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2002
THE PARLIAMENT OF THE COMMONWEALTH OF
AUSTRALIA
THE HOUSE OF
REPRESENTATIVES
EXPLANATORY
MEMORANDUM
(Circulated by
authority of the Attorney-General,
the Honourable Daryl Williams AM QC
MP)
This Bill would amend Part 10.5 of the Criminal Code Act 1995 by adding new offences relating to the sending of dangerous, threatening or hoax material through the post or similar services. The new offences would replace the existing outdated postal offences in sections 85S, 85X and 85Y of the Crimes Act 1914.
The amendments would ensure that federal offences cover the use of all postal
and other like services and not just Australia Post as at present. Services
which would be covered by the proposed amendments include commercial courier and
parcel and packet carrying services. The amendments would also increase the
penalties for the offences to more appropriate levels to properly reflect the
harm that can be caused by the sending of threatening, dangerous or hoax
material.
There are no direct financial impacts from this Bill.
NOTES ON CLAUSES
This clause sets out the short title by which this Act may be cited.
This clause provides that sections 1 to 3 and Schedule 2 to the Act commence on the day on which the Act receives Royal Assent.
The clause also provides that Schedule 1 to the Act is taken to have commenced at 2pm on 16 October 2001. This is the time and date at which the Prime Minister publicly announced the proposed new offence for sending hoax material, which is contained in the Schedule. The Prime Minister indicated that the offence would commence from the time of the announcement.
The Government does not lightly pursue retrospective legislation. However, in this case there were exceptional circumstances justifying retrospectivity. During October 2001, hoaxes were causing significant concern and disruption. It was necessary to ensure that such conduct was adequately deterred in the period before the resumption of Parliament. The Prime Minister’s announcement provided this deterrence. Furthermore, one of the criticisms that can be directed at retrospective criminal legislation is that people will be unaware that their conduct is an offence. In this case, the Prime Minister’s announcement was in very clear terms, and received immediate, widespread publicity. The amendments operate only from the time of that announcement.
An additional consideration is that there is no circumstance in which the perpetration of a hoax that a dangerous or harmful thing has been sent could be considered a legitimate activity in which a person was entitled to engage pending these amendments. The amendments do not retrospectively abrogate a legitimate right or entitlement. For all these reasons, the retrospective application of these amendments is not considered to contravene fundamental principles of fairness or due process.
This clause provides that each Act that is specified in a Schedule is amended or repealed as set out in that Schedule.
This Schedule inserts into the Criminal Code a new offence dealing with
the use of the post or a similar service to send hoax material. This offence is
dealt with in a separate schedule to the other proposed offences because it has
retrospective operation, whereas the other offences commence on Royal Assent.
The amendments contained in Schedule 1 are taken to have commenced at
2pm on 16 October 2001. This is the time and date at which the Prime Minister
publicly announced the proposed new offence for sending hoax material, which is
contained in the Schedule. The Prime Minister stated that the offence would
commence from the time of the announcement.
Criminal Code Act
1995
Item 1
This Item inserts a definition of the
term constitutional corporation into section 470.1 of the Criminal
Code. A “constitutional corporation” is a foreign, trading or
financial corporation as referred to in paragraph 51(xx) of the Constitution.
The new offences would extend to courier services and parcel or packet carrying
services that are provided by a constitutional corporation. This definition is
one of the mechanisms that aligns the ambit of the offences with the scope of
Commonwealth legislative power under the Constitution.
Item
2
This Item inserts a definition of the term postal or similar
service into section 470.1 of the Criminal Code. The definition is
designed to extend the application of the new offences in proposed sections
471.10, 471.11, 471.12 and 471.13 to all postal services, courier services and
parcel or packet carrying services, to the extent they are within Commonwealth
constitutional power. The definition provides a number of links with
Commonwealth constitutional power, namely, Commonwealth power with respect to
postal and other like services; overseas and interstate trade and commerce; and
foreign, trading and financial corporations. This definition, and hence the
offence, draw on these particular heads of power because they have a clear
relationship to commercial postal, courier and parcel carrying services.
Item 3
This Item amends section 471.9 of the Criminal Code
to ensure that Category C geographical jurisdiction only applies to the existing
postal offences in Part 10.5 of the Criminal Code and not to the proposed
offences in this Bill (excepting the offence in proposed section 471.15).
