Bills Digest No. 105  1999-2000 Criminal Code Amendment (Theft, Fraud, Bribery and Related Offences) Bill 1999


Numerical Index | Alphabetical Index

WARNING:
This Digest was prepared for debate. It reflects the legislation as introduced and does not canvass subsequent amendments. This Digest does not have any official legal status. Other sources should be consulted to determine the subsequent official status of the Bill.

CONTENTS

Passage History
Purpose
Background
Main Provisions
Appendix 1: Other Laws Amended by the Bill
Concluding Comments
Endnotes
Contact Officer and Copyright Details

Passage History

Criminal Code Amendment (Theft, Fraud, Bribery and Related Offences) Bill 1999

Date Introduced: 24 November 1999

House: House of Representatives

Portfolio: Justice and Customs

Commencement: Generally, on a date to be fixed by proclamation or six months after the date on which it receives Royal Assent. A number of provisions in the Bill seek to amend other Acts that are in the process of change. The commencement of these provisions is tied to the possible amendment or repeal of these Acts.

Purpose

The purpose of the Bill is to amend the Criminal Code Act 1995 (Cth) to:

  • insert a new Part 2.7 dealing generally with categories of geographical jurisdiction
  • insert a new Chapter 7 dealing with property offences against the Commonwealth
  • insert new Parts 10.5 and 10.6 dealing with postal services and telecommunications, and
  • effect minor amendments relating to miscellaneous matters and the Dictionary.

It also seeks to amend other Commonwealth Acts to implement these changes.

Background

Codification Generally

The Model Criminal Code

In 1987, the Commonwealth Attorney-General, the Hon. Lionel Bowen, MP, established a committee to review all Commonwealth criminal law. The committee, chaired by the former Chief Justice of Australia, Sir Harry Gibbs, issued a number of reports dealing with a range of issues including computer crime,(1) detention before charge,(2) principles of criminal responsibility, secondary offences, attempts and conspiracy,(3) property offences against the government, bribery and corruption,(4) and forgery.(5) The final report of the Gibbs Committee was produced in December 1991.(6)

In 1990 the Standing Committee of Attorney-Generals (SCAG) established the Criminal Law Officers Committee (CLOC), later renamed the Model Criminal Code Officers Committee (MCCOC), to examine the issue of a model criminal code for all Australian jurisdictions. MCCOC has issued discussion papers and reports dealing with general principles of criminal responsibility,(7) theft, fraud and related offences,(8) blackmail, forgery, bribery and secret commissions,(9) conspiracy to defraud,(10) fatal and non-fatal personal offences,(11) sexual offences,(12) serious drug offences,(13) administration of justice offences,(14) public order offences(15) and offences against humanity.(16) The final report on theft, fraud, bribery and related offences was produced in December 1995.(17) The final report on conspiracy to defraud was produced in May 1997.(18) The original intention was that the code would be completed by 1998(19) and implemented by 2001.(20) All jurisdictions have apparently agreed to implement the whole code by that date,(21) but the pressure seems to have eased.(22)

To date, the Commonwealth has enacted one chapter from the Model Criminal Code.(23) Parts of additional chapters have been drafted and enacted to deal with specific issues of slavery and sexual servitude(24) and bribery of foreign public officials.(25)

Codification

For over a century, common law countries have grappled with the issue of codification. One of the notable proponents of codification was Sir Samuel Griffith who drafted the Queensland Criminal Code in 1897. He suggested that a 'criminal code' should be a 'collected and explicit statement of the criminal law'.(26) His intention was not that the whole body of criminal law should be reduced to one exhaustive text, but that it be reduced to writing 'in such a form that any intelligent person able to read can ascertain what it is'.(27) His vision was that the common law would be displaced, in the sense that all the offences, defences and general principles would be codified, but that the role of the courts would continue, in the sense that the code would be contextualised using the rules of statutory interpretation.

The Griffith Code has been remarkably enduring. It has been adopted, and sometimes adapted, in Western Australia(28) and in a number of other overseas jurisdictions.(29) There is now a substantial body of caselaw and commentary on the codes in Australia and overseas. Tasmania has codified its criminal law, but not to the same extent or with the same degree of success.(30) However, since the Griffith Codes there have been substantial developments in the common law and there have been significant changes in the nature of crime and the breakdown of interstate and international borders. There have also been attempts at codification and recodification in the Commonwealth, States and Territories,(31) the United Kingdom,(32) New Zealand,(33) Canada(34) and the United States.(35)

As one of the principal architects has indicated, the two 'vital themes' for the Model Criminal Code and the Criminal Code Act 1995 are codification and uniformity.(36) Codification is the primary aim. The focus is on developing a document that is 'pre-emptive, systematic and comprehensive'(37) and ensures that the criminal law is 'easy to discover, easy to understand, cheap to buy and democratically made and amended'.(38) The objectives have been expressed as 'comprehensibility, consistency and certainty',(39) 'accessibility',(40) and 'simplification and consistency'.(41) Uniformity is a secondary aim. The focus is on deficiencies and disparities among the Commonwealth and the States and Territories. The objectives are 'consistency and efficiency'. Noting the fact that there are nine jurisdictions with distinct approaches to property crime, the proponents point to the need for certainty and equality before the law in all jurisdictions, the need to respond to interstate and international crime, and the need to reduce the potential for costs arising out of interstate litigation.(42)

Consolidation

Similarly, common law countries have also toyed with consolidation of criminal law. Broadly, the objectives are the same as codification, except in one respect. The intention is not to displace or re-engineer the common law, but to bring together similar offences that appear in different statutes. The product, like most other legislation, 'requires cross-reference to a range of pre-existing case law and legislation to be comprehensible'.(43) Consolidation has been the driving force behind early reforms in South Australia,(44) and the Northern Territory.(45) It was the paradigm for the work of the Gibbs Committee.(46)

The focus in consolidation is on developing a document that collates all of the major offences and replaces them with a single universal or omnibus provision. The objectives are 'reduction'(47) and 'standardisation'.(48) The guiding principle is 'convenience'.(49)

Theft, Fraud, Bribery and Related Offences

The first substantive topic for MCCOC was the issue of fraud. The immediate priority arose out of a recommendation of a conference held by the National Crime Authority in June 1992 and a special meeting of SCAG in September 1992. This occurred in the aftermath of 'WA Inc.' in 1991(50) and the 'Fitzgerald Inquiry' in 1987(51) which both touched upon aspects of public fraud following the 'excesses' of the 1980s.

The wider focus on theft, fraud, bribery and related offences arose by virtue of the nexus between these topics in criminal law and the fact that there had been a longstanding push for reform and codification of property offences.(52) The most significant reforms were effected in the United Kingdom with the passage of the Theft Act 1968. This legislation was adopted with some changes in Victoria(53) and subsequently in the Northern Territory(54) and the Australian Capital Territory.(55) As a result, the approaches in these jurisdictions represent a more coherent approach to property offences than the 'code jurisdictions' of Queensland, Western Australia and Tasmania and a significant improvement on the 'common law jurisdictions' of New South Wales and South Australia.

The proponents of reform and codification in this area have pointed to the impact of technological changes on offences like fraud and forgery,(56) apparent flaws in the common law approach to property,(57) increasing complexity of property crime and related evidence,(58) and changing community perceptions of corruption in government. In general the detractors have pointed to the drafting concerns discussed above and more general arguments against uniformity which are discussed in the Concluding Comments.

Other Offences related to the Administration of Government

The Terms of Reference for the Gibbs Committee required it to examine the possibility of consolidating existing offences relating to false and misleading statements(59) and obstructing, hindering or impersonating Commonwealth officers.(60) These offences are largely covered by general provisions in the Crimes Act 1914.(61) But they are also covered by specific provisions in a number of other Commonwealth Acts.(62)

The Committee recommended that these offences be replaced with a single set of provisions, based largely on revisions or extensions of the existing general provisions. It pointed to the fact that most of the specific provisions relating to false and misleading statements only differed in relation to penalties and could be covered by a more general provision.(63) It also pointed to the fact that most of the specific provisions relating to obstructing, hindering or impersonating had only arisen by virtue of deficiencies or uncertainties in the existing general provisions which could be easily remedied.(64)

National Infrastructure

While it was not within the original Terms of Reference, the Gibbs Committee also considered consolidation of offences relating to Commonwealth property or money. The key issues were the extent to which the Commonwealth should rely on State and Territory laws and, if not, whether existing provisions in Commonwealth Acts should be consolidated. In the process, the Committee touched upon consolidation of stealing provisions in the Postal Services Act 1975 and Telecommunications Act 1975. During the course of the reporting process, these provisions were consolidated within the Crimes Act 1914.(65)

 

Main Provisions

Schedule 1: Amendment of the Criminal Code Act 1995

Chapter 2: Purpose and Application

Item 12 of the Schedule inserts proposed Part 2.7 which seeks to create a standard template for issues of geographical jurisdiction. It describes a 'standard geographical jurisdiction', in which the conduct or a result of the conduct occurs or is intended to occur wholly or partly within Australia. It also describes different categories of 'extended geographical jurisdiction' to capture cases in which the conduct or a result of the conduct occurs overseas, but:

  • the person is an Australian citizen ('category A'
  • the person is an Australian citizen and/or a resident of Australia ('category B')
  • the jurisdiction is unrestricted, subject to a 'foreign law defence'(66) ('category C'), or
  • the jurisdiction is unrestricted ('category D').

The standard jurisdiction is intended to apply to all Commonwealth offences unless a contrary intention appears. The extended categories will apply by specific reference.

Proposed Part 2.7 distinguishes between conduct that occurs in Australia and conduct that occurs outside Australia. Where conduct involves sending things or electronic messages, it is taken to have occurred partly in Australia if they were sent or received in Australia.(67) Where conduct is wholly outside Australia, proceedings for an offence may not commence unless the Commonwealth Attorney-General has given his or her consent. Pending this consent, a person may lawfully be arrested, charged or remanded in custody or on bail.(68)

Proposed Part 2.7 also adopts a distinction between 'primary' and 'ancillary' offences. 'Primary offences' are not defined. However, 'ancillary offences' include attempt, complicity and common purposes, innocent agency, incitement and conspiracy.

Chapter 7: The Proper Administration of Government

Theft, Fraud, Bribery, Etc

Preliminary

Proposed section 130.2 clarifies the common law concept of ownership. Property belongs to a person where s/he has possession or control of it or where s/he has a proprietary right or interest, other than certain implied equitable interests.(69)

Proposed section 130.3 clarifies the common law definition of 'dishonesty'. Dishonesty is measured against the standards of ordinary people. Generally, a defendant's conduct will be dishonest if s/he knows that ordinary people would consider it to be dishonest.

Theft

Proposed Part 7.2 deals with the core offence of theft and related offences of receiving, robbery, aggravated robbery and burglary (against the Commonwealth).

