Senate

Revised Explanatory Memorandum

(Circulated by authority of the Minister for Justice and Customs, Senator The Honourable Amanda Vanstone)

Schedule 1 - Amendment of the Criminal Code Act 1995 - Continued

Proposed section 134.2 - Obtaining a financial advantage by deception

182. Proposed section 134.2 is the financial fraud offence. Though this offence will extend to cases in which money or other tangible items of value are obtained by deception, the primary effect of the proposed provision is to impose criminal liability on those who obtain intangible financial benefits by deception. Obtaining services without payment by means of a deception is a classic instance falling within the scope of this offence.

183. A person is guilty if the person, by a deception, dishonestly obtains a financial advantage. The maximum penalty of 10 years imprisonment is the same as theft and the obtaining property by deception offence, and is consistent with existing State and Territory offences. This is appropriate as it includes similar conduct. The offence is based on section 17.3 of the Model Criminal Code.

184. The offence does not have an extended definition of 'obtaining' because of the abstract nature of a financial advantage compared to property. Proposed section 134.2 follows section 82 of the Victorian Crimes Act which does not attempt to define financial advantage. Victoria did not follow the UK Theft Act formulation of the offence of 'obtaining a pecuniary advantage by deception'. The definition of the concept of "pecuniary advantage" was characterised by the English courts as "a judicial nightmare". The ACT uses the term financial advantage but then restricts it to things like obtaining an overdraft or an increase in remuneration. This follows amendments to the UK Act in 1978, but there is no justification for limiting the concept of financial advantage.

185. It is of note that the meaning of 'financial advantage' has been rarely litigated in Victoria, where the legislation leaves it undefined. In Mattthews v Fountain
[1982] VR 1045 , 1049-50 the Victorian Supreme Court held that 'financial advantage' was a simple concept wisely left to the commonsense interpretation of juries and magistrates. In that case, the court held that a penniless debtor, who wrote a valueless cheque to gain relief from being harried by a creditor, gains a financial advantage by deferring the demand for payment. Reliance on the ordinary meaning of the words has not resulted in uncertainty or confusion.

186. Although the concept of financial advantage is broad enough to cover virtually all cases of obtaining property by deception, the practice in Victoria, supported by the principal text for prosecutors, appears to be to confine proposed section 134.2 to cases which do not involve obtaining tangible property (eg credit, services, etc). This approach conforms with the structure of the legislation.

Proposed section 134.3 - Geographical jurisdiction

187. For the reasons given in relation to theft, extended geographical jurisdiction category D applies to the fraud offences.

Proposed Division 135 - Other offences involving fraudulent conduct

188. These additional offences were not included in the Model Criminal Code. However, they are justified in a Criminal Code designed to protect the administration of the Commonwealth government.

Proposed section 135.1 - General dishonesty

189. Proposed section 135.1 contains a codified equivalent to section 29D of the Crimes Act 1914. Section 29D is not a very transparent offence. It relies on the meaning of 'defraud' which is dependent on case law for its meaning. Indeed most jurisdictions do not have a 'defraud' offence and the Model Criminal Code Officers Committee did not consider it to be suitable for general use. However, the Gibbs Committee favoured retaining it and there is a case for using it to protect Commonwealth entities because of their vulnerability to dishonest conduct.

190. Consistent with decisions such as that of the House of Lords in Scott [1975] AC 819 and Australian cases O'Donovan v Vereker (1987)
76 ALR 97 at 110 and Eade (1984) 14 A Crim R 186, the proposed offence does not require the prosecution to prove that the accused deceived the victim and as such falls below the appropriate level of culpability required for an offence with a maximum penalty of 10 years imprisonment. In recognition that the offence is much broader than fraud, it is proposed that section 135.1 should have a maximum penalty of 5 years imprisonment. Where there is evidence of deception, the more serious fraud offences should be charged (proposed sections 134.1 and 134.2). Indeed the vast majority of the offences charged under section 29D of the Crimes Act 1914 involve deception and can be charged under proposed sections 134.1 and 134.2. There will be the occasional case where obtain by deception cannot be charged. In those circumstances there may be questions as to whether it is appropriate that the person be charged with a serious offence, but there will no doubt be some cases where it is justified. Human ingenuity is such that schemes have been and will continue to be devised that make it difficult to establish that the accused deceived the victim. In most jurisdictions, including the UK, it has been decided that such schemes should only be dealt with where there is a conspiracy or by specific offences developed to combat the scheme after it is discovered (for example, taxation legislation).

191. Section 29D of the Crimes Act 1914 was developed in the aftermath of the 'bottom of the harbour' scandal on the recommendation of the Special Crown Prosecutor, Roger Gyles QC in his 1982/83 annual report. There is little said about the reasons for the offence in his report or in the explanatory documents for the legislation, but it would seem much of the motivation for the amendment was to deal with 'bottom of the harbour' type cases about which there was concern deception could not be established. Against this, deception can be established in most of the 'bottom of the harbour' cases but there was significant concern that there be a strong response to such cases. The Commonwealth has special problems in protecting public revenue given its broad and vulnerable interests (taxation, social security, grants, etc) and obligations to the community as a result of the sheer size of Commonwealth activities.

192. The idea of special protection for the public revenue is also consistent with the way the law developed in the UK where section 32(1)(a) of the Theft Act preserved the common law offence of cheating the public revenue. Cheating the public revenue does not require proof of deception, though it is narrower than conspiracy to defraud in that it must be shown that the public is affected by the conduct ( Mavji (1987) 84 Cr.App.R 34 at p.38).

193. Turning to the substance of proposed section 135.1, the first part of it (subsection 135.1(1) concerns the person who does anything with the intention of dishonestly obtaining a gain from another - in this case a Commonwealth entity. Subsection 135.1(2) making it clear that it is not necessary to prove the person knew the other person was a Commonwealth entity. While the common law interpretation of 'defraud' tends to focus on causing losses, it would be anomalous and artificial require the prosecution to prove losses if it is more natural to present the case as one of obtaining a gain.

194. Proposed subsection 135.1(3) focuses on doing anything with the intention of dishonestly causing a loss to a Commonwealth entity. This is at the heart of the common law meaning of 'defraud'. Proposed subsection 135.1(4) and (6) remove the requirement to prove the person knew it was a Commonwealth entity.

195. Proposed subsection 135.1(5) imposes liability for conduct where the person dishonestly causes a loss or risk of loss, provided the person realises that conduct involved substantial risk, at least of causing loss. The offence resembles section 17.4 of the Model Criminal Code which is the conspiracy to defraud offence, which specifies a fault element of recklessness. In the Model Criminal Code and the Criminal Code 'recklessness' requires proof that the defendant was both aware of a substantial risk and also lacked justification for incurring that risk (section 5.4). The proposed offence requires awareness of a substantial risk, but omits the implied reference to community standards of acceptable conduct in the definition of recklessness, where it refers to unjustifiability of the risk. Since liability for the proposed offence requires proof of 'dishonesty', which is determined by reference to the standards of ordinary people, any further reference to the general standards of conduct inherent in the concept of recklessness unnecessary and would be likely to breed confusion.

196. Proposed subsection 135.1(5) imposes liability if loss or a risk of loss is caused dishonestly and the offender was aware that loss would occur or that there was a substantial risk of loss. The element of 'dishonesty' requires proof that the offender realised the conduct which caused the loss or risk of loss would be considered dishonest according to the standards of ordinary people in the community. This captures the common law meaning of 'defraud' that it should also include imperilling another person's assets ( Wai Yu - Tsang
[1992] 1 AC 269 at 280 ). Proposed subsection 135.1(5) is an improvement on the Model Criminal Code provision and is repeated in comparable offences elsewhere in the Bill (for example, conspiracy to defraud at proposed section 135.4).

197. Finally, subsection 135.1(7) reflects another meaning that has been given by the courts to 'defraud'. A person is guilty of the offence if the person does anything with the intention of dishonestly influencing a public official in the exercise of the officials duties as a public official. This is also consistent with the case law in Withers
[1975] AC 842 and Scott . It is proposed that 'public official' should be defined in the dictionary as covering State, Territory and Commonwealth officials in recognition that many in the community are not knowledgable of the distinction between different governmental functions and officials. It would therefore be unreasonable to require the prosecution to prove that the person knew the public official was a Commonwealth public official. Subsection 135.1(8) provides for this.

198. As mentioned above, the maximum penalty for these offences is 5 years imprisonment.

Proposed section 135.2 - Obtaining a financial advantage

199. Proposed section 135.2 supplements the protection provided by proposed section 135.1 with yet another lesser offence. This covers those who obtain a financial advantage for themselves or someone else from a Commonwealth entity knowing they are not eligible to receive that financial advantage. While the offence will often overlap with more serious theft and fraud offences, it provides an alternative with a lower penalty where it is difficult to establish dishonesty. The maximum penalty reflects this - it is 12 months imprisonment. The proposed offence is similar to sections 1347 and 1348 of the Social Security Act 1991 and recognises a general provision of that nature is likely to be useful in relation to many different types of Commonwealth payments, whether it be welfare, bounties or grants. The proposed offence will enable the Bill to repeal a number of obtaining offences in other legislation (for example, subsection 18(2)(a) of the Bounty (Bed Sheeting) Act 1977 ). The proposed offence was recommended by the Gibbs Committee in 1990 and is consistent with the position of the Model Criminal Code Officers Committee 1995 report in that it recognises there is a place for some summary offences. The Gibbs Committee considered that the offence would be too broad if it extended to any advantage. They recommended that it be limited to knowingly obtaining a pension, benefit, bounty or grant from the Commonwealth to which the person is not entitled. Proposed section 135.2 achieves the much the same result by using the 'financial advantage' terminology. It is also more consistent with the rest of the Bill and less open to argument (it would not be helpful to have a debate about what is, or is not a benefit).

Proposed section 135.4 - Conspiracy to defraud

200. Like proposed section 135.1, proposed section 135.4 is a series of general dishonesty offences. Proof of deception is not required. Indeed it has all the same components as proposed section 135.1 except there must be a conspiracy. The explanation of those components will not be repeated again here. The other difference is that the maximum penalty is 10 years imprisonment. While conspiracy usually carries the same penalty as the primary offence, the proposed penalty reflects what was recommended for the Model Criminal Code (May 1997 report) and the Gibbs Committee. Proposed section 135.1 will replace subsection 86(2) of the Crimes Act 1914 which has a maximum penalty of 20 years imprisonment. This is far too high and is inconsistent with the penalty for similar offences in other jurisdictions. The usual maximum penalty is 10 years imprisonment.

201. Since the May 1997 report was published, the High Court in Peters v R (1998)
151 ALR 51 (a case which concerned the Commonwealth conspiracy to defraud offence) indicated it disagreed with the way the Model Criminal Code conspiracy to defraud offence was drafted. Proposed section 135.4 takes into account the suggestions of the High Court by attaching dishonesty to the various types of conduct. This approach was endorsed by the Standing Committee of Attorneys-General at its April 1998 meeting.

