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1998-1999-2000-2001
THE
PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF
REPRESENTATIVES
FINANCE AND ADMINISTRATION LEGISLATION
AMENDMENT (APPLICATION OF CRIMINAL CODE) BILL (No. 1)
2001
SUPPLEMENTARY EXPLANATORY
MEMORANDUM
Amendments to be Moved on Behalf of the
Government
(Circulated with the authority of the
Parliamentary Secretary to the Minister for Finance and
Administration,
the Honourable Peter Slipper
MP)
FINANCE AND ADMINISTRATION LEGISLATION AMENDMENT
(APPLICATION OF CRIMINAL CODE) BILL (No. 1)
2001
OUTLINE
The amendments to be moved on behalf
of the Government amend the Finance and Administration Legislation Amendment
(Application of Criminal Code) Bill (No. 1) 2001 (the Bill).
The proposed
amendments will:
• repeal certain offences of inducement from the CEA and the R(MP)A;
• repeal certain offences in relation to the giving of false or misleading information from the CEA and the R(MP)A;
• amend strict liability offences in the CEA and the R(MP)A so that it is explicitly stated after each offence that the offence is one of strict liability;
• amend a particular section of the CEA to state that the offence is one of absolute liability;
• amend offences that impose a legal burden of proof on the defendant to specifically state this after each such offence in the CEA and the R(MP)A;
• amend offences that impose an evidential burden of proof on the defendant to specifically state this after each such offence in the CEA and the R(MP)A;
• substitute the word ‘wilfully’ with the word ‘intentionally’ in one provision in the CEA and one provision in the R(MP)A;
• substitute the phrases “for the purpose of” and “in order to” with phrases that will harmonise the offences with the Criminal Code in both the CEA and the R(MPA);
• substitute a reference, in the CEA, to a repealed section of the Crimes Act 1914 with a reference to the appropriate division of the Criminal Code;
• restructure offences that contain more than one limb, and whose limbs require different levels of proof, into separate offence provisions for each limb of the original offence in both the CEA and the R(MP)A;
• restructure some offences so that the appropriate fault tests apply to the different elements of the offence in both the CEA and the R(MP)A; and
• restructure offences so that, where a defence is contained in the
offence provision, the defence is removed from the offence provision and placed
it as a stand-alone defence in a separate provision.
FINANCIAL
IMPACT STATEMENT
There will be no costs involved in the
implementation of these amendments.
NOTES ON CLAUSES
Amendments to Schedules 1 and 2 of the
Bill
Commonwealth Electoral Act 1918 and Referendum
(Machinery Provisions) Act 1984.
Amendment (1) – Amendment
of short title
1. This proposed amendment deletes the words “(No. 1)” from the proposed title of the bill once it becomes an Act. From Royal Assent, it will be known as the Finance and Administration Legislation Amendment (Application of the Criminal Code) Act 2001.
Amendment (2) – Schedule 1A – Amendment of Electoral Acts
2. This proposed amendment inserts a new Schedule 1A to the Bill, which amends the Commonwealth Electoral Act 1918 and the Referendum (Machinery Provisions) Act 1984.
Schedule 1A - Amendment of Electoral Acts
3. This legislation will amend the Commonwealth Electoral Act 1918 (the CEA) and the Referendum (Machinery Provisions) Act 1984 (the R(MP)A) in order to ensure that the CEA and the R(MP)A are harmonised with the Criminal Code. The Criminal Code will apply to all Commonwealth offences from 15 December 2001.
Commonwealth Electoral Act 1918 (CEA)
Item 1 - Application of Criminal Code
4. Item 1 of Schedule 1A will insert a new section 4D into the CEA to provide that Chapter 2 of the Criminal Code will apply to all offences under the CEA. Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.
Items 2, 18 and 34 - Legal burden of proof on defendant – Compulsory enrolment and transfer, Misleading or deceptive publications etc. and Publication of matter regarding candidates
5. The Criminal Code requires that offences that impose a legal burden of proof on the defendant specifically state this. Items 2, 18 and 34 of Schedule 1A will amend subsections 101(4), 329(5) and 351(3) of the CEA to insert a note stating that the defendant bears the legal burden of proof in relation to the defences in these provisions. As a defendant already had a legal burden in relation to the defences under the terms of the wording of original subsections, these amendments will ensure that the operation of these sections remain unchanged after the application of the Criminal Code. These amendments will have no impact on the penalty levels attaching to these offences.
