House of Representatives

Explanatory Memorandum

Circulated by authority of the Attorney-General, the Honourable Robert McClelland MP

Schedule 10 - Amendments consequential on enactment of joint commission offence

GENERAL OUTLINE

Schedule 10 contains consequential amendments that ensure that references to the extensions of criminal responsibility provisions in Part 2.4 of the Criminal Code Act 1995 are correct.

Part 2.4 of the Criminal Code (sections 11.1 - 11.6) contains provisions designed to extend criminal responsibility to persons who do not actually commit an offence, but:

•

attempt to commit an offence (attempt at 11.1)

•

are accomplices to the commission of an offence (complicity and common purpose at 11.2)

•

procure the commission of an offence by an agent (innocent agency at 11.3)

•

incite the commission of an offence, (incitement at 11.4) or

•

conspire with another person to commit an offence (conspiracy at 11.5).

Amendments consequential upon the enactment of joint commission

The Crimes Legislation Amendment (Serious and Organised Crime) Bill introduced a new joint commission provision to be inserted into section 11.2A of the Criminal Code.

Joint commission applies when two or more people agree to commit an offence together, and an offence is committed under that agreement. The effect of joint commission is that responsibility for criminal activity engaged in under the agreement by one member of the group is extended to all other members of the group.

Given that joint commission is a provision that extends criminal responsibility for offences, it has been inserted into Part 2.4 of the Criminal Code, alongside other provisions that extend criminal responsibility to persons who were not wholly responsible for committing an offence.

Schedule 10 contains consequential amendments that include a reference to this new provision in other pieces of Commonwealth legislation, alongside existing references to the current extensions of criminal responsibility provisions in the Criminal Code.

A reference to joint commission has been added to each existing provision that refers to the complicity and common purpose provision in 11.2 of the Criminal Code because joint commission is a closely related extension of criminal responsibility.

Item 1

This item inserts a reference to section 11.2A of the Criminal Code into subparagraph 199(9)(b)(ii) of the Aboriginal and Torres Strait Islander Act 2005 .

This is a consequential amendment, which includes a reference to the new joint commission provision inserted into section 11.2A of the Criminal Code through the Crimes Legislation Amendment (Serious and Organised Crime) Bill 2009.

Subparagraph 199(9)(b)(ii) currently refers to the complicity and common purpose provision in section 11.2 of the Criminal Code and as joint commission is a closely related extension of criminal responsibility, it is appropriate to also include a reference to the new provision.

Items 2 and 3

These items insert a reference to section 11.2A of the Criminal Code into subparagraph 75(c)(i) and paragraph 188(a) of the A New Tax System (Family Assistance )( Administration) Act 1999 .

These items are consequential amendments, which include a reference to the new joint commission provision inserted into section 11.2A of the Criminal Code through the Crimes Legislation Amendment (Serious and Organised Crime) Bill 2009.

Subparagraph 75(c)(i) and paragraph 188(a) currently refer to the complicity and common purpose provision in section 11.2 of the Criminal Code and as joint commission is a closely related extension of criminal responsibility, it is appropriate to also include a reference to the new provision.

Item 4

This item inserts a reference to section 11.2A of the Criminal Code into subparagraph 47(9)(b)(ii) of the Australian Institute of Aboriginal and Torres Strait Islander Studies Act 1989 .

This is a consequential amendment, which includes a reference to the new joint commission provision inserted into section 11.2A of the Criminal Code through the Crimes Legislation Amendment (Serious and Organised Crime) Bill 2009.

Subparagraph 47(9)(b)(ii) currently refers to the complicity and common purpose provision in section 11.2 of the Criminal Code and as joint commission is a closely related extension of criminal responsibility, it is appropriate to also include a reference to the new provision.

Item 5

This item inserts a reference to section 11.2A of the Criminal Code into paragraph 496-20(1)(a) of the Corporations (Aboriginal and Torres Strait Islander) Act 2006 .

This is a consequential amendment, which includes a reference to the new joint commission provision inserted into section 11.2A of the Criminal Code through the Crimes Legislation Amendment (Serious and Organised Crime) Bill 2009.

Paragraph 496-20(1)(a) currently refers to the complicity and common purpose provision in section 11.2 of the Criminal Code and as joint commission is a closely related extension of criminal responsibility, it is appropriate to also include a reference to the new provision.

Item 6

This item inserts a reference to section 11.2A of the Criminal Code into paragraph 1042F(2)(b) of the Corporations Act 2001 .

This is a consequential amendment, which includes a reference to the new joint commission provision inserted into section 11.2A of the Criminal Code through the Crimes Legislation Amendment (Serious and Organised Crime) Bill 2009.

Paragraph 1042F(2)(b) currently refers to the complicity and common purpose provision in section 11.2 of the Criminal Code and as joint commission is a closely related extension of criminal responsibility, it is appropriate to also include a reference to the new provision.

Items 7 and 8

These items insert a reference to section 11.2A of the Criminal Code into paragraph 50AA(2)(b) and subsection 50AA(3) of the Crimes Act 1914 .

