Bills Digest No. 127 2002-03
Crimes Legislation Enhancement Bill 2002
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
Concluding Comments
Endnotes
Contact Officer & Copyright Details
Passage History
Crimes Legislation Enhancement Bill
2002
Date
Introduced: 5
December 2002
House: Senate
Portfolio: Justice and Customs
Commencement: The amendments will commence on the day the
Act receives the Royal Assent unless otherwise specified. The dates
for commencement of various amendments differ and are set out in a
table that forms part of clause 2 of the Bill.
This is an
omnibus Bill, which makes a series of relatively minor policy and
technical amendments to the Crimes Act 1914 and other
legislation relating to criminal law or the enforcement of various
Commonwealth criminal laws.
The majority of amendments in this Bill are of a
purely technical and minor nature. They are intended to remove
technical errors and inconsistencies in existing Commonwealth
criminal laws.
Schedule 1 contains amendments
to the Crimes Act 1914. The proposed amendments to the
Crimes Act 1914 involve:
-
- technical changes to facilitate the taking of fingerprint and
photograph records of convicted persons
-
- clarification of the admissibility and purpose of evidence of a
suspect s refusal and submission of other identity evidence
-
- extension of the lower courts jurisdiction to deal with
Commonwealth offences involving property up to $5,000, and
-
- expansion of the number of Commonwealth offences in which
defendants may waive their right to jury trial and have matters
dealt with in the summary jurisdiction of the lower courts.
Item 2 clarifies that a judge
or magistrate is empowered to make any order reasonably necessary
to ensure that fingerprint and photograph evidence is obtained from
a convicted person. A failure to comply with the order is a
criminal offence subject to a penalty of 12 months
imprisonment.
Section 3ZM deals with the conduct of
identification parades. Item 3 amends the section
to provide that evidence of an offender s refusal to submit to an
identity parade is admissible for the purpose of explaining why
such a parade was not held. This amendment replaces an existing
provision, which currently limits admissibility of such evidence to
cases in which the accused had no reasonable excuse to refuse a
parade but does not limit the purpose for which such evidence may
be admitted. The EM states that the amendment is intended to remove
the implication that a negative inference as to the suspect guilt
may be drawn from evidence of the refusal to take part in an
identification parade. It also clarifies that, in these
circumstances, identification evidence based on photographs or
another sighting of the suspect (other than by identity parade) is
admissible.(1)
Currently, offences involving property valued at
more than $500 must be dealt with as an indictable offence.
Item 4 amends subsection 4J(4) to raise this
threshold to $5,000. The effect of the amendment is to expand the
jurisdiction of lower courts in relation to Commonwealth offences.
The extension of the jurisdiction of the lower courts is not
retrospective and will take effect for offences committed from the
date of Royal Assent (item 5).
Item 6 inserts new
section 4JA to extend the existing class of Commonwealth
indictable offences that may be dealt with summarily. The proposed
amendment would permit the lower courts to deal with indictable
offences, punishable by a fine only, provided there is agreement
between the defendant and prosecution.
The offences are limited to those, which do not
attract a term of imprisonment and where the fine is limited to 600
penalty units or less for a individual, or 3,000 penalty units or
less for a body corporate.(2) One important aspect of
this amendment is that, the lower courts will be limited in the
level of fines they can impose thereby creating an incentive for
defendants to waive the right to a jury trial.
Schedule 2 contains a series of
minor policy and technical amendments to other Acts. Item
7 amends subsection 22(2) of the Foreign Evidence Act
1994 to remove a provision that requires foreign material to
bear an official or public seal of the foreign country or of a
Minister or official of the country, in order for it to be adduced
as evidence in criminal and related civil proceedings. This
amendment is a response to the inability of some countries to meet
the requirement for confirmation that the evidence was obtained
through appropriate official channels. Section 26 makes provision
for the Attorney-General (or an authorised officer) to certify that
specified foreign material was obtained as a result of a request
made to a foreign country by or on behalf of the Attorney-General.
The Government considers that this provision is sufficient to
ensure the authenticity of the evidence.
Items 8 to 13 consist of
technical amendments to the mutual assistance in criminal matters
provisions of the International War Crimes Tribunals Act
1995 (IWCT Act). The purpose of the amendments is to
ensure consistency with amendments made to the Mutual
Assistance in Criminal Matters Act 1987 in 1996.
Item 9 amends section 29 of the
IWCT Act by inserting new subsections 29(3) and
(4). The proposed provisions are designed to enable the
person giving or producing the evidence, or that person s legal
representative, or the Tribunal s legal representative, to be
examined or cross examined by means of video link. The facility
applies to proceedings under sections 27 or 28 of the IWCT Act that
is proceeedings designed to comply with a request from a War Crimes
Tribunal for evidence to be taken in Australia for the purpose of a
proceedings or investigation being conducted by the War Crimes
Tribunal.