Items 3, 5 and 35 - Evidential burden of proof on defendant – Compulsory enrolment and transfer and Publication of matter regarding candidates
6. The Criminal Code requires that offences that impose an evidential burden of proof on the defendant specifically state this. Items 3, 5 and 35 of Schedule 1A will amend subsections 101(5A), 101(6A) and 351(5) of the CEA to insert a note stating that the defendant bears an evidential burden of proof in relation to the defences in these provisions. As a defendant already had an evidential burden in relation to the defences under the terms of the wording of original subsections, these amendments will ensure that the operation of these sections remain unchanged after the application of the Criminal Code. These amendments will have no impact on the penalty levels attaching to the offences.
7. After the application of the Criminal Code, all offences in Commonwealth statutes that do not explicitly state that they are strict liability offences will be presumed not to be strict liability, regardless of any court decisions to the contrary prior to the application of the Criminal Code. In the absence of an express statement imposing strict liability, section 5.6 of the Criminal Code will supply fault elements in default. This will mean that, depending on the wording of the offence, the prosecution will have to prove intention or recklessness on the part of the accused when in the past it would have been for the accused to show that they had made a mistake of fact. Therefore, offences in the CEA that currently operate as ones of strict liability will be amended to insert new subsections explicitly stating this. These amendments are intended to preserve the current operation of these offences, and to ensure that the application of the Criminal Code will not alter the operation of any strict liability offences. The amendments will not affect the penalty levels attaching to the offences in question.
8. Item 4 of Schedule 1A will amend section 101 of the CEA by inserting two new subsections, (6AA) and (6AB), after subsection 101(6). These new subsections will state that the offences contained in subsections 101(1) and (5) are offences of strict liability, and that the offence contained in subsection 101(4) is an offence of absolute liability. The defence of mistake of fact is available to the defendant for offences of strict liability, but not for offences of absolute liability. Currently, the offence under subsection 101(4) explicitly states that the only defence available to the offence is proof, by the defendant, that “the non-enrolment is not in consequence of his or her failure to send or deliver to a Divisional Returning Officer or and Australian Electoral Officer, a claim, duly filled in and signed in accordance with the directions printed thereon.”. By amending subsection 101(4) to state that failure to enrol is an offence of absolute liability rather than one of strict liability, the statutory defence in subsection 101(4) will remain the only defence available. This will ensure that the operation of subsections 101(1), (4) and (5) remain unchanged after the application of the Criminal Code. There will be no change to the penalty levels attaching to the offences.
9. Section 103 of the CEA provides that it is an offence if an officer fails, without just excuse, to do everything necessary to secure the enrolment of a claimant.
10. In order to harmonise this offence with the Criminal Code, Item 6 of Schedule 1A will remove the defence of “just excuse” from the offence in section 103. This will avoid the possibility of the defence being mistakenly interpreted as a part of the physical elements of the offence. Item 7 of Schedule 1A will reinsert the defence as a stand-alone defence in a new subsection 103(2). Finally, a note will be added after the defence in subsection 103(2) to indicate that the defendant bears an evidential burden in relation to the defence in the subsection, as a defendant already had an evidential burden in relation to the defence under the terms of the wording of original subsection. This will ensure that the operation of the section remains unchanged after the application of the Criminal Code. There will be no change to the penalty level attaching to the offence.
11. As discussed at Item 4 above, after the application of the Criminal Code, all offences in Commonwealth statutes that do not explicitly state that they are strict liability offences will be presumed not to be strict liability. Therefore, any offence in the CEA that currently operates as one of strict liability will be amended to insert a new subsection that explicitly states that it is a strict liability offence. Items 8, 9, 13, 14, 19, 26 and 27 will amend the offences in sections 196 and 200J, subsections 315(1), 315(2), and 334(2), and sections 341 and 343 of the CEA respectively. These amendments are intended to preserve the current operation of the offences, and to ensure that the application of the Criminal Code will not alter their operation. The proposed amendments will not affect the penalty levels attaching to these offences.
