Legal Practice Briefing
23 April 1993
RATIONALISING COMMONWEALTH CRIMINAL OFFENCES
Implementation of recommendations to create omnibus criminal offence provisions will reduce, standardise and make internally consistent the wide range of offence provisions currently in Commonwealth legislation. The omnibus provisions would replace provisions which now occur in similar form in different Acts. This potentially affects every piece of Commonwealth legislation.
The recommendations were made by the Review of Commonwealth Criminal Law, a Committee chaired by the former Chief Justice, the Right Honourable Sir Harry Gibbs (the Committee), in its third Interim Report, 'Principles of Criminal Responsibility and Other Matters' (July 1990).
The first stage of implementation is planned for introduction into Parliament either as part of a new Uniform Criminal Code (the Code), developed by the Criminal Law Officers Committee of the Standing Committee of Attorneys-General, or as an amendment to the Crimes Act 1914. The first chapter of the Code was published in February 1993.
Background to the Recommendations
The Gibbs Committee identified the following for consideration as omnibus offences:
- offences relating to the administration of legislation;
- offences relating to licences and permits;
- offences relating to Commonwealth Officers;
- offences relating to procedures under relevant legislation.
Such provisions are common and frequently take up a substantial proportion of Commonwealth legislation.
Many of the arguments for and against omnibus provisions were canvassed in the Committee's Discussion Paper of May 1988. Briefly, the perceived advantages were:
- reduction in the number of Commonwealth criminal offences
The courts, the legal profession and the police would be able to deal more effectively with a limited number of omnibus offence provisions. They would become more familiar with the new provisions than currently possible with the much greater number of provisions found in particular Acts.
- recognition of significant offences
Some matters are arguably of such significance in the administration
of law and justice that it is desirable that they be governed
by general provisions in an important and central Act, carefully
thought out in advance, rather than by scattered provisions
drafted ad hoc for each particular statute.
The disadvantages were:
- less convenience
Many potential omnibus offences are interconnected with other provisions in the specific legislation together with which they operate. It might not be convenient for the user to have to refer to two pieces of legislation. However, this is already necessary in relation to a number of provisions in the Crimes Act 1914. In due course, offences in a functional statute cannot and will not be able to be read in isolation from the Code and it will be misleading and dangerous to suggest that it might be possible to do so.
- the place in a total scheme
In some cases an offence in common form is only one of a considerable number of associated offences provided for in the one provision. Removal of the particular offence will not significantly shorten the provision and may appear to leave a gap. This can be overcome by promoting greater awareness of the Code.
In the first stage, it is proposed to proceed with three omnibus offences:
- false or misleading statements;
- impersonating a Commonwealth officer;
- obstructing a Commonwealth officer.
So far as possible, these provisions will be placed in the Code in a form which supplements and extends the reach of present Crimes Act offences - see sections 29C, 75 and 76 of the Crimes Act. (Offences relating to procedural matters will be implemented in the second stage.)
To avoid the existence of two or more possibly conflicting provisions dealing with the same conduct it is necessary to identify for repeal all existing offence provisions in Commonwealth legislation which could be covered.
It is recognised that there will be a number of provisions of broadly corresponding effect which cannot be readily encompassed in an omnibus offence:
- without using vague or convoluted language or unduly expanding the range of criminal conduct;
- because of special terms or procedures intelligible only in the context of the functional statute;
- without weakening the constitutional basis for the offence provision as it appears in the functional statute; or
- because an exceptional penalty is required for the purposes of the functional statute.
The language of the related offences left in functional statutes, or included in future, will be standardised so that wherever applicable, standard formulations are used and a consistent policy applies across the statute book regarding penalties, onus and methods of proof, mental elements etc, with exceptions to normal practice made on a basis of recognised principle.
Definition of 'Commonwealth Officer'
It will also be necessary to consider the definition of 'Commonwealth Officer' in section 3 of the Crimes Act to ensure that it is sufficiently widely drawn to support the proposed offences. Just who is covered by the commonly understood concept of 'Commonwealth officer' has changed in recent times as a result of the privatisation of a number of formerly Commonwealth authorities. Also there are a number of legislative schemes which involve Commonwealth/State cooperation and the functions created by the legislation are often the responsibility of State or Territory officers as well as Commonwealth officers.