202. Subsections 135.4(9) to (14) contain a number of interpretative and procedural provisions which reflect what is contained in the general conspiracy offence at section 11.5 of the Criminal Code which was enacted in 1995 and section 86 of the Crimes Act 1914 which at the same time was harmonised with section 11.5.

Proposed section 251 - Geographical jurisdiction

203. Proposed section 135.5 provides for extended geographical jurisdiction category D which is the same as that for theft of Commonwealth property.

Proposed Part 7.4 - False or Misleading Statements

204. False or misleading statements are often made as a prelude to committing fraud. For many years now Governments have been enacting false and misleading statement offences which have relatively low penalties (ranging from fines to 2 years imprisonment) in a very wide range of legislation. The offence is useful where the person is caught early in the process and the particular conduct did not involve large amounts of money. In 1990 the Gibbs Committee concluded that centralising these offences in the Criminal Code would be more efficient by standardising the offence for practitioners but would also simplify and reduce the size of the Commonwealth statute book. The proposed offences in this Division will allow the repeal of over 130 offences and therefore make an important contribution to the Government's 'statute stocktake' initiative. The proposed offences will replace a limited untrue representation offence at section 29C of the Crimes Act 1914.

Proposed section 136.1, Division 136 - False and misleading statements in applications

205. There are two types of offences. The more serious offence requires proof that the defendant knew the statement in the application was false and misleading. It provides for a maximum penalty of 12 months imprisonment (proposed subsection 136.1(1)). The other only requires proof that the defendant was reckless as to whether the statement was false and misleading. It provides for a maximum penalty of 6 months imprisonment (proposed subsection 136.1(4)).

206. Both offences provide for a defence where the defendant can point to evidence that the false or misleading statement was not false or misleading in relation to a material particular (subsections 136.1(2),(3), (5) and (6)). It would be too onerous to require the prosecution to prove that the defendant knew or was reckless as to materiality. However the proposed defence should ensure that materiality is taken into account.

207. Proposed subsection 136.1(7) provides for alternative verdicts in similar terms to other provisions elsewhere in the Bill. There will be situations where it becomes apparent during the hearing that the defendant is guilty of the second offence rather than the first.

208. Consistent with other theft and fraud related offences, proposed subsection 136.1(8) provides for extended geographical jurisdiction category D.

209. It is important that 'benefit' is defined broadly at proposed subsection 136.1(9) because the applications covered by this offence covers a wide range of functions.

Proposed Division 137 - False or misleading information or documents

210. There are also a considerable number of offences of this type. While the Gibbs Committee concluded in its 1990 report that these offences might be more convenient to locate in the relevant legislation, there are more advantages in centralising the offences and slimming down the statute book.

Proposed section 137.1 - False or misleading information

211. Proposed section 137.1 requires proof that the person knows the information provided or omitted is false or misleading. The information must be given to a Commonwealth entity, given to a person exercising powers or performing functions under or in connection with a law of the Commonwealth or in compliance or purported compliance with a law of the Commonwealth. There is no restriction on the mode by which the information is given - it may be in writing, electronic, verbal or in the form of a document. The maximum penalty is 12 months imprisonment. Again there is a defence were the information is not false or misleading in a material particular. While a recklessness offence is appropriate where the person is involved in completing an application, it would go too far to extend it to this offence.

212. Government Amendments have provided in subsections 137.1(4) and (5) for additional defences to the false or misleading statement offences in subparagraphs 137.1(1)(c)(i) and (ii) as recommended by the House of Representatives Standing Committee on Legal and Constitutional Affairs (recommendation 3 at paragraphs 3.11 - 3.15 at pages 15 and 16 of the advisory report). The Standing Committee concluded "There may be cases where people do not consider that by providing false information they may be committing a criminal offence."

213. The proposed defence does not apply to subparagraph 137.1(1)(c)(iii) because it deals with the situation where the defendant gives the false or misleading information in circumstances where he or she is aware it is being provided in compliance or purported compliance with the law.

214. Proposed subsection 137.1(6) provides for a concise short-form of the notice which it is proposed should be taken to be sufficient information. It is important that unnecessary litigation about the wording of the information provided is avoided.

Proposed section 137.2 - False or misleading documents

215. Proposed section 137.2 is an additional offence which has been found necessary as a result of the review of the various offences. It is also suitable for including in the central offence. The person is guilty if he or she produces a document, knows it is false or misleading and it is produced in compliance or purported compliance with a law of the Commonwealth. The maximum penalty matches the other offences - 12 months imprisonment. Proposed subsection 137.2(3) contains a defence often found in this type of offence where the document has been identified as being false.

Proposed section 137.3 - Geographical jurisdiction

216. Consistent with other theft and fraud offences, proposed subsection 137.3(8) provides for extended geographical jurisdiction category D.

Proposed Part 7.5 - Unwarranted Demands

217. There is no Commonwealth equivalent to the proposed unwarranted demands offences. The Model Criminal Code provides for a blackmail offence at sections 18.1 to 18.3 and raised the question of the need for a similar Commonwealth offence. While the description 'blackmail' is more associated with a more general offence, there is no doubt that the Commonwealth could be a victim of this type of offence and should be able to deal with such demands without having to resort to State or Territory offences. The existing obstruction and threat offences (sections 30K and 76 of the Crimes Act 1914 ) provide for a maximum penalty of 12 months and 2 years imprisonment. This is clearly inadequate when compared to the State and Territory offences where the proposed penalty for blackmail is 12 years imprisonment.

Proposed Division 138, section 138.1 - unwarranted demands with menaces

218. Proposed subsection 138.1(1) defines what is an 'unwarranted demand with menaces.' This is based on section 18.2 of the Model Criminal Code. Paragraph 138.1((1) provides that the person making the demand must not believe that he or she has reasonable grounds for making the demand and does not reasonably believe that the use of menaces is a proper means of enforcing the demand. Not all demands with menaces count as blackmail. The fault element of the offence is to make an unwarranted demand. Whether the demand is warranted (eg whether a sum of money is owed) and whether the menace is warranted (eg whether that type of threat is a proper means of enforcing that demand) distinguish criminal from non-criminal demands backed by menaces. If a demand for payment is backed by a menace (eg a threat to sue where a debt is owed), that is not an offence under proposed Part 7.5. A threat to sue for that debt is a proper means of enforcing that demand.

219. The first limb of the test proposed in section 138.1 is subjective: did the defendant believe there were reasonable grounds for making the demand. The test for the second limb is objective: did the defendant reasonably believe that the use of the menace was a proper means of enforcing the demand.

220. Under the UK Theft Act and in the jurisdictions that have followed it, the test for whether a menace is proper is subjective. In the non- Theft Act jurisdictions, the test of whether the demand or the threat was proper is objective: The objective test was criticised by the Criminal Law Revision Committee in the UK because it had led to cases such as Dymond where a woman had written to a man who she alleged had sexually assaulted her demanding that he apologise and pay her money. If he did not, she threatened to "summons" him and "let the town know all about your going on". The fact that the threat was construed as a threat to bring a criminal rather than a civil prosecution was found to be improper, despite the fact that the woman believed it was proper and that she would have been entitled to threaten civil action. (For example, it is not blackmail to write a solicitor's letter demanding compensation for a negligently caused injury, threatening to bring a civil action for damages if the compensation is not paid). It was also said to be improper to threaten to tell the town about it, though it would not be improper to tell the town that he refused to pay the damages in respect of the civil assault claim. These are very fine distinctions for a serious blackmail type offence.

221. The approach taken in proposed subsection 138.1(1) provides for a carefully balanced test which is similar to other evaluative elements in the Bill, such as 'dishonesty' and elsewhere in the Criminal Code (for example, in some of the defences - self defence and duress, sections 10.2 and 10.4).

222. Proposed subsection 138.1(2) makes it clear the demand may be for something other than property and subsection 138.1(3) that it need not be in relation to conduct to be engaged in by the person making the demand (the person could be associated with someone who enforces demands). Subsection 138.1(3) is based on subsection 18.3(4) of the Model Criminal Code.

223. Proposed section 138.1 defines 'menaces.' This is based on subsection 18.3(1) of the Model Criminal Code. It covers things which are a threat of conduct which is detrimental or unpleasant to another person or something more general in nature which is implied by the position of the person making the threat.

224. Subsection 18.3 (3) of the Model Criminal Code attempts to adapt the concept of a menace to suit one directed at an organisation. This is of course very important in the Commonwealth context. Proposed subsections 138.1(2) and (3) provide guidance as to what is involved in a menace against an individual compared to what is involved where it is directed against an organisation. The concept of the menace causing a person of normal stability and courage to act unwillingly is of course more suited to the circumstances of an individual. What would ordinarily cause an unwilling response and or vulnerability is a more appropriate and realistic criteria for an organisation.

Proposed Division 139 - Unwarranted demands

225. It is proposed that there be two offences: unwarranted demands of a Commonwealth public official (proposed section 139.1) and unwarranted demands by a Commonwealth public official (proposed section 139.2). The proposed offences do not deal with unwarranted demands made against the Government as a whole. Threats of that nature are more appropriate to be dealt with by special national security offences which at a later stage can be included in Chapter 5 of the Criminal Code which has tentatively been entitled 'The integrity and security of the Commonwealth'.

Proposed section 139.1 - Unwarranted demands of a Commonwealth public official

226. Proposed section 139.1 provides that a person is guilty if the person makes an unwarranted demand of another person and the demands or the menaces are directly related to the other person's capacity as a Commonwealth public official or any influence the person has in that capacity; and the person does so with the intention of obtaining a gain or causing a loss or influencing the official in the exercise of the official's duties as a Commonwealth public official. The maximum penalty is 12 years imprisonment. The penalty is more than bribery (10 years) because it involves threats.

227. As it is a Commonwealth offence, proposed section 139.1 focuses on the Commonwealth public official's capacity and influence. Unwarranted demands in relation to matters that have nothing to do with the person's capacity and influence as a Commonwealth public official will be dealt with by equivalent State or Territory offences.

228. The requirement that the prosecution prove the person intended to obtain a gain, cause a loss or influence the official in the exercise of those duties is consistent with other Chapter 7 fraud and bribery related offences. If the conduct consisted of a threat alone, then proposed section 147.2 would apply. This approach follows section 18.1 of the Model Criminal Code and the UK Theft Act which provides these terms as substitutes for the common law requirement that there be a demand for property. Of course these are supplemented with the intention to influence the official in the exercise of his or her duties as a Commonwealth public official (subparagraph 139.1(c)(iii)).

Proposed section 139.2 - Unwarranted demands made by a Commonwealth public official.

229. Proposed section 139.2 deals with the opposite situation to section 139.1. The Commonwealth public official is guilty if he or she makes an unwarranted demand of another person and the demand or menaces are directly or indirectly related to either that person's capacity as a Commonwealth public official or influence they have as a result of that capacity (for example, threatening a member of the public with the release of humiliating information contained in a file). Like the other offence, the official would need to do so with the intention of obtaining a gain, causing a loss or influencing another Commonwealth public official in the exercise of the other official's duties. The other Commonwealth public official could be a work colleague - the aim of the threat may be to influence the work colleague to approve a project which benefits the family of the defendant.

