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Crimes (Document Destruction) Bill
Introduction Print
EXPLANATORY MEMORANDUM
Clause Notes
Clause 1 states the purpose of the Act. The purpose is to amend the
Crimes Act 1958 to create a new offence in relation to the
destruction of a document or other thing that is, or is reasonably
likely to be, required as evidence in a legal proceeding.
Clause 2 provides for the commencement of the Act. The Act will come
into operation on a day to be proclaimed. However, if the Act
does not come into operation before 1 September 2006, it will
come into operation on that day.
Clause 3 inserts a new Division into the Crimes Act 1958 containing the
new offence. Division 5 is inserted into Part 1 of the Crimes Act
(new sections 253-255)
New section 253
New section 253 defines certain terms for the purpose of the Bill.
The term "associate" is defined to mean an employee, agent or
officer (also a defined term) of the body corporate to the extent
that he or she is acting within the actual or apparent scope of his
or her employment or within his or her actual or apparent
authority.
The term "board of directors" is defined to mean the body (by
whatever name called) exercising the executive authority of the
body corporate.
The term "corporate culture" is defined to mean an attitude,
policy, rule, course of conduct or practice existing within the
body corporate generally or in the part of the body corporate in
which the relevant conduct (a defined term) is carried out or the
relevant intention (also a defined term) formed.
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551349 BILL LA INTRODUCTION 15/11/2005
The term "legal proceeding" is defined to have the same meaning
as in the Evidence Act 1958. The term therefore includes any
civil, criminal or mixed proceeding and any inquiry in which
evidence is or may be given before any court or person acting
judicially.
The term "officer" is defined to have the same meaning as in
section 9 of the Corporations Act to the extent that the officer is
acting within the actual or apparent scope of his or her
employment or within his or her actual or apparent authority.
The term therefore includes a person who makes or participates
in the making of decisions that affect the whole or a substantial
part of the body corporate's business and a person who has the
capacity to affect significantly the body corporate's financial
standing.
The term "relevant conduct" is defined to mean the destruction,
concealment, or rendering illegible, undecipherable or incapable
of identification, of a document or other thing of any kind.
The term "relevant intention" is defined to mean the intention of
preventing a document or other thing of any kind from being
used in evidence in a legal proceeding.
New section 254
New section 254(1) creates a new offence of destruction of
evidence.
A person who--
· knows that a document or other thing of any kind is, or
is reasonably likely to be, required in evidence in a legal
proceeding; and
· either--
· destroys or conceals it or renders it illegible,
undecipherable or incapable of identification; or
· expressly, tacitly or impliedly authorises or
permits another person to destroy or conceal it or
render it illegible, undecipherable or incapable of
identification and that other person does so; and
· acts as described above with the intention of preventing
it from being used in evidence in a legal proceeding--
is guilty of an indictable offence.
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The term "document" is broadly defined under section 38 of the
Interpretation of Legislation Act 1984. The term therefore
includes, in addition to a document in writing, items such as
photographs, labels, discs or other devices in which sounds or
other data are embodied so as to be capable of being reproduced,
films or other devices in which one or more visual images are
embodied so as to be capable of being reproduced, and other
markings which are capable of carrying a definite meaning to
persons conversant with them.
The offence will apply where all of the elements of the offence
can be proven by the prosecution. The offence will not apply to
lawful forms of document destruction that do not involve the type
of criminal misconduct covered by the offence.
For example, under the Public Records Act 1973, records can be
destroyed in accordance with standards issued by the Keeper of
Public Records. Record destruction practices in accordance with
these standards that do not involve the criminal conduct targeted
by the offence will be unaffected.
A natural person that is guilty of the offence is liable to level 6
imprisonment (5 years maximum) or a level 6 fine (600 penalty
units maximum) or both.
A body corporate that is guilty of the offence is liable to a
maximum fine of 3000 penalty units (by applying section 113D
of the Sentencing Act 1991).
New section 254(2) provides that the new offence applies with
respect to a legal proceeding, whether the proceeding is one that
is in progress or is to be, or may be, commenced in the future.
New section 255
New section 255 provides principles for corporate criminal
responsibility for the new offence.
New section 255(1) provides that for the purposes of a
proceeding against a body corporate--
· relevant conduct engaged in by an associate of the body
corporate; and
· knowledge of an associate of the body corporate; and
· intention of the body corporate's board of directors,
officers and associates (if a corporate culture existed
within the body corporate that directed, encouraged,
tolerated or led to the formation of that intention)--
must also be attributed to the body corporate.
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The phrase "must also be attributed" helps to ensure that the same
facts may be considered in evidence in proceedings against an
individual and a body corporate, where that individual is an
associate of the body corporate.
New section 255(2) makes it clear that if an officer of a body
corporate commits the new offence, the body corporate must also
be taken to have committed the offence and may be proceeded
against and found guilty (whether or not the officer has been
proceeded against or found guilty).
New section 255(3) provides that in a proceeding against a body
corporate as described above, it is a defence for the body
corporate to prove that it exercised due diligence to prevent the
new offence being committed by the officer.
New section 255(4) states that the means by which authorisation
or permission as required by the new offence may be established
include proving that--
· an officer of the body corporate gave that authorisation
or permission; or
· the body corporate's board of directors gave that
authorisation or permission; or
· a corporate culture existed within the body corporate
that directed, encouraged, tolerated or led to the relevant
conduct being carried out.
New section 255(5) provides that an officer will not be regarded
as having given the required authorisation or permission if the
body corporate proves that it exercised due diligence to prevent it
being given.
The required corporate culture will include situations where
corporate policies and processes provide implied authorisation or
permission. For example, there may be situations where, despite
the absence of formal policy documents, the reality was that non-
compliance was expected.
New section 255(6) states that factors relevant to establishing
whether there was the required corporate culture include
whether--
· authority to commit the new offence or an offence of a
similar character had been given by an officer of the
body corporate; and
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· the associate of the body corporate who carried out the
relevant conduct or formed the relevant intention
believed on reasonable grounds, or entertained a
reasonable expectation, that an officer of the body
corporate would have authorised or permitted the
relevant conduct being carried out with the relevant
intention.
Either of these circumstances may be independently relevant (it is
not necessary that they occur together).
New section 255(7) provides that, subject to new section 255(8),
it is not necessary that each element of the new offence that is
attributed to a body corporate be supplied by the same associate.
This reflects the structure of modern corporations, where the
elements of the offence may be provided by different individuals.
New section 255(8), however, makes it clear that where there is
no authorisation or permission for another person to destroy the
document, the person who destroyed the document must do so
with the intention of preventing it from being used in evidence
(for example, where an officer commits all of the elements of the
offence).
The new offence could therefore apply in a range of situations in
the corporate context. For example, a corporation may have
committed the offence where--
· all of the elements of the offence were committed by an
officer of the corporation (for example, a director); or
· some (but not all) of the elements of the offence were
committed by the same associate(s) of the corporation
(for example, a director created the policy to prevent use
in evidence and knew that the document would be
required in litigation but gave it to an assistant to
destroy); or
· all of the elements of the offence were committed by
different associate(s) of the corporation (for example,
the board of directors created the policy to prevent use
in evidence and a manager knew that the document
would be required in litigation but gave it to an assistant
to destroy).
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