Crimes Legislation Amendment
(Telecommunications Offences and Other Measures) Bill 2004
Bills Digest No. 13 2004-05
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.
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
Purpose
Background
Main Provisions
Concluding Comments
Endnotes
Contact Officer & Copyright Details
Crimes Legislation
Amendment (Telecommunications Offences and Other Measures) Bill 2004
The major part of the Bill introduces new offences under the Criminal
Code Act 1995 (the 'Criminal Code') involving use of a telecommunications
network or 'carriage service' (the internet, emails, mobile and fixed
telephones, faxes, radio and TV). Proposed new offences include the use of such
a network or service:
·
for a 'serious offence'
·
to make a threat
·
to menace, harass or 'cause offence'
·
for child pornography or child abuse material
·
to procure or 'groom' a person under 16 years of age for a sexual
purpose, and
·
for suicide related material.
The Bill also proposes new
offences relating to contamination of goods, dishonest financial dealing and
child prostitution on board Australian-registered aircraft.
The Bill also makes
important changes to the Criminal Code in relation to the criminal trial
process. It proposes that:
·
where a jury is satisfied that an accused was responsible for a
crime, but is unsure whether they carried out the crime themselves or were
complicit in the offence, the jury should be able to find the accused guilty of
the crime, and
·
a person should remain criminally responsible if they are ignorant
of or mistaken about a law or regulation creating an offence, unless the law or
regulation expressly provides otherwise.
In addition, the Bill amends the Customs Act
1901 to ensure that in
prosecuting a charge of illegally importing narcotics it will not be necessary
to prove that the accused intentionally brought a prohibited item into
Australia.
Finally, the Bill amends the Mutual
Assistance in Criminal Matters Act 1987 to make it easier for a
foreign country to obtain evidence from Australia in criminal investigations.
A person can only be validly subject to the proposed offences if
the new provisions are within Commonwealth constitutional power. By linking
many of the proposed offences in Schedule 1 of the Bill to use of
telecommunications networks or 'carriage services', the Government will make
the new provisions applicable in a wide variety but not all situations.
The Commonwealth appears to have full constitutional power to make
laws in relation to electronic telecommunications, including the internet.
Under section 51(5) of the Constitution it has power to legislate with respect
to 'postal, telegraphic, telephonic and other like
services'. Even though radio and
television were not contemplated at the time the Constitution was drafted, both
those mediums have been held by the High Court to be 'other like services'
within the scope of section 51(5).(1) In 1935 the High Court
stated that the common characteristic of postal, telegraphic and telephonic
services was that:
They are communication services If a new form of communication
should be discovered, it too might be made the subject of legislation as a
'like service'.(2)
The court also rejected the notion that section 51(5) was
restricted to services for communication between individuals.(3) So creating offences
relating to use of telephones, the internet and other 'carriage services' is
plainly within Commonwealth power.
However, if a
telecommunications network or 'carriage service' is not used for a particular
activity, and provided the person carrying out the activity is not otherwise
within a head of power in the Constitution (e.g. a corporation, trading
interstate, or within the scope of a relevant international agreement), the
Commonwealth will have no constitutional power to regulate the activity, let
alone specify it as a criminal offence. For example, a person using a library
to obtain 'suicide related material' in physical form could not validly be
subject to a Commonwealth law. Any offence in such circumstances would be a
matter for State law.
According to the Minister for Justice and Customs, Senator
Ellison, 'the taking of a photo using a camera phone would be covered by this
legislation if it were used to transmit child pornography or images which were
used to menace, harass or for other offensive purposes'.(4) Someone taking an
offensive picture of a person without permission would be caught by existing
State legislation. The federal law proposed in this Bill would come in once the
pictures were transmitted from phone to phone or over the internet.
Apart from a specific
offence of using carriage services for child pornography and child abuse
material, the Bill also introduces a general crime of using a carriage service
to 'cause offence'. This offence appears to cover both general 'offensive'
material as regulated by the Commonwealth Office of Film and Literature
Classification (OFLC) and more specific offensive conduct such as racial
vilification already covered by various Commonwealth and State/Territory laws.
A cooperative federal scheme provides a uniform censorship and
classification system throughout all Australian jurisdictions. This scheme consists of central Commonwealth legislation and
complementary State and Territory provisions.