Items 10, 11 and 12 - restructuring the offence of failure to vote at an election – Compulsory voting
12. Section 245(15) of the CEA currently contains two offence provisions. Paragraph 245(15)(a) provides that it is an offence to fail vote at an election without a valid and sufficient reason, and paragraph 245(15)(b) provides that it is an offence to knowingly make a false or misleading statement in response to a penalty notice issued for failure to vote.
13. In order to harmonise the subsection with the Criminal Code, Item 12 of Schedule 1A will repeal subsection 245(15) and substitute it with three new subsections. Subsection 245(15) will provide that it is an offence for an elector to fail to vote at an election, and subsection 245(15A) will provide that the offence is one of strict liability. New subsection 245(15B) will separate out the defence of “valid and sufficient reason” for failure to vote, and place it in its own provision, noting that the defendant bears an evidential burden in relation to that defence. A defendant already had an evidential burden in relation to the defence under the terms of the wording of original subsection.
14. A further effect of Item 12 will be to repeal paragraph 245(15)(b). This offence, of knowingly providing false or misleading information in response to a penalty notice issued under subsection 245(9), will be covered by the false or misleading provisions in Division 137 of the Criminal Code. Under the Criminal Code, the maximum penalty for providing false or misleading information is twelve months imprisonment. The current penalty for the offence under the CEA is a $50 fine. The change in the penalty level will mean that prosecution of the offence will no longer be barred twelve months after the offence has been commissioned, and that the maximum penalty for the offence is consistent with offences of a similar nature. In addition, a person convicted of this offence under the Criminal Code may be disqualified under section 44(ii) of the Constitution from being chosen to sit as a senator or as a member of the House of Representatives.
15. Items 10 and 11 will enact consequential amendments to subsections 245(8) and 245(10) that will be necessary as a result of the repeal of the old subsection 245(15)(a) and substitution of a new subsection 245(15).
Item 15 - restructure of offence to separate out the strict liability arm - Election Funding and Financial Disclosure offences - failure to comply with notice
16. Subsection 316(5) of the CEA provides that it is an offence to “without reasonable excuse, refuse or fail to comply” with a notice issued in relation to an investigation undertaken under section 316 of the CEA relating to election funding and financial disclosure provisions. The current subsection 316(5) of the CEA contains two offences, one that is an offence of strict liability, and one that is not an offence of strict liability.
17. As discussed at Item 4, after the application of the Criminal Code, all offences in Commonwealth statutes that do not explicitly state that they are strict liability offences will be presumed not to be strict liability. Therefore, any offence in the CEA that currently operates as one of strict liability should be amended to insert a new subsection that explicitly states that it is a strict liability offence.
18. In order to harmonise these offences with the Criminal Code, Item 15 of Schedule 1A will repeal the current subsection 316(5), and replace it with three new subsections. This will allow the separate limbs of the current offence to be stated in separate provisions. Further, the third new subsection will explicitly identify the provision to which strict liability attaches. There will be no change to the operation of these offences, and no change to the penalty level that attaches to the offences.
19. Items 16, 21 and 28 of Schedule 1A will remove the phrase “for the purpose of” from subsections 325(1), 325(2), 325A(1), 347(1) and paragraph 339(1)(a) of the CEA. The phrase “for the purpose of” should no longer be used in offence provisions because of the potential confusion that could arise as to the applicable fault element. This is because the phrase can be construed to be a reference to the intention of the person when performing the proscribed conduct or it could refer to the result which the person may wish the conduct to lead to. As the phrase “for the purpose of” refers, in subsections 325(1), 325(2), 325A(1), 347(1) and paragraph 339(1)(a) of the CEA, to the intention of the person when performing the proscribed conduct, the offences will be amended to confirm and clarify that “intention” is the applicable fault element in each case. The amendments will not change the operation of these offences, or the level of the penalties that attach to these offences.
Item 17 - substitute “in order to influence or affect” with “with the intention of influencing or affecting” - Bribery
20. Subsection 326(2) of the CEA provides that a person will not give or confer a benefit “in order to influence or affect” the vote of a person, the candidature of another person, the opposition or support for the candidature of another person, a candidate’s ranking on a Senate group voting ticket, or the distribution of preferences of an elector.
21. For the same reasons outlined at Item16 above, Item 17 of Schedule 1A will remove the phrase “in order to influence or affect” from subsection 326(2) of the CEA and replace it with the phrase “with the intention of influencing or affecting”. This amendment will confirm and clarify that “intention” is the applicable fault element in relation to the offences in subsection 326(2). The amendment will not change the operation of these offences, or the level of the penalty that attaches to the offences.