Proposed Division 131 deals with theft. It increases the current maximum penalty from 7 years(70) to 10 years.(71) It extends an unrestricted geographical jurisdiction to theft offences ('extended geographical jurisdiction - category D').(72)

Theft is defined as the dishonest appropriation of property belonging to another person with the intention of permanently depriving that person of the property.(73) A person appropriates property where s/he assumes any rights of ownership, possession or control of property without the consent of the person to whom the property belongs.(74) S/he intends to permanently deprive another person of property where s/he intends to treat the property as his or her own regardless of the other's rights.(75)

Special rules relate to appropriation and dishonesty. A person will not be considered to have appropriated property where the rights s/he assumed were ostensibly transferred to him or her and s/he acted in good faith.(76) A person will not be considered to have acted dishonestly if, when s/he appropriated the property, s/he believed that the owner could not be found by taking reasonable steps. But, if a person appropriates property, s/he may be considered to have acted dishonestly even if s/he or someone else is willing to pay for it.(77)

Proposed Part 7.2 also deals with specific issues such as theft of land,(78) trust property,(79) general deficiencies,(80) and fundamental mistakes. Proposed section 131.7 makes it clear that property obtained because of a fundamental mistake belongs to another if the person who gets the property is under a legal obligation to make restoration. A fundamental mistake includes a mistake as to the identity of the person getting the property, the essential nature of the property or an amount of money (if the person getting the money is aware of the mistake at the time of getting the money).(81) An intention not to make restoration constitutes an appropriation and an intention to permanently deprive.(82)

Other Property Offences

Proposed Division 132 deals with other property offences. All of these offences attract an unrestricted geographical jurisdiction ('category D').(83)

Receiving

Receiving is dealt with in proposed section 132.1.

Receiving is defined as dishonestly receiving stolen property knowing or believing the property to be stolen.(84) The Division adopts a distinction between 'original stolen property' (property obtained in the course of theft) and 'tainted property' (proceeds of sale or property exchanged for original stolen property). Thus it is an offence to dishonestly receive stolen property or the proceeds of crime. Property ceases to be original stolen property after it is restored or after the victim ceases to have any right to restitution,(85) except in the case of money transfers.(86)

The Division also provides for 'alternative verdicts'. In a prosecution for theft or fraud, if the court or jury is not satisfied that the defendant is guilty but is satisfied beyond reasonable doubt that s/he is guilty of receiving, it may find him or her guilty of that offence (provided s/he has been given procedural fairness in relation to that finding).(87) Likewise, a court or jury may find a defendant guilty of theft or fraud in a prosecution for receiving.(88)

As in the offence of theft, the maximum penalty is increased from 7 years(89) to 10 years imprisonment.(90)

Robbery and Aggravated Robbery

These offences are dealt with in proposed sections 132.2 and 132.3.

Robbery involves the use of force in order to commit theft.(91) Aggravated robbery involves the use of force with others or with an offensive weapon.(92) Currently there is no Commonwealth offence of robbery - prosecutions rely on State and Territory laws. However, the Explanatory Memorandum asserts a need for such a provision to ensure consistency within the Code and to enable the Commonwealth to maintain control over prosecutions for offences that are of 'direct and real concern to the Commonwealth'.(93)

Burglary and Aggravated Burglary

These offences are dealt with in proposed sections 132.4 and 132.5.

Burglary is defined as entering or remaining in a building as a trespasser with the intent to commit theft or a serious offence involving causing harm to another or damage to property.(94) Aggravated burglary is defined along the lines of aggravated robgery.(95) The offence need not be theft but need only be 'against a law of the Commonwealth',(96) or, in relation to burglary in a Commonwealth building, 'against a law of the Commonwealth, a State or a Territory'.(97)

Fraudulent Conduct

Proposed Part 7.3 deals with fraud and related offences.

Proposed Division 134 deals with obtaining property or financial advantage by deception. It is structured in a similar way to theft in terms of the definition and the treatment of dishonesty and intention to permanently deprive. The proposed maximum penalty is 10 years imprisonment which is effectively consistent with the existing penalty.(98) These offences are given an unrestricted geographical jurisdiction ('category D').(99)

A person obtains property where s/he obtains by deception rights of ownership, possession or control for himself or herself, or enables himself or herself to retain those rights, or induces a third person to act in a way that achieves the same results for the benefit of another person. A person also obtains property if s/he causes money to be transferred from another person's account to his or her own account(100) or an account held by a third person.(101)

The Division also provides for 'alternative verdicts' between theft and obtaining.(102)

Other Offences Involving Fraudulent Conduct

Proposed Division 135 deals with general dishonesty. The geographical jurisdiction is unrestricted ('category D').(103)

Proposed section 135.1 deals with general dishonesty in relation to obtaining a gain(104) or causing a loss(105) to a Commonwealth entity or dishonestly influencing a Commonwealth public official in the exercise of their duties.(106) In these provisions, it is unnecessary to demonstrate that the defendant deceived somebody, only that the s/he dishonestly intended to obtain a gain from the Commonwealth, to cause a loss to the Commonwealth, or to influence a Commonwealth official. The maximum penalty in each case is 5 years imprisonment.(107)

Along with proposed Division 134 these provisions basically continue an existing general fraud provision in the Crimes Act 1914.(108) They represent a general dishonesty offence covering cases that fall outside the ambit of the offences above. By focusing on dishonesty they cover cases that do not necessarily involve appropriation, deception or an intention to permanently deprive. By referring to 'gains' and 'losses', they cover cases that do not necessarily involve property or financial gain.(109)

Proposed section 135.2 deals with obtaining a financial advantage from a Commonwealth entity. This provision supplements the above provisions and corresponds with a similar provision in proposed subsection 134.2 (obtaining financial advantage by deception). The maximum penalty is 12 months imprisonment.(110)

Proposed section 135.3 deals with organised fraud. It imposes a maximum penalty of 25 years for persons who have committed three or more 'public fraud offences'(111) and have derived a substantial benefit from at least one of them. A 'substantial benefit' is not defined but a person derives a benefit if s/he directly or indirectly derives a benefit either personally or for another person.(112) A benefit includes any advantage and is not limited to property.(113)

It also allows 'alternative verdicts' between public fraud and organised fraud.(114)

Proposed section 135.4 deals with conspiracy to defraud. It is an offence to conspire to obtain a gain from or cause a loss to a Commonwealth entity or influence a Commonwealth public official. The provision is constructed similarly to the general dishonesty provisions above, with the additional requirement of conspiracy. Basically, a conspiracy exists where is an agreement between two or more people (to commit fraud), an intention to fulfil the agreement and an overt act pursuant to it.

It reduces the existing maximum penalty from 20 years(115) to 10 years imprisonment.(116)

False or Misleading Statements

Proposed Part 7.4 deals with false or misleading statements. The geographical jurisdiction is unrestricted ('category D').(117)

Proposed Division 136 deals with such statements in applications for licences, permits, authorities, or applications for registration, or claims for benefits.(118) It applies to false or misleading statements where the defendant knew or was recklessness about their veracity. It allows for 'alternative verdicts' between offences of knowingly making a false or misleading statement and making such a statement recklessly.

Proposed section 137.1 deals with false or misleading information given to the Commonwealth, to a person exercising Commonwealth powers, or in compliance with a Commonwealth law. Proposed section 137.2 creates an offence of producing a misleading document in compliance with a Commonwealth law.

The proposed maximum penalty is 12 months imprisonment.(119)

Unwarranted Demands

Proposed Part 7.5 deals with demands made by or of a Commonwealth public official which the maker does not believe are reasonable, are accompanied by a threat of detrimental or unpleasant conduct that is likely to influence the other person and are made with the intention of obtaining a gain, causing a loss or influencing a Commonwealth public official.(120) The offences have an unrestricted geographical jurisdiction, subject to a 'foreign law defence' ('category C').(121) The proposed maximum penalty is 12 years imprisonment.(122)

Bribery and Related Offences

Proposed Part 7.6 deals with bribery, corruption and abuse of public office. The geographical jurisdiction is unrestricted ('category D').(123)

Proposed Division 141 deals with bribery. A bribe is the dishonest offer or provision of any benefit with the intention of influencing a public official in the exercise of their duties. It is an offence to give or receive a bribe or to make a relevant offer, request or agreement.

The existing penalties are a maximum of 2 years imprisonment.(124) Proposed section 141.1 carries a maximum penalty of 10 years imprisonment.

Proposed section 142.1 deals with providing corrupting benefits. A corrupting benefit is one which would tend to influence a Commonwealth public official in the exercise of their duties. The proposed maximum penalty is 5 years imprisonment.

Proposed section 142.2 deals with abuse of Commonwealth public office. It is an abuse for a public official to exercise influence, engage in conduct or use information gained through his or her position with the intention to dishonestly obtaining a benefit, either personally or for another, or causing a detriment to another. It is also an offence for a person to use information gained in a previous position as a public official for the same purposes. The proposed maximum penalty is 5 years imprisonment.

Forgery and Related Offences

Proposed Part 7.7 deals with forgery and related offences. The offences have an unrestricted geographical jurisdiction ('category D').(125)

Proposed Division 144 makes it an offence to make a false document with the intention that it will be used to dishonestly induce another in order to dishonestly obtain a gain, cause a loss or influence the exercise of a public duty. Essentially, a false document is one that falsely purports to have been made or altered in any respect by or with the authority of a particular person or that falsely purports to have been made at a particular time or place.(126) A false Commonwealth document is one that falsely purports to have been made or altered by or with the authority of a Commonwealth public official in their official capacity.(127)

Proposed Division 145 makes it an offence to knowingly use a false document to dishonestly induce a public official, etc. to obtain a gain, etc.(128) or to possess such a document with the intention of using it for those purposes.(129) It is also an offence to make or adapt a device, material or thing for the purpose of making a false document or to possess such a device with the intention of using it for that purpose.(130) And it is an offence to damage, destroy, alter, conceal or falsify an official document with the intention of obtaining a gain or causing a loss.(131)

Personal Offences Against Public Officials

Proposed Part 7.8 deals with causing harm to and impersonation and obstruction of Commonwealth public officials. The offences have an unrestricted geographical jurisdiction, subject to a 'foreign law defence' ('category C').(132)

Proposed Division 147 makes it an offence to intentionally (and without consent) cause harm to a public official on the basis of his or her official status or conduct.(133) Threats of this nature are also offences.(134) The proposed penalty for the former is a maximum of 10 years imprisonment.

Proposed Division 148 makes it an offence to impersonate a Commonwealth public official in their official capacity in a way that might induce another person to believe they were a public official or with the intention of obtaining a gain, causing a loss or influencing the exercise of a public duty or function.(135) It is also an offence for one public official to impersonate another public official in similar circumstances.(136)

Proposed Division 149 makes it an offence to obstruct, hinder, intimidate or resist a Commonwealth public official in the performance of their functions.

Definitions

Items 17-41 insert relevant definitions in the Dictionary in the Criminal Code. These include definitions of 'Commonwealth entity', 'Commonwealth public official' and 'public official'.

