Senate

Revised Explanatory Memorandum

(Circulated by authority of the Minister for Justice and Customs, Senator The Honourable Amanda Vanstone)

General outline

The Bill amends the Criminal Code Act 1995 by inserting new provisions into Chapter 2 (General Principles of Criminal Responsibility); inserting a substantial part of what will be new Chapter 7 (The Proper Administration of Government) which contains the theft, fraud, bribery and related offences; and inserting parts of new Chapter 10 (National Infrastructure) which includes some offences designed to protect postal and communications services. All these amendments are contained in the first schedule of the Bill. The second schedule contains numerous amendments to other legislation. Most of these concern the repeal of over 250 offences. These will no longer be necessary because it is intended that in future there will be reliance on the central Criminal Code offences.

The effect of the Bill is:

•

to replace existing Crimes Act 1914 offences with a more modern and transparent scheme of theft, fraud, bribery, forgery and related offences based on Chapter 3 of the Model Criminal Code;

•

to provide a modern and transparent scheme for the geographical jurisdiction of the Commonwealth criminal law by replacing the existing situation where the scope of offences is often not certain;

•

to provide additional protection for Commonwealth public officials (including Ministers and former Ministers) from violence and harassment by providing for new offences based on Chapter 5 of the Model Criminal Code which will enable the Commonwealth to prosecute those who seek to cause them harm;

•

in accordance with the 1990-1991 recommendations of the Review of Commonwealth Criminal Law to simplify and reduce the size of the Commonwealth statute book by repealing over 250 offences which cover conduct dealt with by the proposed new Criminal Code offences.

In November 1990 and June 1991 the Review of Commonwealth Criminal Law comprising of Sir Harry Gibbs, GCMG, AC, KBE, the Honourable Justice Ray Watson and Mr Andrew Menzies, AM, OBE ('the Gibbs Committee') issued reports which in part recommended a complete overhaul of the Crimes Act 1914 theft, fraud and corruption offences.

At much the same time most State and Territory Governments were also interested in reforming their law in relation to the same offences because in most cases the existing offences were outdated, too numerous and unnecessarily complex. As all Governments had committed themselves to developing a Model Criminal Code in 1991, it was not surprising that one of the early tasks for the Model Criminal Code Officers Committee (made up of State, Territory and Commonwealth criminal law advisers), was to develop a chapter on Theft, Fraud, Bribery and Related Offences. Following the circulation of discussion papers and nationwide consultation, the Committee produced a report on these offences in December 1995 ('the 1995 MCC Report').

The proposed offences in this Bill are based on the 1995 MCC Report, but also take into account recommendations of the Gibbs Committee in relation to matters which are peculiar to the Commonwealth jurisdiction. The Bill is therefore very much part of the Government's commitment to implementation of the Model Criminal Code and the development of more consistent laws around Australia.

The Bill also reflects the seriousness with which the Government views the need for propriety on the part of elected and non-elected Commonwealth public officials by providing for more comprehensive obligations and significantly increasing penalties (from a maximum of 2 to 10 years imprisonment for bribery).

The fraud provisions are also very important. Fraud against the Commonwealth is paid for by the tax payer and every dollar lost reduces the capacity for the Government to provide services and tax cuts. It is therefore essential that there be a common set of offences which outline community obligations clearly and therefore simplifying trials. The aim of the legislation in relation to the theft and fraud offences is to draw upon the experience of the UK, Victoria and the ACT by having offences based on the UK 'Theft Act' which provided for a code in relation to these offences in 1968, and at the same time updating that model in the light of more recent developments (such as new technologies). The new offences dovetail well with the Governments commitment to electronic commerce and the Electronic Transactions Act 1999. It is important that those who use new technology to dishonestly take the property of others do not avoid prosecution because the language of the relevant offences is outdated.

Finally, there needs to be physical protection for Commonwealth public officials, particularly those who put their bodies on the line to ensure that the interests of the Australian community are protected. There will be a higher penalty where the person harmed is an AFP member, on the staff of the NCA or the Australian Customs Service.

Clauses 1 and 2 of the Bill deal with the short title and commencement.

Clause 3 of the Bill inserts two Schedules. The first amends the Criminal Code Act 1995. The second amends many other laws as a consequence of the amendments to the Criminal Code Act 1995. Many of those amendments involve repealing unnecessary offences.

Schedule 1

The Criminal Code Act 1995 has a schedule which contains the Criminal Code. Most of the amendments in Schedule 1 of this Bill amend the schedule to the Criminal Code Act 1995. They are amendments to the Criminal Code.

