Senate

Second Reading Speech

Senator Ian Campbell (Parliamentary Secretary to the Minister for Communications, Information Technology and the Arts)

-I move:

That thise bill be now read a second time.

I seek leave to have the second reading speeches incorporated in Hansard.

Leave granted.

The purpose of this Bill is to amend certain offence provisions in the Agriculture, Fisheries and Forestry portfolio to harmonise them with Chapter 2 of the Criminal Code.

Chapter 2 of the Criminal Code, contained in the Criminal Code Act 1995, establishes a cohesive set of general principles of criminal responsibility. It provides a standard approach to the formulation of Commonwealth criminal offences and will apply to all Commonwealth offence provisions from 15 December 2001.

A key feature of the Criminal Code is the division of each criminal offence into physical elements of conduct, circumstance and result, each of which has an attaching fault element. Fault elements are either directly prescribed in the body of an offence provision or are imposed by default by the Criminal Code in the absence of express provision. The standard fault elements dealt with in the Criminal Code are intention, knowledge, recklessness and negligence. To prove an offence, the prosecution is required to prove both the specified physical elements and the related fault elements. The purpose behind this structure is to provide clarity in relation to the scope and effect of each offence, which has been an uncertain matter since the beginning of the common law system, and to give consistency as to how criminal offences are to be interpreted by courts.

An important component of the Bill is to provide clarity about the application of strict liability to some offence-creating provisions. Under the Criminal Code an offence must specifically identify strict liability, or the prosecution will be required to prove fault in relation to each element of the offence. This is necessary to ensure that the strict liability nature of some provisions is not lost in the transition to application of the Criminal Code's general principles. If relevant offences are not adjusted in this manner then many will become more difficult for the prosecution to prove, which will therefore reduce the protection which was originally intended to be provided by the offence. It should be noted that it is not proposed to create any new strict liability offences in this Bill.

In addition the Bill makes a number of other amendments, including:

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Applying the Criminal Code to AFFA portfolio Acts except, in some cases, the part of the Code dealing with corporate criminal liability;

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Clarifying provisions that use the phrase 'for the purpose of...';

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Amending fault elements which, when applied to certain physical elements, are inconsistent with the Criminal Code;

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Putting defences into separate provisions to clarify that they are defences rather than elements of the offence; and

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Replacing references to old Crimes Act provisions with references to the corresponding Criminal Code provisions.

The amendments in this Bill will ensure that existing criminal offences and related provisions in the Agriculture, Fisheries and Forestry portfolio continue to operate after application of the Criminal Code as they do at present.