Miscellaneous

Proposed Part 7.20 (Division 261) deals with miscellaneous matters. (The gap between proposed Division 148 and proposed Division 261 reflects an intention to insert a large number of provisions relating to damage offences, computer offences and offences concerning Commonwealth land.)(137)

Chapter 10: National Infrastructure

Proposed Chapter 10 deals with offences related to postal services and telecommunications. Essentially this chapter transfers specific postal and telecommunications offences relating to theft and fraud from the Crimes Act 1914 to the Criminal Code 1995. Other postal and telecommunications offences in the Crimes Act will be transferred later when the relevant parts of the Criminal Code are developed.(138) The offences have an unrestricted geographical jurisdiction, subject to a 'foreign law defence' ('category C').(139)

Schedule 2: Amendment of Other Laws

Proposed Schedule 2 amends various Commonwealth Acts to harmonise Commonwealth offences with the above proposed amendments to the Criminal Code Act 1995. It amends the Crimes Act 1914 to repeal overlapping provisions dealing with fraud and related offences,(140) conduct by and against public officials (including theft),(141) postal offences,(142) and conspiracy to defraud.(143) It also amends other laws to remove or provide alternative references for obsolete offences or references to obsolete offences contained in those laws. Where original offences or references are retained, it also amends as necessary the terminology used to make the offences consistent with the proposed amendments to the Criminal Code Act 1995. A complete list of the Commonwealth Acts to be amended is included in Appendix 1 below.

Concluding Comments

General Concerns

The Government and the Opposition appear to be committed to the Model Criminal Code Project.(144) As indicated, the vital themes in the project are codification and uniformity.(145) Thus, there is bipartisan in principle support for codification of Commonwealth criminal law and development of a uniform model code for all Australian jurisdictions.

Notwithstanding this 'in principle' agreement, there are a number of underlying difficulties inherent in codification and uniformity that may still present concerns for this Bill and for implementation of the Model Criminal Code. When the Criminal Code Act 1995 was passed, it was recognised that compromise was necessary to achieve a national uniform code.(146) But, even at that time there were critics who warned that the result could be less than satisfactory.(147) For this reason, it is worth examining the objectives of codification and uniformity more closely and it is worth considering whether or not compromise has affected the treatment of theft, fraud, bribery and related offences in the Bill.

Codification

The general aims and objectives of codification were discussed above. The real issues for the Model Criminal Code come in the form of drafting concerns. In this context, the objectives are to 'restate existing principles whilst at the same time to fill gaps, remove obscurities and correct anomalies'(148) and to develop a 'plain English' document.(149) Inevitably there is a strong tendency toward simplification, abstraction and innovation.

Reduction, innovation and abstraction are necessary in a system that seeks to replace a diverse body of principles and precedents, to bridge gaps in those principles and precedents, and to deal with a diverse range of circumstances. But there must be a balance between certainty and flexibility. The codification exercise effectively fixes the law at one point in time but its product must be enduring and must be capable of dealing with changing circumstances across cases and over time. Specifically, as the product must be relied upon by ordinary people and practitioners alike, there must be a balance between the development of novel concepts and reliance on established precedents.

The cost of getting the balance wrong may be a lack of certainty, lack of durability and, ultimately, intrusion of the common law. These issues have been a matter of concern in at least two areas:

  • criminal intention: In dealing with the issue of criminal intention, existing codes have opted for abstract definitions. The resulting construction proved to be too narrow, in the sense that it fell out of step with the common law(150) and too broad, in the sense that it invited courts to borrow conceptually from the common law.(151)
  • criminal responsibility: Similarly, in dealing with issue of criminal responsibility, the Commonwealth Criminal Code has attempted to reduce the concept to its fundamental elements.(152) Arguably, the resulting construction has fallen out of step with the common understanding of ordinary people, practitioners, and judges.(153)

To some extent the desire for certainty has reduced the ability of the codes to keep pace with evolving common law concepts. Also the desire for flexibility has sometimes reduced their ability to reflect the common understanding of ordinary people and practitioners.

Solutions to these problems have been to allow the intrusion of the common law either implicitly, by retaining concepts that have an established legal meaning, or explicitly, by adjusting the rules of statutory interpretation(154) or retaining formal links with the common law.(155) They might also be addressed by better drafting,(156) or more frequent revision.(157)

Uniformity

The general objective of uniformity was also discussed above. The real issues seem to come in the form of practical concerns about the federal balance. There has long been an interest in uniformity of Commonwealth, State and Territory laws and there have been significant developments in a wide range of areas.(158) As early as 1957, Sir Owen Dixon called for a uniform system of private law in Australia asserting that there was 'no geographical reason why the law should be different in any part of Australia'.(159) In 1973 the same view was expressed in the push to develop a single law reform commission.(160)

However, by 1977 Justice Michael Kirby, then Chairman of the Australian Law Reform Commission was suggesting that 'a dull blanket of uniformity in a large scattered country such as Australia would pose a threat to experimentation and could actually hamper the cause of law reform'.(161) Thus, while the proponents of the Model Criminal Code criticised the status quo as 'difference for difference sake',(162) by the 1995 there were already those concerned about the 'dull blanket of uniformity' and the risk that the exercise might result in the lowest common denominator legislation being applied in all jurisdictions.(163)

It would seem that in criminal law, as in other areas, the push for uniformity moves with the changing fortunes of 'cooperative federalism'.(164) Theoretically, the objective of certainty across jurisdictions could be achieved through a variety of means such as 'restatement',(165) 'harmonisation'(166) and 'unification'(167) or 'uniformity' and 'consistency'. The 'rhetoric' surrounding the Model Criminal Code and the Criminal Code Act contains an implicit tension between 'consistency' and 'uniformity'. There were early indications that the focus would be on 'consistency',(168) but there were also strong suggestions in the discussion papers and reports that the intention was to achieve 'uniformity'.(169) The Second Reading Speeches are equivocal.(170) It may be the case that the original intention was 'uniformity' but that this was reduced to 'consistency' following fallout over particular parts of the Model Criminal Code,(171) apparent schisms within MCCOC(172) and general slippage in the implementation timetable. The result is that there is now more flexibility for each jurisdiction to adopt and adapt relevant provisions. The danger is that this approach may weaken the structure and function of the code and reduce the ability of the code to achieve its original policy objectives.(173)

Another potential difficulty arises by virtue of the intention that the code be a uniform legislative scheme for all jurisdictions in Australia. Such schemes involve the development of a single piece of legislation that is adopted in the respective jurisdictions according to their legislative powers. While the constitutional validity of these schemes has been accepted,(174) there has been concern regarding their potential to weaken responsible government.(175) The key concern is the level of parliamentary scrutiny.(176) It arises out of the fact that uniform schemes are often developed at ministerial council level in which the Commonwealth is only one of seven players. One issue is the limited publicity that surrounds the development of the regimes. Another issue is the capacity to make changes in response to concerns raised by parliamentary committees.(177) The proposed solution is to develop standards and process to be applied by all scrutiny committees in the Commonwealth, States and Territories.(178)

Specific Concerns

The vital issues for reform of property offences would seem to be the treatment of dishonesty and appropriation. Williams and Weinberg, two of the leading commentators in this area, consider these concepts as being the major problems in the Theft Act model.(179) To some extent, the Bill can be measured by the way it deals with them.

Dishonesty

In dealing with theft, some codes have adopted a construction that places a strong emphasis on the concept of 'dishonesty'. In the United Kingdom and Victoria, a person is guilty of theft if s/he 'dishonestly appropriates property belonging to another with the intention of permanently depriving the other of it'.(180) 'Dishonestly' is not defined except in the negative sense: an appropriation will not be dishonest where a number of 'defences' can be proven.(181) As a result there is some uncertainty. It is unclear if the negative definition of 'dishonestly' is intended to be complete, or if there is intended to be a 'residual meaning' attached to 'dishonestly' beyond the specific 'defences'.

In the United Kingdom, there has been support for this residual meaning. The House of Lords in Feely(182) and Ghosh(183) stated that, in considering whether or not a person has acted 'dishonestly' a jury must assess 'whether according to the ordinary standards of reasonable and honest people what was done was dishonest' and 'whether the defendant himself must have released that what he was doing was by those standards dishonest'.(184)

In Australia there has been less support until recently. The Victorian Supreme Court rejected the Feely/Ghosh approach in Salvo,(185) Brow(186) and Bonnollo.(187) However, at least three High Court judges in Peters v The Queen,(188) indicated that they might prefer a wider approach to 'dishonestly'. They indicated that 'dishonestly' could be used in a general sense, to import the 'current standards of ordinary decent people'. In this case, honesty is to be measured according to these standards. Alternatively, 'dishonestly' could be used in a special sense, to import a particular knowledge, belief or intent such as that implied by the negative definition above. In this case, honesty is generally to be measured according to whether or not the defendant had the requisite knowledge, belief or intent.

However, even where 'dishonestly' is used in a special sense, there may be borderline cases where the overall honesty of the conduct is in issue.(189) In these circumstances, after having determined that a defendant had the requisite knowledge, belief or intent, a jury is entitled to characterise the conduct according to the standards of 'ordinary, decent people'.(190) Thus, a defendant may be able to evade conviction by demonstrating that while s/he had the relevant knowledge, belief or intent, s/he had not acted dishonestly according to the standards of ordinary, decent people and his or her perception of those standards.

It is possible that a similar view of 'dishonestly' may be taken in the future. Peters was a decision relating to the offence of conspiracy to defraud and the comments regarding the wider approach were not binding on other offences. But, arguably there is 'no sound basis in principle' for applying this approach to these offences but not to other offences such as theft and obtaining property by deception.(191) A number of judges have already expressed a preference for this approach in relation to obtaining property by deception,(192) and stealing, misappropriation and conversion of property belonging to the Commonwealth.(193)

The critical issue here is whether or not there is a residual meaning in this Bill. There are widespread references to 'dishonestly' in offences of theft, obtaining property or a financial advantage by deception, conspiracy to defraud, bribery and forgery. On this basis, a wider view of 'dishonestly' might be preferred for consistency and coherence. MCCOC clearly favoured a wider view, concluding that a narrow approach would be 'both restrictive and irrelevant'.(194) The issue is not addressed in the Reading Speech or the Explanatory Memorandum. However, there may be two (contradictory) views reflected in the treatment of the general dishonesty offence and the treatment of appropriation and deception.

A General Dishonesty Offence

As indicated, the Bill proposes to codify a 'general dishonesty offence'. Proposed Division 135 deals with general dishonesty in relation to obtaining a gain, causing a loss and influencing a Commonwealth public official. While such an offence is not novel,(195) it does pose some interesting issues for the construction of 'dishonesty'.

