Explanatory Memorandum
(Circulated by authority of the Treasurer, the Hon Peter Costello, MP)Notes on clauses
Clause 1: Short Title
1. Clause 1 of the Bill deals with the short title.
Clause 2: Commencement
2. Clause 2 of the Bill deals with the commencement. It effectively provides that subject to subclauses 2(2), (3) and (4), the Act commences on the later of the 28th day after the day on which this Act receives Royal Assent and the day on which the Criminal Code Amendment (Theft, Fraud, Bribery and Related Offences) Act 2000 (Theft Fraud Act) generally commences.
3. Aspects of the Bill will need to commence 28 days after the proposed amendment receives the Royal Assent. This will include the provisions which will assist with the harmonisation of all offences with the Criminal Code . For example, early commencement of item 3 of Schedule 1 which proposes that the Code should be able to be applied regulations will facilitate progress with the harmonisation of offences in regulations with Chapter 2 of the Criminal Code . However, in many cases, the amendment will not commence until 15 December 2001. This is the date when the Chapter 2 of the Criminal Code will apply to all Commonwealth offences. Generally, the commencement in relation to those offences needs to be delayed because they are linked to other legislation or regulations which have not yet been amended.
4. The linkage to the commencement of the Theft Fraud Act is necessary because a number of the amendments proposed by this Bill are tied to, and reliant upon, amendments made by the Theft Fraud Act. For example, the Theft Fraud Act inserts section 10.5 into the Criminal Code . Section 10.5 creates general defences of lawful authority and lawful excuse. This Bill proposes that a number of provisions be amended to remove specific defences of lawful authority and lawful excuse, with a defendant then being able to rely upon the equivalent defences in section 10.5. It follows that this Bill must commence simultaneously with the Theft Fraud Act.
5. Subclauses 2(2), (3) and (4) provide for different commencement for a number of items in this Bill. Subclause 2(2) provides for the earlier commencement of the following items in Schedule 1 on the 28th day after the day on which this Bill receives Royal Assent:
- (a)
- item 1, which disapplies certain sections of the Crimes Act 1914 in relation to offences to which the Criminal Code has been applied. The early commencement of this provision is necessary because there is a significant number of offence-creating provisions throughout Commonwealth Acts to which the Criminal Code has already been applied. The effect of item 61A is to prevent there being two sets of lawful authority / excuse defence provisions and two sets of ancillary offence provisions applying to such offence-creating provisions;
- (b)
- item 2, which amends s4D of the Crimes Act 1914 ; and
- (c)
- item 3, which permits the application of the Criminal Code to regulations. As stated below, there is some doubt whether section 2.2 of the Criminal Code presently permits the application of Chapter 2 of the Criminal Code to regulations prior to the general date of application of Chapter 2 to all offences against Commonwealth law, which is stated by subsection 2.2(2) to be 15 December 2001. The amendment proposed by item 3 is designed to remove any doubt in this regard and make it clear that if the Governor-General has power under any Act to make regulations then that power includes the power to apply the Criminal Code to those regulations. It is clearly desirable that this provision commence as soon as possible.
6. Subclause 2(3) effectively defers the commencement of the items in Schedule 51 by providing for commencement on the date specified in subsection 2.2(2) of the Criminal Code , which is 15 December 2001. These items are:
- (a)
- items 1, 2 and 3, which consequentially amend the Commonwealth Places (Application of Laws) Act 1970 ( Commonwealth Places Act) in view of the impending application of the Criminal Code . The Commonwealth Places Act does not create any offences of its own and the deferred commencement of this provision is desirable because the ancillary provisions of the Crimes Act must remain applicable to the Commonwealth Places Act until the repeal of those ancillary provisions on 15 December 2001 (see item 4 of Schedule 51);
- (b)
- item 4, which provides for the repeal of sections 4, 5, 7, 7A, 14, 15D and 86 of the Crimes Act 1914 and the provision which disapplies these sections in relation to an offence to which the Criminal Code has been applied (section 3BB: see item 1 of Schedule 1). The deferred repeal of sections 4, 5, 7, 7A, 14, 15D and 86 is necessary because they will be required to continue in operation until 15 December 2001 in relation to provisions to which the Criminal Code has not yet been applied; and
- (c)
- item 5, which repeals paragraph 27(b) of the Transfer of Prisoners Act 1983 . It is necessary to defer commencement of this provision because the Criminal Code will not apply to this Act until 15 December 2001 and the Crimes Act provisions specified in paragraph 27(b) will be required to continue operating in that capacity until then.
7. Subclauses 2(4), 2(5), 2(6), 2(7) and 2(8) provide for the non-commencement or amended operation of the specified items where other legislation that amendments the relevant provisions in the principal Acts has or has not previously commenced as the case may be.
Clause 3: Schedule of amendments
8. Clause 3 of the Bill provides that each Act that is specified in a Schedule to the Bill shall be amended or repealed as provided in the Schedule, subject to the commencement provision as described in clause 2.
Clause 4: Transitional provision
9. Clause 4 of the Bill provides for transitional arrangements.