Items 1 - 12 of Schedule 1 inserts new provisions into Chapter 2 of the Criminal Code. The most significant of these is item 12 which inserts new Part 2.7 entitled 'Geographical Jurisdiction.'

Geographical Jurisdiction

Proposed sections 14.1 to 15.4 provide for a range of geographical jurisdictional options which are to apply to all offences after the proposed legislation commences. Each time an offence is developed those responsible for it will be able to select the appropriate geographical jurisdiction. If the offence only requires a narrow territorial based geographical jurisdiction, then proposed section 14.1 will automatically apply without the need for reference to the issue. However, if it is appropriate that an offence should reach outside Australia, proposed sections 15.1 to 15.4 provide for a selection of options for extended geographical jurisdiction ranging from covering Australian nationals for what they do anywhere in the world (category A); to nationals and residents for what they do anywhere in the world (category B); and a defence which is related to what is the law in the relevant foreign country, anyone anywhere regardless of nationality or residence (category C) and anyone anywhere regardless of nationality, residence or what the law provides for in the foreign country (category D). The proposed provisions will provide for more certainty about the geographical reach of various offences and will turn the mind of legislators to this very important issue in all contexts.

Items 13 and 14 contain some minor consequential amendments to the Code, but it is Item 15 which contains the bulk of the offences in the Bill. It inserts new Chapter 7 which is entitled 'The proper administration of Government.'

Chapter 7 - The proper administration of Government

While it is envisaged that this chapter will eventually have other provisions as well (for example, damage offences) the provisions proposed in this Bill are expected to make up the bulk of Chapter 7. It contains theft, fraud, bribery, forgery and a number of related offences as well as the harm to Commonwealth public officials offences.

Part 7.1 of Chapter 7 - Preliminary

This Part is quite short and includes the key definitions for Chapter 7.

Part 7.2 of Chapter 7 - Theft and other property offences

Division 131 deals with theft of Commonwealth property. Theft has a long and complex common law tradition. The proposed offence draws heavily on the theft offences found in the UK, Victoria and the ACT where the offence has been codified for several decades. The effective operation of the offence depends upon a number of rules clearly which are clearly spelt out in Division 131. It is proposed that it should replace section 71 of the Crimes Act 1914 which relies heavily on undefined and complex common law terms. Section 71 was strongly criticised by the Gibbs Committee for its complexity. The maximum penalty for theft is 10 years imprisonment which is consistent with the penalty in other jurisdictions.

Division 131 deals with the theft related offence of receiving, but also what will be completely new offences in the Commonwealth jurisdiction: robbery, burglary and a making off without payment offence. In the Crimes Act 1914 the Commonwealth has a theft offence (section 71) but not all the related offences. This meant that there had to be reliance on State and Territory law if there was a robbery at a Commonwealth office (that is, theft by force) but Commonwealth law if there was theft without force. This was anomalous. The Commonwealth needs to have the capacity to protect its property and personnel regardless of whether force was used and the primary offence should have the same elements as the closely related offences of robbery and burglary. Robbery has a maximum penalty of 15 years imprisonment (20 years if in company or with a weapon) and burglary 13 years (17 years if in company or with a weapon).

Part 7.3 of Chapter 7 - Fraudulent conduct

Division 13.3 contains relevant definitions and Division 134 the two main fraud offences. These are dishonestly obtaining property by deception (proposed section 134.1) and dishonestly obtaining a financial advantage by deception (proposed section 134.2). Like theft the fraud offences replace offences which rely heavily on common law definitions which are not at all apparent to those reading the legislation. The new offences also follow the UK, Victorian and ACT model and carry a maximum penalty of 10 years imprisonment.

Division 135 contains other offences involving fraudulent conduct. Most of these are in addition to those recommended for inclusion in the Model Criminal Code in recognition of the vulnerability of Commonwealth assets. These include a general dishonesty offence (section 135.1) which has a maximum penalty of 5 years imprisonment and obtaining a financial advantage (section 134.2 - maximum penalty of 12 months imprisonment. The general dishonesty offence does not require proof that the defendant deceived the victim and therefore does not warrant the severe maximum penalty which attaches to fraud (10 years). Likewise the obtaining offences also warrant a much lower penalty.

Finally Division 135 also contains the offence of conspiracy to defraud (section 135.4). This offence was recommended for inclusion in the Model Criminal Code. Like the general dishonesty offence, it does not require proof of deception, but the fact that it involves an agreement between one or more people means a maximum penalty of 10 years imprisonment is appropriate. It is also an offence which previously relied heavily on common law definitions. Proposed section 135.4 will be the first time it has been codified.