To understand the offence, it is useful to understand the offence of conspiracy to defraud. As indicated above, these offences need not necessarily involve appropriation or deception but only an agreement to obtain property or a financial advantage from another. Given this departure from the ordinary rules of culpability, there has been a tendency to attach culpability in other ways, either by focusing on the conduct (ie limiting the ambit of the offence to conduct that would be criminal if committed by an individual) or by focussing on the agreement (ie recognising that certain dishonest conduct should be an offence simply because it involves an agreement between two or more people).(196)

The general dishonesty offence is constructed similarly. As indicated, it need not involve appropriation, deception or agreement and has thus been described as a 'one person' version of the conspiracy to defraud. The problem is that if one takes away appropriation, deception and agreement, the only dishonesty lies in the defendant's state of mind. For this reason, 'general dishonesty offences' have been criticised as being 'draconian',(197) and 'vague, sweeping and arbitrary'(198) and that they 'offend the rule of law principle that criminal offences should be certain and knowable in advance'.(199) They have also been criticised on the basis that they are 'unnecessary'(200) and make the appropriation and deception offences 'superfluous'.(201) In theory, they make 'any form of dishonesty which leads to any benefit or action by another person (subject to lawfulness) an indictable offence'.(202) For these reasons a 'general dishonesty offence' was opposed by MCCOC.(203)

[Arguments in favour of a 'general dishonesty offence' are based on the need to protect government revenue and to provide flexibility for changing circumstances. A general dishonesty offence would capture cases which fall outside the scope of the standard offences involving appropriation, deception and intention to permanently deprive either by coincidence (such as certain 'social security fraud')(204) or by design (such as 'bottom of the harbour' tax avoidance schemes).(205) It would also capture cases in which it is difficult to demonstrate that the defendant has obtained a benefit in property or financial terms.(206)]

The issue for this Bill is not simply the hazards of a 'general dishonesty offence', but that it tends to give credibility to the wide view of dishonesty based on Feely/Ghosh approach. It may be accepted that an agreement to obtain property or a financial advantage from another is 'dishonest by ordinary standards'.(207) However, in the absence of an agreement it would seem to be impossible to characterise an intention to obtain property or a financial advantage as dishonest without specifically referring to those standards.

Appropriation

In dealing with appropriation, the Bill takes a more conservative approach.

In the common law offence of theft, the general position is that appropriation involves the assumption of the rights of an owner without the owner's consent.(208) However, under the Theft Act 1968 (UK) appropriation involves any assumption of an owner's rights regardless of consent.(209) A similar approach in the Bill was rejected on the basis that it would place an excessive burden on the remaining elements of theft, particularly the concept of 'dishonesty',(210) and effectively blur the boundaries between theft and fraud,(211) and between theft and receiving.(212) These may not be serious objections, given the reliance on dishonesty in the 'general dishonesty offence', the fact that the penalties for theft, fraud and receiving are the same,(213) and that alternative charges can often be laid.(214) Indeed, there may be good reasons for breaking down these boundaries.(215) The real issue for MCCOC and the Government appears to have been a community perception that theft, fraud (and receiving) involved different forms of criminality.(216)

The point is not simply that a wider view could be taken of appropriation, and therefore of obtaining by deception and receiving, but that the desire to limit the reliance on 'dishonesty' may be 'unprincipled' and may conflict with the 'general dishonesty offence'. The divergent emphases on 'dishonesty' might undermine the integrity of the code.

Mistake

A similar approach is taken to the law of mistake.

As indicated, property appropriated as a result of a fundamental mistake remains property of the original owner notwithstanding that s/he may have consented to the transfer. The difficulty in this area of theft relates to the nature of the mistake and time at which the mistake is realised. It is generally understood that a fundamental mistake will give rise to theft, regardless of whether it was made at the time of transfer or afterwards. At common law, a lesser mistake will not give rise to theft especially if the mistake was realised after ownership was transferred. Under the Theft Act 1968 (UK), a mistake will give rise to theft whenever there is a legal obligation to make restoration (such as an obligation to repay money or to return goods under a void contract).

Initially, focussing on the issue of dishonesty, MCCOC favoured an approach even wider than the Theft Act.(217) But the narrower approach was taken on the basis that submissions were evenly divided on the issue and that a wider approach might introduce uncertainty.(218) The point here is the same as above: the desire to limit the reliance on 'dishonesty' may be unprincipled and may conflict with the 'general dishonesty offence'.

Conclusion: Alternative Verdicts?

Clearly there are significant consequences of taking a wider view of 'dishonesty': it could enlarge the ambit of appropriation and mistake and it could breakdown the boundaries between theft and fraud and between theft and receiving. It seems that a narrow view of 'dishonesty' has been favoured in order to avoid these consequences. But, there is an overlap between theft and fraud and between theft and receiving which must be resolved.

The solution proposed in the Bill is 'alternative verdicts'.(219) Thus, in a prosecution for one offence, if the trier of fact is satisfied that another offence has been proven, it may opt for the alternative offence, provided the defendant has been accorded procedural fairness. This would seem to reduce the possibility of 'arid debates' on the differences between theft and fraud. But it may be unsatisfactory. While courts have generally accepted that a judge may direct a jury at the last minute as to an alternative verdict,(220) it has also been generally recognised that 'the circumstances will be rare in which taking that course will not prejudice the accused'.(221) In theory, the overlaps between theft and fraud and between theft and receiving reduce the possibility of prejudice as the issues and the arguments are substantially the same. There is judicial support for this proposition.(222) But, the potential remains for a breach of procedural fairness and subsequent appeal of convictions.(223)

Organised Fraud

In passing, it is worth noting the treatment of organised fraud. As indicated, the Bill proposes to codify an offence of organised fraud. Proposed section 135.3 imposes a severe penalty for a person who obtains a substantial benefit from multiple fraud offences. A similar provision is contained in the Proceeds of Crime Act 1987 but it has been criticised on the basis that it is arbitrary and unduly harsh in its scope and operation.(224) While organisation may reflect greater criminality and merit greater punishment, the focus on a single penalty for multiple offences is very restrictive. There are other indicators of 'organised crime' such as the complexity of the methods, organisation and planning and the number of offenders involved(225) and there are other avenues available for dealing with multiple offences such as cumulative sentences.(226) There are also fears that the offence may capture unintended victims such as social security offenders.(227) For these reasons, a specific organised fraud offence was opposed by MCCOC.(228) The arguments in favour of retaining the offence seem to have been the nexus with automatic forfeiture(229) and perceived community expectations that these offences should be dealt with harshly.(230)

Jurisdictional Issues

It is also worth noting the treatment of geographical jurisdiction. As indicated, proposed Part 2.7 seeks to establish a number of categories of extended geographical jurisdiction.

The critical aspect of these provisions is their application to foreigners and particularly to offences committed overseas. In dealing with this aspect, a distinction should be drawn between what may be called 'prescriptive, 'enforcement and 'adjudicative' powers.(231) Prescriptive powers relate to the powers to enact laws. Enforcement and adjudicative powers relate to the actions of executive to apply those laws. [The following discussion assumes that an offender can be brought within Australia and ignores the operation of extradition laws and processes.]

Prescriptive Powers

At common law, it is generally accepted that the States and the Commonwealth may enact laws having an extraterritorial effect so as to secure 'peace, order and good government' of the State.(232) This would include a power to control overseas acts of its citizens,(233) and to control overseas acts of foreigners where they come within the physical limits of the State.(234) There need only be a link between the subject matter of a statutory offence and the enacting State or Territory.(235) Similarly, under the Australian Constitution, the Commonwealth has the power to enact legislation dealing with matters, things, circumstances and persons outside Australia, provided there is sufficient connexion between Australia and the matters, etc to which the law relates.(236) The power is not confined to laws that are consistent with the general requirements of international law,(237) or with the legislative competence recognised by international law.(238)

Generally, offences are presumed to be local and territorial.(239) Australian statutes are presumed to extend only to the territorial limits of Australia, unless a contrary intention is expressed.(240) Specifically, they are presumed not to extend to cases governed by foreign law.(241) Neither are they presumed to extend to actions of foreigners overseas.(242) The presumption can be rebutted, but only by express intention or by necessary implication from the nature, purpose and policy of the legislation.(243) Thus, while the Crimes Act 1914 is generally expressed to operate 'beyond the Commonwealth and the Territories'(244) there are few offences that are expressly intended to capture foreign offenders overseas.(245)

Enforcement and Adjudicative Powers

International law recognises a jurisdiction where a valid nexus exists between the alleged criminal conduct and the state. The nexus will exist where the offence occurs within the territory or where the offender is present within the territory ('territorial jurisdiction') and where the results of the conduct are felt within the territory ('extra-territorial jurisdiction'). It may also recognise a jurisdiction based on the offender's nationality ('nationality principle'), the victim's nationality ('passive personality principle') and the need to protect the interests of the state (the 'protective principle'), but there is a degree of uncertainty.(246)

These principles are generally recognised in domestic jurisprudence, within the limits implied above. So, for example, the common law explicitly recognises the categories of 'territorial jurisdiction'(247) and 'extra-territorial jurisdiction'.(248) Except in relation to the Commonwealth, it would not ordinarily recognise the 'passive personality principle'.(249) Neither would it ordinarily recognise the 'protective principle', although there have been cases in which, having recognised an extraterritorial jurisdiction over a principal offence, it has recognised a jurisdiction over inchoate offences, such as attempt and conspiracy, This has occurred on the basis that intended results or the intended victim were within the territory and it was necessary to protect 'peace, order and good government'.(250)

In the future, the common law may recognise an extraterritorial jurisdiction over ordinary and inchoate offences where there is a 'real and substantial link' between the offence and the territory. This approach has been adopted in Canada in relation to overseas offences(251) and has recently been endorsed in Australia in relation to interstate offences in Lipohar and Winfield.(252)

The Bill

As indicated above, the standard jurisdiction applies where the conduct or the results of conduct occurs in Australia. The initial extended jurisdictions deal with Australian citizens ('category A') and/or residents ('category B'). The subsequent jurisdictions deal with aliens, subject to a 'foreign law defence' ('category C') and more generally ('category D').

By adopting this template, the Bill covers all of the jurisdictional issues identified above. By dealing with the conduct and the results of conduct it incorporates the standard territorial jurisdiction (offence within the territory) and extra-territorial jurisdiction (results within the territory) discussed above. By extending this to include Australian citizens or residents of Australia it incorporates the nationality of the offender. By creating an unrestricted jurisdiction it incorporates the other element of the standard territorial jurisdiction (the offender within the territory), the nationality of the victim ('passive personality principle') and the issue of national interest ('protective principle'). By focusing on 'ancillary offences' and the intended results of conduct this Part expressly deals with the jurisdictional issues surrounding inchoate offences identified above.

Critique

The Bill applies the unrestricted jurisdiction to most of the standard offences.(253) Thus, in theory, it allows prosecution of foreign offenders for all of these offences overseas. No doubt this is done on the basis that in every instance the victim is the Commonwealth and there is a national interest in protecting Commonwealth property. But, it may give rise to some concerns. First, as indicated, in domestic law legislation would not ordinarily deal with standard offences and foreign offenders overseas. Second, as indicated, while there is consensus regarding 'territorial jurisdiction' and 'extra-territorial jurisdiction', there are strong doubts over the 'passive personality principle'(254) and the 'protective principle'.(255)

At the same time, the High Court in Lipohar and Winfield has indicated that the common law will recognise a wider application of the 'protective principle' where there is a 'real and substantial link' between the offence and the territory. Assuming that an offender could be brought within Australia, and assuming that the comments of the High Court can be applied equally to domestic as well as overseas offences, the Bill's approach to geographic jurisdiction could be entirely consistent with the common law.

