On 19 September 2018, Prime Minister Scott Morrison and Attorney-General Christian Porter announced that amendments to the contamination of goods offences in the Criminal Code Act 1995 (Cth) would be prioritised in the Parliament. This announcement was in response to a number of incidents across Australia where strawberries and other fresh food products are alleged to have been contaminated with sewing needles. While there are existing offences that would likely address this conduct, the Government proposes to change the fault element to capture conduct that is reckless as to the consequences of the contamination of goods. Doing this, as well as increasing the penalties for the offences, is intended to create a greater deterrent to this conduct.
The Commonwealth has a number of criminal offences in Part 9.6 of the Criminal Code addressing dangers to the community, including the contamination of goods. ‘Goods’ includes substances for human consumption. This Part of the Criminal Code was inserted by Schedule 2 of the Crimes Legislation Amendment (Telecommunications Offences and Other Measures) Act (No. 2) 2004. The Explanatory Memorandum to this Part explains that the contamination of goods offences are derived from the 1998 Model Criminal Code Officers’ Committee (MCCOC) Report on Contamination of Goods. The offences were designed to act in parallel with state and territory contamination of goods offences, by addressing contamination of national significance and conduct that originates from overseas.
The existing Commonwealth offences cover three types of conduct: contaminating goods, threatening to contaminate goods and making false statements about the contamination of goods. In broad terms, a person commits an offence under this Part if they have been found to have contaminated goods, threatened to contaminate goods or made false statements about the contamination of goods with the intent to cause public alarm or anxiety in Australia; or to cause widespread, or nationally significant economic loss in Australia through public awareness of the contamination or the possible contamination of the goods; or to cause harm or create risk of harm to public health in Australia. A person will also commit an offence if their intention is to cause economic loss (rather than widespread or nationally significant loss as required under the first offence) to a constitutional corporation (a financial or trading corporation formed in Australia, or a foreign corporation) or in constitutional trade or commerce (trade among the states or with other countries). These requirements ensure that the offences are within Constitutional power. All offences currently have a maximum penalty of imprisonment for 10 years.
The Criminal Code Amendment (Food Contamination) Bill 2018, which was introduced and passed both Houses on 20 September 2018, will increase the maximum penalties available for the offences of contaminating goods (section 380.2), threatening to contaminate goods (section 380.3) and making false statements about contamination of goods (section 380.4) from 10 years’ imprisonment to 15 years’ imprisonment. It will also introduce new offences that will apply where a person contaminates goods, threatens to contaminate goods or makes a false statement about contaminating goods in circumstances where the person is reckless as to whether their actions will cause public alarm or anxiety, economic loss or harm (or risk of harm) to public health. These offences will have a penalty of 10 years’ imprisonment. The new criminal offences do not apply retrospectively, so would not cover conduct that has already occurred.
Both intention and recklessness are defined fault elements in the Criminal Code (Division 5). A person has intention if they mean to bring about a result (for example they mean to cause public alarm or anxiety) or they are aware that a certain result will occur in the ordinary course of events and act with this in mind (intention, in section 5.2)). In contrast a person is reckless if they are aware of a substantial risk that the result will occur and it is unjustifiable, in the circumstances, to take the risk (recklessness, in section 5.4). This may apply even where the person did not want that result to occur.
The Bill will also expand the application of the Division 82 sabotage offences in the Criminal Code. The sabotage offences apply where a person engages in conduct that results in ‘damage to public infrastructure’ and the person intends that, or is reckless as to whether, the conduct will prejudice Australia’s national security, or advantage the national security of a foreign country. The Bill will extend the definition of ‘public infrastructure’ to include: services and utilities relating to food, and food that is intended for the public and is produced, distributed or sold by a constitutional corporation or for the purposes of, or in the course of, constitutional trade and commerce. The maximum penalties for the sabotage offences range from seven to 25 years imprisonment.
The Bill has been accelerated through the Parliament and during debate in the House of Representatives, the Labor Party and the Australian Greens supported the Bill but called for a review of the amendments 12 months after their commencement, expressing some concern about any potential unintended consequences. The urgency of the legislation’s passage is due to the prospective application of the new and amended offences and the continuing reports of contaminated fruit. The Bill will commence the day after Royal Assent, which could be as soon as 21 September 2018.