminate goods with the intent to cause public alarm or anxiety or economic loss through public awareness of the contamination or possible contamination. As with the offence in proposed subsection 380.3(1), the threat may be conditional or unconditional, express or implied and made by any conduct.

Further, one of the factual situations set out in the alternate provisions in paragraph 380.3(2)(c) must also exist. This limb of the offence does not contain substantive elements which should be present for the offender to be culpable for threatening to contaminate goods. This limb is present to provide the constitutional bases for the offence, which operate in a separate and severable manner. Neither the MCCOC model offences or comparable State and Territory offences contain this type of provision, as the application of a particular offence provision in that instance is determined according to the jurisdiction in which the offence occurred

Because of the nature of the element in proposed paragraph 380.3(2)(c), proposed subsection 380.3(3) applies absolute liability to each of sub-paragraphs 380.3(2)(c)(i)-(ix). This means that it will not be necessary for the prosecution to prove a fault element for that particular physical element, and that the defence of mistake of fact will not be available to the defence. It will still be necessary to show that one of the factual situations set out in paragraph 380.3(2)(c) existed at the time of the offence.

General

It is not necessary for the public to be alarmed or anxious, for economic loss or harm to public health to occur for the threat of contamination to be an offence under either provision in proposed section 380.3. It is only necessary that at the time of the threat the person intended one or more of those things to occur. This ensures that law enforcement agencies are able to charge a person once the contamination occurs, and do not need to wait for economic loss or harm to occur before being able to lay charges. It also recognises that the person's culpability for the offence occurs at the time of the threat, when he or she had the relevant intention, whether or not the intended loss or public alarm occurs.

The maximum penalty for each offence in proposed subsection 380.3 is 10 years imprisonment or a fine of 600 penalty units ($66,000), or both.

Proposed section 380.4 Making false statements about contamination of goods

The offences in proposed section 380.4 cover statements that are false, but which are intended to make either the recipient of the statement or other people believe that goods have been contaminated, and therefore cause public alarm or anxiety or economic loss. (The offence in proposed subsection 380.4(1) also captures persons who intend their false statement to cause harm or create a risk of harm to public health in Australia.)

Making a false statement is different to making a threat to contaminate goods, as the statement is intended to make people believe that the goods have already been contaminated; implicit in a threat is that the goods may be contaminated in the future. Where a person is found to have actually contaminated goods, he or she would be charged under proposed section 380.2. However, where the statement is false, the offences in this proposed section will apply.

Making a false statement that goods have been contaminated is likely to cause as much economic loss, alarm or anxiety as actual or threatened contamination, and this is reflected in the same penalty applying to these offence provisions as those in proposed subsections 380.2 and 380.3.

Subsection 380.4(1) Offence based on implied nationhood power

A person would be guilty of the offence in proposed subsection 380.4(1) if he or she makes a statement that the person believes to be false with the intention of causing either one person or a number of people to believe that goods have been contaminated, and thereby cause public alarm or anxiety, widespread or nationally significant economic loss through public awareness of the contamination, or harm (or a risk of harm) to public health.

Proposed subsection 380.4(4) provides that making a statement includes conveying information by any means. This definition is consistent with the general false statement offences in the Criminal Code , which provide that a statement can be made orally, in a document or in any other way (section 136.1).

As with the offences in proposed subsections 380.2(1) and 380.3(1), these offences are limited to false statements made with the intent of causing public alarm, economic loss or harm to public health in Australia. Further, the fact that actual loss, alarm or harm occurs outside of Australia will not prevent the conduct being an offence under this provision - it is only the person's intent which is relevant.

Subsection 380.4(2) Offence based on other constitutional power

A person would be guilty of the offence in proposed subsection 380.4(2) if he or she makes a statement that the person believes to be false with the intention of causing either one person or a number of people to believe that goods have been contaminated, and thereby cause public alarm or anxiety or economic loss through public awareness of the contamination or possible contamination. As with the offence in proposed subsection 380.4(1), the statement may be made using any means.