230. This type of offence covers some of the same ground as extortion which also overlaps with the proposed bribery offence. Extortion meant "the taking of money by any officer by colour of his office, either where none at all is due, or not so much is due, or it is not yet due." The Model Criminal Code Officers Committee report recommended that blackmail and bribery should be designed in a way whereby those offences were wide enough to cover extortion. The same approach was taken with the UK Theft Act and the equivalent Victorian legislation. The Gibbs Committee saw the need for an extortion type offence but proposed that it only have a maximum penalty of 2 years imprisonment. The proposed offence is more focused on significant conduct and has the more appropriate maximum penalty of 12 years imprisonment.

Proposed section 139.3 - Geographical jurisdiction

231. Proposed section 139.3 provides that there be extended geographical jurisdiction category C (proposed section 15.3) for the unwarranted demands offences.

Proposed Part 7.6 - Bribery and related offences

232. The new offences proposed in this Part are very significant. They build upon the Criminal Code Amendment (Bribery of Foreign Public Officials) Act 1999 which inserted offences of prohibiting the bribery of foreign public officials in Chapter 4 of the Criminal Code: 'The integrity and security of the international community and foreign governments'. The new offences deal with bribery and other forms of corruption of Commonwealth public officials. The existing offences, sections 73 and 73A of the Crimes Act 1914 and section 4 of the Secret Commissions Act 1905 only have a maximum penalty of 2 years imprisonment. It is proposed that the maximum penalties for the new bribery offences (proposed section 141.1) be 10 years imprisonment which will give it the same penalty as theft, fraud and the new bribery of foreign public officials offences. The new offences are consistent with the statement made by the Government in the context of the bribery of foreign public officials offences that bribery will not be tolerated in Australia. Other offences include giving and receiving corrupting benefits (proposed section 142.1) and abuse of public office (proposed section 142.2). These new offences will set appropriately high standards and targets the key object and title of chapter 7: The proper administration of government.

Proposed Division 140 - Preliminary

233. Proposed Division 140 contains some important interpretative provisions.

Proposed section 140.1 - Definition

234. 'Benefit' is defined to include any advantage and is not limited to property. Bribes can be paid by many different means. This follows section 20.1 of the Model Criminal Code.

Proposed section 140.2 - Obtaining

235. Subsection 140.2(1) makes it clear that a person is taken to have obtained a benefit for another if he or she induces someone else to give that person a benefit.

Proposed section 141.1 - Bribery of a Commonwealth public official

236. The drafting of proposed section 141.1 varies from subsection 20.2(1) of the Model Criminal Code more than what otherwise would have been the case had it not been for the recent enactment of the Criminal Code Amendment (Bribery of Foreign Public Officials) Act 1999. The bribery offence inserted by that Act into Chapter 4 (section 70.2) closely follows a model which is being followed by OECD countries. It is therefore important that there be consistency in drafting with section 70.2 as well as the Model Criminal Code offence if misinterpretation is to be avoided.

Proposed subsection 141.1(1) and (2) - Giving a bribe

237. Proposed paragraph 141.1(1)(a) and (b) therefore closely follows the bribery of foreign public officials offence rather than the slightly less wordy Model Criminal Code offence. However, it differs from section 70.2 because it requires proof that the person dishonestly provided the benefit.

238. The essence of the common law fault elements for bribery was an intent to incline an official to perform his or her duty in a way that is "contrary to the known rules of honesty and integrity." The original Griffith's Codes used the term "corruptly" to capture this meaning in the general offence of bribery but the amended offence in WA has omitted the word. The term is not used in a number of the Code offences relating to a member of Parliament, but it is used in the WA offences. In South Australia, the new statutory provision uses the term "improperly". However, sections 73 and 73A of the Crimes Act 1914 have no equivalent to dishonesty. The offences are very broad, they simply require proof that the payment was in order to influence or affect a Commonwealth officer or member of either House of Parliament.

239. In many cases, it will be clear that a benefit given to a public official in order to influence his or her duty to do or refrain from doing an act will constitute a bribe. However, unless some additional fault element is specified, payment of the official's salary would constitute bribery because it is a benefit given in order to influence the official's duty, as would an official's demand for salary or a salary increase as a condition of doing his or her job. There are also very difficult questions in this area about the legitimate ambit of politics. Offering a parliamentarian a benefit to vote in a certain way seems a clear case of bribery, but few would want to see ordinary political negotiations coming within the scope of the bribery offence. The fault element of 'dishonesty' therefore provides an important safety-valve. 'Dishonesty' provides for a flexible assessment of the particular dealing against the standards of ordinary people and provides a workable way of capturing the essence of bribery and corrupt payments.

240. Proposed subsection 141.1(2) also requires that the person providing the benefit does so with the intention of influencing a public official in the exercise of the public official's duties as a public official. 'Public official' is to be defined in the dictionary to the Criminal Code (see item 36 of this Bill) to be a Commonwealth, State or Territory official. This is in recognition that some in the community cannot distinguish between the functions of the Commonwealth and State Governments. It would therefore be too onerous to require the prosecution to prove the defendant knew the person they were bribing was a Commonwealth public official and that it was with the intention of influencing the person in relation to Commonwealth duties. Subsection 141.1(2) makes it clear that it is not necessary to prove that the defendant knew these things.

241. As mentioned above, the maximum penalty is 10 years imprisonment. This is appropriate - it is a crime that is not only dishonest but undermines community confidence in the integrity of Government. It deserves the same penalty as theft and fraud.

Proposed subsection 141.1(3) - Receiving a bribe

242. Proposed subsection 141.1(3) provides a Commonwealth public official is guilty of an offence if the official dishonestly asks for a benefit, or receives one, or agrees to receive one and does so with the intention that the exercise of the official's duties as a Commonwealth public official will be influenced. This is based on subsection 20.2(2) of the Model Criminal Code, though it is drafted quite differently. Again, it is necessary for the offence to relate appropriately to the other bribery offences in the Criminal Code. The maximum penalty is the same as that for the other bribery offence, 10 years imprisonment.

243. Proposed paragraph 141.1(3)(b) has been redrafted in an amendment to provide clarification that the bribery offence applies regardless whether the Commonwealth public official is taking the bribe without any intention of acting upon it. It is possible a corrupt official could take bribes in those circumstances. Page 295 of the 1995 Model Criminal Code Report on Theft, Fraud, Bribery and Related Offences suggests this was intended to be covered by the model bribery offence.

Proposed subsection 141.1(4) - Geographical jurisdiction

244. Subsection 141.1(4) provides for similar reasons to theft that extended geographical jurisdiction category D applies to both offences.

Proposed Division 142 - Offences relating to bribery

245. The Model Criminal Code makes no distinction between public and private sector 'bribery'. Instead, it recommended a two-level offence structure with a serious offence of bribery and lesser offences of giving and receiving other corrupting benefits that apply to both the public and the private sector. These lesser corrupting benefits offences carry a maximum penalty of 5 years imprisonment. It was decided not to use the existing term 'secret commissions' to describe these lesser offences as secrecy is not an element of either the existing or the proposed offences. The term 'corrupting benefits' is more descriptive of the offence and will avoid confusion with the secret commissions offences.

246. While bribery is traditionally the public sector corruption offence and secret commissions covers private sector 'bribery, the Commonwealth Secret Commissions Act 1905 (although its scope does extend to some private sector activity) is only used to combat Commonwealth public sector corruption. The proposed corrupting benefits and abuse of public office offence will, because of the restricted jurisdiction of the Commonwealth, continue the focus on public sector corruption. In doing this there is no suggestion that the Government is opposed to having the same rules for the private and public sectors as proposed by the Model Criminal Code Officers Committee. There are compelling arguments for that approach which State and Territory Governments will need to consider when implementing the Model Criminal Code.

Proposed section 142.1 - Corrupting benefits given to, or received by a Commonwealth public official

247. The drafting of these offences has been influenced by the bribery offences which have been harmonised with the bribery of foreign public officials offences as well as the Model Criminal Code offences. It is important that the scheme of offences in the Criminal Code is integrated. Therefore the drafting of proposed section 142.1 does vary from section 20.3 of the Model Criminal Code. However, the substance is of these offences is very similar.

Proposed subsection 142.1(1) - Giving a corrupting benefit

248. Proposed subsection 142(1) provides a person is guilty if the person dishonestly provides/offers a benefit to another and the receipt, or expectation of the receipt, of the benefit would tend to influence a public official in the exercise of the official's duties as a public official. This differs from bribery where the prosecution must prove the person dishonestly provided / offered the benefit with the intention of influencing the public official. A person will be guilty of the corrupting benefits offence if the person is reckless as to the circumstance that the benefit may tend to influence the public official. (Subsection 5.6(2) of the Criminal Code provides that if the offence does not specify a fault in relation to a circumstance of conduct then recklessness will be the fault element). This means that the person will be guilty if the prosecution can prove he or she was aware of a substantial risk that the tendency to influence exists or will exist and having regard to the circumstances it is unjustifiable to take that risk (see section 5.4(1) of the Criminal Code ). It is in view of this that the maximum penalty is 5 years imprisonment.

249. The maximum penalty of 5 years imprisonment is more than double that for the offence which it will replace at section 4 of the Secret Commissions Act 1905 (2 years imprisonment). The penalty in the secret commissions offence is justifiably lower because it contains a very draconian presumption at subsection 4(2), that any gift or consideration is an inducement. All the prosecution has to demonstrate is that the accused, without the knowledge and agreement of the principal, accepts a gift and that this gift was in any way likely to influence the agent. The prosecution establishes that this gift is an inducement or reward through the deeming provision in subsection 4(2), which states that a gift or consideration is deemed to be given as an inducement or reward if 'the receipt or any expectation thereof would be in any way likely to influence the agent to do or to leave undone something contrary to his or her duty'. The accused cannot even escape liability by proving the gift did not influence him or her. (Subsection 4(2) has been described by a leading Australian commentary on fraud offences as a 'conclusive presumption'.) It is contrary to the principles governing the standard of proof in the Criminal Code that a corruption offence which can result in significant stigma and loss of employment should be able to be 'proven' in this way. Further, where the person has significant culpability and the amount is large, a maximum penalty of 2 years imprisonment is manifestly inadequate.

250. Like the giving a bribe offence (proposed subsection 141.1(1)) and for the same reasons, subsection 142.1(2) does not require the prosecution to prove that the defendant knew the person being bribed was a Commonwealth public official or that the duties are Commonwealth duties.

Proposed subsection 142.1(3) - Receiving a corrupting benefit

251. Proposed subsection 142.1(3) provides a Commonwealth public official is guilty if the official dishonestly asks for, receives, agrees to receive (etc) a benefit and the receipt, or expectation of receipt, of the benefit would tend to influence a Commonwealth public official in the exercise of duties as Commonwealth public official. The maximum penalty is 5 years imprisonment. The same issues concerning the appropriateness and the replacement of section 4 of the Secret Commissions Act 1905 which are discussed above apply here.

