ASSEMBLY 2005
LEGISLATIVE FOR THE AUSTRALIAN CAPITAL TERRITORY
CRIMINAL CODE HARMONISATION BILL 2005
EXPLANATORY STATEMENT
Circulated with the authority of
Katy Gallagher MLA
Acting Attorney General
Authorised by the ACT Parliamentary Counsel--also accessible at www.legislation.act.gov.au
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Overview
The Criminal Code Harmonisation Bill 2005 (the Bill) contains amendments to
legislation in the ACT statute book to bring pre 1 January 2003 offences and related
provisions into line with the general principles of criminal responsibility contained in
Chapter 2 of the Criminal Code 2002 (the Code). It is the first of a series of bills that
will see the eventual harmonisation of all ACT legislation with the Code.
The Criminal Code
The progressive reform and codification of the criminal law of the ACT commenced in
September 2001 with the passage of the Criminal Code 2001. The reforms are primarily
based on the Model Criminal Code (the MCC), developed by the national Model
Criminal Code Officers Committee (MCCOC) and established by the Standing
Committee of Attorneys-General. All governments committed themselves to the
development of a uniform criminal code in 1991 and through the Standing Committee
of Attorneys-General established MCCOC for that purpose. MCCOC is made up of
Territory, State and Commonwealth criminal law advisers and since 1991 embarked on
an extensive consultative program that saw the development of nine chapters of the
MCC for implementation by all Australian jurisdictions.
Since September 2001 the Code has progressively grown in volume and to date it
consists of 5 chapters, which deal with a broad and diverse range of matters; namely
chapters 1 and 2, which deal with preliminary matters and, most importantly, with the
general principles of criminal responsibility; chapter 3, which contains the Criminal
Code offences on theft, fraud, bribery and related matters; chapter 4, which deals with
property offences and computer crime; and the most recent addition, chapter 6, which
contains the ACT's serious drug offences. Chapter 7, which deals with offences against
the administration of justice, is being be introduced into the Legislative Assembly in
these sittings.
Criminal Code Harmonisation
For an offence to operate effectively under the Code regime it must be structured in a
way that conforms to the general principles contained in the Code. For this reason, the
Code was not applied to all offences on 1 January 2003 until the offences were
reviewed. Harmonisation is essentially the process of reviewing and revising ACT
offence provisions to ensure that they are in a form consistent with the principles of the
Code.
The Bill is the result of the harmonisation process undertaken by the ACT Government
and is the first of a series of bills to progressively harmonise pre January 2003 offences
in the statute book. The Bill contains amendments to 32 Acts and 6 regulations.
The following notes explain the amendments made by the Bill, focusing on key
concepts and issues rather than providing a description of each amendment in the
schedule.
The harmonised offences
The general approach in harmonising the offences has been to reformulate offence
provisions in line with chapter 2, to state more clearly the physical and fault elements of
an offence. A physical element of an offence may be conduct, a result of conduct, or a
circumstance in which result or conduct occurs and form the basic description of an
Authorised by the ACT Parliamentary Counsel--also accessible at www.legislation.act.gov.au
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offence. A fault element for a particular physical element may be intention, knowledge,
recklessness or negligence. The Code provides for an implied fault element where an
offence does not specify a fault element in relation to a particular physical element or at
all.
The provisions contained in the Bill have been reformulated to state in clear Code
language what constitutes the physical and fault element of the offence (except in cases
of strict liability see below). Essentially the offences are to the same effect but in
Code language. Associated criminal law provisions, such as exceptions and defences
have also been reformulated.
Offences replaced by Chapter 7
The Criminal Code (Administration of Justice) Amendment Bill 2005 (Chapter 7 Bill)
will include a number of summary offences that have been formulated as generic
offences to replace "administration of justice" type offences that are commonly repeated
throughout the statute book. The generic offences have generally been formulated in
terms that are similar to the common offences that they are replacing. They include
offences of failing to attend legal proceedings to give evidence (clause 720), failing to
produce documents and other things (clause 721), failing to take the oath (clause 722),
failing to answer questions (clause 723), a summary offence of giving false or
misleading evidence (clause 724) and obstructing legal proceedings (clause 725). The
Chapter 7 Bill will repeal offences in the Acts and regulations included in this Bill that
are covered by the offences in chapter 7, including the new generic offences.