22. Section 335(1) of the CEA currently provides that it is an offence to wilfully exhibit or leave in a polling booth any card or paper directing an elector how to vote.
23. In order to harmonise the offence with the Criminal Code, Item 20 of Schedule 1A will omit the fault element of “wilfully” from subsection 335(1) of the CEA, which applied to the physical element of the conduct of the offence (namely, exhibiting or leaving materials in the polling booth instructing or directing electors how to vote). The Criminal Code does not provide for a fault element of “wilfully”, but does provide for a fault element of “intention”, which is akin to “wilfully”. The omission of “wilfully” from subsection 335(1) will mean that subsection 5.6(1) of the Criminal Code will apply, that is that the fault element of “intention” will apply to the physical element of conduct in the offence. The Criminal Code will allow the use of new fault elements such as wilfully (subsection 5.1(2)) and the present offence would possibly still operate in the same manner following application of the Criminal Code. However, it is also possible that future courts may attempt to distinguish wilfulness from intention on the basis that wilfulness appears to differ from the basic Criminal Code fault element of intention. Accordingly, this item proposes deletion of “wilfully”. This amendment will ensure that there is no impact on the operation of the offence after the application of the Criminal Code. There will be no change to the penalty level attaching to the offence.
Item 22 substitution of “for the purpose of voting” with “with the intention of voting in that other person’s name” - s.339(1)(b) - impersonating a voter
24. Paragraph 339(1)(b) of the CEA currently provides that it is an offence to impersonate another person “for the purpose of voting”.
25. For the reasons outlined at Item16 above, Item 22 of Schedule 1A will remove the phrase “for the purpose of voting” from paragraph 339(1)(b) of the CEA and replace it with the phrase “with the intention of voting in that other person’s name”. This amendment will confirm and clarify that “intention” is the applicable fault element in relation to the offence in paragraph 339(1)(b). The amendment will not change the operation of this offence, or the level of the penalty that attaches to the offence.
Items 23, 24 and 25 - restructuring of inappropriate physical element of conduct – Other offences relating to ballot papers
26. The offences in paragraphs 339(1)(c) and 339(1)(h), and subsection 339(2) of the CEA currently describe the prohibited conduct as “destroy, deface, mutilate, take, open, interfere or remove”, when in fact the “destruction, defacement, mutilation, taking, opening, interfering or removing” is the result of the person’s conduct, and may be brought about by recklessness rather than intention. Therefore, words such as “destroy, deface, mutilate, take, open, interfere or remove” are inappropriate physical elements of conduct, as they require the prosecution to prove that the defendant undertook the action with the intention that the result would come about.
27. In order to harmonise Commonwealth offences with the Criminal Code, Attorney-General’s Department has advised that any offences that contain inappropriate physical elements of conduct should be restructured so they clearly include physical elements of result which will therefore attract the default fault element of recklessness rather than the default fault element of intention which applies to conduct.
28. Items 23, 24 and 25 of Schedule 1A restructure the offences in paragraphs 339(1)(c) and 339(1)(h), and subsection 339(2) respectively, to ensure that the default fault element of recklessness attaches to the results outlined in each offence. These amendments will have no impact on the operation of the offence, or on the penalty levels that attach to the offences.
29. Item 29 of Schedule 1A will remove the phrase “without the authority of the chairperson (proof whereof shall lie upon that person)” from subsection 347(4) of the CEA so that the defence of lawful authority is removed from the offence provision. This is to avoid the mistaken interpretation that the words “without the authority of the chairperson (proof whereof shall lie upon that person)” are in fact part of the physical elements of the offence rather than being a defence to the offence. Item 30 of Schedule 1A reinserts the defence as a stand-alone defence in new subsection 347(5). The new subsection includes a note stating that the defendant bears a legal burden in relation to the defence. As a defendant already had a legal burden in relation to the defence under the terms of the wording of original subsection, this amendment will ensure that the operation of the section remains unchanged after the application of the Criminal Code. This amendment will have no impact on the penalty level attaching to the offence.
30. Subsection 350(1) of the CEA provides that a person shall not make or publish any false and defamatory statement in relation to a candidate. The subsection also provides that it shall be a defence “if the defendant proves that they had reasonable grounds for believing and did in fact believe the statement to be true”. The subsection sets out separate penalty levels for natural persons and corporations.
