Explanatory Memorandum
(Circulated by authority of the Attorney-General, the Hon Mark Dreyfus KC MP)GENERAL OUTLINE
1. The purpose of the Criminal Code Amendment (Protecting Commonwealth Frontline Workers) Bill 2024 is to strengthen protections for Commonwealth frontline workers by amending existing offences in the Criminal Code (Cth) (the Criminal Code). These amendments respond to the heightened workplace health and safety risks faced by Commonwealth workers in government service-delivery, compliance and other public facing roles and ensure that relevant penalty provisions more closely reflect the risks faced.
2. The Bill addresses recommendation 18 of the Services Australia Security Risk Management Review conducted in 2023 by Mr Graham Ashton AM APM (the Ashton Review). The Ashton Review was commissioned by the Minister for Government Services, the Hon Bill Shorten MP, following the assault of a staff member with a bladed weapon at a Services Australia service centre in May 2023. Recommendation 18 stated that consideration be given to 'the creation of a national penalty provision and associated state and territory supportive amendments for the assault of a Commonwealth frontline worker.'
3. Subsection 147.1(1) of the Criminal Code provides a maximum penalty of 10 years' imprisonment for the offence of causing harm to a Commonwealth public official. However, where the official is a Commonwealth judicial officer or a Commonwealth law enforcement officer, the maximum penalty increases to 13 years' imprisonment (refer paragraphs (g) and (f) respectively).
4. Similarly, subsection 147.2(1) of the Criminal Code provides a maximum penalty of 7 years' imprisonment for threatening to cause serious harm to a Commonwealth public official. However, where the official is a Commonwealth judicial officer or a Commonwealth law enforcement officer, the maximum penalty increases to 9 years' imprisonment (refer paragraphs (f) and (e) respectively).
5. The Bill will place Commonwealth frontline workers on the same footing as Commonwealth judicial officers and Commonwealth law enforcement officers and bring them within the aggravated forms of both offences to which higher maximum penalties apply. This is achieved by:
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- inserting the term 'Commonwealth frontline worker' at section 146.1 of the Criminal Code; and
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- extending the higher penalty provisions, outlined in sections 147.1(1)(f) and 147.2(1)(e), to circumstances where the Commonwealth public official is a Commonwealth frontline worker.
6. The Bill defines a Commonwealth frontline worker as a Commonwealth public official who performs work requiring the person to deal directly (whether or not in person) with the public, or a class of the public, as a primary function of their role.
7. The Bill also contains a mechanism to prescribe one or more categories of workers as frontline workers for the purpose of the relevant offences.
8. These amendments will send a powerful message to Commonwealth frontline workers that they are valued and that violence and aggression towards them will not be tolerated and will be met with serious penalties.
9. Harmful and threatening conduct against Commonwealth public officials who do not fall within the category of Commonwealth frontline workers (or Commonwealth judicial officials or Commonwealth law enforcement officials) will continue to be prosecuted under the standard offence provisions in subsections 147.1(1) and 147.2(1), for which the maximum penalties are 10 and 7 years' imprisonment respectively.
FINANCIAL IMPACT
10. Nil.
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
Criminal Code Amendment (Protecting Commonwealth Frontline Workers) Bill 2024
11. The Bill is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.
12. The Bill promotes the right to safe and healthy work conditions and enhances protections against violence and abuse, by increasing penalties for certain criminal offences in order to deter violence and aggression against Commonwealth frontline workers.
12. To the extent that these amendments may have implications for the rights and freedoms of individuals found guilty of such offences through the criminal justice process, such limitations are reasonable, necessary and proportionate in achieving the intended outcomes of the Bill.
Overview of the Bill
13. The Bill strengthens protections for Commonwealth frontline workers by:
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- inserting and defining the term 'Commonwealth frontline worker' in section 146.1 of the Criminal Code; and
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- extending the higher penalties set out in paragraphs 147.1(1)(f) and 147.2(1)(e) of the Criminal Code for the offences of causing harm or threatening to cause serious harm to a Commonwealth public official, to Commonwealth frontline workers.
14. A Commonwealth frontline worker is defined as a Commonwealth public official who performs work requiring the person to deal directly (whether or not in person) with the public, or a class of the public, as a primary function of their role.
15. For the avoidance of doubt, the Bill also contains a mechanism to prescribe one or more categories of workers as frontline workers for the purpose of the relevant offences.
Human rights implications
16. The Bill engages directly or indirectly with the following human rights:
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- Article 19(1) and 19(2) of the International Covenant on Civil and Political Rights (ICCPR) – the rights to freedom of opinion and expression,
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- Article 20(2) of the ICCPR – the right to protection against violence and abuse, and
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- Article 7(b) of the ICCPR – the right to safe and healthy working conditions.
The rights to freedom of opinion and expression
17. Article 19(1) of the ICCPR provides that everyone has the right to hold opinions without interference and Article 19(2) provides that everyone has freedom of expression, including the freedom to impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art or through any other media of their choice.
18. The exercise of the rights provided for in this article may be subject to certain restrictions, as set out in Article 19(3) of the ICCPR, including for the respect of the rights or reputations of others or for the protection of public order.
19. The aim of these amendments is to address the increasing risk of harm faced by Commonwealth frontline workers in the course of their day-to-day work, providing essential government services and functions to the public. The amendments are consistent with the rights to freedom of opinion and expression. The amendments do not unduly restrict these rights because the definition of harm in section 146.1 limits the offences in sections 147.1(1) and 147.2(1) to serious forms of harm like physical harm and harm to a person's mental health.
