Explanatory Memorandum
(Circulated by authority of the Attorney-General, the Honourable Daryl Williams AM QC MP)Schedule 2 - Amendments commencing on Royal Assent
This Item would repeal section 85S of the Crimes Act, which deals with the sending of menacing, harassing or offensive material through Australia Post. This offence would be replaced with the new offences in proposed sections 47.11 and 47.12 (see Item 4).
This Item would repeal section 85X of the Crimes Act. Section 85X makes it an offence to post dangerous or deleterious substances and things through Australia Post. This offence would be replaced with the new offences in proposed sections 47.13 and 47.15 (see Items 4 and 6).
This Item would repeal section 85Y of the Crimes Act, which deals with the sending of hoax material. The offence in section 85Y would be replaced by the offence in proposed section 47.10 (see Item 4 of Schedule 1). Although the offence in proposed section 47.10 would be taken to have commenced 16 October 2001, the repeal of the existing offence in section 85Y would not take effect until the day after Royal Assent. This is necessary to ensure that prosecutions instituted under the existing provision for offences committed after 16 October 2001 but before Royal Assent are not affected.
This Item would insert proposed sections 471.11, 471.12, 47.13 and 47.14 into the Part 10.5 of the Criminal Code. Sections 471.11, 47.12 and 47.13 contain new offences directed at the use of postal and similar services to make threats or to send material which is menacing, harassing, offensive or dangerous. Section 47.15 applies to the posting of dangerous goods through Australia Post.
Proposed section 47.11 - Using a postal or similar service to make a threat
Proposed section 47.11(1) contains offences dealing with threats to kill and threats to cause serious harm.
Proposed subsection 471.11(1) would make it an offence for a person to use a postal or like service to make to another person a threat to kill that other person or a third person with the intention of causing the other person to fear that the threat will be carried out. 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. The proposed offence is drawn from section 5.1.20 of the Model Criminal Code ( Non Fatal Offences Against the Person Report ).
Proposed subsection 471.11(2) would make it an offence for a person to use a postal or like service to make to another person a threat to cause serious harm to that other person or a third person with the intention of causing the other person to fear that the threat will be carried out. A maximum penalty of 7 years imprisonment would apply. The maximum fine would be $46,200 for a natural person and $231,000 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. The proposed offence is based on section 5.1.21 of the Model Criminal Code ( Non Fatal Offences Against the Person Report ).
The key fault element of the threat offences is the intention to intimidate or instil fear in the victim. However, there is no requirement that the threats actually instil fear in the victim. A threat can be express or implied and may be conditional or unconditional (proposed subsection (3)).
At present, the Crimes Act only contains an offence relating to the sending of menacing, harassing or offensive material, which attracts a penalty of 1 year imprisonment (section 85S). The new offences would target those who use postal services to make serious threats and provide for higher penalties to reflect the seriousness of the conduct involved.
Proposed section 471.12 - Using a postal or similar service to menace, harass or cause offence
Proposed section 47.12 would make it an offence for a person to use a postal or like service in such a way as would be regarded by a reasonable person as being, in all the circumstances, menacing, harassing or offensive. A maximum penalty of imprisonment for 2 years would apply. The maximum fine would be $13,200 for a natural person and $66,000 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.
This offence draws on the terms of the existing section 85S offence, but broadens the scope of the offence in relation to menacing or harassing material by removing the requirement that the recipient be in fact menaced or harassed and replacing it with an objective standard. The new offence also increases the existing penalty of 1 year imprisonment to 2 years, in line with the suggested penalty for the draft Model Criminal Code threat to cause harm offence ( Non Fatal Offences Against the Person Report ).
In practice, the offence would cover material that would make a person apprehensive as to his or her safety or well-being or the safety of his or her property as well as material containing offensive or abusive language or derogatory religious, racial or sexual connotations.
Proposed section 47.13 - Causing a dangerous article to be carried by a postal or similar service
Proposed section 47.13 would make it an offence for a person to use a postal or similar service to send an article in a way that gives rise to a danger of death or serious harm to another person, where the first person is reckless as to the danger of death or serious harm. 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.
Proposed subsections (2), (3), (4) and (5) clarify the meaning of the phrase danger of death or serious harm. Subsection (2) provides that exposing a person to a disease that may give rise to a danger of death or serious harm to that person is to be treated as equivalent to exposing them to that danger. Subsection (3) specifies that for the offence to be committed the danger must be real and not merely theoretical. However, subsection (4) provides that a persons conduct may give rise to a danger of death or serious harm whatever the degree of risk involved, and subsection (5) makes it clear that the offence is concerned with potential rather than actual danger.