These items are consequential amendments, which include a reference to the new joint commission provision inserted into section 11.2A of the Criminal Code through the Crimes Legislation Amendment (Serious and Organised Crime) Bill 2009.

Paragraph 50AA(2)(b) and subsection 50AA(3) currently refer to the complicity and common purpose provision in section 11.2 of the Criminal Code and as joint commission is a closely related extension of criminal responsibility, it is appropriate to also include a reference to the new provision.

Item 9

This item inserts a reference to section 11.2A of the Criminal Code into subsection 10(1) of the Crimes (Biological Weapons) Act 1976 .

This is a consequential amendment, which includes a reference to the new joint commission provision inserted into section 11.2A of the Criminal Code through the Crimes Legislation Amendment (Serious and Organised Crime) Bill 2009.

Subsection 10(1) currently refers to the complicity and common purpose provision in section 11.2 of the Criminal Code and as joint commission is a closely related extension of criminal responsibility, it is appropriate to also include a reference to the new provision.

Item 10

This item inserts a reference to section 11.2A of the Criminal Code into subsection 8(5) of the Crimes (Internationally Protected Persons) Act 1976 .

This is a consequential amendment, which includes a reference to the new joint commission provision inserted into section 11.2A of the Criminal Code through the Crimes Legislation Amendment (Serious and Organised Crime) Bill 2009.

Subsection 8(5) currently refers to the complicity and common purpose provision in section 11.2 of the Criminal Code and as joint commission is a closely related extension of criminal responsibility, it is appropriate to also include a reference to the new provision.

Items 11 - 16

These items insert a reference to section 11.2A of the Criminal Code into the following provisions of the Crimes (Ships and Fixed Platforms) Act 1992 :

•

Subsection 5A(3)

•

Subsection 18(5) (definition of offence against this Division)

•

Subsection 20(6) (definition of offence against Division 1)

•

Subsection 29(5) (definition of offence against this Part)

•

Paragraph 30(1)(b)

•

Paragraph 31(b)

These items are consequential amendments, which include a reference to the new joint commission provision inserted into section 11.2A of the Criminal Code through the Crimes Legislation Amendment (Serious and Organised Crime) Bill 2009.

The provisions listed above currently refer to the complicity and common purpose provision in section 11.2 of the Criminal Code and as joint commission is a closely related extension of criminal responsibility, it is appropriate to also include a reference to the new provision.

Item 17

This item inserts a reference to section 11.2A of the Criminal Code into paragraph 16AA(1)(b) of the Customs Administration Act 1985.

This is a consequential amendment, which includes a reference to the new joint commission provision inserted into section 11.2A of the Criminal Code through the Crimes Legislation Amendment (Serious and Organised Crime) Bill 2009.

Paragraph 16AA(1)(b) currently refers to the complicity and common purpose provision in section 11.2 of the Criminal Code and as joint commission is a closely related extension of criminal responsibility, it is appropriate to also include a reference to the new provision.

Item 18

This item inserts a reference to section 11.2A of the Criminal Code into subsection 54A(6) of the Defence Force Discipline Act 1982.

This is a consequential amendment, which includes a reference to the new joint commission provision inserted into section 11.2A of the Criminal Code through the Crimes Legislation Amendment (Serious and Organised Crime) Bill 2009.

Subsection 54A(6) currently refers to the complicity and common purpose provision in section 11.2 of the Criminal Code and as joint commission is a closely related extension of criminal responsibility, it is appropriate to also include a reference to the new provision.

Item 19

This item inserts a reference to section 11.2A of the Criminal Code into paragraph 87AA(b) of the Excise Act 1901 .

This is a consequential amendment, which includes a reference to the new joint commission provision inserted into section 11.2A of the Criminal Code through the Crimes Legislation Amendment (Serious and Organised Crime) Bill 2009.

Paragraph 87AA(b) currently refers to the complicity and common purpose provision in section 11.2 of the Criminal Code and as joint commission is a closely related extension of criminal responsibility, it is appropriate to also include a reference to the new provision.

Item 20

This item inserts a new subsection (8A) into section 61B of the Great Barrier Reef Marine Park Act 1975 . Subsection (8A) refers to section 11.2A of the Criminal Code.

This is a consequential amendment, which includes a reference to the new joint commission provision inserted into section 11.2A of the Criminal Code through the Crimes Legislation Amendment (Serious and Organised Crime) Bill 2009.

Subsection 61B(8) currently refers to the complicity and common purpose provision in section 11.2 of the Criminal Code and as joint commission is a closely related extension of criminal responsibility, it is appropriate to also include a reference to the new provision.

Item 21

This item inserts a reference to section 11.2A of the Criminal Code into subsection 3(1) (paragraph (b) of the definition of offence against this Act ) of the Historic Shipwrecks Act 1976 .

This is a consequential amendment, which includes a reference to the new joint commission provision inserted into section 11.2A of the Criminal Code through the Crimes Legislation Amendment (Serious and Organised Crime) Bill 2009.

The paragraph (b) of the definition of offence against this Act currently refers to the complicity and common purpose provision in section 11.2 of the Criminal Code and as joint commission is a closely related extension of criminal responsibility, it is appropriate to also include a reference to the new provision.