Proposed subsection 142.1(4) - Benefit in the nature of a reward

252. Proposed subsection 142.1(4) addresses a concern that the proposed offences may be misconstrued as not covering benefits in the nature of a reward. While the Model Criminal Code Officers Committee report considered this unnecessary, the proposed subsection has been inserted to clarify this point. A large reward in one instance can have a tendency to influence a particular official and others in relation to dealings with the person making the payment. It is important to cover this as rewards are specifically covered by the Secret Commissions Act 1905 which will be replaced by the proposed Bill.

Proposed section 142.2 - Abuse of public office

253. Proposed subsection 142.2 would bring the Commonwealth standard in this respect up to that of offences found in State legislation and is based on section 20.5 of the Model Criminal Code. It has its origin in the common law 'misfeasance of office' offences which includes everything from nepotism to misuse of planning information.

254. The Gibbs Committee did not favour the Model Criminal Code approach of having a single offence dealing with abuse of office. The Gibbs Committee preferred two 'specific' offences:

(a)

defrauding the Commonwealth or any person in the exercise or in the purported exercise of powers of office; and

(b)

an office-holder exercising in a dishonest way or for an improper motive a power or function invested in him or her by virtue of his or her holding office.

255. The first Gibbs Committee offence is unnecessary as it is covered by the proposed fraud offences which have penalties which provide a sufficient range for offenders to be appropriately sentenced. The second offence is an abuse of public office offence but does not have the qualification that the accused must intend to obtain a benefit for himself, herself or another or cause a detriment to another and is narrower than the proposed offence in that it does not apply to the exercise of influence.

256. Proposed section 142.2(1) provides a Commonwealth public official is guilty if the official exercises any influence that the official has in that capacity or engages in any conduct in the exercise of duties; or uses any information obtained in that capacity and does so with the intention of dishonestly obtaining a benefit or causing a detriment to another. The provision follows section 20.5 of the Model Criminal Code but improves on it by providing at subsections 142.2(2) and (3) an additional offence to cover those who uses information obtained in their capacity as a Commonwealth public official after they cease to be a Commonwealth public official. This improvement will be brought to the attention of the Standing Committee of Attorneys-General when they next consider the Model Criminal Code. The Model Criminal Code is not set in concrete. It is expected it will continue to be improved as jurisdictions work together towards an improved and more consistent criminal law. However, it is important that all improvements are fed back to the Standing Committee.

257. Unlike bribery (proposed section 141.1), the abuse of public office does not require that the office holder act at the instigation of another or seek to influence another, and it differs from unwarranted demands (proposed sections 139.1 and 139.2) in that it does not involve threats. Therefore the proposed maximum penalty is 5 years imprisonment, less than the penalty for unwarranted demands or bribery.

Proposed section 142.3 - Geographical jurisdiction

258. Subsection 142.2 provides for similar reasons to theft that extended geographical jurisdiction category D applies to the corrupting benefits and abuse of public office offences.

Proposed Part 7.7 - Forgery and related offences

259. Forgery is yet another offence that is reproduced throughout a number of Commonwealth Statutes although it could be dealt with much more easily by a central Commonwealth Criminal Code offence. The Gibbs Committee noted that not only are there too many forgery offences, the maximum penalties range from 10 years imprisonment under section 85G of the Crimes Act 1914 for forging postal stamps, to $1000 for forging prescribed liquor stamps. The Gibbs Committee concluded that there should rarely be a need to include forgery offences outside the Commonwealth Criminal Code. The only compelling exceptions are the offences which relate to the counterfeiting of currency. Both the Gibbs Committee and the Model Criminal Code Officers Committee favoured separate offences in relation to the matters dealt with in the Crimes (Currency) Act 1981 which deals with specific problems associated with counterfeiting currency and securities. While the offences in that Act need to be harmonised with the Commonwealth Criminal Code, this will be done separately.

260. The offences in proposed Part 7.7 are forgery (proposed section 144.1), using a forged document (proposed section 145.1), possession of a forged document (proposed section 145.2) and the forging devices offences (proposed section 145.3), which carry a maximum penalty of 10 years imprisonment; and the falsification of documents and giving of information derived from false documents offences (proposed sections 145.4 and 145.5), which carry a maximum penalty of 7 years imprisonment.

Proposed Division 143 - Preliminary

261. The definitions and interpretative clauses are very important to the proper operation of these offences. Forgery and related offences are inherently complex and this is not made easier by developments in document making technologies. The new forgery provisions provide an opportunity to update the existing Crimes Act 1914 offences which are largely a product of the pre-computer era.

Proposed section 143.1 - Definitions

262. The first of these is 'document'. The proposed definition is similar to subsection 19.1(1) of the Model Criminal Code but for reasons of consistency with other legislation is aligned with section 25 of the Acts Interpretation Act 1901. The definition covers everything from traditional paper based documents with writing on them to coding for computers.

263. 'Information' is defined to cover electronic information. This aligns the terminology with the comprehensive but 'technology neutral' language of the Electronic Transactions Act 1999.

264. Proposed subsection 143.1(2) also makes it clear that 'document' includes cards used for commercial transactions. This is particularly important because card fraud is being increasingly identified as a major problem in Australia and they are used in dealings with the Commonwealth.

Proposed section 143.2 - False documents

265. Proposed section 143.2 contains a detailed definition of what is a 'false document.' The definition is based on section 19.2 of the Model Criminal Code and covers documents which suggest they were made/authorised:

•

by someone else when they were not;

•

in particular terms when they were not;

•

altered when they were not;

•

by someone who exists when they do not.

266. Proposed subsections 143.2(2) and (3) also makes it clear 'making' can include 'altering' and that 'document' includes purported copies of documents. It is necessary to carefully define all the possible ways of manipulating documents. The 'false document' definition is used in all the more serious forgery and forgery related offences in Part 7.7.

Proposed section 143.3 False Commonwealth documents

267. Proposed section 143.3 provides a Commonwealth jurisdictional context to the definition of ' false document'. The provision shadows proposed section 143.2 but ties the various components of the definition to 'Commonwealth entities' and 'Commonwealth public officials'. While proposed section 143.3 may appear at first glance to involve unnecessary repetition, it serves to ensure that the offences and the definition of 'false document' are not cluttered with unnecessary jurisdictional references that may obscure the more important function of the offence which is to clearly state the proposed obligations.

Proposed section 143.4 - Inducing acceptance of false documents

268. Proposed section 143.4 follows subsection 19.1(3) of the Model Criminal Code by ensuring the prosecution does not have to prove an intent to induce a particular person to accept a false document is genuine. This is needed because forgers will often not be concerned about who they deceive so much as that the deception induces the person to do something that they want.

Proposed section 144.1 of Division 144 - Forgery

269. Proposed subsection 144.1(1) provides the person is guilty if the person does two things. First, the person makes a false document with the intention that he or she or someone else will use it to dishonestly induce a third person in their capacity as a Commonwealth public official to accept it as genuine. Secondly, intends that if the false document is accepted, to dishonestly obtain a gain, dishonestly cause a loss or dishonestly influence the exercise of a public function or duty. Like comparable offences in this Bill, proposed subsection 144.1(2) provides it is not necessary to prove that the defendant knew that the capacity was a capacity as a Commonwealth public official.

270. Proposed subsection 144.1(3) provides for the same offence where the false document is used to cause a computer, machine or electronic device to respond to the document as if the document were genuine and the response is in connection with the operation of a Commonwealth entity; subsection 144.1(5) where it is any third person but the false document is a Commonwealth document; and subsection 144.1(7) where it is a computer, machine or electronic device and the false document is a Commonwealth document. It should be noted that proposed subsection 143.1(2) makes it clear that a document includes credit and debit cards and that where relevant it is not necessary for the prosecution to prove that the defendant knew the public official or document were specifically Commonwealth in nature. The offences follow the substance of section 19.3 of the Model Criminal Code but are considerably longer because of the need to properly attract Commonwealth jurisdiction.

271. The proposed maximum penalty for the forgery offences is 10 years imprisonment. This is higher than that provided for in the Model Criminal Code (7 years and 6 months). The penalty for the Commonwealth forgery offence should not be less than that contained in the existing Commonwealth offences - 10 years imprisonment. This is also the same as the penalty for theft and fraud. While the rationale of the Model Criminal Code Officers Committee for the lower penalty is in recognition that forgery is preparatory to fraud, it causes significant harm in its own right quite apart from fraud. The distinction is hard to justify.

272. The inclusion of the fault element of 'dishonesty' is a change from the existing Commonwealth offences. Like other offences in this chapter, the evaluative element of dishonesty will ensure the offence does not include trivial matters and is appropriate for such a serious offence.

273. Although the UK Theft Act uses dishonesty in relation to other offences, the UK adopted a complex definition of "intent to prejudice" in relation to forgery. 'Dishonesty' is better because:

(a)

it is consistent with theft and fraud as it substitutes 'dishonesty' for the common law concepts of 'fraudulently' and 'intent to fraud';

(b)

it is not complex and it will cover conduct that may not be caught under a definition of 'prejudice'; and

(c)

there was strong support for it in the consultation on the Model Criminal Code.

274. Another difference from the existing offences is that the proposed provisions based on the Model Criminal Code require that the prosecution prove the accused intended that the accused or another would use the document to induce a person to accept it as genuine and either cause a gain or loss, or influence the exercise of a public duty. Intention that the document will induce a person to do something to their prejudice is a feature of the law in the UK, NSW, Victoria and the ACT.

275. Section 63 of the Crimes Act 1914 provides that forgery requires an intent that the counterfeit seals, or other things referred to, may be used, acted on or accepted as genuine to the prejudice of the Commonwealth, any State or person with the intent that it/he/she may, in the belief that it is genuine, be induced to do, or refrain from doing, any act. Section 63 is too vague for a serious offence which has a maximum penalty of 10 years imprisonment. The offence should only catch those who intend to use the document to induce a person to accept it as genuine, or obtain a gain or cause loss, or influence the exercise of a public duty.

276. Under the existing offences it is only necessary to prove that the victim be induced to do, or to refrain from doing, any act. Unlike the requirement of proof in the current offence that accepting the document as genuine must "influence the exercise of a public duty", or the UK approach of linking the act or omission to the performance of a duty. There is no mention of duty in the current Commonwealth provision. The UK Law Commission described the Commonwealth and a similar Canadian provision as creating:

.... a very wide offence which would penalise such practical jokes as making a forged invitation to a social function made with no more wicked intent than raising a laugh at another's expense by inducing him to act upon the invitation. We do not think that such conduct should be within a serious offence such as forgery.