Classification of films, computer games and publications is
administered by the OFLC under the Classification (Publications, Films and Computer Games)
Act 1995. The Act covers the structure and functions of the OFLC as well as classification criteria and
procedures. State and Territory legislation deals with the enforcement of classification
decisions. The classification scheme for television, radio and internet is
overseen by the Australian Broadcasting Authority (ABA) under the Broadcasting Services Act
1992.(6)
All States and Territories have retained or enacted their own
classification legislation. Generally the object of the State and Territory legislation is to
give effect to the national classification scheme as set out in the
Classification (Publications, Films and Computer Games) Act.
Publications, films and computer games are classified in
accordance with the National Classification Code and the classification
guidelines. The Commonwealth
Minister determines the classification guidelines in agreement with each
participating State/Territory Minister. The Code contains the general principle that 'adults should be
able to read, hear and see what they want'. However this is qualified by the
following concerns:
·
minors should be protected from material likely to harm or disturb
them
·
everyone should be protected from exposure to unsolicited material
that they find offensive, and
·
the need to take account of community concerns about:
·
depictions that condone or incite violence, particularly sexual
violence, and
·
the portrayal of persons in a demeaning manner.
In relation to
regulation of internet content, the explanatory memorandum to the Bill notes
that:
Under the Online Content
Co-Regulatory Scheme (the Scheme), created by Schedule 5 of the Broadcasting Services Act,
the ABA handles and investigates complaints from the public about prohibited
Internet content or potential prohibited Internet content and can order
Australian Internet content hosts not to host such content. The Scheme
also requires scheduled filter software manufacturers to update their filters
in accordance with ABA notifications so that prohibited content or potential
prohibited Internet cannot be accessed when using such software.(7)
For further background, see the parliamentary library e-brief by
Kim Jackson, Censorship and Classification in
Australia (October 2001).(8)
One of the situations that the Government envisages will be
covered by the offence of using a carriage service to 'cause offence'
introduced by the Bill is 'use that vilifies persons on the basis of their race
or religion'.(9)
The Commonwealth Racial
Discrimination Act 1975 prohibits actions that are:
reasonably likely to
offend, insult, humiliate or intimidate another person or a group of people
because of the race, colour or national or ethnic origin of the other person or
some or all of the people in the group.(10)
However the Racial Discrimination Act does not make such actions a
specific criminal offence.(11)
Most other Australian jurisdictions have similar legislation which
both prohibits such conduct and makes it a criminal offence. The prohibition
generally applies to 'public acts', i.e. 'any form of communication to the
public', which would include racial vilification via the internet but does not
cover private communications such telephone conversations.(12)
Under Schedule 5 of the Broadcasting
Services Act 1992 the Online Content Co-Regulatory Scheme administered by the ABA
regulates internet service providers and internet content hosts. However it
does not regulate either producers of content, or persons who upload or access
content. These categories of online content creators and end users are
regulated instead by a combination of State and Territory online enforcement
laws and the criminal laws.
In general, State
classification and criminal laws do not make it an offence for adults to view
or possess pornography. Classification guidelines relate mainly to the ability
of children to access such material.
Possession of child pornography and/or child abuse material,
however, is an offence in all States and Territories. In Western Australia, for
example, it is an offence punishable by imprisonment for up to 7 years to
possess or copy with intent to sell or supply, or to display, exhibit, publish
or actually sell or supply 'child pornography'. Possession of 10 or more copies
of an item of child pornography is evidence of an intention to sell or supply.(13) 'Child pornography' is
defined as:
an article that
describes or depicts, in a manner that is likely to cause offence to a
reasonable adult, a person who is, or who looks like, a child under 16 years of
age, whether the person is engaged in sexual activity or not.(14)
In Queensland, a person must not knowingly have possession of a
'child abuse' publication or 'child abuse' photography, or advertise, sell,
distribute, exhibit or display a 'prohibited' publication or 'child abuse'
photograph.(15) The maximum penalty is
imprisonment for 3 years. A child abuse publication is defined as:
a Refused Classification
publication that depicts or describes in pictorial or other form a person who
is, or who looks like, a child under 16 years (whether the person is engaged in
sexual activity or not) in a way that is likely to cause offence to a
reasonable adult.(16)
These offences would
appear to encompass use of any public 'carriage service' (internet, radio, tv,
sending pictures by mobile phone etc).