Category C geographical jurisdiction is unrestricted and applies whether
or not the conduct or the result of the conduct constituting the alleged offence
occurs in Australia. It is not appropriate to apply Category C geographical
jurisdiction to the proposed offences because, unlike the existing offences, the
new offences in proposed sections 471.11, 471.12 and 471.13 would apply to all
postal and like services and not just Australia Post. The application of
Category C geographical jurisdiction to the proposed offences would mean that
they would cover conduct which has no relevance to Australia, for example, where
a person posts dangerous goods within the United States. Proposed section
471.14 would apply the more limited Category A geographical jurisdiction to the
proposed offences (see Item 4).
Item 4
This Item inserts
proposed sections 471.10 and 471.14 into the Criminal Code. Proposed section
471.10 contains the new anti-hoax offence and proposed section 471.14 sets out
the geographical jurisdiction for that offence.
Proposed section
471.10 – Hoaxes-explosives and dangerous substances
Proposed section 471.10 would make it an offence to cause an article to be carried by a postal or similar service with the intention of inducing a false belief in another person that the article contains an explosive, dangerous or harmful thing or that an explosive, dangerous or harmful thing will be left in any place. A maximum penalty of 10 years imprisonment would apply. The maximum fine would be $66,000 for a natural person and $330,000 for a body corporate under the existing $110 value for a penalty unit in section 4AA of the Crimes Act, and the provisions for calculating maximum fines in section 4B of that Act.
Following the terrorist acts of 11 September 2001, there have been a significant number of false alarms involving packages or letters containing apparently hazardous material, which have highlighted the need for tough penalties to deter such malicious and irresponsible actions. The new hoax offence would attract a higher penalty (in place of the existing 5 year penalty offence) and would also apply more broadly to any postal or similar service, rather than being limited to Australia Post. For that reason, the limited definition of “carry by post” under the Australian Postal Corporation Act 1989, as applied by section 470.1 of the Criminal Code, is expressed not to apply to this offence.
The new offence would operate retrospectively to 16 October 2001 (see section
2). This is the time and date at which the Prime Minister publicly announced
the new offence.
Proposed section 471.14 – Geographical
jurisdiction
Proposed section 471.14 would apply Category A
geographical jurisdiction, as set out in section 15.1 of the Criminal Code, to
the offence in proposed section 471.10. Category A geographical jurisdiction
would also apply to the offences in proposed sections 471.11, 471.12 and 471.13
(Item 5 of Schedule 2 inserts references to those offences into section
471.14).
Category A geographical jurisdiction will be satisfied if (i)
the conduct constituting the offence occurs wholly or partly in Australia, or
wholly or partly on board an Australian aircraft or an Australian ship; (ii) a
result of the conduct occurs wholly or partly in Australia or wholly or partly
on board an Australian aircraft or an Australian ship; or (iii) at time of the
alleged offence the person charged with the offence was an Australian citizen or
body corporate. Where the conduct constituting an offence occurs wholly in a
foreign country and only a result occurs in Australia, there is a defence
available if there is no corresponding offence in that foreign country.
However, that defence is not available if jurisdiction is to be exercised on the
basis of the person's nationality.
The application of Category A
jurisdiction to the offences in this Bill would mean that, regardless of where
conduct constituting an offence occurs, if the results of that conduct affect
Australia the person responsible would generally be able to be prosecuted in
Australia. For example, a person in the United States who sends a letter
containing a death threat to a recipient in Australia would commit the offence.
Schedule 2 - Amendments commencing on Royal Assent
Crimes Act 1914
Item 1
This Item would
repeal section 85S of the Crimes Act, which deals with the sending of menacing,
harassing or offensive material through Australia Post. This offence would be
replaced with the new offences in proposed sections 471.11 and 471.12 (see Item
4).
Item 2
This Item would repeal section 85X of the
Crimes Act. Section 85X makes it an offence to post dangerous or deleterious
substances and things through Australia Post. This offence would be replaced
with the new offences in proposed sections 471.13 and 471.15 (see Items 4 and
6).
Item 3
This Item would repeal section 85Y of the Crimes
Act, which deals with the sending of hoax material. The offence in section 85Y
would be replaced by the offence in proposed section 471.10 (see Item 4 of
Schedule 1). Although the offence in proposed section 471.10 would be taken to
have commenced 16 October 2001, the repeal of the existing offence in section
85Y would not take effect until the day after Royal Assent. This is necessary
to ensure that prosecutions instituted under the existing provision for offences
committed after 16 October 2001 but before Royal Assent are not
affected.
Item 4
This Item would insert proposed sections
471.11, 471.12, 471.13 and 471.15 into the Part 10.5 of the Criminal Code.
Sections 471.11, 471.12 and 47.13 contain new offences directed at the use of
postal and similar services to make threats or to send material which is
menacing, harassing, offensive or dangerous. Section 471.15 applies to the
posting of dangerous goods through Australia Post.