277. Requiring that the document influence the exercise of a public duty prevents the forgery offences from operating too widely. It has been suggested by some that under the Model Criminal Code provision there may be situations where a false document causes the Commonwealth or a Minister to act in a way that brings about enormous expense or causes significant changes in policy and there was no public duty to act. For example, it might be argued that a forged letter which causes the activation of disaster relief efforts might be said to be not to have influenced the exercise of a public duty as there was no duty to provide the relief. While this is probably unlikely to be accepted by a court this Bill defines 'duty' at proposed section 130.1 to make it clear that it covers the full range of government activity.

Proposed Division 145 - Offences relating to forgery

278. These are using a forged document (proposed section 145.1), possessing a forged document (proposed section 145.2), and the forging devices offences (proposed section 145.3); and the falsification of documents and giving of information derived from false documents offences (proposed sections 145.4 and 145.5).

Proposed section 145.1 - Using forged document

279. Proposed section 145.1 follows the same pattern as the forgery offences except the offences here concern use of the false document. The person must know that the document is a false document and uses it with respect to the intended outcomes already detailed above in the forgery offences. The maximum penalty is the same as forgery - 10 years imprisonment. The offences are based on section 19.4 of the Model Criminal Code but are considerably longer because of the need to attract Commonwealth jurisdiction. They replace the outdated Crimes Act 1914 offence of 'uttering'.

280. The requirement that the prosecution prove knowledge of the falsity of the document is important. Section 5.3 of the Criminal Code provides that a person has knowledge of a circumstance or a result if he or she is aware that it exists or will exist in the ordinary course of events.

281. This is consistent with the existing Commonwealth provisions and those of most States and Territories. In the UK the fault element may be knowledge or belief and the Gibbs Committee favoured 'knowledge' which, as defined by them, includes not only awareness that a circumstance exists or will exist but that it is probable that it exists or will exist. The Gibbs Committee definition of knowledge is broader than the Criminal Code definition which is closer to the ordinary meaning of 'knowledge'.

282. Under the Criminal Code definition of knowledge a person who uses a genuine document, which the person believed to be a forgery, will not be guilty of the offence of using a false document but will be guilty of attempting to commit that offence under s11.1 of the Criminal Code. However, if the Gibbs Committee definition of knowledge was used, this conduct would result in a charge of using a false document. That would go too far.

283. The existing Crimes Act 1914 provisions on uttering (use) do not require a person to intend to use a false document for the offence to be made out. The Model Criminal Code and Gibbs Committee approaches both provide that this intent should be required. The Gibbs Committee noted:

"However, circumstances are conceivable where use of a forged document, with knowledge as to its falsity, even a document of the limited descriptions dealt with in the Crimes Act, should not be subject to criminal sanctions. For instance, where a Commonwealth record has been altered to a minor extent in circumstances amounting to forgery, a person may wish, for some quite proper purpose, to use the record to the extent that it is a valid record."

Proposed section 145.2 - Possession of forged document

284. Proposed section 145.2 follows the same pattern as the using forgery offences except the offences here concern knowing that the document is a false document and having it in one's possession with respect to the intended outcomes already detailed above in the forgery and use forgery offences. The maximum penalty is the same as forgery - 10 years imprisonment. The offences are based on section 19.5 of the Model Criminal Code but are considerably longer because of the need to attract Commonwealth jurisdiction.

285. Proposed section 145.2 varies from subsection 65(2) of the Crimes Act 1914 which limits the possession offence to prescribed objects and documents. This offence should apply to the full range of documents as it is with similar offences in NSW, Victoria and the ACT and with the other forgery related offences. The Gibbs Committee notes that at present the Commonwealth has had to provide for possession of a false document in specific legislation (eg. section 9A Passports Act 1938 ). When the central offence of possession of false documents is enacted in the Commonwealth Criminal Code these offences can be repealed.

Proposed section 145.3 - Possession, making or adaptation of devices etc for making forgeries

286. Sections 65(2), 68 and 69 of Crimes Act 1914 provide special offences for possessing important seals, dies and stamps. Proposed section 145.3 dispenses with this unnecessary complexity by proposing offences which will cover all such circumstances. Proposed subsection 145.3(1) provides that a person is guilty of the offence if the person knows that a device, material or thing designed or adapted for the making of a false document (everything from a scanner to credit card blanks) and the person has it in their possession with the intention that he or she or another will use it to commit forgery. Proposed subsection 145.3(2) covers making or adapting such things with intention that it will be used for forgery. These offences carry a maximum penalty of 10 years imprisonment. A person who has committed this offence may be more the cause of the forgery problem than the person who is using the forgeries. It is important to have severe sanctions to ensure such people are dealt with appropriately.

287. Proposed subsections 145.3(3) and (4) deal with the same situations but where it cannot be shown the person possessed, made or adapted the device with the intention of committing forgery. With subsection 145.3(3) the person will be guilty if he or she does not have a reasonable excuse. This was modified by a Government Amendment replacing the exception of 'lawful excuse' with the less onerous exception of 'reasonable excuse'. While this will be a departure from the Model Criminal Code equivalent (section 19.6) it is appropriate in relation to possession because a person could possess such an device for innocent reasons but still be without lawful authority (for example, having found the device, the person is in the process of taking it to the authorities). On the other hand the specific 'lawful excuse' exception from the making or adapting devices for making forgeries offence at proposed paragraph 145.3(4)(c) is removed because it is unnecessary. The Bill will include a general lawful authority and excuse defence at proposed section 10.5 (item 7 of the Bill). There is a note to remind readers of the defence.

288. The lower maximum penalty of 2 years imprisonment for these offences is appropriate because it is not necessary to prove the defendant intended to use the device to commit a forgery offence. It is the same as the penalty currently found in subsection 65(2) of the Crimes Act 1914.

Proposed section 145.4 - Falsification of documents

289. Proposed section 145.4 and 145.5 are the equivalent of the Model Criminal Code false accounting offence (section 19.7).

290. Proposed subsection 145.4(1) provides a person is guilty if the person dishonestly damages, destroys, alters, conceals or falsifies a document, and the document is kept for the purposes of a Commonwealth law or made or held by the Commonwealth and the person does all this for gain or loss. Subsection 145.4(2) covers the same situation but covers any document where the intention is to obtain a gain or cause a loss to the Commonwealth.

291. Subsection 145.5(1) provides a person is guilty if the person dishonestly gives information to another person and the information was derived from a document known by that person to be false and misleading in a material particular, and the document is kept for the purposes of a Commonwealth law or made or held by the Commonwealth and the person does all this for gain or loss. Subsection 145.5(2) covers the same situation but covers any document where the intention is to obtain a gain or cause a loss to the Commonwealth.

292. The Model Criminal Code focuses on false accounts because in the State context because of "the central importance of accounts in the world of commerce". In the Commonwealth context there are many other documents of importance that are required by law to be kept and can cause losses to the Commonwealth and others (for example, immigration, employment and quarantine records).

293. There are offences of this nature at sections 72 and 74 of the Crimes Act 1914 and section 61 of the Financial Management and Accountability Act 1997. It is appropriate that there be a central offence which will avoid the need for duplication in other legislation. The justification for the offence of false accounting is that forgery is still essentially an offence about altering other people's documents and so does not cover a person who authors a false account. The central importance of accounts justifies the creation of a serious offence and in our view the same applies to any accounts prepared for the Commonwealth. These are just as important as those prepared for the private sector. The maximum penalty should be as recommended - 7 years imprisonment, which is the same as the penalty for contravening section 72 of the Crimes Act 1914 or section 61 of the Financial Management and Accountability Act 1997.

Proposed section 145.6 Geographical jurisdiction

294. Subsection 145.6 provides for similar reasons to theft that extended geographical jurisdiction category D applies to the forgery related offences.

Part 7.8 - Causing harm to, and impersonation and obstruction of, Commonwealth public officials

295. The primary purpose of this Bill was to improve the theft, fraud, corruption and forgery related offences, but an important issue for the Government and Chapter 7 of the Criminal Code is the protection those performing duties for the Commonwealth. The existing offences are inadequate and provide less than satisfactory sanctions where the obstruction involves violence. Rather than rely on State offences, the proposed offences will give the Commonwealth a common set of offences which can be utilised by law enforcement to protect the Commonwealth's most important asset - its people. At the same time the proposed amendments will enable the Commonwealth to be the first jurisdiction to implement the basic harm and threaten harm offences of the 'Offences Against the Person' Chapter of the Model Criminal Code (Chapter 5) which was completed in September 1998.

296. The basic forms of the obstruction and impersonation of Commonwealth officer offences are at sections 75 and 76 of the Crimes Act 1914 , but it is proposed that they be replaced by offences that adequately cover similar offences in other legislation. The proposed new offences will enable the repeal of more than 60 offences located throughout the Commonwealth statute book.

297. In 1990 the Gibbs Committee stated that a reduction in the number of these offences will mean that "...the courts, the legal profession and the police would...be able to deal more effectively with a limited number of omnibus offence provisions with which they would become familiar than [with] a much greater number of provisions in particular Acts." and "...some matters are of such significance in the administration of law and justice that it is desirable that they be governed by general provisions carefully thought out in advance rather than provisions drafted ad hoc for the purposes of each particular statute."

Proposed section 146.1 of Division 146 - Definitions

298. A definition of 'Commonwealth law enforcement officer' is needed because there are additional penalties in the harm and threaten harm offences where the victim is a Commonwealth law enforcement officer. It is proposed that this should only cover those whose occupation exposes them to the danger of being harmed by criminals: Australian Federal Police, National Crime Authority and Australian Customs Service personnel.

299. ''Harm' is defined because it is used in the harm and threaten harm offences. The definition follows that at section 5.1.1 of the Model Criminal Code. There was extensive nation-wide consultation on the definition. It covers physical and mental harm.

300. 'Harm to a person's mental health' also follows the Model Criminal Code definition. It does not cover ordinary emotional reactions.

301. 'Physical harm' covers a wide range of possibilities including infection with a disease (particularly relevant to attacks and threats carried out with a syringe).

302. 'Serious harm' is carefully defined to ensure that technical arguments about the mathematical changes of infection with certain life-threatening diseases are not too easily used to avoid criminal responsibility when the victim has been deliberately attacked with something that is infected with such a disease. It covers the cumulative effect of harm, the likelihood of endangerment and the likelihood of it being significant and longstanding. Again this follows the Model Criminal Code (section 5.2.2).

Proposed section 146.2 - Causing harm

303. Again, consistent with the objectives behind the 'serious harm' definition, a person's conduct is taken to cause harm if it substantially contributes to harm. This follows section 5.1.3 of the Model Criminal Code.

Proposed Division 147 - Causing harm to Commonwealth public officials

304. This provides for basic cause harm offences. There is no attempt to deal with more serious offences against the person such as sexual penetration, serious assaults or homicide. They are matters where the best approach is to rely on State and Territory law. However many cases of obstruction will involve some harm being caused to Commonwealth public officials. It is not appropriate that all those cases should be dealt with by the lesser obstruction offence. The more serious offence is necessary in some cases. There are four offences: causing harm to a Commonwealth public official (proposed section 147(1)); causing harm to a former Governor-General, Minister or Parliamentary Secretary (proposed section 147(2)); threatening to cause harm or serious harm to a Commonwealth public official (proposed section 147.2); and threatening to cause serious harm to a former Governor-General, Minister or Parliamentary Secretary (proposed section 147.2(3)).