 

Appendix 1: Other Laws Amended by the Bill

  • Aboriginal and Torres Strait Islander Commission Act 1989
  • Aboriginal Councils and Associations Act 1976
  • Aboriginal Land Rights (Northern Territory) Act 1976
  • Aged Care Act 1997
  • Agricultural and Veterinary Chemical Products (Collection of Interim Levy) Act 1994
  • Agricultural and Veterinary Chemical Products (Collection of Levy) Act 1994
  • Agricultural and Veterinary Chemicals (Administration) Act 1992
  • Air Navigation Regulations 1947
  • Airports Act 1996
  • Antarctic Treaty (Environment Protection) Act 1980
  • Auditor-General Act 1997
  • Australian Citizenship Act 1948
  • Australian Federal Police Act 1979
  • Australian Film Commission Act 1975
  • Australian Horticultural Corporation (Export Control) Regulations
  • Australian Horticultural Corporation (Honey Export Control) Regulations
  • Australian Institute of Aboriginal and Torres Strait Islander Studies Act 1989
  • Australian Protective Service Act 1987
  • Australian Security Intelligence Organization Act 1979
  • Australian Trade Commission Act 1985
  • Bankruptcy Act 1966
  • Bounty and Capitalisation Grants (Textile Yarns) Act 1981
  • Bounty (Bed Sheeting) Act 1977
  • Bounty (Books) Act 1986
  • Bounty (Citric Acid) Act 1991
  • Bounty (Computers) Act 1984
  • Bounty (Fuel Ethanol) Act 1994
  • Bounty (Machine Tools and Robots) Act 1985
  • Bounty (Photographic Film) Act 1989
  • Bounty (Ships) Act 1989
  • Broadcasting Services Act 1992
  • Child Care Payments Act 1997
  • Civil Aviation Act 1988
  • Civil Aviation Regulations 1988
  • Coal Excise Act 1949
  • Coal Industry Act 1946
  • Commonwealth Electoral Act 1918
  • Commonwealth Inscribed Stock Act 1911
  • Commonwealth Places (Application of Laws) Act 1970
  • Complaints (Australian Federal Police) Act 1981
  • Crimes Act 1914
  • Customs Act 1901
  • Dairy Produce Act 1986
  • Defence Act 1903
  • Defence (Special Undertakings) Act 1952
  • Diplomatic and Consular Missions Act 1978
  • Disability Discrimination Act 1992
  • Distillation Act 1901
  • Environment Protection (Alligator Rivers Region) Act 1978
  • Excise Act 1901
  • Export Control Act 1982
  • Export Expansion Grants Act 1978
  • Export Inspection and Meat Charges Collection Act 1985
  • Export Market Development Grants Act 1997
  • Farm Household Support Act 1992
  • Financial Management and Accountability Act 1997
  • Financial Sector (Shareholdings) Act 1998
  • First Home Owners Act 1983
  • Fisheries Management Act 1991
  • Foreign Acquisitions and Takeovers Act 1975
  • Great Barrier Reef Marine Park Act 1975
  • Great Barrier Reef Marine Park Regulations
  • Hazardous Waste (Regulation of Exports and              Imports) Act 1989
  • Health Insurance Act 1973
  • Health Insurance Commission Act 1973
  • Historic Shipwrecks Act 1976
  • Home Deposit Assistance Act 1982
  • Homes Savings Grant Act 1976
  • Human Rights and Equal Opportunity                         Commission Act 1986
  • Immigration (Guardianship of Children) Act             1946
  • Imported Food Control Act 1992
  • Income Tax Assessment Act 1936
  • Industrial Chemicals (Notification and                         Assessment) Act 1989
  • Industrial Research and Development Incentives        Act 1976
  • Industry Research and Development                              Act 1986
  • Inspector-General of Intelligence and Security          Act 1986
  • Insurance Acquisitions and Takeovers Act 1991
  • Insurance Act 1973
  • Insurance (Agents and Brokers) Act 1984
  • Interstate Road Transport Act 1985
  • Life Insurance Act 1995
  • Marriage Act 1961
  • Meat Export Charge Collection Act 1984
  • Meat Inspection Act 1983
  • Migration Act 1958
  • Motor Vehicle Standards Act 1989
  • National Health Act 1953
  • National Occupational Health and Safety                    Commission Act 1985
  • Native Title Act 1993
  • Navigation Act 1912
  • Northern Territory (Self-Government) Act 1978
  • Nuclear Non-Proliferation (Safeguards) Act              1987
  • Occupational Health and Safety (Commonwealth       Employment) Act 1991
  • Occupational Health and Safety (Maritime                   Industry) Act 1993
  • Offshore Minerals Act 1994
  • Ombudsman Act 1976
  • Passenger Movement Charge Collection Act              1978
  • Passports Act 1938
  • Petroleum Excise (Prices) Act 1987
  • Pooled Development Funds Act 1992
  • Prawn Export Promotion Act 1995
  • Prices Surveillance Act 1983
  • Primary Industries Levies and Charges        Collection Act 1991
  • Proceeds of Crime Act 1987
  • Protection of Movable Cultural Heritage Act       1986
  • Public Lending Right Act 1985
  • Public Service Act 1999
  • Quarantine Act 1908
  • Racial Discrimination Act 1975
  • Radiocommunications Act 1992
  • Resource Assessment Commission Act 1989
  • Retirement Savings Accounts Act 1997
  • Seat of Government (Administration) Act 1910
  • Secret Commissions Act 1905
  • Sex Discrimination Act 1984
  • Ships (Capital Grants) Act 1987
  • Spirits Act 1906
  • Stevedoring Industry Levy Collection Act 1977
  • Student Assistance Act 1973
  • Superannuation Act 1976
  • Superannuation Industry (Supervision) Act 1993
  • Sydney Airport Demand Management Act 1997
  • Taxation Administration Act 1953
  • Telecommunications (Interception) Act 1979
  • Torres Strait Fisheries Act 1984
  • Veterans' Entitlements Act 1986
  • Wool Tax (Administration) Act 1964
  • Workplace Relations Act 1996

 