While suicide or attempted suicide is no longer an offence in
Australia, assisting or encouraging another person to commit suicide is an
offence in all States and Territories. In addition, to assist or encourage another person to attempt to commit suicide is an
offence in the Australian Capital Territory, the Northern Territory, New South
Wales, South Australia and Victoria. Further, except in Victoria, a person can be prosecuted for 'attempt' if they have
unsuccessfully assisted or encouraged suicide. Murder or manslaughter may also be relevant, on the basis that the
assistance or encouragement caused the death of a person who committed suicide. However the deliberate taking of one's own life would normally be
an 'intervening cause' which relieves the other person of responsibility.(17)
The offence of 'assisting suicide' under the New South Wales Crimes Act 1900 is expressed in the
following terms:
31C Aiding etc suicide
(1) A person who aids or abets the
suicide or attempted suicide of another person shall be liable to
imprisonment for 10 years.
(2) Where:
(b) that other person commits, or attempts to
commit, suicide as a consequence of that incitement or counsel,
The Attorney-General's Department published an exposure draft of the Bill in March
2004, providing one month for interested persons and organisations to comment.(18) Some of the publicly
available comments received on the exposure draft are included below.
On 15 July 2004 the
Minister for Communications, Information Technology and the Arts invited public
comment as part of a review into the regulation of illegal or offensive content
on mobile telephones and other mobile devices. The Minister announced that:
Pending the results of
this new review, I have already directed the Australian Communications
Authority (ACA) to regulate access to content provided on new premium services
delivered over mobiles.
This included putting in
place access controls for adult content delivered on the new premium rate
services and on proprietary networks operated by carriers. These controls will
restrict access by children to content that is unsuitable for them.(19)
The Department of Communications, Information Technology and the
Arts issued a discussion paper(20) as part of this review,
calling for submissions by 3 September 2004.
Commencement: Six months and one day
after Royal Assent.
Schedule 1 Part 1 amends the Criminal Code
and other Commonwealth Acts to provide for a range of telecommunications
offences, aimed particularly at misuse of 'carriage services'.
Item 18 of Schedule 1 provides that the phrase 'carriage
service' is to have the same meaning as in the Telecommunications
Act 1997, i.e. 'a service for
carrying communications by means of guided and/or unguided electromagnetic energy',(21) Parliament might note
that on this basis 'carriage service' not only covers the internet, emails,
telephone (mobile and fixed), faxes etc, but would also include radio and TV.
Item 1 of Schedule 1 replaces Part 10.6 of
the Criminal Code with a new Part 10.6 covering various
telecommunications offences. The new provisions will also replace the
telecommunications offences in existing Part VIIB of the Crimes Act 1914 (item 5).
Some parts of Schedule 1 reproduce existing
offences under the Criminal Code and/or the Crimes Act, or reproduce such
offences with minor changes only. This digest does not provided detailed
comments on these provisions.
Proposed section 474.4
Interception devices
This provision makes it an offence to manufacture, advertise, sell
or possess an 'interception device'. The proposed section specifies exceptions
where it is not an offence to sell or
possess a device for intercepting telecommunications (for example, where
interception is conducted lawfully by law enforcement or national security
agencies under the Telecommunications (Interception) Act
1979).
As noted by Electronic Frontiers Australia (EFA),(22) the proposed wording
does not provide an exception for the use of modems, mobile phones, telephone
handsets etc 'by persons accessing their own email and stored voice mail
messages'.(23)
Proposed section 474.5
Wrongful delivery of communications
This provision is based on existing
section 85ZD of the Crimes Act, making it an offence to cause a
telecommunication to be received by someone other than the person or service it
is directed to. An issue is whether this is properly worded for modern use of
internet services. There would appear to be an offence under the proposed
section where, for example, a business instructs an internet service provider
to re-direct emails addressed to a former employee.