Part 7.4 of Chapter 7 - False or misleading statements

Part 7.4 contains a number of minor offences which a prevalent throughout Commonwealth legislation. The idea here is to centralise them in the Criminal Code alongside other fraud related offences. This will enable the repeal of over 130 offences in other legislation and will standardise what will be required to prove. It is an important part of the Government's 'statute stocktake' initiative which is designed to simplify Commonwealth law.

Part 7.5 of Chapter 7 - Unwarranted demands

Part 7.5 includes two offences. Unwarranted demands of a Commonwealth public official (proposed section 139.1) and unwarranted demands by a Commonwealth public official (proposed section 139.2). It is the equivalent of blackmail which is what the offence is called in the Model Criminal Code. Blackmail is the name normally associated with unwarranted demands against someone in a private capacity so the word has not been used in this Bill. The proposed offence is new to Commonwealth law but is clearly needed if the Criminal Code is to have a full range of offences to protect Commonwealth interests. The proposed maximum penalty for each offence is 12 years imprisonment.

Part 7.6 of Chapter 7 - Bribery and related offences

Division 141 contains the most serious of these offences. Bribing a Commonwealth public official (proposed subsection 141.1(1)) and where a Commonwealth public official asks or receives a bribe (proposed subsection 141.1(2)). These offences will bring the domestic bribery provisions up to date and in line with the recently enacted Criminal Code Amendment (Bribery of Foreign Public Officials) Act 1999. Like the foreign public official bribery offences, the proposed maximum penalty is 10 years imprisonment. The current penalty is very low. Section 73 (bribing a Commonwealth officer) and section 73A (bribing a member of Parliament) of the Crimes Act 1914 only provide for a maximum penalty of 2 years imprisonment. This is anomalous when the maximum penalty under the Crimes Act 1914 for fraud is 10 years imprisonment. The penalty for the new offences will bring them in line with fraud.

Division 142 provides for lesser corrupt benefits and abuse of public office offences. The corrupting benefits offences (proposed section 142.1) do not require the prosecution to prove the person paying the bribe intended to influence the official in the exercise of his or her duties. Instead it is only necessary to prove the payment would tend to influence the official. The maximum penalty is therefore lower (5 years imprisonment). This offence will replace the secret commissions offences which only have a maximum penalty of 2 years imprisonment (Secret Commissions Act 1905). The secret commissions offences have a harsh reverse onus provision which is inappropriate for such a serious offence. The new offences require the prosecution to prove a tendency to influence but has more than double the penalty. A maximum of 2 years imprisonment is not an appropriate penalty for corrupt conduct.

The abuse of public office offence is also new for the Commonwealth. There are similar offences in State jurisdictions and it is based on the Model Criminal Code offence. It concerns using influence, one's duties or information acquired in an official capacity with a view to dishonestly obtaining benefits. The proposed maximum penalty is 5 years imprisonment. It is important that the standards imposed on Commonwealth public officials meet those proposed in the national model.

Part 7.7 of Chapter 7 - Forgery and related offences

Like theft, forgery can be a complicated offence if the language is obscure. The proposed offences in Division 144 will replace a range of Commonwealth forgery offences which the Gibbs Committee concluded were unacceptable in their number and variation. The previous penalties ranged from a maximum of 10 years imprisonment (section 85G of the Crimes Act 1914 ) to $1000 for forging liquor stamps. The offence involves conduct which is fraudulent in character and should carry the same 10 year maximum penalty. People rely very heavily on documentation. It is in the public interest that the penalty should be significant and certainly not less than theft or fraud.

Division 145 contains using and possession with intent to use forged document offences and a possession of a device for making forgeries offence, each with a maximum penalty of 10 years imprisonment.

In addition to them, there are also falsification of documents and giving information derived from false documents offences which carry a lower maximum penalty of 7 years imprisonment. These replace section 72 of the Crimes Act 1914 and section 61 of the Financial Management and Accountability Act 1997 which have the same penalty.

Part 7.8 of Chapter 7 - Impersonation, obstruction and causing harm offences

Commonwealth public officials, whether they be members of Parliament, judicial officers, public employees or police, are often prone to being harmed or obstructed because of their duties. There can also be considerable harm caused to them or members of the public if they are impersonated for some sinister reason. The existing offences in sections 75 and 76 of the Crimes Act 1914 carry very low maximum penalties of 2 years imprisonment yet they cover conduct which can include violence. The proposed offences provide for a more discriminating approach to the penalties.

The proposed 'causing harm' and 'threaten harm' offences provide for a maximum penalty which is in line with equivalent State and Territory offences and Chapter 5 of the Model Criminal Code. The maximum penalty is 10 years imprisonment or 13 years where the Commonwealth public official is a judicial or law enforcement officer.

