Senate

Explanatory Memorandum

(Circulated by authority of the Minister for Family and Community Services, Senator the Hon Amanda Vanstone)

Outline and financial impact statement

The purpose of the Family and Community Services Legislation Amendment (Application of Criminal Code) Bill 2001 (the Bill) is to make consequential amendments to certain offence provisions in legislation administered by the Minister for Family and Community Services and the Minister for Community Services to reflect the application of the Criminal Code Act 1995 (the Code). The amendments are to ensure that the relevant offences continue to have the same meaning and operation as they do at present.

The Code is a Commonwealth Act which will alter the way in which criminal offence provisions are interpreted, including offences contained in legislation for with the Family and Community Services portfolio is responsible. The Code contains a standard approach to the formulation of criminal offences. Offences which have been developed over many years as part of the Commonwealth statutory regime are by no means standard and it is therefore necessary to make adjustment for when the Code applies to all Commonwealth offences from 15 December 2001 (as provided for in the Criminal Code Amendment (Application) Act 2000).

At present many hours of practitioners and court time are wasted in litigation about the meaning of particular fault elements or the extent to which the prosecution should have the burden of proving those fault elements. The application of the Code to all offences will improve Commonwealth criminal law by clarifying important elements of offences.

In particular, the Code 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 that distinction in the Code. The physical elements provided for by the Code are the conduct, the circumstance in which it occurs, and the result of the conduct. For every physical element, there is a corresponding fault element. The Code does not prevent an offence from specifying an alternative fault element, but the Code indicates that a default element will apply in the absence of a specified fault element. The Code establishes 4 default fault elements: intention, knowledge, recklessness and negligence. The Code provides that, for conduct, the default element is intention. For circumstance or result, the default fault element is recklessness.

The major forms of amendments provided for by this Bill are:

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making offence creating and related provisions in the Family and Community Services portfolio comply with the Code;

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applying strict liability or absolute liability to individual offences or specified physical elements of offences where necessary;

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removing the defences of lawful excuse and lawful authority that appear in certain provisions and instead placing reliance on the Code's general defence of lawful authority and lawful excuse (see section 10.5 of the Code);

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consequentially deleting references to certain provisions of the Crimes Act and replacing these with references to the equivalent Code provisions; and

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reconstructing provisions in order to clarify physical elements of conduct, circumstance and result.

The legislation involved is the A New Tax System (Bonuses for Older Australians) Act 1999, the A New Tax System (Family Assistance) (Administration) Act 1999, the Child Support (Assessment) Act 1989, the Child Support (Registration and Collection) Act 1988, the Commonwealth Services Delivery Agency Act 1997, the Data-matching Program (Assistance and Tax) Act 1990, the Disability Services Act 1986, the Farm Household Support Act 1992, the First Home Owners Act 1983, the Home Deposit Assistance Act 1982, the Home Savings Grant Act 1964, the Home Savings Grant Act 1976, the Social Security Act 1991, the Social Security (Administration) Act 1999, the Social Welfare Commission (Repeal) Act 1976.

Schedule 1 - Amendment of Acts

Schedule 1 makes consequential amendments to certain offence provisions in legislation administered by the Minister for Family and Community Services and the Minister for Community Services to reflect the application of the Criminal Code Act 1995. The amendments are not intended to alter the current meaning or operation of the relevant offence provisions.

Date of Effect: Schedule 1 commences on the day after the day on which it receives the Royal Assent.

Financial Impact: There is no financial impact from these amendments.