Proposed section
471.11 – Using a postal or similar service to make a
threat
Proposed section 471.11 contains offences dealing with threats
to kill and threats to cause serious harm.
Proposed subsection 471.11(1) would make it an offence for a person to use a postal or like service to make to another person a threat to kill that other person or a third person with the intention of causing the other person to fear that the threat will be carried out. A maximum penalty of 10 years imprisonment would apply. The maximum fine would be $66,000 for a natural person and $330,000 for a body corporate under the existing $110 value for a penalty unit in section 4AA of the Crimes Act, and the provisions for calculating maximum fines in section 4B of that Act. The proposed offence is drawn from section 5.1.20 of the Model Criminal Code (Non Fatal Offences Against the Person Report).
Proposed subsection 471.11(2) would make it an offence for a person to use a postal or like service to make to another person a threat to cause serious harm to that other person or a third person with the intention of causing the other person to fear that the threat will be carried out. A maximum penalty of 7 years imprisonment would apply. The maximum fine would be $46,200 for a natural person and $231,000 for a body corporate under the existing $110 value for a penalty unit in section 4AA of the Crimes Act, and the provisions for calculating maximum fines in section 4B of that Act. The proposed offence is based on section 5.1.21 of the Model Criminal Code (Non Fatal Offences Against the Person Report).
The key fault element of the threat offences is the intention to intimidate
or instil fear in the victim. However, there is no requirement that the threats
actually instil fear in the victim. A threat can be express or implied and may
be conditional or unconditional (proposed subsection (3)).
At present,
the Crimes Act only contains an offence relating to the sending of menacing,
harassing or offensive material, which attracts a penalty of 1 year imprisonment
(section 85S). The new offences would target those who use postal services to
make serious threats and provide for higher penalties to reflect the seriousness
of the conduct involved.
Proposed section 471.12 – Using a
postal or similar service to menace, harass or cause offence
Proposed section 471.12 would make it an offence for a person to use a postal or like service in such a way as would be regarded by a reasonable person as being, in all the circumstances, menacing, harassing or offensive. A maximum penalty of imprisonment for 2 years would apply. The maximum fine would be $13,200 for a natural person and $66,000 for a body corporate under the existing $110 value for a penalty unit in section 4AA of the Crimes Act, and the provisions for calculating maximum fines in section 4B of that Act.
This offence draws on the terms of the existing section 85S offence, but
broadens the scope of the offence in relation to menacing or harassing material
by removing the requirement that the recipient be in fact menaced or harassed
and replacing it with an objective standard. The new offence also increases the
existing penalty of 1 year imprisonment to 2 years, in line with the suggested
penalty for the draft Model Criminal Code “threat to cause harm”
offence (Non Fatal Offences Against the Person Report).
In
practice, the offence would cover material that would make a person apprehensive
as to his or her safety or well-being or the safety of his or her property as
well as material containing offensive or abusive language or derogatory
religious, racial or sexual connotations.
Proposed section 471.13
– Causing a dangerous article to be carried by a postal or similar
service
Proposed section 471.13 would make it an offence for a person
to use a postal or similar service to send an article in a way that gives rise
to a danger of death or serious harm to another person, where the first person
is reckless as to the danger of death or serious harm. A maximum penalty of 10
years imprisonment would apply. The maximum fine would be $66,000 for a natural
person and $330,000 for a body corporate under the existing $110 value for a
penalty unit in section 4AA of the Crimes Act, and the provisions for
calculating maximum fines in section 4B of that Act.
Proposed subsections
(2), (3), (4) and (5) clarify the meaning of the phrase “danger of death
or serious harm”. Subsection (2) provides that exposing a person to a
disease that may give rise to a danger of death or serious harm to that person
is to be treated as equivalent to exposing them to that danger. Subsection (3)
specifies that for the offence to be committed the danger must be real and not
merely theoretical. However, subsection (4) provides that a person’s
conduct may give rise to a danger of death or serious harm whatever the degree
of risk involved, and subsection (5) makes it clear that the offence is
concerned with potential rather than actual danger.
“Serious
harm” is harm that endangers, or is likely to, endanger a person’s
life or that is likely to be significant and longstanding and includes harm to a
person’s mental health (section 475.1, Criminal Code).
The proposed
offence draws on the endangerment offences in sections 5.1.25 and 5.1.26 of the
Model Criminal Code (Non Fatal Offences Against the Person Report). The
offence is designed to prohibit in general terms the sending of dangerous goods
through a postal or like service in a manner which creates a risk of death or
serious harm, but to allow for goods to be sent where they are safely packaged.