Proposed sections 474.7
to 474.12 Modification and copying of telecommunications device identifier or
account identifier
These provisions propose
new offences for unauthorised modification or copying of telecommunications
equipment or account 'identifiers'. The offences are aimed particularly at
unauthorised use of lost or stolen mobile phones, and at attempts to hamper
interception and tracking of mobile phone calls (for example, by copying
several mobile phone numbers onto a single 'subscriber identity module' (SIM)
card).
This Bill proposes a new section
474.14 of the Criminal Code to replace existing section
85ZK of the Crimes Act. The
new provision will make it an offence to use a telecommunications network for a
'serious offence'. Instead of a maximum penalty of 5 years imprisonment in the
current provision, the maximum penalty will be the same as that for the
particular offence.
A 'serious offence' is an offence against a law of the
Commonwealth, a State or a Territory punishable by imprisonment for life or 5
or more years. It also includes any offence against foreign law that would be a
'serious offence' under the Bill if committed in Australia.(24)
Proposed subsection
474.14(5) provides that a person can be found guilty of
intending to commit a serious offence through use of a telecommunications
network 'even if committing the serious offence is impossible'. The explanatory
memorandum notes that this:
reflects the emergent
common law consensus that a person can be convicted of attempt here,
essentially a preparatory offence even though completion of the offence was
impossible in the circumstances. In other words, the law of attempt holds
that it is irrelevant if a particular result does not occur.(25)
Proposed section 474.15 makes it an offence to
'use a carriage service' to threaten to kill or cause serious harm with the
intention of instilling fear in another person.
The explanatory memorandum does not explain why a specific offence
is needed covering use of a telecommunications/carriage service to make a
threat given the existence in all Australian jurisdictions of general statutory
and/or common law crimes of 'assault' (which includes threatening assault) with
no restriction on the medium used to communicate a threat.(26) Adding the proposed new
offence for 'use of a carriage service' is, however, consistent with existing
section 471.11 which makes it a crime to 'use a postal or similar service to make
a threat'.
Under proposed section 474.17 there will be a maximum
punishment of 3 years imprisonment for using a telecommunications/carriage service
in a way 'that reasonable persons would regard as being, in all the
circumstances, menacing, harassing or offensive'. The proposed provision will
replace existing section 85ZE of the Crimes Act.
Menacing or harassing
The explanatory
memorandum notes that in relation to 'menacing or harassing' use of a carriage
service the proposed offence is broader than existing subsection 85ZE(1)
of the Crimes Act. This is because the proposed provision:
removes the requirement
that the recipient be in fact menaced or harassed and replaces it
with an objective standard. The proposed offence provides that reasonable persons must
regard the use of the carriage service, given all the circumstances, as
menacing, harassing or offensive. This allows community standards and
common sense to be imported into a decision on whether the conduct is in fact
menacing, harassing or offensive.(27) (emphasis added)
In addition, as the explanatory memorandum says, whether
'reasonable persons' would regard particular use of a carriage service asmenacing or harassing is 'a circumstance in
which the offending conduct must occur'.(28) Under section 5.6 of the
Criminal Code, this means that to be guilty of the proposed offence, a person
need not intend to cause 'reasonable persons' to feel menaced or
harassed but need only be reckless as to whether that
reaction occurs, i.e. 'aware of a substantial risk' which it is not justifiable
to take that this might occur.(29) This is similar to existing
section 471.12 of the Criminal Code regarding use of a postal or similar service
'to menace, harass or cause offence'.
EFA 'is strongly opposed to the removal of the requirement that
another person be in fact menaced or harassed.' It believes that the change is
aimed at use of the internet to organise political protests: 'the aim of the
proposed offence is to facilitate criminal prosecution of Internet users, and
especially political activists'.(30) As the Government said
in August 2003:
People using the
Internet to advocate or facilitate violent protests, for example by spreading
information on methods of violently disrupting international meetings and
attacking police officers protecting such gatherings, including those using the
Internet to harass or menace others are amongst those who could be prosecuted
under the new offences.(31)
EFA believes that the existing parts of section 85ZE of the Crimes
Act relating to menacing or harassing use of telecommunications/carriage
services do not need to be changed. If use of the internet actually menaces or
harasses a person, such conduct can be prosecuted. In addition, EFA notes that
material on the internet which 'promotes, instructs or incites in matters of
violence or crime' can be classified 'Refused Classification' by the
Classification Board, and that under Schedule 5 of the Broadcasting
Services Act 1992 such material has been prohibited internet content since 1 January
2000.(32)
Causing offence
Under existing section 85ZE of the Crimes Act, the
offence consisting of 'offensive' use of a telecommunications service does not
apply to 'use of a carriage service to carry Internet content'.(33) In contrast, the offence
in proposed section 474.17 will apply to any use of
a 'carriage service', including the internet.
