Explanatory Memorandum
(Circulated by authority of the Attorney-General, the Honourable Daryl Williams AM QC MP)Schedule 1 - Amendments commencing on 16 October 2001
This Schedule inserts into the Criminal Code a new offence dealing with the use of the post or a similar service to send hoax material. This offence is dealt with in a separate schedule to the other proposed offences because it has retrospective operation, whereas the other offences commence on Royal Assent.
The amendments contained in Schedule 1 are taken to have commenced at 2pm on 16 October 2001. This is the time and date at which the Prime Minister publicly announced the proposed new offence for sending hoax material, which is contained in the Schedule. The Prime Minister stated that the offence would commence from the time of the announcement.
This Item inserts a definition of the term constitutional corporation into section 470.1 of the Criminal Code. A constitutional corporation is a foreign, trading or financial corporation as referred to in paragraph 51(xx) of the Constitution. The new offences would extend to courier services and parcel or packet carrying services that are provided by a constitutional corporation. This definition is one of the mechanisms that aligns the ambit of the offences with the scope of Commonwealth legislative power under the Constitution.
This Item inserts a definition of the term postal or similar service into section 470.1 of the Criminal Code. The definition is designed to extend the application of the new offences in proposed sections 471.10, 471.11, 47.12 and 47.13 to all postal services, courier services and parcel or packet carrying services, to the extent they are within Commonwealth constitutional power. The definition provides a number of links with Commonwealth constitutional power, namely, Commonwealth power with respect to postal and other like services; overseas and interstate trade and commerce; and foreign, trading and financial corporations. This definition, and hence the offence, draw on these particular heads of power because they have a clear relationship to commercial postal, courier and parcel carrying services.
This Item amends section 471.9 of the Criminal Code to ensure that Category C geographical jurisdiction only applies to the existing postal offences in Part 100 of the Criminal Code and not to the proposed offences in this Bill (excepting the offence in proposed section 471.15).
Category C geographical jurisdiction is unrestricted and applies whether or not the conduct or the result of the conduct constituting the alleged offence occurs in Australia. It is not appropriate to apply Category C geographical jurisdiction to the proposed offences because, unlike the existing offences, the new offences in proposed sections 471.11, 47.12 and 47.13 would apply to all postal and like services and not just Australia Post. The application of Category C geographical jurisdiction to the proposed offences would mean that they would cover conduct which has no relevance to Australia, for example, where a person posts dangerous goods within the United States. Proposed section 47.14 would apply the more limited Category A geographical jurisdiction to the proposed offences (see Item 4).
This Item inserts proposed sections 47.10 and 47.14 into the Criminal Code. Proposed section 47.10 contains the new anti-hoax offence and proposed section 47.14 sets out the geographical jurisdiction for that offence.
Proposed section 47.10 - Hoaxes-explosives and dangerous substances
Proposed section 47.10 would make it an offence to cause an article to be carried by a postal or similar service with the intention of inducing a false belief in another person that the article contains an explosive, dangerous or harmful thing or that an explosive, dangerous or harmful thing will be left in any place. A maximum penalty of 10 years imprisonment would apply. The maximum fine would be $66,000 for a natural person and $330,000 for a body corporate under the existing $110 value for a penalty unit in section 4AA of the Crimes Act, and the provisions for calculating maximum fines in section 4B of that Act.
Following the terrorist acts of 11 September 2001, there have been a significant number of false alarms involving packages or letters containing apparently hazardous material, which have highlighted the need for tough penalties to deter such malicious and irresponsible actions. The new hoax offence would attract a higher penalty (in place of the existing 5 year penalty offence) and would also apply more broadly to any postal or similar service, rather than being limited to Australia Post. For that reason, the limited definition of carry by post under the Australian Postal Corporation Act 1989 , as applied by section 470.1 of the Criminal Code, is expressed not to apply to this offence.
The new offence would operate retrospectively to 16 October 2001 (see section 2). This is the time and date at which the Prime Minister publicly announced the new offence.
Proposed section 47.14 - Geographical jurisdiction
Proposed section 47.14 would apply Category A geographical jurisdiction, as set out in section 150 of the Criminal Code, to the offence in proposed section 471.10. Category A geographical jurisdiction would also apply to the offences in proposed sections 471.11, 471.12 and 47.13 (Item 5 of Schedule 2 inserts references to those offences into section 471.14).
Category A geographical jurisdiction will be satisfied if (i) the conduct constituting the offence occurs wholly or partly in Australia, or wholly or partly on board an Australian aircraft or an Australian ship; (ii) a result of the conduct occurs wholly or partly in Australia or wholly or partly on board an Australian aircraft or an Australian ship; or (iii) at time of the alleged offence the person charged with the offence was an Australian citizen or body corporate. Where the conduct constituting an offence occurs wholly in a foreign country and only a result occurs in Australia, there is a defence available if there is no corresponding offence in that foreign country. However, that defence is not available if jurisdiction is to be exercised on the basis of the person's nationality.
The application of Category A jurisdiction to the offences in this Bill would mean that, regardless of where conduct constituting an offence occurs, if the results of that conduct affect Australia the person responsible would generally be able to be prosecuted in Australia. For example, a person in the United States who sends a letter containing a death threat to a recipient in Australia would commit the offence.