Item 10 amends subparagraph
66(2)(b)(i) of the IWCT Act to change the circumstances which allow
the use of force by police officers when making an arrest under the
Act. The purpose of the amendment is to remove an unintentional
restriction on the use of force in circumstances where such force
is necessary to protect other lives or prevent serious injury to
other persons.
Presently, paragraph 66(2)(b) provides that a
police officer shall not do anything that is likely to cause the
death of, or a grievous bodily harm to, the person being arrested
unless
(i) the officer believes on reasonable grounds
that doing that thing is necessary to protect another life or to
prevent serious injury to another person (including the police
officer), and
(ii) the person being arrested has, if
practicable, been called upon to surrender and the officer believes
on reasonable grounds that the person cannot be apprehended in any
other manner.
The effect of the amendment is to require only
one of those conditions rather than both conditions to be present
before the police officer may lawfully use such force that is
likely to result in death or grievous bodily harm.
Item 12 amends section 80 of
the IWCT Act. The proposed amendment adds section 47C of the
Crimes Act 1914 to a list of provisions of that Act, which
govern the custody and arrest, and apply to the arrest and custody
of a person for an offence against the IWCT Act.
Section 47C of the Crimes Act 1914
provides that a person, responsible for the custody or detention of
a person charged with an offence under Commonwealth law, is guilty
of an offence if he or she intentionally or negligently permits the
detainee to escape.
Schedule 3 contains technical
corrections relating to part numbering in the Crimes Act
1914.
The proposal in items 4 and 6
warrants some comment. The proposed amendments, if passed, will
expand the jurisdiction of the lower court to deal with all
offences involving property valued at not more than $5,000 and
permit less serious indictable offences to be dealt with by the
lower court by the consent of the parties.
The Explanatory Memorandum (EM) states that the
Government s aim is to contribute to making the criminal trial
process more efficient. In pursuing this reform the Commonwealth is
following a trend initiated by its counterparts in the States and
Territories as a means of reducing delays and the costs of jury
trials.(3)
A number of issues remain unclear. For example,
details of the case load or time delays involved in the prosecution
of Commonwealth offences in the higher courts; expected number of
cases that will removed to the lower courts, as a result of these
proposed changes; the cost savings to the Commonwealth; and the
impact on defendants.
In essence, the reform set out in item
6 relies on providing an incentive to defendants to waive
their right to trial by jury by reducing the severity of the
penalty that can be imposed by a magistrate.
While these reforms have become an accepted
party of the criminal justice system at the State level it is worth
noting two key issues. First, while the offences covered by the
Bill may be characterised as less serious crimes and do not involve
terms of imprisonment, the consequences for defendants, especially
for those from a lower socio-economic background are potentially
still quite severe. There is a trend for accused in the lower
courts to plead guilty. While this may also appear to add to the
efficiency of the criminal trial process it may mean that an
unrepresented accused, and even those with private or publicly
funded representation, forego the opportunity to put the Crown to
the test of proving guilt beyond reasonable doubt.
Second, it is axiomatic that the reforms
proposed in both items 4 and 6, will reduce the
caseload of the higher courts and will contribute to lessening
delay. However, it is unclear what impact this will have on the
lower courts or what cost implications there may be for the
Commonwealth.
Endnotes
-
- Explanatory Memorandum, p. 3.
- A penalty unit is $110 (section 4AA Crimes Act 1914).
- Explanatory Memorandum, p. 4.
Jane Hearn
19 March 2003
Bills Digest Service
Information and Research Services
This paper has been prepared for general distribution to
Senators and Members of the Australian Parliament. While great care
is taken to ensure that the paper is accurate and balanced, the
paper is written using information publicly available at the time
of production. The views expressed are those of the author and
should not be attributed to the Information and Research Services
(IRS). Advice on legislation or legal policy issues contained in
this paper is provided for use in parliamentary debate and for
related parliamentary purposes. This paper is not professional
legal opinion. Readers are reminded that the paper is not an
official parliamentary or Australian government document.
IRS staff are available to discuss the paper's
contents with Senators and Members and their staff but not with
members of the public.
ISSN 1328-8091
© Commonwealth of Australia 2003
Except to the extent of the uses permitted under the
Copyright Act 1968, no part of this publication may be
reproduced or transmitted in any form or by any means, including
information storage and retrieval systems, without the prior
written consent of the Parliamentary Library, other than by Members
of the Australian Parliament in the course of their official
duties.
Published by the Department of the Parliamentary Library,
2003.
Back to top