31. Item 31 of Schedule 1A will repeal the current subsection 350(1) and substitute it with two new provisions. The offence provision will be placed in a new subsection 350(1) and the defence provision in a new subsection 350(1A). In addition, the penalty attaching to the offence under subsection 350(1) will be revised to exclude the explicit penalty for a corporation. Section 4B(3) of the Crimes Act 1914 sets the maximum pecuniary penalty for corporations at 5 times the penalty level for natural persons. A note will be inserted to indicate that the Crimes Act 1914 contains provisions dealing with penalties. Finally, a note will be added after the defence in subsection 350(1A) to indicate that the defendant bears a legal burden in relation to the defence in the subsection. As a defendant already had a legal burden in relation to the defence under the terms of the wording of original subsection, this amendment will ensure that the operation of the section remains unchanged after the application of the Criminal Code. This amendment will have no impact on the penalty level attaching to the offence.
32. Item 32 of Schedule 1A will remove the phrase “without the written authority of the candidate (proof whereof shall lie upon that person)” from subsection 351(1) of the CEA so that the defence is removed from the offence provision. This is to avoid the mistaken interpretation that the words “without the written authority of the candidate (proof whereof shall lie upon that person)” are in fact part of the physical elements of the offence rather than being a defence to the offence. Item 33 of Schedule 1A will reinsert the defence as a stand-alone defence in new subsection 351(1A). The new subsection will include a note stating that the defendant bears a legal burden in relation to the defence. As a defendant already had a legal burden in relation to the defence under the terms of the wording of original subsection, this amendment will ensure that the operation of the section remains unchanged after the application of the Criminal Code. This amendment will have no impact on the penalty level attaching to the offence.
Item 36 - consequential amendment to subparagraph 386(a)(ii) - Disqualification for bribery and undue influence
33. Section 386 of the CEA does not contain any offence provisions. It provides for disqualification from being chosen or of sitting as a Member of either House of Parliament if a person has been convicted, under the CEA, of bribery or interference with political liberty, or is found by the Court of Disputed Returns to have committed or attempted to commit bribery or undue influence when a candidate. The section provides that the period of disqualification will be two years from the date of conviction.
34. Item 36 of Schedule 1A will replace a reference to section 7 of the Crimes Act 1914 in subparagraph 386(a)(ii) of the CEA with a reference to section 11.1 of the Criminal Code, as this will be the relevant provision in relation to the ancillary offence of attempt. This amendment will ensure that the provision continues to operate correctly after the application of the Criminal Code. No penalties attach to this provision.
Item 37 - Application of Criminal Code
35. Item 37 of Schedule 1A will insert a new section 3C into the R(MP)A to apply Chapter 2 of the Criminal Code to all offences under that Act. Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.
Items 38, 39 and 40 - restructuring the offence of failure to vote at a referendum
36. Section 45(14) of the R(MP)A currently contains two offence provisions. Paragraph 45(14)(a) provides that it is an offence to fail to vote at an election without a valid and sufficient reason, and paragraph 45(14)(b) provides that it is an offence to knowingly make a false or misleading statement in response to a penalty notice issued for failure to vote.
37. In order to harmonise the subsection with the Criminal Code, Item 40 of Schedule 1A will repeal subsection 45(14) and substitute it with three new subsections. Subsection 45(14) will provide that it is an offence for an elector to fail to vote at an election, and subsection 45(14A) will provide that the offence is one of strict liability. New subsection 245(14B) will separate out the defence of “valid and sufficient reason” for failure to vote, and place it in its own provision, noting that the defendant bears an evidential burden in relation to that defence. As a defendant already had an evidential burden in relation to the defence under the terms of the wording of original subsection, this amendment will ensure that the operation of the section remains unchanged after the application of the Criminal Code. This amendment will have no impact on the penalty level attaching to the offence.