The right to protection against violence and abuse
20. Article 20(2) of the ICCPR prohibits any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence.
21. The Ashton Review found that Commonwealth frontline workers are facing increasingly violent and aggressive behaviour in the workplace in their dealings with the public. These amendments send a strong message to the community that violence and aggression against Commonwealth frontline workers will not be tolerated and serious penalties will apply to such conduct.
The right to safe and healthy working conditions
22. Article 7(b) of the ICCPR recognises that everyone has the right to the enjoyment of just and favourable conditions of work and ensures, in particular, the right to safe and healthy working conditions.
23. The Bill promotes this right by increasing the maximum penalties available to the court when an offender commits harm against or threatens to cause serious harm to a Commonwealth frontline worker. The increased penalties are intended to create a stronger deterrent for such behaviour and highlight the intolerance for such behaviours in the workplace.
Conclusion
24. In summary, the Bill is compatible with human rights because it:
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- aims to actively deter harm, or threats of serious harm, towards Commonwealth frontline workers by increasing the penalty provisions for the relevant offences in the Criminal Code,
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- actively promotes the right to a workplace that is safe and healthy, and
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- does not unduly or impermissibly constrain the rights to freedom of opinion and expression because of the definition of harm contained within the relevant offence provisions.
25. The Bill does not alter or in any way diminish the protections available to an accused in a criminal trial in Australia, including through the presumption of innocence and the right to a fair trial.
NOTES ON CLAUSES
Preliminary
Clause 1 – Short title
26. Clause 1 provides for the short title of the Act to be the Criminal Code Amendment (Protecting Commonwealth Frontline Workers) Act 2024.
Clause 2 – Commencement
27. Clause 2 provides that the whole of the Act will commence on the day after the Act receives Royal Assent.
Clause 3 – Schedules
28. Clause 3 provides that legislation that is specified in a Schedule to the Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to the Bill has effect according to its terms.
SCHEDULE 1 – EXPANDING PROTECTIONS FOR COMMONWEALTH FRONTLINE WORKERS
Commonwealth Criminal Code Act 1995
Item 1 – Section 146.1 of the Criminal Code
29. This item inserts "(1)" before "In this part", reflecting the expansion of the section to multiple subsections.
Item 2 – Section 146.1 of the Criminal Code
30. This item refers to the definition of 'Commonwealth frontline worker' as having the meaning given to it by new subsection 146.1(2) of the Criminal Code.
Item 3 - At the end of section 146.1 of the Criminal Code
31. This item inserts the term 'Commonwealth frontline worker' into the Criminal Code. This inclusion acknowledges that Commonwealth frontline workers perform vital public functions but, unfortunately, face increasing and additional risks when delivering services or undertaking their work.
32. The term 'Commonwealth frontline worker' is defined as a person:
- a)
- who is a Commonwealth public official; and
- b)
- who performs work requiring the person to deal directly (whether or not in person) with the public, or a class of the public, as a primary function of their role; and
- c)
- who is not a Commonwealth judicial officer or a Commonwealth law enforcement officer.
33. This definition focuses on the nature of the role being performed – specifically, the requirement for the Commonwealth public official to deal directly (whether or not in person) with the public, or a class of the public, as a primary function of their role. In this way, it is intended to capture a variety of Commonwealth public officials, including but not limited to:
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- service centre staff and team leaders (including at face-to-face and virtual service centres)
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- security guards
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- call centre operators
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- inspectors and compliance officers, such as officers exercising monitoring or investigation powers under the Regulatory Powers (Standard Provisions) Act 2015
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- interpreters
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- public-facing staff in electorate offices, and
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- service staff at relief and emergency centres, such as during a natural disaster.
34. Subsection (3) sets out that specific categories of workers can be prescribed in regulations as being frontline workers for the purposes of the Act.
Item 4 – Subsection 147.1(1)(paragraph (f) of the penalty) of the Criminal Code
35. This item omits "or a Commonwealth law enforcement officer" and substitutes ", a Commonwealth law enforcement officer or a Commonwealth frontline worker". The effect of this amendment is to increase the maximum penalty for causing harm to a Commonwealth frontline worker from 10 years' imprisonment to 13 years' imprisonment.
36. This item aligns the penalties for causing harm to a Commonwealth frontline worker with the existing higher penalties applicable for the same conduct against a Commonwealth judicial officer or a Commonwealth law enforcement officer. This is necessary to address the increasing levels of violence and aggression experienced by Commonwealth frontline workers in the course of performing their work and to send a powerful message to the community that this violence and aggression is not acceptable and will be met with serious penalties.
Item 5 – Paragraph 147.1(1B)(b) of the Criminal Code
37. This item provides that, where the court is satisfied it is proper to do so, an offence of causing harm to Commonwealth frontline worker may be tried summarily with the consent of the defendant and the prosecutor.
Item 6 – Subsection 147.2(1) (paragraph (e) of the penalty) of the Criminal Code
38. This item omits "or a Commonwealth law enforcement officer" and substitutes ", a Commonwealth law enforcement officer or a Commonwealth frontline worker". The effect of this amendment is to increase the maximum penalty for threatening to cause serious harm to a Commonwealth frontline worker from 7 years' imprisonment to 9 years' imprisonment.
39. This item aligns the penalties for threatening to cause serious harm to a Commonwealth frontline worker with the existing higher penalties applicable for the same conduct against a Commonwealth judicial officer or a Commonwealth law enforcement officer. This is necessary to address the increasing levels of violence and aggression experienced by Commonwealth frontline workers in the course of performing their work and to send a powerful message to the community that this violence and aggression is not acceptable and will be met with serious penalties.
Item 7– Application of amendments
40. The amendments to the Criminal Code made by this Schedule apply in relation to any conduct engaged in after the commencement of this Schedule.