Item 22

This item inserts a reference to section 11.2A of the Criminal Code into paragraph 225(5)(b) of the Patents Act 1990 .

This is a consequential amendment, which includes a reference to the new joint commission provision inserted into section 11.2A of the Criminal Code through the Crimes Legislation Amendment (Serious and Organised Crime) Bill 2009.

Paragraph 225(5)(b) currently refers to the complicity and common purpose provision in section 11.2 of the Criminal Code and as joint commission is a closely related extension of criminal responsibility, it is appropriate to also include a reference to the new provision.

Item 23

This item inserts a reference to section 11.2A of the Criminal Code into subsection 99A(9) of the Privacy Act 1988 .

This is a consequential amendment, which includes a reference to the new joint commission provision inserted into section 11.2A of the Criminal Code through the Crimes Legislation Amendment (Serious and Organised Crime) Bill 2009.

Subsection 99A(9) currently refers to the complicity and common purpose provision in section 11.2 of the Criminal Code and as joint commission is a closely related extension of criminal responsibility, it is appropriate to also include a reference to the new provision.

Item 24

This item inserts a reference to section 11.2A of the Criminal Code into section 338 (paragraph (g) of the definition of serious offence ) of the Proceeds of Crime Act 2002 .

This is a consequential amendment, which includes a reference to the new joint commission provision inserted into section 11.2A of the Criminal Code through the Crimes Legislation Amendment (Serious and Organised Crime) Bill 2009.

The paragraph (g) of the definition of serious offence currently refers to the complicity and common purpose provision in section 11.2 of the Criminal Code and as joint commission is a closely related extension of criminal responsibility, it is appropriate to also include a reference to the new provision.

Item 25 and 26

These items insert a reference to section 11.2A of the Criminal Code into subparagraph 56(2)(a)(ii) and subsection 62(14) of the Sea Installations Act 1987 .

These are consequential amendments, which include a reference to the new joint commission provision inserted into section 11.2A of the Criminal Code through the Crimes Legislation Amendment (Serious and Organised Crime) Bill 2009.

Subparagraph 56(2)(a)(ii) and subsection 62(14) currently refer to the complicity and common purpose provision in section 11.2 of the Criminal Code and as joint commission is a closely related extension of criminal responsibility, it is appropriate to also include a reference to the new provision.

Item 27

This item inserts a reference to section 11.2A of the Criminal Code into paragraph 1224AB(b) of the Social Security Act 1991 .

This is a consequential amendment, which includes a reference to the new joint commission provision inserted into section 11.2A of the Criminal Code through the Crimes Legislation Amendment (Serious and Organised Crime) Bill 2009.

Paragraph 1224AB(b) currently refers to the complicity and common purpose provision in section 11.2 of the Criminal Code and as joint commission is a closely related extension of criminal responsibility, it is appropriate to also include a reference to the new provision.

Item 28

This item inserts a reference to section 11.2A of the Criminal Code into paragraph 288(a) of the Social Security (Administration) Act 1999 .

This is a consequential amendment, which includes a reference to the new joint commission provision inserted into section 11.2A of the Criminal Code through the Crimes Legislation Amendment (Serious and Organised Crime) Bill 2009.

Paragraph 288(a) currently refers to the complicity and common purpose provision in section 11.2 of the Criminal Code and as joint commission is a closely related extension of criminal responsibility, it is appropriate to also include a reference to the new provision.

Item 29

This item inserts a reference to section 11.2A of the Criminal Code into subsection 66(8) of the Superannuation (Resolution of Complaints) Act 1993 .

This is a consequential amendment, which includes a reference to the new joint commission provision inserted into section 11.2A of the Criminal Code through the Crimes Legislation Amendment (Serious and Organised Crime) Bill 2009.

Subsection 66(8) currently refers to the complicity and common purpose provision in section 11.2 of the Criminal Code and as joint commission is a closely related extension of criminal responsibility, it is appropriate to also include a reference to the new provision.

Item 30

This item inserts a reference to section 11.2A of the Criminal Code into subsection 150(2) of the Trade Marks Act 1995 .

This is a consequential amendment, which includes a reference to the new joint commission provision inserted into section 11.2A of the Criminal Code through the Crimes Legislation Amendment (Serious and Organised Crime) Bill 2009.

Subsection 150(2) currently refers to the complicity and common purpose provision in section 11.2 of the Criminal Code and as joint commission is a closely related extension of criminal responsibility, it is appropriate to also include a reference to the new provision.

Item 31

This item inserts a reference to section 11.2A of the Criminal Code into subsection 9(2) of the War Crimes Act 1945 .

This is a consequential amendment, which includes a reference to the new joint commission provision inserted into section 11.2A of the Criminal Code through the Crimes Legislation Amendment (Serious and Organised Crime) Bill 2009.

Subsection 9(2) currently refers to the complicity and common purpose provision in section 11.2 of the Criminal Code and as joint commission is a closely related extension of criminal responsibility, it is appropriate to also include a reference to the new provision.