38. The new subsection will also repeal the offence, currently found in paragraph 45(14)(b), of knowingly providing false or misleading information in response to a penalty notice issued under subsection 45(9). This offence will be covered by the false or misleading provisions in Division 137 of the Criminal Code. Under the Criminal Code, the maximum penalty for providing false or misleading information is 12 months imprisonment. The current penalty for the offence under the R(MP)A is a $50 fine. The change to the penalty level will mean that prosecution of the offence will no longer be barred twelve months after the offence has been commissioned, and that the maximum penalty for the offence is consistent with offences of a similar nature. In addition, the increase in penalty level will mean that a person convicted of this offence under the Criminal Code may be disqualified under section 44(ii) of the Constitution from being chosen to sit as a senator or as a member of the House of Representatives.
39. Items 38 and 39 of Schedule 1A will enact consequential amendments to subsections 45(8) and 45(10) that will be necessary as a result of the repeal of the old paragraph 45(14)(a) and substitution of a new subsection 45(14).
Item 41 - repeal of offence of making a false or misleading statement in a postal vote application, and of inducing an elector to make a false statement in a postal vote application.
40. Subsection 55(6) of the R(MP)A states that it is an offence to make a false or misleading statement in an application for a postal vote, or in any declaration in relation to such an application, and provides a penalty of a $1,000 fine or 6 months imprisonment or both. From the application of the Criminal Code, the offence of making false or misleading statements will be covered by Division 137 of the Criminal Code. In light of this, Item 41 will repeal subsection 55(6) from the R(MP)A. The maximum penalty available under the Criminal Code is twelve months imprisonment. The change to the penalty level will mean that prosecution of the offence will no longer be barred twelve months after the offence has been commissioned. In addition, the increased penalty level will mean that a person convicted of this offence under the Criminal Code may be disqualified under section 44(ii) of the Constitution from being chosen to sit as a senator or as a member of the House of Representatives.
41. Subsection 55(7) of the R(MP)A states that it is an offence to induce an elector to make a false or misleading statement in an application for a postal vote, or in any declaration in relation to such an application, and provides a penalty of a $1,000 fine or 6 months imprisonment or both. From the application of the Criminal Code, ancillary offences such as “inducing” will be covered by the provisions covering “incitement” in Division 11 of the Criminal Code. In light of this, Item 41 will repeal subsection 55(7) from the R(MP)A.
42. Under section 11.4(5) of the Criminal Code, the penalty that attaches to the crime of “incitement” is set in relation to the penalty that attaches to the crime that was incited. In this case, as the penalty for providing false or misleading information is 12 months imprisonment, then the penalty for inciting a person to provide false or misleading information is also 12 months imprisonment. The change to the penalty level will mean that prosecution of the offence will no longer be barred twelve months after the offence has been commissioned. In addition, the increased penalty level will mean that a person convicted of this offence under the Criminal Code may be disqualified under section 44(ii) of the Constitution from being chosen to sit as a senator or as a member of the House of Representatives.
43. The mirror provisions in the CEA, subsections 184(6) and (7) were repealed by the Criminal Code Amendment (Theft, Fraud, Bribery and Related Offences) Act 2000 that came into force on 24 May 2001.
44. As discussed at Item 4 above, after the application of the Criminal Code, all offences in Commonwealth statutes that do not explicitly state that they are strict liability offences will be presumed not to be strict liability. Therefore, any offence in the R(MP)A that currently operates as one of strict liability will be amended to insert a new subsection that explicitly states that it is a strict liability offence. In order to harmonise these offences with the Criminal Code, Items 42, 43, 55 and 57 of Schedule 1A will amend the offences in sections 68, 73H, 132 and 136 of the R(MP)A respectively. These amendments are intended to preserve the current operation of the offence, and to ensure that the application of the Criminal Code will not alter the operation of the offence in question. The proposed amendments will not affect the penalty levels attaching to those offences.
45. For the same reasons as outlined at Item 16 above, Items 44 and 56 of Schedule 1A will remove the phrase “for the purpose of” from subsections 118(1), 118(2), 118A(1) and 134(2) of the R(MP)A. These amendments will confirm and clarify that “intention” is the applicable fault element in relation to the offences in subsections 118(1), 118(2), 118A(1) and 134(2) of the R(MP)A. The amendments will not change the operation of these offences, or the level of the penalties that attach to the offences.
Item 45 - substitute “in order to influence” with “with the intention of influencing” - Bribery
46. Paragraph 119(2)(a) of the R(MP)A provides that a person shall not give or confer any property or benefit “in order to influence” the vote of any person at a referendum.
