House of Representatives

Second Reading Speech

Mr Entsch (Parliamentary Secretary to the Minister for Industry, Science and Resources)

I move:

That the bill be now read a second time.

The purpose of the Industry, Science and Resources Legislation Amendment (Application of Criminal Code) Bill 2001 is to amend certain offence provisions in legislation within the Industry, Science and Resources portfolio to reflect the application of the Criminal Code Act 1995 (the Criminal Code) to all criminal offences in Commonwealth laws.

The amendments are intended to ensure that when chapter 2 of the Criminal Code Act 1995 (the code) is applied from 15 December 2001 to all Commonwealth criminal offences, those provisions will continue to operate in the same manner as they operated previously. If legislation containing offence provisions were not amended to have regard to the Code, the code, upon coming into operation, may alter the interpretation of existing offence provisions.

The Criminal Code is set out in schedule 2 to the Criminal Code Act 1995. It contains the general principles of criminal responsibility that will apply to all Commonwealth criminal offences when the Criminal Code Act comes into force, on and after 15 December 2001.

Chapter 2 of the Criminal Code codifies the general principles of criminal law and adopts the common law approach of subjective fault based principles. It adopts the traditional distinction of dividing offences into their physical elements (the actus reus) and fault elements (mens rea). The general rule is that for each physical element of an offence it is necessary to prove that the defendant had the relevant fault element. The prosecution must prove every physical and fault element of an offence. The physical elements are `conduct', `result of conduct' and `circumstances of conduct' and the fault elements specified in the Criminal Code are `intention', `knowledge', `recklessness' and `negligence'.

The 'default fault elements', which the Criminal Code provides, will apply where a fault element is not specified and where the offence (or an element of the offence) is not specified to be a strict or absolute liability offence. The default fault elements set out in the Criminal Code are `intention for a physical element of conduct' and `recklessness for a physical element of circumstances or result'.

Fault elements will not be applied where an offence is specified to be one of strict liability. This bill specifies where an offence is one of strict liability. This is necessary to ensure that offences currently interpreted as strict liability continue to be interpreted as such after the Criminal Code is applied. In addition the bill amends certain offence provisions to remove the defence and restate it is a separate subsection. This is to ensure that the defences are not interpreted as an element of the offence.

The amendments fall into the following broad categories:

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specifying that an offence is one of strict liability (with an express statement on the face of the offence that is an offence of strict liability, referring to section 6.1 of the Criminal Code);

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restructuring offence provisions which include an inappropriate fault element for conduct;

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restructuring offence provisions which include an inappropriate fault element for circumstance;

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restructuring offence provisions where part of the conduct element of the offence includes breach of a condition;

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restructuring offence provisions to proscribe the actions of a person whose conduct causes damage, injury, destruction or obliteration of prescribed property;

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restructuring criminal offence provisions containing a defence, by putting the defence provisions in separate subsections, in order to avoid a defence being mistakenly interpreted to be part of the elements of the offence;

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specifying whether a defence places a legal or evidential burden on a defendant;

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restructuring an offence to resolve an internal conflict between the offence and the complicity provision of the Criminal Code;

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restructuring ancillary offence provisions so as to apply the relevant ancillary provisions of the Criminal Code;

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extension of meaning of 'engaging in conduct' to include omissions;

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restructuring offence provisions so as not to require knowledge of law;

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specifying in provisions which establish criminal responsibility for corporations whether or not part 2.5 of the Criminal Code (dealing with corporate criminal responsibility) is applicable.

This bill ensures that the current criminal offences will operate in the same manner as they currently operate, following the application of the Criminal Code.

I present the explanatory memorandum.