Serious harm is harm that endangers, or is likely to, endanger a persons life or that is likely to be significant and longstanding and includes harm to a persons mental health (section 475.1, Criminal Code).
The proposed offence draws on the endangerment offences in sections 5.1.25 and 5.1.26 of the Model Criminal Code ( Non Fatal Offences Against the Person Report ). The offence is designed to prohibit in general terms the sending of dangerous goods through a postal or like service in a manner which creates a risk of death or serious harm, but to allow for goods to be sent where they are safely packaged.
The offence would extend to all postal and similar services rather than being limited to Australia Post, a limitation that applies under the existing offence in section 85X of the Crimes Act. However, a separate offence specific to Australia Post would be retained in proposed section 471.15. As the offence applies to the use of services other than Australia Post, the limited definition of carry by post in the Australian Postal Corporation Act 1989 is expressed not to apply to this offence.
The offence, together with the offence in proposed section 471.15, would replace the existing offences in section 85X of the Crimes Act. Section 85X currently contains three offences dealing with the carriage of dangerous or deleterious substance or things by Australia Post. Under the existing offences, causing a totally prohibited substance or thing to be carried by Australia Post attracts a penalty of up to ten years. Causing a standard regulated substance or thing to be carried by Australia Post otherwise than in accordance with terms and conditions set by Australia Post carries a penalty of up to 5 years imprisonment. Causing a specially regulated substance or thing to be carried other than in accordance with permission granted by Australia Post attracts a penalty of up to 2 years imprisonment.
The terms of the existing offences were not appropriate for general application to all postal and similar services for a number of reasons. First, the offence was not designed to cover services other than Australia Post. Some courier and parcel and packet carrying services carry goods that could be regarded as dangerous or deleterious, provided the goods are properly packaged and labelled. Accordingly, it is not possible to continue the complete prohibition on the sending of specified "dangerous and deleterious" substances. The new offence would allow postal services to continue to carry certain "dangerous goods" but would require the goods to be packaged in such a way that they do not present any risk of serious harm.
Second, under the existing offence, if Australia Post permits certain types of goods to be posted in accordance with specified conditions, those goods fall into the category of standard regulated substances or things and a failure to comply with those conditions can only attract a penalty of up to 5 years imprisonment. As a consequence, posting anthrax, for example, would only be punishable by up to 5 years imprisonment under the existing offence because Australia Post terms and conditions permit the postage of infectious biological substances in certain circumstances. Under the amendments, a 10 year imprisonment maximum penalty would apply in all cases.
This Item inserts references to proposed sections 471.11, 471.12, 47.13 into section 471.14. Section 47.14 would apply Category A geographical jurisdiction to the offences in those sections (see the discussion in relation to Item 4 of Schedule 1).
This Item inserts proposed section 47.15 into Part 10.5 of the Criminal Code.
Proposed section 47.15 - Causing an explosive, or a dangerous or harmful substance, to be carried by post
Proposed section 47.15 would make it an offence for a person to cause to be carried by post an explosive or a dangerous or harmful substance or thing that is prescribed in the regulations. The maximum penalty for the offence would be 10 years imprisonment. 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.
It is necessary to have the scope to add items by regulation, because the specific items that are prohibited for posting with Australia Post may change at short notice, including where new types of goods come into existence
The proposed offence replicates the existing offence in subsection 85X(2) of the Crimes Act. Like the existing offence, the proposed offence would only apply where the dangerous goods are lodged for carriage by Australia Post, because the term carry by post is given the same meaning as in the Australian Postal Corporation Act 1989 (section 470.1, Criminal Code) where it means carried by or through Australia Post (section 4).
It is necessary to include this offence in addition to the broader dangerous goods offence in proposed section 47.13 in order to maintain the current prohibition on posting explosives and other prescribed dangerous substances through Australia Post while also ensuring that all postal and similar services are covered by a general offence. It is not appropriate to completely prohibit the sending of explosives or other specified substances in the general offence as some postal and courier services carry explosives and other dangerous articles provided they are packaged in such a way that they do not present any risk of harm. However, a more prescriptive offence is justified in relation to Australia Post, as Australia Post specifically prohibits the carriage of explosives and also deals with a high volume of mail.
Proposed subsection (2) would apply Category C geographical jurisdiction, as set out in section 15.3 of the Criminal Code, to the offence. 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 appropriate to apply Category C geographical jurisdiction to the proposed offence because the offence only applies where articles are posted through Australia Post.