For the offence to be captured by this provision, one of the factual situations set out in the alternate provisions in paragraph 380.4(2)(d) must also exist. This limb of the offence does not contain substantive elements which should be present for the offender to be culpable for contaminating the goods. This limb is present to provide the constitutional bases for the offence, which operate in a separate and severable manner. Neither the MCCOC model offences or comparable State and Territory offences contain this type of provision, as the application of a particular offence provision in that instance is determined according to the jurisdiction in which the offence occurred

Because of the nature of the element in proposed paragraph 380.4(2)(d), proposed subsection 380.4(3) applies absolute liability to each of sub-paragraphs 380.4(2)(d)(i)-(ix). This means that it will not be necessary for the prosecution to prove a fault element in relation to that particular physical element, and that the defence of mistake of fact will not be available to the defence. It will still be necessary to show that one of the factual situations set out in paragraph 380.4(2)(d) existed at the time of the offence.

General

It is not necessary for the public to be alarmed or anxious, for economic loss or harm to public health to occur for the false statement about contamination of goods to be an offence under either provision in proposed section 380.4. It is only necessary that at the time of making the statement the person intended one or more of those things to occur. This ensures that law enforcement agencies are able to charge a person once the contamination occurs, and do not need to wait for economic loss or harm to occur before being able to lay charges. It also recognises that the person's culpability for the offence occurs at the time of the statement, when he or she had the relevant intention, whether or not the intended loss or public alarm occurs.

The maximum penalty for each offence in subsection 380.3 is 10 years imprisonment or a fine of 600 penalty units ($66,000), or both.

Proposed section 380.5 Extended geographical jurisdiction - category D

Part 2.7 of the Criminal Code provides general jurisdictional provisions, including provision for extraterritorial application of offences in the Criminal Code . Part 2.7 also provides for specific categories of extended geographical jurisdiction (see sections 15.1 to 15.4).

Proposed section 380.5 states that the extended jurisdiction provided for in section 15.4 ('Category D' jurisdiction) applies to all of the contamination of goods offences. Category D jurisdiction enables an offence to operate whether or not the conduct occurs in Australia or overseas, and whether or not the result of that conduct occurs in Australia or overseas.

Although this is very broad, the practical operation of this jurisdiction has been deliberately modified by the operation of the offence provisions. This has been achieved through each offence being somehow linked back to Australia - for example, through the person who commits the offence, the characteristics of the goods, the nature of the loss or the characteristics of affected persons or corporations.

It was necessary to apply (and then appropriately restrict) Category D jurisdiction because of the nature of the offences. Standard geographic jurisdiction (Division 14 of the Criminal Code ) has some extraterritorial effect, but only covers conduct which occurs wholly outside of Australia when a result of that conduct occurs wholly or partly within Australia. This would be problematic for the threatening to contaminate and false statement offences as they have a physical element of conduct but no physical element of result. Application of standard geographic jurisdiction would result in those offences not covering threats or false statements made outside of Australia. It is important that such threats and false statements be covered.

Applying either Category A or Category B extended jurisdiction (sections 15.1 and 15.2 of the Criminal Code respectively) would not solve this problem, because they both contain the same restrictions on conduct which occurs wholly outside of Australia. Category C extended jurisdiction (section 15.3) does not have such a restriction, but provides a defence where the conduct (eg the threat) is not also an offence in the country in which the conduct occurred. It is likely that a number of countries would not have contamination of goods legislation.

In those circumstances, Category D jurisdiction, with application modified through the nature of the offences, was the appropriate option.

Item 2 Dictionary in the Criminal Code

This Item inserts the term constitutional corporation into the Dictionary of the Criminal Code . A constitutional corporation is one which fits within paragraph 51(xx) of the Constitution - a foreign corporation or a trading or financial corporation formed within the limits of the Commonwealth. This definition is inserted into the Dictionary because it will be used in multiple locations within the Criminal Code - relevantly, it is used in both the proposed contamination of goods offences and financial information offences within this Bill (Schedules 2 and 3 respectively).