Proposed section 473.4 states that in deciding
whether reasonable persons would regard a particular use of a
telecommunications/carriage service as 'offensive', a court is to consider:
(a)
the standards of morality, decency and propriety generally accepted by
reasonable adults; and
(b)
the literary, artistic or educational merit (if any) of the material; and
(c)
the general character of the material (including whether it is of a medical,
legal or scientific character)
The explanatory
memorandum notes:
The factors listed are
the same as the first three matters that are to be considered by the
Classification Board in making decisions on the classification of publications,
films and computer games under section 11 of the Classification
(Publications, Films and Computer Games) Act 1995 (Classification Act).(34)
While a court will need to consider such factors when deciding
what amounts to an 'offensive' use of a carriage
service for the purpose of proposed
section 474.17 and other parts of new Part 10.6, there is no such
requirement for existing section 471.12 concerning 'offensive'
use of a postal or similar service.
According to EFA, the inclusion of internet content in the
proposed offence is a direct reversal of the Federal Government's 1999 decision
to exclude such content from coverage by the Crimes Act on commencement of the Broadcasting
Services Amendment (Online Services) Act 1999 which established a
Commonwealth scheme of internet regulation. This scheme regulates internet
service providers and internet content hosts. EFA notes that:
It seems beyond doubt
that the proposed offence is intended, among other things, to enable the ABA to
refer Internet content that has been classified R18+ or X18+ or 'Refused
Classification' to Federal police for prosecution of the content provider. To
date, it has been considered a decision for State and Territory Governments as
to whether or not their censorship laws enable criminal prosecution of Internet
users.
Furthermore, the
proposed offence is so broad it would cover not only distribution of 'offensive'
material but also access tosuch material. As such
the offence could in effect criminalise access to material that is not illegal
to possess offline under the States' and Territories' censorship laws.(35)
Proposed sections 474.19
and 474.20, and proposed sections 474.22 and 474.23 will make it an offence
under Commonwealth law to use a telecommunications/carriage service to access,
transmit, make available, publish or distribute 'child pornography' or 'child
abuse material'. It will also be an offence for a person to receive such material
through a carriage service as a result of their own actions, or to carry out
related activies (possessing, controlling, producing, supplying, obtaining
etc). The maximum penalty will be imprisonment for 10 years.
'Child abuse material'(36) and 'child pornography'
are defined in proposed section 473.1 to include 'material
that depicts a person, or a
representation of a person' who 'is, or appears to be' under 18 years of
age, and who is or appears to be a victim of torture, cruelty or physical
abuse, or who is engaged in, or appears to be engaged in, a sexual pose or
sexual activity. The definition also includes 'material that describes a person who is, or 'is implied to be' under 18 years of
age and who is or is implied to be a victim of torture, cruelty or physical
abuse, or who is engaged in, or is implied to be engaged in, a sexual pose or
sexual activity.
The definition of 'child pornography' material also includes the depiction, representation or description of a sexual organ or the
anal region of a person, or the breasts of a female person who is, appears to be, or is implied to be under 18 years of
age.
The definitions apply if the depiction or description is done in such a way
that 'reasonable persons would, in all the circumstances, regard as being
offensive'. As noted above in relation to 'using a carriage service to cause
offence', in deciding what reasonable persons would regard as 'offensive', a
court is to take into account the factors in proposed
section 473.4 (including eg. the standards of morality, decency and propriety
generally accepted by reasonable adults etc).
