23 April 1993
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
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
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
- 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
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.
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