Proposed section 147.1 - Causing harm to a Commonwealth public official etc

305. Proposed subsection 147.1(1) provides a person is guilty if the person causes harm to a Commonwealth public official, intends to do so, does so without the official's consent and because of the official's status as a public official or any conduct engaged in by the official in the official's capacity as a public official. An amendment was made to bring this offence in line with others by making it clear there is no requirement to prove the defendant was aware that the person was specifically a Commonwealth public official. The proposed offence is based on section 5.1.17 of the Model Criminal Code. It does not extend being reckless as to causing the harm. The focus here is one someone who deliberately harms the Commonwealth public official. Recklessly causing harm is more appropriate for the State and Territory offences. Likewise attacks which have nothing to do with the person's status as a public official should be left to the State and Territory law.

306. The proposed maximum penalty of 10 years imprisonment, or 13 years where the official is a Commonwealth judicial or law enforcement officer is the same as proposed for the Model Criminal Code offence.

307. Proposed subsection 147.1(2) provides for a similar offence where the victim is a former Governor-General, former Minister or former Parliamentary Secretary. The shortcomings of the current restriction to 'acting in the course of duty' were identified by the 1995 Review of Security for Commonwealth Holders of High Public Office, a review prepared for the Prime Minister by Deputy Secretary Greg Wood of the Department of the Prime Minister and Cabinet.

The Review recommended that section 76 of the Crimes Act 1914 be broadened so that the offence applies where:

(a)

a Minister or the Governor-General is assaulted or threatened while not performing an official function but the threat or assault is as a result of the office holders' official position or activities; and

(b)

a former Minister or former Governor-General is assaulted or threatened as a result of their former duties.

Proposed section 147.2 - Threatening to cause harm to a Commonwealth public official etc

308. Proposed subsection 147.2(1) provides a person is guilty if he or she makes a threat to cause serious harm (either through someone else like a spouse or by aiming the threat at someone else) intending or reckless as to whether the victim will fear that the threat will be carried out. Further it must be shown the threat is made because of the official's status as a public official or because of any conduct engaged in by the official because of his or her status. The maximum penalty is 7 years imprisonment, or 9 years where the official is a Commonwealth judicial or law enforcement officer. This offence is based on section 5.1.21 of the Model Criminal Code.

309. Proposed subsection 147.2(2) covers threats to cause harm, but not serious harm, and includes an offence in the same terms as proposed subsection 147.2(1). The maximum penalty is 2 years imprisonment. The Model Criminal Code Officers Committee recommended that this would be an appropriate penalty for threatening less than serious harm.

310. Proposed subsection 147.2(3) covers threats to cause serious harm to a former Governor-General, former Minister and former Parliamentary Secretary and includes an offence in the same terms as proposed subsections 147.2(1) and 147.2(2). The maximum penalty is 7 years imprisonment.

311. Proposed subsection 147.2(4) makes it clear that threats include those that are express or implied, or conditional or unconditional. Depending on their nature, conditional threats can also be caught by the unwarranted demands offence (proposed section 139.1). This follows subsection 5.1.19(1) of the Model Criminal Code.

312. Proposed subsection 147.2(5) provides that it is not necessary for the prosecution to prove the victim actually feared that the threat would be carried out. It is sufficient that the defendant intended, or was reckless about causing, fear.

Proposed section 147.3 - Geographical jurisdiction

313. Proposed section 147.3 provides that there be extended geographical jurisdiction category C (proposed section 15.3) for these offences.

Division 148 - Impersonation of Commonwealth public officials

314. Section 75 of the Crimes Act 1914 makes it an offence to impersonate or falsely represent oneself to be an officer in particular circumstances. A number of provisions in other Acts make it an offence to pretend to be an officer with particular powers, (eg s. 97 of the Marriage Act prohibits a person from pretending he or she is a person whose consent to the marriage of another person is required). These other offences do not currently require proof of the additional matters provided for in section 75 .

315. The Gibbs Committee concluded there was a need to extend section 75 to cover a person who impersonates or falsely represents himself or herself to be an officer with the intention of obtaining a gain, causing a loss or influencing the exercise of a public duty (as in the general dishonesty offence at proposed section 135.1). The situation where one officer personates another or falsely represents to be another is clarified in the proposed section 148.2). A key aim of these offences is to protect the public against being disadvantaged by a person pretending to be an officer who exercises powers he or she is not empowered to exercise. They are also designed to protect the integrity of the office so the person must be purporting to perform the functions of the office at the relevant time.

Proposed section 148.1 - Impersonation of an official by a non-official

316. Proposed subsection 148.1(1) provides a person other than a Commonwealth public official is guilty if on a particular occasion the person with intent to deceive impersonates another person in that person's capacity as a Commonwealth public official and does so knowing it to be in circumstances when the official is likely to be on duty. This is based on the Gibbs Committee recommendations, though it was considered desirable to also require proof of intention to deceive. This was to make it very clear that the offence is not meant to cover satirical presentations which may be performed in jest. Further, an Opposition amendment was passed in the House of Representatives which provides in proposed subsection 148.1(5) that to avoid doubt 'impersonation' and 'false representation' do not include conduct engaged in for satirical purposes only. The maximum penalty is 2 years imprisonment.

317. Proposed subsection 148.1(2) provides a person other than a Commonwealth public official is guilty if on a particular occasion the person by falsely representing himself or herself to be another person in that person's capacity as a Commonwealth public official and does so in the assumed character of the official. There was also a Government amendment inserting proposed subsection 148.1(2A) to make it clear that the offences cover the situation where someone is falsely representing himself or herself to be an official who does not exist. The maximum penalty is 2 years imprisonment.

318. Proposed subsection 148.1(3) provides that should a person other than a Commonwealth public official impersonate or falsely represent themself in another person's capacity as a Commonwealth public official and does so with the intention of obtaining a gain, causing a loss, or influencing the exercise of a public duty or function, the person will be guilty of an offence punishable with a penalty of 5 years imprisonment. There was also a Government amendment inserting proposed subsection 148.1(3A) to make it clear that the offences cover the situation where someone is falsely representing himself or herself to be an official who does not exist.

Proposed section 148.2 - Impersonation of an official by another official

319. The offences in proposed section 148.2 cover the same situations where the Commonwealth public official is being impersonated or falsely represented by another Commonwealth public official. There was a similar Opposition amendment at proposed subsection 148.2(5) as provided for in 148.1(5) to exclude conduct engaged in for satirical purposes only, and Government amendments at proposed subsections 148.2(2A) and (3A) to the equivalent subsections in 148.1. The maximum penalties are the same.

Proposed section 148.2 - Geographical jurisdiction

320. Proposed section 147.3 provides that there be extended geographical jurisdiction category C (proposed section 15.3) for these offences.

Proposed Division 149 - Obstruction of Commonwealth public officials

321. Section 76 of the Crimes Act 1914 makes it an offence to obstruct, resist, hinder, use violence against, threaten or intimidate a officer carrying out a function or duty or a person exercising a power, function or duty under a law of the Commonwealth or on behalf of the Commonwealth.

322. In spite of section 76, many other Acts create offences, using varying terminology, of obstructing or hindering persons engaged in duties under those Acts. Sometimes the protection goes beyond officers and sometimes it applies to the statutory authority rather than an individual officer. The Gibbs Committee considered that there should be a new, central offence prohibiting obstruction, resistance, interference, hindering and the use or threatened use of violence, threats or intimidation.

323. The meaning of wilfully (or knowingly) obstruct has been considered in a number of cases relating to obstruction of police in the performance of their duties. Lying to an officer who asks questions in the performance of a duty to investigate was held in Tankey v Smith (1981)
36 ACTR 19 to amount to wilful obstruction. However, mere failure to answer questions does not amount to wilful obstruction ( Rice v Connolly [1966] 2 All ER 649). The distinction is that a citizen has a right to refuse to answer questions but no right to deliberately deceive. There may, however, be exceptional cases where the manner of a person together with his or her silence amounts to wilful obstruction, (eg an innocent person deliberately seeking to attract suspicion to protect the guilty person).

324. There are over 50 offences which can be replaced by a general offence of obstructing an officer. The Gibbs Committee recommended that the legislation prohibit obstruction, resistance, interference, hindering and the use of violence, threats or intimidation without reasonable excuse. It also recommended that the offence cover all Commonwealth public officials while engaged in the discharge or attempted discharge of any duty or function as such an official.

Proposed section 149.1 - Obstruction of Commonwealth public official

325. Proposed subsection 149.1(1) provides a person is guilty if the person knows the other person is a Commonwealth public official and obstructs the official in the performance of the officials functions. Proposed subsection 149.1(2) provides it is not necessary to prove the person knew the official was a Commonwealth public official of that the functions were functions as a Commonwealth public official. Proposed subsection 149.1(6) provides for a broad definition of functions. Further proposed subsection 149.1(3) provides it is not necessary to show the person was aware that the official was performing those functions. This reflects the fact many in the community are often not aware of what are Commonwealth functions.

326. The proposed maximum penalty is 2 years imprisonment. The Geographical jurisdiction - Category C (section 15.3).

Proposed Part 7.20, Division 261 - Miscellaneous

327. Division 261 provides for some general provisions which apply to the whole of Chapter 7. Readers will note that the numbering of this Part suggests that in the future there will be a large number of provisions to be inserted into Chapter 7. This is correct. It is proposed that Chapter 7 will eventually include damage offences, computer offences and offences concerning Commonwealth land. It is important that the Criminal Code also has room to grow without disrupting its structure and numbering.

Proposed section 261.1 - Saving of other laws

328. Proposed section 261.1 makes it clear that other Commonwealth, State and Territory laws are not limited or excluded by proposed Chapter 7. There is an overlap with State and Territory offences. This provision is designed to ensure that when State police wish to lay a series of charges which may involve one offence against a Commonwealth entity, then they have the option of charging under the State or Territory law.

Proposed section 261.2 - Contempt of court

329. Proposed section 261.2 is included to ensure that the court will always have the option of punishing contempts of court rather than using the offences in this Chapter (for example, obstruction).

Proposed section 261.3 - Ancillary offences

330. Proposed section 261.3 is included to ensure an unintended consequence of referring specifically to another offence (like theft) in another offence (such as receiving) does not mean that under subsection 11.6(2) of the Criminal Code the reference is to the ancillary offences as well.