Many functions under Commonwealth legislation are carried out pursuant to a consultancy contract by people who could never be described as Commonwealth officers but they are clearly carrying out a function or duty under Commonwealth legislation. Arguably such persons and their functions should be given the fullest available protection.
Present thinking is to deal with this by separately covering Commonwealth officers and others carrying out a function under Commonwealth law.
Of the areas considered these were concluded as unsuitable by the Committee:
- false and misleading entries in books;
- failure to notify;
- destruction, obliteration or alteration of records;
- offences relating to licences and permits.
False or Misleading Statements
This expression most frequently appears in offence provisions:
- in connection with an application for a pension, benefit, bounty, grant, permit, licence, or authority;
- in relation to making false or misleading statements to particular officers doing a duty under the relevant Act; and
- in response to a requirement, notice, request or question provided for or authorised by a particular Act.
The Committee recommended an omnibus provision based upon section 29C of the Crimes Act to deal with the first of these situations. In relation to the second, the Committee concluded a general provision was not justified, given the great range of persons covered by the expression 'Commonwealth officer' and the variety of functions, duties and responsibilities of such persons. The Committee also recommended against the last.
Impersonating a Commonwealth Officer
Commonwealth Acts generally distinguish between a person impersonating a Commonwealth officer, or a particular kind of Commonwealth officer, and a person representing him or herself to be a Commonwealth officer of a particular kind. Section 75 of the Crimes Act makes it an offence to impersonate a Commonwealth officer in particular circumstances. There are a number of particular provisions which make it an offence in the specific circumstances of the relevant legislation to pretend to be an officer with particular powers. For example section 97 of the Marriage Act 1961 prohibits a person from pretending they are a person whose consent to the marriage of another person is required. These other offences do not require proof of the additional matters in section 75.
The Committee concluded a need to extend section 75 to apply where a person impersonates or falsely represents himself or herself to be a Commonwealth officer with intent to defraud the Commonwealth or any person. Doubt as to the application of the provisions where a Commonwealth officer impersonates another Commonwealth officer will be removed.
Obstructing a Commonwealth Officer
Section 76 of the Crimes Act makes it an offence to intentionally and knowingly obstruct, resist, hinder, use violence against, threaten or intimidate a Commonwealth officer carrying out a function or duty or a person exercising a power, function or duty under a law of the Commonwealth or on behalf of the Commonwealth.
In spite of the general terms of section 76 there are many particular Acts which create offences to the general effect of obstructing or hindering persons engaged in duties under those Acts. Terminology varies. Sometimes the protection goes beyond officers and sometimes it applies to the statutory authority rather than an individual officer. The Committee considered the new section should prohibit obstruction, resistance, interference, hindering and the use or threatened use of violence, threats or intimidation without really discussing how widely these terms could be interpreted. For example, whether obstruction includes failure to provide information requested by an officer in the performance of his or her duty.
The Committee recommended that the persons to be protected by the provision should include:
- Commonwealth Ministers, Judges, officers, employees, persons permanently or temporarily employed in the Public Service of a Territory or in, or in connection with, the Defence Force, or in the service of a public authority under the Commonwealth while engaged in the discharge or attempted discharge of any duty or function of such a person;
- a member or special member of the Australian Federal Police engaged in the discharge of duty
- any person, while performing any power duty or function under any Commonwealth law or performing any function on behalf of the Commonwealth or a Commonwealth authority.
Specific issues, like level of penalties and the application of mental elements to all or some of the elements of these offences are still under consideration. Although the final detailed form of the new provisions themselves and all the situations in which they will be applied are in the process of being settled, the general aims and principles behind the recommendations are clear.
ISSN 1448-4803 (Print)
ISSN 2204-6283 (Online)
The material in this briefing is provided for general information only and should not be relied upon for the purpose of a particular matter. Please contact the Legal Practice before any action or decision is taken on the basis of any of the material in this briefing.