47. For the same reasons as outlined at Item 16 above, Item 45 of Schedule 1A will remove the phrase “in order to influence” from paragraph 119(2)(a) of the R(MP)A and replace it with the phrase “with the intention of influencing”. This amendment will confirm and clarify that “intention” is the applicable fault element in relation to the offence in paragraph 119(2)(a). The amendment will not change the operation of this offence, or the level of the penalty that attaches to the offence.
Item 46 - substitute “in order to induce” with “with the intention of inducing” – Bribery
48. Paragraph 119(2)(b) of the R(MP)A provides that a person shall not give or confer any property or benefit “in order to induce” any person to support or oppose a proposed law to alter the Constitution.
49. For the same reasons as outlined in Item 45 above, Item 46 of Schedule 1A will remove the phrase “in order to induce” from paragraph 119(2)(b) of the R(MP)A and will replace it with the phrase “with the intention of inducing”. This amendment will confirm and clarify that “intention” is the applicable fault element in relation to the offence in paragraph 119(2)(b). The amendment will not change the operation of this offence, or the level of the penalty that attaches to this offence.
Item 47 - Legal burden of proof on defendant - Misleading or deceptive publications
50. The Criminal Code requires that offences that impose a legal burden of proof on the defendant specifically state this. Item 47 of Schedule 1A will amend subsection 122(5) of the R(MP)A to insert a note stating that the defendant bears the legal burden of proof in relation to the defence in this provision. As a defendant already had a legal burden in relation to the defence under the terms of the wording of original subsection, this amendment will ensure that the operation of the section remains unchanged after the application of the Criminal Code. This amendment will have no impact on the penalty levels attaching to the offences.
51. Item 48 of Schedule 1A will omit the fault element of “wilfully” from subsection 126(1) of the R(MP)A, which applied to the physical element of the conduct of the offence (namely, exhibiting or leaving materials in the polling booth instructing or directing electors how to vote). The Criminal Code does not provide for a fault element of “wilfully”, but does provide for a fault element of “intention”, which is akin to “wilfully”. The omission of “wilfully” from subsection 126(1) will mean that subsection 5.6(1) of the Criminal Code will apply, that is that the fault element of “intention” will apply to the physical element of conduct in the offence. The Criminal Code will allow the use of new fault elements (subsection 5.1(2)) and the present offence would possibly still operate in the same manner following application of the Criminal Code. However, it is also possible that future courts may attempt to distinguish wilfulness from intention on the basis that wilfulness appears to differ from the basic Criminal Code fault element of intention. Accordingly, this item proposes deletion of “wilfully”. There will be no impact upon the penalty level of the offence, or on the operation of the offence.
Item 49 - restructure paragraph 130(1)(a) into two separate offences, and replace the phrase “for the purpose of” with “with the intention of” - Other offences relating to ballot-papers
52. Paragraph 130(1)(a) states that a person shall not impersonate another person for the purpose of voting, or for the purpose of securing a ballot paper to which the first person is not entitled. The paragraph contains two separate offences in the one sentence, as well as containing the phrase “for the purpose of”.
53. Item 49 of Schedule 1A will repeal paragraph 130(1)(a) and will replace it with two separate offence provisions in paragraphs 130(1)(a) and (aa). In addition, for reasons outlined at Item 16 above, the language of the provisions will be revised in order to remove the phrase “for the purpose of” from the offences, and to use the phrase “with the intention of” in its place. This amendment will not affect the operation of the offences or the penalty level attaching to the offences.
54. The offences in paragraphs 130(1)(b), 130(1)(g), and subsection 130(2) of the R(MP)A currently describe the prohibited conduct as “destroy, deface, mutilate, take, open, interfere or remove”, when in fact the “destruction, defacement, mutilation, taking, opening, interfering or removing” is the result of the person’s conduct, and may be brought about by recklessness rather than intention. Therefore, words such as “destroy, deface, mutilate, take, open, interfere or remove” are inappropriate physical elements of conduct, as they require the prosecution to prove that the defendant undertook the action with the intention that the result would come about.
55. In order to harmonise Commonwealth offences with the Criminal Code, Attorney-General’s Department has advised that any offences that contain inappropriate physical elements of conduct should be restructured so they clearly include physical elements of result which will therefore attract the default fault element of recklessness rather than the default fault element of intention which applies to conduct.