The offence would extend to all postal and similar services rather than
being limited to Australia Post, a limitation that applies under the existing
offence in section 85X of the Crimes Act. However, a separate offence specific
to Australia Post would be retained in proposed section 471.15. As the offence
applies to the use of services other than Australia Post, the limited definition
of “carry by post” in the Australian Postal Corporation Act
1989 is expressed not to apply to this offence.
The offence, together
with the offence in proposed section 471.15, would replace the existing offences
in section 85X of the Crimes Act. Section 85X currently contains three offences
dealing with the carriage of dangerous or deleterious substance or things by
Australia Post. Under the existing offences, causing a “totally
prohibited substance or thing” to be carried by Australia Post attracts a
penalty of up to ten years. Causing a “standard regulated substance or
thing” to be carried by Australia Post otherwise than in accordance with
terms and conditions set by Australia Post carries a penalty of up to 5 years
imprisonment. Causing a “specially regulated substance or thing” to
be carried other than in accordance with permission granted by Australia Post
attracts a penalty of up to 2 years imprisonment.
The terms of the
existing offences were not appropriate for general application to all postal and
similar services for a number of reasons. First, the offence was not designed
to cover services other than Australia Post. Some courier and parcel and packet
carrying services carry goods that could be regarded as dangerous or
deleterious, provided the goods are properly packaged and labelled.
Accordingly, it is not possible to continue the complete prohibition on the
sending of specified "dangerous and deleterious" substances. The new offence
would allow postal services to continue to carry certain "dangerous goods" but
would require the goods to be packaged in such a way that they do not present
any risk of serious harm.
Second, under the existing offence, if
Australia Post permits certain types of goods to be posted in accordance with
specified conditions, those goods fall into the category of “standard
regulated substances or things” and a failure to comply with those
conditions can only attract a penalty of up to 5 years imprisonment. As a
consequence, posting anthrax, for example, would only be punishable by up to 5
years imprisonment under the existing offence because Australia Post terms and
conditions permit the postage of infectious biological substances in certain
circumstances. Under the amendments, a 10 year imprisonment maximum penalty
would apply in all cases.
Item 5
This Item inserts
references to proposed sections 471.11, 471.12, 471.13 into section 471.14.
Section 471.14 would apply Category A geographical jurisdiction to the offences
in those sections (see the discussion in relation to Item 4 of Schedule 1).
Item 6
This Item inserts proposed section 471.15 into Part
10.5 of the Criminal Code.
Proposed section 471.15 – Causing
an explosive, or a dangerous or harmful substance, to be carried by
post
Proposed section 471.15 would make it an offence for a person to
cause to be carried by post an explosive or a dangerous or harmful substance or
thing that is prescribed in the regulations. The maximum penalty for the
offence would be 10 years imprisonment. The maximum fine would be $66,000 for a
natural person and $330,000 for a body corporate under the existing $110 value
for a penalty unit in section 4AA of the Crimes Act, and the provisions for
calculating maximum fines in section 4B of that Act.
It is necessary to
have the scope to add items by regulation, because the specific items that are
prohibited for posting with Australia Post may change at short notice, including
where new types of goods come into existence
The proposed offence
replicates the existing offence in subsection 85X(2) of the Crimes Act. Like
the existing offence, the proposed offence would only apply where the dangerous
goods are lodged for carriage by Australia Post, because the term “carry
by post” is given the same meaning as in the Australian Postal
Corporation Act 1989 (section 470.1, Criminal Code) where it means
“carried by or through Australia Post” (section 4).
It is
necessary to include this offence in addition to the broader dangerous goods
offence in proposed section 471.13 in order to maintain the current prohibition
on posting explosives and other prescribed dangerous substances through
Australia Post while also ensuring that all postal and similar services are
covered by a general offence. It is not appropriate to completely prohibit the
sending of explosives or other specified substances in the general offence as
some postal and courier services carry explosives and other dangerous articles
provided they are packaged in such a way that they do not present any risk of
harm. However, a more prescriptive offence is justified in relation to
Australia Post, as Australia Post specifically prohibits the carriage of
explosives and also deals with a high volume of mail.
Proposed
subsection (2) would apply Category C geographical jurisdiction, as set out in
section 15.3 of the Criminal Code, to the offence. Category C geographical
jurisdiction is unrestricted and applies whether or not the conduct or the
result of the conduct constituting the alleged offence occurs in Australia. It
is appropriate to apply Category C geographical jurisdiction to the proposed
offence because the offence only applies where articles are posted through
Australia Post.