Endnotes

  1. Attorney-General's Department, Review of Commonwealth Criminal Law, Interim Report: Computer Crime, November 1988, AGPS, Canberra ['First Interim Report'].
  2. Attorney-General's Department, Review of Commonwealth Criminal Law, Interim Report: Detention Before Charge, March 1989, AGPS, Canberra ['Second Interim Report'].
  3. Attorney-General's Department, Review of Commonwealth Criminal Law, Interim Report: Principles of Criminal Responsibility and Other Matters, July 1990, AGPS, Canberra ['Third Interim Report'].
  4. Attorney-General's Department, Review of Commonwealth Criminal Law, Fourth Interim Report: Offences Relating to the Administration of Justice, Offences Against the Government Involving Property or Money, Bribery and Corruption and Search Warrants, November 1990, AGPS, Canberra ['Fourth Interim Report'].
  5. Attorney-General's Department, Review of Commonwealth Criminal Law, Fifth Interim Report: Arrest and Matters Ancillary Thereto, Sentencing and Penalties, Forgery, Offences Relating to the Security and Defence of the Commonwealth and Part VII of the Crimes Act 1914, July 1990, AGPS, Canberra ['Fifth Interim Report'].
  6. Attorney-General's Department, Review of Commonwealth Criminal Law, Final Report, December 1991, AGPS, Canberra.
  7. Model Criminal Code Officers Committee of the Standing Committee of Attorneys-General, Chapters 1 and 2: General Principles of Criminal Responsibility - Report, December 1992.
  8. Model Criminal Code Officers Committee of the Standing Committee of Attorneys-General, Chapter 3: Theft, Fraud and Related Offences, Discussion Paper - Part 1, December 1993.
  9. Model Criminal Code Officers Committee of the Standing Committee of Attorneys-General, Chapter 3: Blackmail, Forgery, Bribery and Secret Commissions, Discussion Paper, July 1994.
  10. Model Criminal Code Officers Committee of the Standing Committee of Attorneys-General, Chapter 3: Conspiracy to Defraud - Discussion Paper, June 1996.
  11. Model Criminal Code Officers Committee of the Standing Committee of Attorneys-General, Chapter 5: Fatal Offences Against the Person - Discussion Paper, June 1998 and Model Criminal Code Officers Committee of the Standing Committee of Attorneys-General, Chapter 5: Non-Fatal Offences Against the Person - Report, September 1998.
  12. Model Criminal Code Officers Committee of the Standing Committee of Attorneys-General, Chapter 5: Sexual Offences Against the Person - Report, July 1998.
  13. Model Criminal Code Officers Committee of the Standing Committee of Attorneys-General, Chapter 6: Serious Drug Offences - Report, October 1998.
  14. Model Criminal Code Officers Committee of the Standing Committee of Attorneys-General, Chapter 7: Administration of Justice Offences - Report, July 1998.
  15. Model Criminal Code Officers Committee of the Standing Committee of Attorneys-General, Chapter 8: Public Order Offences - Contamination of Goods - Report, March 1998.
  16. Model Criminal Code Officers Committee of the Standing Committee of Attorneys-General, Chapter 9: Offences Against Humanity - Slavery - Report, November 1998.
  17. Model Criminal Code Officers Committee of the Standing Committee of Attorneys-General, Chapter 3: Theft, Fraud, Bribery and Related Offences - Report, December 1995.
  18. Model Criminal Code Officers Committee of the Standing Committee of Attorneys-General, Chapter 3: Conspiracy to Defraud - Report, May 1997.
  19. Geoff McDonald, Towards a National Criminal Law: An overview of the model criminal code project', Reform, vol. 64, 1995/96, p 17.
  20. Criminal Code Bill 1995, Second Reading Speech, Hon. Duncan Kerr, House of Representatives, Debates, 1 March 1995, p 1331.
  21. McDonald, 1995/96, op cit, p. 17.
  22. 'It may not have a good record of implementation by the end of 1999 - or even the target year of 2001. But that is no great cause for concern. In an enterprise of this kind, one must take the longer view': Matthew Goode, 'The Model Criminal Code Project', Australian Law Librarian, vol. 5(4), 1997, p. 273.
  23. Chapter 2 - General principles of criminal responsibility.
  24. Chapter 8 - Offences against humanity, Division 270 - Slavery, sexual servitude and deceptive recruiting.
  25. Chapter 4 - The integrity and security of the international community and foreign governments, Division 70 - Bribery of foreign public officials.
  26. Sir Samuel Griffith, 'Explanatory Letter to the Attorney-General Queensland with Draft Code' (C.C. 89-1897), reproduced in Eric Edwards, Richard Harding and Ian Campbell, The Criminal Codes, 4th Edition, Law Book Company, Sydney, 1992, p. 5.
  27. ibid.
  28. Criminal Code Act Compilation Act 1913 (WA).
  29. Including Papua New Guinea, Nigeria, Israel, Fiji, the Solomon Islands a number of British Colonies and Protectorates in East and West Africa: Robin O'Regan, New Essays on the Australian Criminal Codes, Law Book Company, Sydney, 1988, pp. 103-120.
  30. Criminal Code Act 1924 (Tas) which has been described as an 'ineptly drafted attempt to codify common law doctrine': C. R. Williams and M. S. Weinberg, Property Offences, 2nd Edition, Law Book Company, Sydney, 1986, p. 409.
  31. MCCOC, General Principles of Criminal Responsibility - Report, op cit, p i.
  32. For example, Law Commission of the United Kingdom, Criminal Law: A Criminal Code for England and Wales, Law Comm. No. 177, 1989.
  33. For example, Crimes Bill 1989, Report of the Crimes Consultative Committee (New Zealand), April 1991.
  34. For example, Law Reform Commission of Canada, Recodifying the Criminal Law, Report No. 31, 1987.
  35. For example, American Law Institute, Model Penal Code (Proposed Official Draft), 1962.
  36. Matthew Goode, 'Codification of the Australian Criminal Law', Criminal Law Journal, 1992, vol. 16, pp 5-19, at p. 7.
  37. Hawkland, 'Uniform Commercial Code Metholodgy', University of Illinois Law Forum, 1962, pp 291-292 quoted in Goode, 1992, op cit, at p 9.
  38. Goode, 1992, op cit, at p 8.
  39. Law Commission of the United Kingdom, Codification of Criminal Law, Law Com No. 143, 1985, paras 1.5-1.9.
  40. MCCOC, General Principles of Criminal Responsibility - Report, op cit, pp. ii-iii.
  41. MCCOC, Theft, Fraud and Related Offences - Report, op cit, pp i-iv.
  42. McDonald, 1995/96, op cit, p. 18.
  43. Edwards, et al, op cit, p. 10.
  44. Criminal Law Consolidation Act 1935 (SA).
  45. Criminal Law Consolidation Act 1978 (NT).
  46. See paragraph (b) in 'Terms of Reference', in Gibbs Committee, First Interim Report, Appendix 1, p 60.
  47. Review of Commonwealth Criminal Law, Discussion Paper No. 14: Omnibus Provisions to Replace Provisions in Common Form in Particular Acts, May 1988, p 6 ['Discussion Paper No. 14'].
  48. Submission of the Commonwealth Attorney-General in Attorney-General's Department, quoted in Gibbs Committee, Third Interim Report, p. 435.
  49. Review of Commonwealth Criminal Law, Discussion Paper No. 6: What Offences Should Be Included in the Future Consolidating Law, October 1987, p. 2.
  50. Commission of Inquiry into Possible Illegal Activities and Associated Police Misconduct, Report, 1989, Queensland Government Printer, Brisbane.
  51. Western Australia, Royal Commission into Commercial Activities of Government and Other Matters, Report, 1992, Perth.
  52. Historically, the development of the common law in this area had been ad hoc and piecemeal and the later legislative responses were equally opportunistic. By the turn of the century, the common law relating to property offences had become 'nothing short of a disgrace, scarcely ameliorated by the interventions of successive legislatures': Williams and Weinberg, op cit, pp. 409-410.
  53. Crimes (Theft) Act 1973 (Vic).
  54. Criminal Code Act 1983 (NT), Part VII.
  55. Crimes (Amendment) Ordinance (No. 4) 1985 (ACT).
  56. See generally the commentary in MCCOC, Theft, Fraud and Related Offences - Report, op cit, pp. 1-6.
  57. Ibid, p 1 and Williams and Weinberg, op cit, p 409. A common view in these commentaries is that, in dealing with theft, the common law model was unable to cope with a divergence among ownership, possession and control relating to the same object. Specifically, it has had difficulties dealing with objects that are already in possession, land, and fungibles (such as money).
  58. See generally the commentary in MCCOC, Theft, Fraud and Related Offences - Report, op cit, pp. 1-6.
  59. In relation to the administration of legislation (paragraph (c)(i)) and in applications for licences, etc. (paragraph (c)(ii)): 'Terms of Reference', in Gibbs Committee, First Interim Report, op cit, Appendix 1, at p. 60.
  60. Paragraph (c)(iii): ibid.
  61. False and misleading statements for licences, etc. (s 29C); resisting and obstructing public officers (s 76); impersonating public officers (s 75).
  62. See generally the discussion in Gibbs Committee, Discussion Paper No. 14, Chapter 5,
    pp 9-20 and pp. 25-34.
  63. Gibbs Committee, Third Interim Report, Chapter 5, p. 442.
  64. Gibbs Committee, Third Interim Report, Chapter 5, p. 473.
  65. Telecommunications and Postal Services (Transitional Provisions and Consequential Amendments) Act 1989 (Cth).
  66. Where the conduct occurs wholly in a foreign country, a foreign person or corporation cannot be found guilty if there is no corresponding offence in the relevant foreign jurisdiction: for example proposed section 15.3 (2).
  67. Proposed section 16.2.
  68. Proposed section 16.1.
  69. Equitable interests typically arise from trusts and where there has been an incomplete transfer of property (for example exchange of contracts for real property prior to settlement). The interests that are not included within proposed section 130.2 relate to agreements to grant or transfer interests and constructive or implied trusts.
  70. Crimes Act 1914 s 71(1).
  71. Proposed section 131.1(1). This matches the penalties in the States and Territories: Criminal Code Amendment (Theft, Fraud, Bribery and Related Offences Bill 1999, Explanatory Memorandum, p 27.
  72. This is essentially to protect national interests: the offences relate to the Commonwealth and 'The Proper Administration of Government'. In practice foreign offenders will only be prosecuted for conduct overseas where other governments are unwilling to do so and where it is supported by the Director of Public Prosecutions and the Attorney General according to a range of considerations, including international law and public interest: Explanatory Memorandum, p. 27-29.
  73. Proposed section 131.1(1).
  74. Proposed section 131.3(1).
  75. Proposed section 131.10.
  76. Proposed section 131.3(2).
  77. Proposed section 131.2(3).
  78. Proposed section 131.4.
  79. Proposed section 131.5.
  80. Proposed section 131.11. A general deficiency is relevant in circumstances where it is clear that there has been theft but it is unclear which particular sums of money or items of property have been stolen. 'A typical example is where a defendant is an employee and takes small amounts of money from the till over a period of time': Explanatory Memorandum, p 41.
  81. Proposed section 131.7(3).
  82. Proposed section 131.7(2).
  83. Proposed section 132.9.
  84. Proposed section 132.1(1).
  85. Proposed section 132.1(6).
  86. Proposed section 132.1(6) does not protect a person whose account has been credited with property obtained by fraud and has taken no reasonable steps to cancel the credit. That is, even if the original stolen property was returned to the rightful owner, etc the recipient of a money transfer is taken to have received the property if s/he fails to take reasonable steps to secure that the credit is cancelled: proposed section 132.1(8).
  87. Proposed section 132.1(9).
  88. Proposed section 132.1(10).
  89. Crimes Act 1914 s 71(3).
  90. Proposed section 132.1(1).
  91. Proposed section 132.2.
  92. Proposed section 132.3.
  93. Explanatory Memorandum, p. 45.
  94. Proposed sections 132.4(3) and (6).
  95. Proposed section 132.5(1).
  96. Proposed section 132.4(3)(a)(i).
  97. Proposed section 132.4(6)(a)(i).
  98. Proposed section 134.1. This provision is new, but the closest provision in the Crimes Act carries the same penalty (s 29D).
  99. Proposed section 134.3.
  100. Proposed section 134.1(9).
  101. Proposed section 134.1(10).
  102. Proposed section 134.1(15) and (16).
  103. Proposed section 135.5.
  104. Proposed section 135.1(1) and (2).
  105. Proposed section 135.1(3) to (6).
  106. Proposed sections 135.1(7) and (8).
  107. Proposed sections 135.1(1), 135.1(3) and 135.1(7).
  108. Section 29D.
  109. See generally the commentary in MCCOC, Theft, Fraud and Related Offences - Report, op cit, pp. 153-171.
