Explanatory Memorandum
(Circulated by authority of the Minister for Financial Services and Regulation, the Hon Joe Hockey MP)Chapter 2 - Outline
This Bill is the third Bill to introduce amendments to Treasury Portfolio legislation to comply with the requirements of the Criminal Code .
Application of the Criminal Code
The Criminal Code was enacted in 1995 to clarify criminal liability under Commonwealth statutes and commenced operation on 1 January 1997. The Criminal Code applies in two stages:
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- Any new offences created after 1 January 1997 must comply with the Criminal Code requirements, therefore, every offence must clearly set out the necessary physical and mental elements that constitute the offence; and
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- For existing offences, they must be amended to comply with the requirements by 15 December 2001. If offences are not amended by the required date, the Criminal Code will apply default mental element to the offences.
The staggered implementation was considered necessary in relation to existing offences to provide departments with sufficient time to assess the effect of the Criminal Code on portfolio legislation, and to introduce any necessary amendments.
The Criminal Code requires all Commonwealth offences to be amended to clearly set out the physical elements of an offence, and the necessary fault element for every physical element. If offences are not harmonised with the Criminal Code by 15 December, the Criminal Code will operate to apply default mental elements to all physical elements of an offence that do not otherwise contain a mental element.
The default mental elements of an offence under the Criminal Code are:
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- Where the physical element of the offence consists only of conduct, intention is the default mental element for that physical element; and
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- Where the physical element of the offence consists of a circumstance or a result, recklessness is the default mental element for that physical element.
Under the Criminal Code , all strict or absolute liability provisions must be specifically identified as such. As a result of the application of the default mental elements, without specific amendment, all offences that currently apply as strict liability or absolute liability will attract the default fault elements and shall cease to apply strictly or absolutely.
As part of the objective of the Criminal Code to clarify the operation of Commonwealth offences, all defences that are presently contained within the same provision as an offence will be extracted and relocated separately. This ensures that the elements that constitute an offence are clear, which (if any) defences are available and the standard of proof (either legal or evidential) applicable.
Amendments arising under this Bill
Schedule 1 of the Bill implements amendments to the Corporations Act 2001 , Schedule 2 contains minor consequential amendments to the Treasury Legislation Amendment (Application of Criminal Code) Act (No. 1) 2001 , and Schedule 3 implements amendments to the Financial Sector Shareholdings Act 1998 , the Insurance Contracts Act 1984 and the Commonwealth Places (Mirror Taxes) Act 1998 .
Amendments arise from:
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- Specifying the physical elements of an offence and corresponding fault elements (where they vary from those specified by the Criminal Code );
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- Specifying that an offence (or part of an offence) is one of strict or absolute liability; and
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- Clarifying the operation of defences by relocating them separately from the elements that constitute the offence itself.