Application of strict liability
Stating that an offence is strict or absolute liability is required by the Code. If no
statement is included a fault element will be imported into the offence (see section 22 of
the Code). The requirement to state strict or absolute liability is one of the areas where
the advantage of the Code is most clearly seen. Prior to the Code there was no general
requirement to state strict or absolute liability in relation to an offence. As a result,
whether an offence was intended to be strict or absolute liability often had to be
interpreted by the courts.
During harmonisation the general approach is to continue to apply strict liability to
existing strict liability offences provided that its application is appropriate. The Bill
does not propose to create any new strict liability offences, only to state strict liability
where a number of factors, including the nature of the offence, the language employed
and the level of penalty infers a legislative intent for strict liability. Strict liability is
usually employed where it is necessary to ensure the integrity of regulatory a scheme,
such as those relating to public health and safety, the environment and the protection of
the revenue. The mistake of fact defence expressly applies to strict liability as does the
other defences in part 2.3 of the Code.
Absolute liability has not been applied to offences or physical elements in this Bill.
Exceptions and Defences
Consistent with removing offences from the statute book where an offence duplicates a
Code offence, defences that duplicate the defences in part 2.3 of the Code are also being
removed. Where it is necessary to include a specific exception or defence, the
exceptions and defences have been reformulated in the Bill to clarify their effect. If an
exception is taken as an element of the offence not only will the prosecution have the
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burden of proof in relation to the exception but the relevant fault element will also
apply. An exception places only an evidential burden on the defendant to adduce or
point to evidence that suggests a reasonable possibility the exception applies.
Exceptions and defences have generally been included within the section that creates the
offence. For example, the Fisheries Act 2000 has a general exception at section 83
which has been incorporated into the offences of the reformulated sections 75, 80 and
81.
The defences in the Bill have also been reviewed and assessed as to whether they
impose an evidential or legal burden of proof on the defendant. The Bill largely imposes
only an evidential burden except in section 12A of the Animal Welfare Act 1992;
sections 12A and 20, Business Names Act 1963; section 58, Community Title Act 2001
and section 24, Lakes Act 1976. Placing the burden on the defendant engages the
presumption of innocence, protected by section 22(1) of the Human Rights Act 2004
(HRA), but it is considered imposing the burden on the defendant is permissible in each
case as a reasonable limitation under section 28 of the HRA. For example, section 20 of
the Business Names Act 1963 provides that it is for the defendant to prove they took
reasonable steps to comply with the requirements for the use and display of their
business name. The matter to be proven furthers the regulatory objective that a business
name is used and displayed in compliance with the section. Also, the reasonable steps
taken by the defendant will be matters that are peculiarly within the knowledge of the
defendant. Other indications that it is a reasonable limitation upon the right are the low
maximum penalty of $500 (5 penalty units) and no imprisonment.
In addition, amendments have been made in the Bill rationalising the use of the
reasonable excuse defence. What constitutes a reasonable excuse largely depends on the
purpose of the offence provision as well as the circumstances of the particular case. This
introduces a high level of uncertainty into the application of the defence. In many cases
the defence is unnecessary because the excuses it is intended to cover are now covered
by the defences contained in part 2.3 of the Code. Information was sought from ACT
Government agencies about the excuses that might have been intended to be covered by
existing reasonable excuse provisions. In the majority of cases the advice was that the
general defences in part 2.3 covered the excuses. However, reasonable excuse has been
retained for the offences in the Bail Act 1992, the Residential Tenancies Act 1997 and
for notice to produce offences (see for example, section 49(3), Fisheries Act 2000)
because it is impracticable to attempt to specify every possible justifiable excuse that
may apply.
The privilege against self-incrimination
Some provisions amended by the Bill require the production of information and
documents. The majority of these provisions do not affect the privilege against self-
incrimination preserved by secti...