Item 16 of Schedule 1 - Chapter 10 - National Infrastructure

331. Item 16 inserts two new chapters. Chapter 10 which is concerned with the national infrastructure and Chapter 11 which deals with interpretative provisions. Chapter 10 will deal with the protection of any part of the national infrastructure about which the Commonwealth has power and believes it is in the national interest to protect regardless of ownership arrangements. While the ultimate content and size of this chapter is not certain, the Crimes Act 1914 already provides for protection of the post and telecommunications (Parts VIIA and VIIB). Some of these offences are theft and fraud related, so it is proposed that they be updated and transferred from the Crimes Act 1914 to the Criminal Code. Other offences which protect the postal and telecommunications services in Parts VIIA and VIIB are likely to be moved to Chapter 10 when the Government moves to develop other parts of the Criminal Code. For example, the send narcotic substances by post offence (section 85W of the Crimes Act 1914 ) might be appropriate to move to the Criminal Code when steps are taken to enact new serious drug offences.

Part 10.5 - Postal services

332. Part 10.5 concerns the postal services offences. These include theft and receiving of mail bags, etc (proposed sections 471.1 and 471.2) and taking or concealing them (proposed section 471.3). These replace most of section 85K of the Crimes Act 1914. The offences are drafted in the same terms as the equivalent offences used in the 'Protect the proper administration of government' chapter (Chapter 7) but provides protection for the core of Australia's postal service. This approach continues the policy which existed in 1989 when the equivalent offences were first included in Part VIIA of the Crimes Act 1914. Part 10.5 merely continues the longstanding policy on these issues. The overall object is to review and move all Crimes Act 1914 offences into the Criminal Code. In some cases, like these, the policy behind the offences will remain unchanged. However, also like these, the offences will need to be adjusted to make them consistent with related Criminal Code offences.

333. Other Part 10.5 offences include dishonest removal of stamps or postmarks (proposed section 471.4); dishonest use of stamps (proposed section 471.5); damaging or destroying mail bags, etc (proposed section 471.6 - this replaces part of section 85K of the Crimes Act 1914 ); tampering with mail bags, etc (proposed section 471.7); and dishonestly obtaining delivery articles in the course of the post (proposed section 471.8).

Proposed section 470.1 of Division 470 - Definitions

334. The proposed definitions closely follows those in section 85E of the Crimes Act 1914. The terms 'article in the course of post', 'carry by post', 'mail receptacle', 'postage stamp', 'postal message' and 'unwritten communication' follow terminology used in the postal industry and the Australian Postal Corporation Act 1989. 'Property' has been defined with reference to the Chapter 7 theft and fraud offences (see section 130.1).

Proposed section 470.2 - Dishonesty

335. Proposed section 470.2 uses the same definition as that found in proposed section 130.3 of Chapter 7 and is repeated here for the convenience of readers. A detailed explanation of the term is found in the notes on proposed section 130.3.

Proposed section 470.3 - Determination of dishonesty to be a matter for the trier of fact

336. Proposed section 470.3 is the same as proposed section 130.4 and is explained in the notes on that section.

Proposed Division 471 - Postal offences

337. All the postal offences are in this Division.

Proposed section 471.1 - Theft of mail receptacles, articles or postal messages

338. Proposed subsection 471.1(1) provides a person is guilty if the person dishonestly appropriates a mail receptacle, an article in the course of post or a postal message and does so with the intention of permanently depriving the other person of the mail receptacle, article or postal message. This offence contains the same elements as the theft offence at proposed section 131.1 and penalty (a maximum of 10 years imprisonment). Subsections 471.1(2), (3) and (4) mirror the relevant theft offence interpretative provisions.

339. The postal theft offence replaces part of section 85K of the Crimes Act 1914 which refers to 'fraudulent taking', 'stealing' and 'misappropriating' and relies on the common law meaning of these terms. The new offence will simplify the terminology and harmonise it with the general Criminal Code theft offence. The offence at section 85K has a maximum penalty of 5 years imprisonment. Proposed section 471.1 will justifiably increase that penalty. Items that are in the post can often be valuable and there is no reason having a lower penalty just because they were stolen from the post.

Receiving stolen mail receptacles, articles or postal messages

340. Proposed subsection 471.2(1) provides a person is guilty if the person dishonestly receives a stolen mail receptacle, an article in the course of post or a postal message knowing or believing it to be stolen. This offence contains the same elements as the receiving offence at proposed section 132.1 and penalty (a maximum of 10 years imprisonment). Subsections 471.2(2), (3) and (4) mirror the relevant receiving offence interpretative provisions.

341. The postal receiving offence replaces subsection 85K(2) of the Crimes Act 1914 which refers to 'receiving' 'stolen fraudulently taken' or 'misappropriated' articles and relies on the common law meaning of these terms. The new offence will simplify the terminology and harmonise it with the general Criminal Code receiving offence. The offence at section 85K has a maximum penalty of 5 years imprisonment. Proposed section 471.2 will justifiably increase that penalty significantly. Items that are in the post can often be valuable and there is no reason having a lower penalty just because they were received from the post.

Proposed section 471.3 - Taking or concealing of mail-receptacles, articles or postal messages

342. Proposed subsection 471.3(1) provides a person is guilty if the person dishonestly takes or conceals a mail receptacle, an article in the course of the post or postal message. The proposed maximum penalty is 5 years imprisonment. This deals with less serious conduct covered by section 85K of the Crimes Act 1914 which referred to 'fraudulently taking' and 'fraudulently concealing' . 'Dishonestly' means much the same thing as 'fraudulently'. The existing maximum penalty of 5 years imprisonment is appropriate.

Proposed section 471.4 - Dishonest removal of postage stamps or postmarks

343. Proposed section 471.4 provides a person is guilty if the person dishonestly removes any postage stamp or removes a post mark from a previously used stamp. It is appropriate to only have a minor offence for this type of conduct. The maximum penalty is 12 months imprisonment. This is the same as provided for in the offence which it partly replaces (section 85J of the Crimes Act 1914 ).

Proposed section 471.5 - Dishonest use of previously used, defaced or obliterated stamps

344. Proposed subsection 471.5(1) provides a person is guilty if the person dishonestly uses for postal services a previously used, obliterated or defaced postage stamp. Proposed subsection 471.5(2) provides for a presumption as to usage where the stamp is affixed to an article. Consistent with Criminal Code principles, the burden of proof in respect of contrary evidence (see subsection 13.3(1) of the Criminal Code ). The 'evidential burden' is defined at subsection 13.3(6) which provides it means, in relation to a matter, the burden of adducing or pointing to evidence that suggests a reasonable possibility that the matter in question exists or does not exist. If the person satisfies that standard, then it is for the prosecution to prove the matter in dispute beyond a reasonable doubt. In view of the fact the defendant is more likely to be able to point to such evidence and the less serious nature of the offence (maximum penalty of 12 months imprisonment), it is appropriate to have a presumption in this instance. The offence replaces part of section 85J of the Crimes Act 1914 which also contains a similar presumption.

Proposed section 471.6 - Damaging or destroying mail receptacles, articles or postal messages

345. Proposed section 471.6 provides a person is guilty if the person engages in conduct that causes damage to or the destruction of a mail receptacle, article in the course of post or postal message and the person intends his or her conduct will cause that damage or is reckless as to whether his or her conduct will cause the damage. The maximum penalty is 10 years imprisonment. This offence is based on a soon to be released Model Criminal Code damage offence and replaces the remaining component of section 85K of the Crimes Act 1914. Damage can of course produce the same level of deprivation of property as theft. The penalty should therefore be the same as that for the postal theft offence (proposed subsection 471.1(1)). The maximum penalty should be 10 years imprisonment. This is consistent with State and Territory penalties in relation to damage offences. While damage offences are generally outside the subject matter of this Bill, it was more efficient to include them here now rather than placing a redrafted offence into the Crimes Act 1914.

Proposed section 471.7 - Tampering with mail receptacles

346. Proposed subsection 471.7(1) provides a person is guilty if the person dishonestly opens a mail receptacle or tampers with a mail receptacle. A mail receptacle can of course have many articles of monetary and personal value. Tampering with a large mail receptacle, like a mail bag, has the potential to disrupt the lives of hundreds of Australians as a result of one incident. It is therefore appropriate that the maximum penalty should be 5 years imprisonment. The proposed offence replaces section 85L of the Crimes Act 1914.

347. Proposed subsection 471.7(2) provides the person is guilty if the person intentionally opens a mail receptacle, does so without authorisation and knows that he or she is not authorised. This is a lesser preparatory offence with a maximum of 2 years imprisonment. It is appropriate to have this in the event that the person is caught before they have an opportunity to start tampering with the mail. The offence replaces subsection 85L(2) of the Crimes Act 1914.

Proposed section 471.8 - Dishonestly obtaining delivery of articles

348. Proposed section 471.8 provides a person is guilty if the person dishonestly obtains delivery of, or receipt of, an article in the course of the post that is not directed to the person. This of course would not cover inadvertently keeping something that has been misdirected. The focus is on someone who does something dishonest to obtain the delivery or receipt of the article. It is therefore appropriate that the same penalty as the general dishonesty offence (proposed section 135.1) should apply. This is also consistent with the penalty for the offence that it replaces, section 85 M of the Crimes Act 1914.

Proposed section 471.9 - Geographical jurisdiction

349. Proposed section 471.9 provides that the appropriate Geographical jurisdiction should be Category C (section 15.3).

Proposed Division 472 - Miscellaneous

350. Proposed section 472.1 provides the usual savings provision for other laws of the Commonwealth, the States and Territories. There is some overlapping. In some cases it will be more convenient to charge under another offence. The same approach is taken with the theft, fraud, bribery and related offences in Chapter 7.

351. Proposed section 472.2 preserves the meaning of expressions in the Australian Postal Corporation Act 1989 and in what is to remain of Part VIIA of the Crimes Act 1914.

Proposed Part 10.6 - Telecommunications

352. This is comprised of the offence of general dishonesty with respect to a carriage service provider (proposed section 474.1) which would replace section 85ZF of the Crimes Act 1914. As with the offences in Part 10.5, the new offence brings the wording of this offence into line with the general dishonesty offence at proposed section 135.1 of Chapter 7. The rationale for having this offence in chapter 10 is much the same as that for the postal offences and reflects the policy that was in place in 1989 when section 85ZF was first inserted into the Crimes Act 1914.

Proposed Division 473 - Preliminary

353. Proposed Division 473 contains definitions and a procedural provision.

Proposed section 473.1 - Definitions

354. These include 'loss', 'obtaining' and 'property' which are the same as those used for the general dishonesty offence in Chapter 7. 'Carriage service' and 'carriage service provider' are the same as those in Part VII B of the Crimes Act 1914.

Proposed section 473.2 - Dishonesty

355. Proposed section 473.2 uses the same definition as that found in proposed section 130.3 of Chapter 7 and is repeated here for the convenience of readers. A detailed explanation of the term is found in the notes on proposed section 130.3.

Proposed section 473.3 - Determination of dishonesty to be a matter for the trier of fact

356. Proposed section 473.3 is the same as proposed section 130.4 and is explained in the notes on that section.

Proposed Division 474 - Telecommunications offences

357. Proposed Division 474 is designed to include a range of telecommunications offences currently found in Part VIIB of the Crimes Act 1914. However, only one of those offences concerns something that comes within the general subject matter of this Bill - the defrauding a carrier offence at section 85ZF.