56. Items 50, 52 and 54 of Schedule 1A restructure the offences in paragraphs 130(1)(b), 130(1)(g), and subsection 130(2) respectively, to ensure that the default fault element of recklessness attaches to the results outlined in each offence. These amendments will have no impact on the operation of the offence, or on the penalty levels that attach to the offences.
Item 51 - repeal of offence of forging or uttering referendum ballot papers - Other offences relating to ballot papers
57. Paragraph 130(1)(e) of the R(MP)A states that it is an offence to forge a ballot paper or other document under the Act, or to utter a ballot paper or other document knowing it to be forged. From the application of the Criminal Code, the offence of forgery will be covered by Division 143 of the Criminal Code. In light of this, Item 51 will repeal paragraph 130(1)(e) from the R(MP)A. The penalty for this offence under the R(MP)A is a fine of $1,000 or 6 months imprisonment or both. The maximum penalty available under the Criminal Code is ten years imprisonment. The increase in penalty level will mean that there will no longer be a bar on prosecution twelve months after the commission of the offence. In addition, a person convicted of this offence under the Criminal Code may be disqualified under section 44(ii) of the Constitution from being chosen to sit as a senator or as a member of the House of Representatives.
58. The mirror provision in the CEA, paragraph 339(1)(f) was repealed by the Criminal Code Amendment (Theft, Fraud, Bribery and Related Offences) Act 2000 that came into force on 24 May 2001.
59. Paragraph 130(1)(j) of the R(MP)A states that it is an offence to make a false or misleading statement in any claim, application, return or declaration or in answer to any question under the Act or regulations, or to induce a person to make such a false or misleading statement. From the application of the Criminal Code, the offence of making false or misleading statements will be covered by Division 137 of the Criminal Code, and ancillary offences such as “inducing” will be covered by the provisions covering “incitement” in Division 11 of the Criminal Code. In light of this, Item 53 will repeal paragraph 130(1)(j) from the R(MP)A.
60. The current penalty under the R(MP)A for both the offences contained in paragraph 130(1)(j) is a fine of $1,000 or six months imprisonment or both.
61. The maximum penalty available under the Criminal Code for providing false or misleading information is twelve months imprisonment. The change to the penalty level will mean that prosecution of the offence will no longer be barred twelve months after the offence has been commissioned. In addition, the increased penalty level will mean that a person convicted of this offence under the Criminal Code may be disqualified under section 44(ii) of the Constitution from being chosen to sit as a senator or as a member of the House of Representatives.
62. In relation to the offence of inciting a person to make a false or misleading statement, under section 11.4(5) of the Criminal Code, the penalty that attaches to the crime of “incitement” is set in relation to the penalty that attaches to the crime that was incited. In this case, as the penalty for providing false or misleading information is 12 months imprisonment, then the penalty for inciting a person to provide false or misleading information is also 12 months imprisonment. The change to the penalty level will mean that prosecution of the offence will no longer be barred twelve months after the offence has been commissioned. In addition, the increased penalty level will mean that a person convicted of this offence under the Criminal Code may be disqualified under section 44(ii) of the Constitution from being chosen to sit as a senator or as a member of the House of Representatives.
63. The equivalent provision in the CEA, paragraph 339(1)(k) was repealed by the Criminal Code Amendment (Theft, Fraud, Bribery and Related Offences) Act 2000 that came into force on 24 May 2001.
Amendment (3) – Amendment to Schedule 2
64. This amendments inserts new items 4A and 4B into Schedule 2 of the Finance and Administration Legislation Amendment (Application of Criminal Code) Bill (No 1) 2001. Schedule 2 includes amendments to the Public Accounts and Audit Committee Act 1951.
Items 4A and 4B - Defence of "without just cause" included in a separate subsection
65. Items 4A and 4B of Schedule 2 restructure section 17 of the Public Accounts and Audit Committee Act 1951 so that the defence of "without just cause (proof whereof shall lie upon him)" is removed from the offence provision. This is to avoid the mistaken interpretation that the words "without just cause" are in fact part of the physical elements of the offence rather than being a defence to the offence.
66. Item 4B reinserts the defence as a stand-alone defence in new subsection 17(2). The subsection is followed by a note indicating that a defendant bears a legal burden in relation to the defence in subsection 17(2). A defendant already had a legal burden in relation to the defence under the terms of the wording of original section 17.