  110. Proposed sections 135.2(1) and (2)
  111. That is obtaining property or financial advantage by deception, general dishonesty offence and obtaining financial advantage (ss 134.1, 134.2, 135.1, and 135.2 respectively). It also includes the general dishonesty offence and conspiracy to defraud in the Crimes Act 1914 (ss 29D and 86A respectively) committed after the commencement of the Proceeds of Crime Act 1987 (Cth.).
  112. Proposed section 135.3(3).
  113. Proposed section 135.3(6).
  114. That is in a prosecution for organised fraud, a jury may find the defendant guilty of the lesser 'public fraud offence': proposed section 135.3(2). The expression 'public fraud offence' is defined for similar offences in section 135.3(6).
  115. Crimes Act 1914, s 86(2).
  116. This matches the penalties in the States and Territories: Explanatory Memorandum, p 59.
  117. Proposed sections 136.8 and 137.3.
  118. Benefit includes any advantage and is not limited to property: proposed section 136.1(9).
  119. Proposed sections 137.1 and 137.2.
  120. Proposed sections 138.1 and 138.2.
  121. Proposed section 139.3.
  122. Proposed sections 139.1 and 139.2.
  123. Proposed section 142.3.
  124. Crimes Act 1914, s 73A and Secret Commissions Act 1905, s 4.
  125. Proposed section 145.6
  126. Proposed section 143.2.
  127. Proposed section 143.3.
  128. Proposed section 145.1.
  129. Proposed section 145.2.
  130. Proposed section 145.3.
  131. Proposed section 145.4.
  132. Proposed sections 147.3, 148.3 and 149.1(4).
  133. Proposed section 147.1.
  134. Proposed section 147.2.
  135. Proposed section 148.1.
  136. Proposed section 148.2.
  137. Explanatory Memorandum, pp 87-88.
  138. Ibid, pp. 88-89.
  139. Proposed section 471.9.
  140. For example, proposed item 149 repeals provisions in the Crimes Act 1914 dealing with false pretences (s 29A), false representations (s 29B), statements in applications (s 29C), and fraud (s 29D)
  141. For example, proposed item 154 repeals provisions dealing with theft (s 71), falsification of books or records (s 72), corruption and bribery of Commonwealth officers (s 73), impersonating public officers (s 75) and obstructing public officers (s 76).
  142. For example, proposed item 155 repeals provisions relating to stealing articles in the course of post (s 85K) and improperly obtaining articles in the course of post (s 85M). Proposed item 156 repeals a provision dealing with stealing postal messages (s 85P).
  143. For example, proposed item 158 repeals the conspiracy to defraud offence (s 86(2)).
  144. For example, the Opposition has indicated that it will 'work with the States and Territories to continue to develop and implement Australia's Model Criminal Code: A Better Plan For Law and Order, 23 September 1998 at www.alp.org.au/cgi-bin/print.pl?page=laworder_policy [25/11/99].
  145. Goode, 1992, op cit, at p 7.
  146. Criminal Code Bill 1995, Second Reading Speech, Hon. Duncan Kerr, House of Representatives, Debates, 1 March 1995, p 1331. At the time, the Senate Legal and Constitutional Committee concluded that the Criminal Code Bill 1994 provided: 'a thorough, workable, logical and balanced compromise between competing legal policy views, and, perhaps more importantly, between the competing interests of the state and of the people, which lies at the heart of the criminal law': Senate Legal and Constitutional Legislation Committee, Criminal Code Bill 1994 and Crimes Amendment Bill 1994 - Report, December 1994, Paper No. 474/94, p. 38.
  147. 'Model Criminal Code: Judge Fears Potential for Disaster', Australian Lawyer, June 1995, pp 12-13; Beverley Schurr, 'Uniform Criminal Laws and Police Powers: Uniform lowest common denominator legislation?', Reform, vol. 64, 1995/96, pp. 18-19.
  148. Gibbs Committee, Third Interim Report, p 14. See also the commentary on burglary in MCCOC, Theft, Fraud and Related Offences - Report, op cit, p. 75.
  149. MCCOC, General Principles of Criminal Responsibility - Report, op cit, pp ii-iii.
  150. Specifically, the relationship between recklessness and intention: Vallance v The Queen (1961) 108 CLR 56. See generally Brent Fisse, Howard's Criminal Law, Law Book Company, Sydney, 1990, p. 3-7.
  151. See, for example, comments by Dixon CJ in Vallance v The Queen (1961) 108 CLR 56 at 58: '[t]he difficulty may lie in the use ... of wide abstract statements of principle about criminal responsibility framed rather to satisfy the analytical conscience of [a legal theorist] than to tell a judge at a criminal trial what he ought to do'.
  152. The 'physical elements' have been described as: conduct (an act, omission, or a state of affairs), a circumstance in which conduct occurs, or a result of conduct. The 'fault elements' include intention, knowledge, recklessness, negligence or other specified fault elements.
  153. Justice Thomas of the Queensland Supreme Court has criticised the treatment of the 'physical' and 'fault' elements in Part 2.2 of the Criminal Code 1995 as being overly complex and esoteric, especially the differential treatment of act and omission: Thomas, op cit (cf Goode, 1997, op cit, pp 265-276). See also comments by Judge Yeats of the District Court of Western Australia in Senate Legal and Constitutional Legislation Committee, Criminal Code Bill 1994 and Crimes Amendment Bill 1994 - Report, December 1994, Paper No. 474/94, at p 33.
  154. For example, in Western Australia s 19 of the Interpretation Act 1984 expressly permits a court to refer to reports and drafting notes as aids in construing the Code.
  155. For example, the Tasmanian Code expressly retains common law rules regarding justification and excuse (Criminal Code Act 1924, s 8). Where the Griffith Code had 'migrated' overseas, there was often a far more general reservation that the code should be interpreted, as far as possible, consistently with English criminal law: see O'Regan, op. cit. at p. 114.
  156. Proposed Official Draft of the Model Penal Code of the American Law Institute.
  157. For example a review was conducted in Western Australia in 1983 (Western Australian Crown Law Department, The Criminal Code: A General Review, July 1983) and in Queensland in 1992 (Criminal Code Review Committee, Final Report, June 1992).
  158. There have been moves toward model legislation dealing with corporations, consumer credit, evidence, health services, defamation and succession and model delegated legislation dealing with occupational health and safety standards, building standards.
  159. Alan Rose, 'One Nation - One Law? Uniformity and the role of the ALRC', Reform, vol. 64, 1995/96, p. 4.
  160. In introducing the Law Reform Commission Bill 1973 it was said that the Bill was 'an expression of the government's view that, except where local circumstances justify different treatment, people wherever they live in Australia should be subject to the same law': Law Reform Commission Bill 1973, Second Reading Speech, The Hon Kep Enderby, House of Representatives, Debates, 11 December 1973, p. 4493.
  161. Justice Michael Kirby, 'Uniform Law Reform: Will We Live to See It?', Sydney Law Review, vol. 8, 1978, p 2. See also John Goldring '"Unification and Harmonisation" of the Rules of Law', Sydney Law Review, vol. 9, 1979, p 321 and comments by Justice Bray in 'Censorship', Australian Law Journal, vol. 45, 1971, p. 586.
  162. Goode, 1992, op cit, at p. 6.
  163. Generally, this could result from the political compromise inherent in model legislation or more specifically from the focus on Commonwealth criminal law which has been criticised by some as being harsher in some respects than State and Territory laws, for example in respect of powers of arrest: Schurr, op cit.
  164. See generally Ross Cranston, 'From Cooperative to Coercive Federalism and Back?' (1979), 10 Federal Law Review, 121.
  165. A 'restatement' is a non-binding text which provides a consolidation or distillation of common law principles. It is a popular vehicle in the United States. An Australian example is the work by Professor Finn and Professor Lee which attempts to restate the common law of contracts and trusts in Australia: see Goldring, op cit.
  166. 'Harmonisation' is aimed at achieving harmony between jurisdictions in terms of comparable norms rather than identical provisions: ibid.
  167. 'Unification' is aimed at achieving identical legislation in each jurisdiction: ibid.
  168. Following the Gibbs Committee Report, an international conference did question the virtue of diversity, however, the major domestic seminar considered the issue and expressly rejected 'uniformity' in favour of 'consistency': Goode, 1992, op cit, at p 7. The conference was the Third International Criminal Law Congress held in Hobart in 1990. The seminar was organised by the Society for the Reform of the Criminal Law and was held in Brisbane in 1991.
  169. See for example MCCOC, General Principles of Criminal Responsibility - Report, op cit, p ii.
  170. The Second Reading Speech for the original Bill referred to 'uniformity' (Criminal Code Bill 1995, Second Reading Speech, Hon. Duncan Kerr, House of Representatives, Debates, 1 March 1995, p 1331. See also McDonald, op cit, p 17). While the Second Reading Speech for this Bill refers to 'uniformity' it does so only in relation to penalties for related Commonwealth offences (Criminal Code Amendment (Theft, Fraud, Bribery and Related Offences) Bill 1999, Second Reading Speech, the Hon. Darryl Williams, House of Representatives, Debates, 24 November 1999, p. 12463).
  171. There has been criticism of the Model Criminal Code in a range of areas including its treatment of criminal responsibility (discussed above), age of consent in sexual offences (see generally Jackie Saisithidej, 'Sexual Assault Law Reform and the Uniform Criminal Code', Reform, vol. 68, pp 16-17), serious drug offences (Brian McConnell, Model Criminal Code: Critique by Families and Friends for Drug Law Reform of the Serious Drug Offences Discussion Paper, October 1997 at http://www.adca.org.au/ffdlr/Resources/mcc.htm).
  172. The Queensland Attorney-General withdrew participation from the Committee in May 1997. The departure was apparently related to the controversy over the Sexual Offences Discussion Paper: Goode, 1997, op cit, p. 266.
  173. A similar criticism has been levelled at 'uniform' consumer credit and companies legislation. One commentator has suggested that these demonstrate the relatively unsatisfactory nature of model laws in achieving policy goals. Goldring, op cit, p. 7-13.
  174. Deputy Federal Commissioner of Taxation (NSW) v WR Moran Pty Ltd (1939) 61 CLR 735 at 774; R v Duncan; Ex parte Australian Iron and Steel Pty Ltd (1983) 158 CLR 535 at 589; Re Cram; Ex parte NSW Colliery Proprietors' Association Ltd (1987) 163 CLR 117; Egan v Willis (1998) 158 CLR 527; Senate Standing Committee on Regulations and Ordinances, Eighty-seventh Report (Journals of the Senate), No 47, 29 November 1990, p. 494.
  175. Leslie Zines, The High Court and the Constitution, 3rd Ed, Butterworths, Sydney, 1992, p 232; Cranston, op cit, p 141; Final Report of the Constitutional Commission (1988) Vol. 1, pp. 95-97.
  176. In 1998 the Senate Standing Committee on Regulations and Ordinances made a statement: '[t]hese schemes present particular challenges for scrutiny committees because they usually deal with important matters and follow complex making procedures involving Commonwealth, State and Territory governments. These procedures are sometimes used as a reason to attempt to lessen or exclude parliamentary oversight. The Committee, however, does not accept this dilution of the role of Parliament and applies its usual strict standards to these instruments': Senator Bill O'Chee, Senate, Debates, 12 March 1998, p 892, Statement on Scrutiny of National Uniform Legislative Schemes.
  177. In 1995 the Regulations Committee made the following statement: 'while the Committee accepts undertakings from Ministers, who are answerable in Parliament for their actions, the Ministerial Council, which under the uniform national scheme must approve the amendments, is not directly answerable in this way': Senator Mal Colston, Senate, Debates, September 1995, p 976, Statement on Scrutiny by the Committee of Regulations Implementing a National Uniform Legislative Scheme.
  178. The proposed standards were that the uniform legislation be tabled as an exposure draft in each parliament and, in considering the legislation, that the committees consider whether it unduly affects personal rights and liberties or inappropriately delegates legislative powers: Regulation Review Committee, Parliament of New South Wales, Discussion Paper No. 1 on the Scrutiny of National Scheme Legislation and the Desirability of Uniform Scrutiny Principles, September 1995.