Proposed section 474.1 - General dishonesty with respect to a carriage service provider

358. Proposed section 474.1 provides a person is guilty if the person does anything with the intention of dishonestly obtaining a gain or causing a loss to a carriage service provider in connection with the supply of a carriage service. It also covers knowingly risking such a loss. This offence contains the key elements of the general dishonesty offence at proposed section 135.1 and has the same penalty (a maximum of 5 years imprisonment). It does not include the influencing a Commonwealth public official component because that aspect is not relevant to this context.

359. The telecommunications dishonesty offence replaces part of section 85ZF of the Crimes Act 1914 which refers to 'defrauding' and relies on the common law meaning of the term. The new offence will simplify the terminology and harmonise it with the Criminal Code general dishonesty offence which like section 85ZF also has a maximum penalty of 5 years imprisonment.

Proposed section 475.1 of Division 475 - Saving of other laws

360. Proposed section 475.1 provides the usual savings provision for other laws of the Commonwealth, the States and Territories. There is some overlapping. In some cases it will be more convenient to charge under another offence. The same approach is taken with the theft, fraud, bribery and related offences in Chapter 7.

Item 17 of Schedule 1 - Dictionary - 'aggravated burglary'

361. This simply refers to the offence of the same name at proposed section 132.5 and is included for cross-referencing purposes

Item 18 of Schedule 1 - Dictionary - 'aggravated robbery'.

362. This simply refers to the offence of the same name at proposed section 132.3 and is included for cross-referencing purposes

Item 19 of Schedule 1 - Dictionary - 'ancillary offence'.

363. This is a short-hand term for provisions in Part 2.4 of the Criminal Code which extend criminal responsibility. They concern attempt (section 11.1), complicity and common purposes (section 11.2), innocent agency (section 11.3), incitement (section 11.4) and conspiracy (section 11.5). Often special rules need to apply to these provisions collectively (for example, the rules in relation to geographical jurisdiction in Part 2.7 of the Criminal Code ).

Item 20 of Schedule 1 - Dictionary - 'Australian aircraft'

364. This broad definition ensures there is sufficient jurisdiction to cover Australian aircraft. It is the same definition which was contained in the Criminal Code Amendment (Bribery of Foreign Public Officers) Act 1999.

Item 21 of Schedule 1 - Dictionary - 'Australian ship'

365. This broad definition ensures there is sufficient jurisdiction to cover Australian ships. It is the same definition which was contained in the Criminal Code Amendment (Bribery of Foreign Public Officers) Act 1999.

Item 22 of Schedule 1 - Dictionary - 'burglary'.

366. This simply refers to the offence of the same name at proposed section 132.4 and is included for cross-referencing purposes

Item 23 of Schedule 1 - Dictionary - 'Commonwealth authority'.

367. This is one of the more important definitions for Chapter 7 and will also be relevant to future Chapters. The proposed definition sets the scope of the protection of the theft, fraud, bribery and related offences which are to assist with the proper administration of government. It is necessary to cover statutory bodies created by the Commonwealth to perform government functions. In most cases a reference to a body established by or under a law of the Commonwealth will be appropriate. It is therefore proposed that all those bodies be captured under the definition of 'Commonwealth authority'. However there are some exceptions which are clearly separate from the Commonwealth government that should be excluded. These are aboriginal councils and associations; the ACT, NT and Norfolk Island Governments; corporations and bodies such as registered unions and employer associations. The current definition in section 3 of the Crimes Act 1914, which defines 'public authority under the Commonwealth' as meaning any authority or body constituted by or under a law of the Commonwealth or of a Territory lacks sufficient discrimination. The definition will also enable the exclusion of other bodies by regulation when appropriate.

Item 24 of Schedule 1 - Dictionary - 'Commonwealth contract'

368. This is relevant to the definition of 'Commonwealth service provider' which it is proposed should be inserted by item 28.

Item 25 of Schedule 1 - Dictionary - 'Commonwealth entity'

369. This is the collective term for the Commonwealth bodies to be protected by the Chapter 7 theft, fraud, bribery and related offences. It includes Commonwealth authorities which are described at item 23 and the Commonwealth itself (covering its departments and other non-statutory bodies established by the executive).

Item 26 of Schedule 1 - Dictionary - 'Commonwealth judicial officer'

370. This definition links with the definition of 'Commonwealth public official' which is relevant to the scope of the Chapter 7 offences which concern the duties of Commonwealth public official (for example, the bribery offence). Certain judicial officers are covered by the Crimes Act 1914 definition of 'Commonwealth officer' (subsection 3(1)) which covers any person holding office under the Commonwealth. This would include judges of federal courts but there is less certainty about the status of judicial registrars, and State and Territory judges and officials performing judicial functions. It is important that there should be no doubt about the coverage and that the protection afforded to the administration of government should extend to judicial officers. The definition is very comprehensive.

Item 27 of Schedule 1 - Dictionary - 'Commonwealth public official'

371. The definition of 'Commonwealth officer' in subsection 3(1) of the Crimes Act 1914 is very unsatisfactory. This is because there have even been doubts expressed in the past that it covers Ministers and it does not even cover the Governor-General. It is critical that all people who perform duties and functions for the Commonwealth are covered. This is not only relevant to corruption offences, but the whole range of Chapter 7 offences. It also includes 'Commonwealth service providers' - those who provide services by contract rather than as an office holder or employee (see the proposed definition at item 28). Often these people have responsibilities that are indistinguishable from departmental officers. While they are covered by the Crimes Act 1914 definition of 'Commonwealth officer' for some offences (non-disclosure, theft, falsification or records, corruption, impersonation and obstruction - sections 75 to 76), there is no reason why they should not be subject to the full range of Chapter 7 offences (including the fraud related offences).

Item 28 of Schedule 1 - Dictionary - 'contracted service provider'

372. The definition of 'contracted service provider' covers parties to a contract with a 'Commonwealth entity' but also subcontractors. Often it is the subcontractors who provide the services.

Item 29 of Schedule 1 - Dictionary - 'defence aircraft'

373. This broad definition ensures there is sufficient jurisdiction to cover Australian aircraft. It is the same definition which was contained in the Criminal Code Amendment (Bribery of Foreign Public Officers) Act 1999.

Item 30 of Schedule 1 - Dictionary - 'defence ship'

374. This broad definition ensures there is sufficient jurisdiction to cover Australian aircraft. It is the same definition which was contained in the Criminal Code Amendment (Bribery of Foreign Public Officers) Act 1999.

Item 31 of Schedule 1 - Dictionary - 'electronic communication'

375. This is an important definition for the Criminal Code to ensure that where there are references to communications there adequate coverage for a whole range of options now technically possible. The definition is consistent with the terminology of the Electronic Transactions Act 1999.

Item 32 of Schedule 1 - Dictionary - 'engage in conduct'

376. This simply refers to the interpretation provision at proposed for subsection 4.1(2) by item 4.

Item 33 of Schedule 1 - Dictionary - 'foreign country'

377. This is important for the purposes of the geographical jurisdiction provisions in proposed Part 2.7. It covers the full range of countries and territories that are outside Australia.

Item 34 of Schedule 1 - Dictionary - 'person'

378. This has been inserted because to simplify the drafting, a most of Chapter 7 offences refer to 'person'. While paragraph 22(1)(a) of the Acts Interpretation Act 1901 includes the body politic or corporate as well as the individual, it needs be made clear that for the purposes of the Criminal Code it includes a Commonwealth authority that is not a body corporate and that 'another' has a corresponding meaning.

Item 35 of Schedule 1 - Dictionary - 'primary offence'

379. This is a useful description which simplifies the drafting of some provisions (note proposed Part 2.7). It simply distinguishes most offences from what is defined as 'ancillary offences' by item 19.

Item 36 of Schedule 1 - Dictionary - 'public official'

380. A generic definition of 'public official' is necessary to make a number of offences to work in the way they are intended. In some cases it should only be necessary that the defendant knew he or she was dealing with a public official, not necessarily a 'Commonwealth public official' (for example, see the bribery offence at proposed section 141.1).

Item 37 of Schedule 1 - Dictionary - 'receiving'

381. This simply refers to the offence of the same name at proposed section 132.1 and is included for cross-referencing purposes

Item 38 of Schedule 1 - Dictionary - 'robbery'

382. This simply refers to the offence of the same name at proposed section 132.2 and is included for cross-referencing purposes

Item 39 of Schedule 1 - Dictionary - 'services provided to a Commonwealth entity'

383. This is necessary to make the definition of 'Commonwealth service provider' at item 28 to work properly. The services must be in connection with the performance of the Commonwealth entity's functions.

Item 39A of Schedule 1 - Dictionary - 'special liability provision'

384. Prior to the Government Amendments in the House of Representatives, proposed section 600.1 in Chapter 11 (item 16 of the Bill as originally introduced) was for the purpose of ensuring that where there is a special liability provision (such as one applying absolute liability to the Commonwealth element in the offence of theft of Commonwealth property at proposed subsections 131.1(1) and (3)) then that rule should carry through to ancillary offences, such as an attempt (section 11.1). On reflection, proposed section 600 was an obscure way of achieving that result. Indeed, consistent with the approach taken with the Criminal Code in relation to other matters, it was concluded that rules of this nature need to be much clearer. Items 7A and 7B were inserted by the Government Amendments to include proposed subsections 11.1(3A) and (6A) which specifically provide as part of the ancillary offence of attempt that special liability provisions apply. The same provisions are also provided for in relation to other relevant ancillary offences: complicity (proposed subsections 11.2(3A) and (6)); incitement (proposed subsections 11.4(2A) and (4A)); and conspiracy (proposed subsections 11.5(2A) and (7A)). It is proposed that a definition of 'special liability provision' be inserted into the Criminal Code dictionary by Item 39A. It provides a 'special liability provision' is where absolute liability applies to one or more (but not all) of the physical elements of an offence. This will mean that while the rules which require proof of fault with respect to ancillary offences (such as subsection 11.2(3) in attempt) will continue to apply to every offence (including the extremely rare occasion where absolute liability might apply to all elements of an offence), it will not be necessary where it concerns a subsidiary element such as the example given in relation to theft of Commonwealth property.

385. It is also proposed that the definition of 'special liability provision' include those special provisions which provide that it is not necessary to prove the defendant knew or believed a particular thing. An example of this is proposed subsection 141.1(2) which concerns bribery. It provides it is not necessary to prove that the defendant knew the official bribed was a Commonwealth public official. The amendments will mean it will not be necessary to prove knowledge about the Commonwealth characteristic of the public official providing the defendant was attempting to bribe a public official of some kind.

Item 40 of Schedule 1 - Dictionary - 'subcontractor'

386. This is necessary to make the definition of 'Commonwealth service provider' at item 28 to work properly. It ensures the subcontractor is providing services in connection with the performance of the Commonwealth entity's functions.

Item 41 of Schedule 1 - Dictionary - 'theft'

387. This simply refers to the offence of the same name at proposed section 131.1 and is included for cross-referencing purposes.