Explanatory Memorandum
(Circulated by authority of the Minister for Financial Sevices and Regulation, the Hon. Joe Hockey, MP)General Outline and Financial Impact
General Outline
The purpose of this Bill is to make consequential amendments to certain offence provisions in legislation, for which the Treasurer has ministerial responsibility, to reflect the application of the Criminal Code Act 1995 . Some consequential amendments are also proposed for provisions of the Trade Practices Act 1974 that are administered by the Minister for Communications, Information Technology and the Arts.
The Criminal Code Act 1995 (the Code) is a Commonwealth Act which will alter the way in which criminal offence provisions are interpreted, including offences contained in legislation for which the Treasury portfolio is responsible. While the Code was passed in 1995, it commenced to apply to new offences from 1 January 1997, and all new offences are now drafted according to the requirements of the Code. Staggered implementation was considered necessary in relation to existing offences to provide Departments and agencies with sufficient time to assess the effect of the Code on their offence provisions, and to make any amendments necessary to their legislation. The Code is scheduled to apply to pre-existing offences from 15 December 2001.
If legislation containing offence provisions is not amended to have regard to the Code, the Code may alter the interpretation of the existing offence provisions.
The Code contains subjective, fault-based principles of criminal responsibility. The defendants guilt will depend on what he or she thought or intended at the time of the offence, rather than what a reasonable person would have thought or intended in the defendants circumstances. The changes to be brought about by the Code reflect the view that proof of a guilty mind is generally necessary before a person can be found guilty of an offence.
The most significant effect of the Code is that it clarifies the traditional distinction between the actus reus (the physical act, now referred to as the physical element) and the mens rea (what the defendant thought or intended, now referred to as the fault element) and sets out this distinction in the Code.
The prosecution bears the onus of proving each of the physical elements. The physical elements provided in the Code are the conduct, the circumstances in which it occurs, and the result of the conduct. Each offence must contain at least one of these physical elements, but any combination of physical elements may be present in an offence provision. For every physical element of an offence, the prosecution must also prove a corresponding fault element. The Code establishes four basic fault elements: intention, knowledge, recklessness and negligence. The Code does not prevent an offence from specifying an alternative fault element, but the Code indicates that the default fault element will apply in the absence of another specified fault element. The Code provides that for conduct, the default element is intention. For circumstance or result, the default fault element is recklessness.
Amendments arising from this Bill
This Bill makes amendments to the following Acts:
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- Superannuation (Resolution of Complaints) Act 1993 ;
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- Trade Practices Act 1974;
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- Taxation Administration Act 1953;
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- Development Allowance Authority Act 1992;
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- Diesel and Alternative Fuels Grants Scheme Act 1999;
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- Distillation Act 1901;
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- Excise Act 1902;
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- Fringe Benefits Tax Assessment Act 1986;
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- Income Tax Assessment Act 1936;
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- Income Tax Assessment Act 1997;
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- Petroleum Resource Rent Tax Assessment Act 1987;
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- Product Grants and Benefits Administration Act 2000;
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- Spirits Act 1906;
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- Superannuation Guarantee (Administration) Act 1992;
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- Taxation (Interest on Overpayments and Early Payments) Act 1983;
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- Tobacco Charges Assessment Act 1955; and
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- Wool Tax (Administration) Act 1964.
The amendments arise from the requirement to:
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- recognise the application of the Code;
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- specify that an offence is one of strict or absolute liability;
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- clarify the fault elements of an offence (especially where these fault elements vary from those specified by the Code);
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- separate defences from offences and identify the evidential burden in relation to a defence;
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- replace references to provisions of the Crimes Act 1914 with references to corresponding provisions in the Code; and
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- convert penalties expressed in dollar amounts into penalty units.
The Treasury Legislation (Application of Criminal Code) Bill (No. 1) 2001 has previously been introduced and amends the Financial Sector Shareholdings Act 1998 , Foreign Acquisitions and Takeovers Act 1975 , Insurance Act 1973 , Life Insurance Act 1995 , Prices Surveillance Act 1983, Productivity Commission Act 1998 , Retirement Savings Accounts Act 1997 , Superannuation Industry (Supervision) Act 1993 and aspects of the Trade Practices Act 1974 which do not require consultation with the States.
It is proposed to introduce a third Bill to make consequential amendments to the Corporations Law and the Australian Securities and Investments Commission Act 1989 .
Financial impact statement
As the Bill merely makes consequential amendments to the criminal law, there is no financial impact.