  179. Williams and Weinberg, op cit, pp. 413-414.
  180. Theft Act 1968 (UK), s 1; Crimes Act 1958, s 72(1).
  181. Based on 'claim of right', consent of the owner, or an inability to reasonably find the owner (ie the 'defences' contained in the Bill): Theft Act 1968 (UK), s 2; Crimes Act 1958, s 73(2).
  182. [1973] QB 530.
  183. [1982] 1 QB 1053.
  184. Ghosh [1982] 3 WLR 10, 118-9.
  185. [1980] VR 401.
  186. [1981] VR 783.
  187. [1981] VR 633.
  188. (1998) 192 CLR 493.
  189. That is, where a defendant might have the requisite knowledge, intention or belief, but it is not necessarily appropriate to view it as dishonest, in se.
  190. Peters v The Queen, (1998) 192 CLR 493, per Toohey and Gaudron JJ at 508. Kirby J at 551, was prepared to go even further in support of a subjective basis for honesty. See also C. R. Williams, 'The Shifting Meaning of Dishonesty', Criminal Law Journal, vol. 23, pp. 275-284.
  191. Williams, op cit, p. 283.
  192. R v Glenister [19880] 2 NSWLR 597.
  193. R v Lawrence (1996) Australian Criminal Reports 412.
  194. MCCOC, Theft, Fraud and Related Offences - Report, op cit, p. 25.
  195. Proposed Division 135 corresponds generally to offences in the Commonwealth (Crimes Act 1914 (Cth.), s 29D), Western Australia (Criminal Code Act (WA), s 409) and Canada (Criminal Code (Canada), s 380).
  196. Scott v Metropolitan Police Commissioner [1975] AC 819 (illegal copying of films); Cooke [1986] AC 909 (using employer's premises to make profits); Hollinshead [1985] AC 975 (manufacture of electricity meter devices).
  197. David Lanham, David Weinberg, David Brown and David Ryan, Criminal Fraud, Law Book Company, Sydney, 1987, pp. 86 and 383.
  198. Syrota, 'Criminal Fraud in Western Australia: A Vague, Sweeping and Arbitrary Offence', Western Australian Law Review, vol. 24, 1994, p. 261.
  199. MCCOC, Theft, Fraud and Related Offences - Report, op cit, p. 169.
  200. The Commonwealth Special Prosecutor, Report to Parliament, 1982/3, Roger Gyles QC: Mr Frank Costigan QC, Royal Commissioner, did not believe a general dishonesty offence was necessary: MCCOC, Theft, Fraud and Related Offences - Report, op cit, p. 171.
  201. Ibid, p. 155.
  202. Ibid, p. 167. So, for example, a defendant may be convicted of dishonest non payment of debts in Canada: Zlatic (1993) 79 CCC (3d) 466.
  203. Ibid, recommendation p. 171.
  204. For example, where a welfare recipient fails to inform an agency of a material change in circumstances that would have invalidated the payment.
  205. That is, where companies are stripped and left with a tax liability in the hands of persons with no assets.
  206. For example, obtaining a visa to enter the country by deception.
  207. Peters v The Queen, (1998) 192 CLR 493, at 508.
  208. R v Lawrence [1972] AC 626.
  209. There need not be an assumption of all the owner's rights. Adverse interference with or usurpation some right of the owner is sufficient (R v Morris [1984] AC 320) but not necessary (R v Gomez [1993] AC 442).
  210. '[I]f virtually any dealing with goods counts as an appropriation, the more work dishonesty has to do to distinguish theft from innocent transactions', MCCOC, Theft, Fraud and Related Offences - Report, op cit, p 37, Criminal Code Amendment (Theft, Fraud, Bribery and Related Offences) Bill 1999, Explanatory Memorandum, p. 31.
  211. Generally, appropriation involves taking without consent. If, as in Gomez, consent is not relevant to appropriation, all obtaining by deception cases, which involve taking with consent, will also be theft: Ibid.
  212. MCCOC, Theft, Fraud and Related Offences - Report, op cit, p 107, Criminal Code Amendment (Theft, Fraud, Bribery and Related Offences) Bill 1999, Explanatory Memorandum, p. 31.
  213. The second point is conceded by MCCOC and the Explanatory Memorandum in relation to the segregation of theft and fraud: ibid.
  214. In the United Kingdom and Victoria, conduct amounting to obtaining property by deception can be charged as theft: Lawrence v Metropolitan Police Commissioner [1972] AC 626; Heddich v Dike (1981) 3 A. Crim. R. 139.
  215. In an 'obtaining by deception' case, there may be difficulties in establishing an act of deception or a causal link between the deception and the obtaining which could be resolved by adopting the 'complete overlap theory': Williams and Weinberg, op cit, pp 186-190. A 'complete overlap theory' would also obviate the need for a very complex receiving provision ... and do away with the difficult problem that has arisen in some cases where the jury is satisfied that the defendant is guilty of theft or receiving but cannot decide which': MCCOC, Theft, Fraud and Related Offences - Report, op cit, p 107. The Gibbs Committee favoured the 'complete overlap theory' because it would remove the potential for 'arid debates' about the differences between theft and fraud: Gibbs Committee, Fourth Interim Report, p 131.
  216. MCCOC, Theft, Fraud and Related Offences - Report, op cit, p 107; Criminal Code Amendment (Theft, Fraud, Bribery and Related Offences) Bill 1999, Explanatory Memorandum, p. 42.
  217. MCCOC believed that the mistake provision should apply 'whether the contract is void or voidable': Model Criminal Code Officers Committee of the Standing Committee of Attorneys-General, Chapter 3: Theft, Fraud, Bribery and Related Offences: Discussion Paper - Part One, December 1993, p. 33.
  218. MCCOC, Theft, Fraud and Related Offences - Report, op cit, p. 65.
  219. Under the Bill, as indicated, alternative verdicts are allowed in relation to theft and fraud, public fraud and organised fraud and recklessness and knowledge in false and misleading statements.
  220. at is, a judge may direct the jury to consider an alternative verdict if it is open on the evidence 'even if such a verdict has not been mentioned by counsel in their final addresses, or even by the prosecutor in his opening address': Fitzpatrick v R (1988) 50 SASR 10 at 11. See also Benbolt v R (1993) 60 SASR 7; Middap (1992) 63 Australian Criminal Reports 434.
  221. Quinn (1991) 55 Australian Criminal Reports 435 per Priestley JA at p 444. See also R v Van Bay Che (1988) 50 SASR 1, per Perry J at p 8; Cameron v R [1983] 2 NSWLR 66 at p 71; and R v Pureau (1990) 19 NSWLR 372 at p. 376.
  222. The New South Wales Court of Criminal Appeal has suggested that there will generally be no prejudice where the alternative verdicts involve theft and receiving: Walters (1992) 62 Australian Criminal Reports 16.
  223. Priestley J seems acknowledges this in Quinn: op cit, p. 444.
  224. See generally, MCCOC, Theft, Fraud and Related Offences - Report, op cit, pp 163-167.
  225. Ibid, p. 179.
  226. Ordinarily, multiple offences will be dealt with by a concurrent sentence. However, cumulative sentences may be imposed 'to reflect the true criminality of conduct in multiple offence cases': ibid, p 181. Ironically, a cumulative sentence for multiple fraud offences would impose a more severe maximum penalty than the maximum penalty under proposed section 135.3: ibid.
  227. Ibid, p. 177.
  228. Ibid, p. 182.
  229. The organised fraud offence triggers the automatic forfeiture provisions in the Proceeds of Crime Act 1987.
  230. 'There is a community expectation that these matters should be dealt with harshly and it is therefore inappropriate to merely leave it to the courts to impose cumulative sentences': Criminal Code Amendment (Theft, Fraud, Bribery and Related Offences) Bill 1999, Explanatory Memorandum, p. 59.
  231. See generally Shearer, op cit, pp. 162-164.
  232. Croft v Dunphy [1933] AC 156.
  233. Bonser v La Macchia (1969) 122 CLR 177, per Windeyer J at 226.
  234. Broken Hill South Ltd v Commissioner of Taxation (NSW) (1936) 56 CLR 337, per Dixon J at 375.
  235. Pearce v Florenca (1976) 135 CLR 507 at 518.
  236. This power draws from the external affairs power in s 51(xxix) of the Australian Constitution which was discussed in Polyukovich v The Commonwealth (1991) 172 CLR 501.
  237. Polities v The Commonwealth (1945) 70 CLR 60 and Fishwick v Cleland (1960) 106 CLR 186.
  238. Horta v The Commonwealth (1994) 181 CLR 183 at 195.
  239. MacLeod v Attorney-General (NSW) [1891] AC 455, per Halsbury LC, at p 458-459; Thompson v The Queen (1989) 169 CLR 1, per Deane J, at p 33, R v Keyn (1876) 2 Ex D 63, at pp 68, 117, 152, 160-161, 239 Huntingdon v Attrill [1893] AC 150 per Watson LJ, at p 155-156.
  240. Jumbunna Coal Mine NL v Victorian Coal Miners' Association (1907) 6 CLR 309 at p 363 and Morgan v White (1912) 15 CLR 1 at pp 3-9.
  241. Wanganui-Ragitikei Electric Power Board v Australian Mutual Provident Society (1934) 50 CLR 581 at 601. See also Air India v Wiggins [1980] 2 All ER 593 per Scarman LJ at p. 597.
  242. Meyer Heine Pty Ltd v The China Navigation Co Ltd (1966) 115 CLR 10 at p. 23.
  243. This is discussed in Dennis Pearce and Robert Geddes Statutory Interpretation in Australia (3rd Ed), pp. 97-99.
  244. Section 3A.
  245. A similar jurisdiction has been asserted in Australia, but only in relation to war crimes, hostages and torture: War Crimes Amendment Act 1988, Crimes Act 1914, Part IIIA (ss 50AA-50GA), Crimes (Torture) Act 1988, s 7; Crimes (Hostages) Act 1989, s 7.
  246. See generally Ivan Shearer in S. Blay, R. Piotrowicz and B.M. Tsamenyi, Public International Law: An Australian Perspective, Oxford University Press, Melbourne, 1997, 161-192, at pp 165-179; Matthew Goode, 'The Tortured Tale of Criminal Jurisdiction', Melbourne University Law Review, 1997, vol. 21(2), pp 411-459 at pp 413-414 ['Goode, 1997(b)']; and Halsbury's Laws of Australia, 'Title 215 - Foreign Relations' [215-380 and 215-385].
  247. Broken Hill South Ltd (Public Officer) v Commissioner of Taxation (NSW) (1937) 56 CLR 337 per Dixon J at 375; Mynott v Barnard (1939) 62 CLR 68 per Latham CJ at 75 and Starke J at 89; Helmers v Coppins (1961) 106 CLR 156. See also Union Steamship Co of Australia Pty Ltd v King (1988) 166 CLR 1.
  248. Ward v R (1980) 142 CLR 308.
  249. Lipohar v The Queen; Winfield v The Queen [1999] HCA 65 (9 December 1999), per Kirby J, at para 178. This is because individuals do not have any particular status as residents of a State or Territory in contrast to the Commonwealth of Australia which is a unique legal entity having its own criminal jurisdiction and being recognised in international law.
  250. Liangsiriprasert v United States [1991] 1 AC 225 at 251; R v Manning [1999] QB 980 at 1000; Lipohar, op cit, per Gleeson CJ at para 35; per Gaudron, Gummow and Hayne JJ at para 123; per Callinan at para 269. Although the approach in Liangsiriprasert was criticised in Goode, 1997(b), p 436 and Lipohar, op cit, per Kirby J, paras 175-176. The previous cases were Board of Trade v Owen per Tucker LJ, at 625-626 (conspiracy to defraud); Department of Public Prosecutions v Doot [1973] AC 807, per Wilberforce LJ at pp 817-818 and Salmon LJ at p 832-833 (conspiracy to defraud); DPP v Stonehouse [1977] 2 All ER 909 (attempt). See also comments in R v Hansford (1974) 8 SASR 164, per Wells J at p 195; McNeilly v The Queen (1981) 4 Australian Criminal Reports 46; R v Millar [1970] 2 QB 54; R v El-Hakkaoui [1975] 2 All ER 146 discussed in Goode, 1997(b), op cit, at pp 433-436. Aside from Liangsiriprasert all of these cases could be viewed as examples of crimes where some element of the principal offence occurred within the territory.
  251. Libman v The Queen [1985] 2 SCR 178.
  252. Lipohar, op cit, per Gleeson CJ at para 35; per Gaudron, Gummow and Hayne JJ at para 123; per Callinan J at para 269.
  253. Theft (proposed section 131.1(4)) and other property offences (proposed section 132.9); obtaining property or a financial advantage by deception (proposed section 134.3); other offences involving fraudulent conduct (proposed section 135.5); false or misleading statements (proposed section 136.1(8)); false and misleading information (proposed section 137.3); unwarranted demands (proposed section 139.3); bribery (proposed section 141.1(4)); offences relating to bribery (proposed section 142.3); forgery (proposed section 144.1(9)) and related offences (proposed section 145.6).
  254. '[T]he invocation of the passive personality principle is best justifiable in relation to terrorist and similar offences. In other cases its validity is dubious and its exercise against a foreign national may be objected to by the national state of the person accused': Shearer, op cit, p 175.
  255. '[T]here are few widely accepted applications of the principle', although it might apply in relation to counterfeiting and forgery of official documents, ibid, p. 170.

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