It is also proposed that there be similar offences to protect former Governors-General, Ministers and Parliamentary Secretaries as proposed by the 1995 Review of Security for Commonwealth Holders of High Public Office. This will enable the Commonwealth to take action when those who have a high profile association with the Commonwealth are the subject of attacks and harassment because of their service to the community in that capacity.

Division 148 provides for impersonation offences and Division 148 an obstruction offence (maximum penalties of 2 years imprisonment). These new central offences will enable the Bill to repeal scores of varying offences in other legislation. Apart from simplifying the statute book, it will also standardise what the prosecution will need to prove. Again, the Gibbs Committee proposed a rationalisation of offences in this way in 1990. Part 7.8 will enable the repeal of over 60 offences

Part 7.20 of Chapter 7 - Miscellaneous

The numbering of this Part as 7.20 leaves room for the addition of other offences which are appropriate to include in Chapter 7 (for example, damage and computer offences). Part 7.20 saves State and Territory laws which overlap with the proposed offences so that they may be prosecuted in appropriate cases, such as where there are a series of related State charges (see proposed section 261.1). Part 7.20 also preserves contempt of court and contains some interpretative provisions.

Chapter 10 - National infrastructure

Item 16 inserts new Chapter 10 which is entitled 'National infrastructure'. This chapter will deal with the protection of any part of the national infrastructure about which the Commonwealth has power and believes it is in the national interest to protect regardless of ownership details. While the ultimate content and size of this chapter is not certain, the Crimes Act 1914 already provides for protection of the post and telecommunications (Parts VIIA and VIIB). Some of these offences are theft and fraud related, so it is proposed that they be updated and transferred from the Crimes Act 1914 to the Criminal Code. Other offences which protect the postal and telecommunications services in Parts VIIA and VIIB are likely to be moved to Chapter 10 when the Government moves to develop other parts of the Criminal Code. For example, the send narcotic substances by post offence (section 85W of the Crimes Act 1914 ) might be appropriate to move to the Criminal Code when steps are taken to enact new serious drug offences.

Part 10.5 of Chapter 10 - Postal services

Part 10.5 concerns the postal services offences. These include theft and receiving of mail bags, etc (proposed sections 471.1 and 471.2) and taking or concealing them (proposed section 471.3). These replace most of section 85K of the Crimes Act 1914. The offences are drafted in the same terms as the equivalent offences in Chapter 7, 'The proper administration of Government', but provides protection for Australia's central postal services. This approach continues the policy which existed in 1989 when the equivalent offences were first included in Part VIIA of the Crimes Act 1914. Part 10.5 merely continues the longstanding policy on these issues. The overall object is to review and move all Crimes Act 1914 offences into the Criminal Code. In some cases, like these, the policy behind the offences will remain unchanged. However, also like these, the offences will need to be adjusted to make them consistent with related Criminal Code offences.

Other Part 10.5 offences include dishonest removal of stamps or postmarks (proposed section 471.4); dishonest use of stamps (proposed section 471.5); damaging or destroying mail bags, etc (proposed section 471.6 - this replaces in part section 85K of the Crimes Act 1914 which primarily deals with other issues such as stealing articles in the post, but also their destruction); tampering with mail bags, etc (proposed section 471.7); and dishonestly obtaining delivery articles in the course of the post (proposed section 471.8).

Part 10.6 of Chapter 10 -Telecommunications

This is comprised of the offence of general dishonesty with respect to a carriage service provider (proposed section 474.1) which would replace section 85ZF of the Crimes Act 1914. As with the offences in Part 10.5, the new offence brings the wording of this offence into line with the general dishonesty offence at proposed section 135.1 of Chapter 7. The rationale for having this offence in chapter 10 is much the same as that for the postal offences and reflects the policy that was in place in 1989 when section 85ZF was first inserted into the Crimes Act 1914.

Dictionary

Items 17 to 41 deal with the Criminal Code 'Dictionary' definitions. These will be dealt in detail in the body of this memorandum.

Schedule 2

This contains the consequential amendments. It will repeal of over 250 offences which can be better covered by the central Criminal Code provisions.

Financial impact statement

It is not possible to assess what impact the Bill will have on Commonwealth expenditure or revenue except that it should be positive. This is because the Bill will contribute to a simplification of the law, greater national consistency and deterrence of those who might consider committing theft, fraud, bribery and related offences because it provides for higher penalties and more comprehensive provisions. The crimes covered by this Bill cost the Commonwealth significant resources.