Proposed sections 474.21
and 474.24 provide defences in relation to use of a
carriage service for child pornography and child abuse. These include use of a
carriage service for such purposes where this 'does not extend beyond what is
of public benefit'. However conduct that is of 'public benefit' is limited to
conduct which 'is necessary or of assistance in' specified situations,
including 'scientific, medical or educational research that has been
approved by the Minister in writing'. As the explanatory
memorandum notes:
This defence will ensure
that legitimate research dealing with child pornography [or child abuse
material] on the Internet can be undertaken provided the authorisation of the
Minister for Justice and Customs is received. Persons who are caught with
Internet child pornography and who argue that they were involved in personal
research will not have a defence available to them unless they have received
approval for their research from the Minister. Likewise, if a person who
has received approval for particular research engages in conduct that falls
outside what is necessary for or of assistance in conducting that research, the
defence will not be available to them.(37)
In addition, proposed
section 474.13 provides a defence in relation to the proposed offences for
'carriers', 'carriage service providers', internet service providers and
internet content providers when they are acting solely in those capacities.
However, underproposed section 474.25, internet service
providers and internet content providers can be fined up to $11 000 (for an
individual) or $55 000 (for a body corporate) if they are aware that their
services could be used to access child pornography or child abuse material and
do not refer details of the material to the Australian Federal Police within a
reasonable time.
The explanatory memorandum notes that proposed
sections 474.26 to 474.29:
contain an offence
regime targeting adult offenders who exploit the anonymity of
telecommunications services (for example, the Internet) to win the trust of a
child as a first step towards the future sexual abuse of that child. The
practice is known as 'online grooming'.(38)
Under proposed section 474.26, for a 'procuring'
offence to be committed, the sender must actually intend to procure sexual
activity through use of a carriage service. In addition, the sender must be at
least 18 years of age. The recipient must be under 16 years of age, or believed
by the sender to under 16. This will allow law enforcement officers to assume
the identity of a fictitious child to interact with potential predatory adults
over the internet.(39) The maximum penalty for
such an offence will be 15 years imprisonment.
Under proposed section 474.27, a 'grooming' offence
is committed where material that is 'indecent according to the standards of
ordinary people' is sent to a person who is, or the sender believes to be,
under 16. The sender must intend to make it 'easier to procure the recipient to
engage in or submit to sexual activity'. The maximum penalty for the 'grooming'
offences in proposed subsections 474.27(1) and (2) will be 12 years
imprisonment. The maximum penalty for the offence in proposed
subsection 474.27(3) where the sender intends to groom the recipient to engage in
sexual activity in the presence of an adult with another person aged under 18
will be 15 years imprisonment.
Under proposed subsection 474.27(4), whether material is
'indecent' will be a matter for a court and/or jury.
Proposed section 474.28 contains a number of
provisions designed to make prosecution of these offences easier. It
specifically provides that for the purpose of these offences, it does not
matter that the recipient is fictitious person, or that it was impossible for
sexual activity to take place. In addition, 'absolute liability' applies to
whether the recipient is under 16 and to whether a third person for whom the
recipient is being procured or groomed is over 18. This means the prosecution
does not have to prove intention, knowledge, recklessness or negligence on the
part of the defendant in relation to these elements of an offence. However,
underproposed section 474.29 it will be a defence if
the defendant believed the recipient was not under 16 or that a third person
was not at least 18, although a jury can take into account whether the alleged
belief was reasonable.
Proposed sections 474.30
and 474.31 will make it an offence to use a
telecommunications/carriage service to access, cause to be transmitted, make
available, publish or distribute 'suicide related material' with the intention
to 'counsel or incite suicide'. If the material directly or
indirectly counsels or incites suicide an offence will be committed. It will
also be an offence to use a telecommunications/carriage service to directly or
indirectly 'promote or provide instruction on' a particular method of
committing suicide, with the intention that the material is used to promote or
provide instruction on that method of suicide.
An offence will also be
committed if a person 'possesses, controls, produces or supplies' suicide
related material with the intention that the material be used to promote, counsel
or incite suicide through use of a carriage service.
The maximum penalty for such offences will be $110 000 for
individuals or $550 000 for a body corporate. Specific defences are not
included in the Bill, because, as the explanatory memorandum says, 'no-one
should have a defence available to them if they intend, in engaging in
particular conduct, to, for example, incite a person to commit suicide.'(40)
Under the definition in proposed
section 473.1, 'suicide related material' includes 'material in
any form capable of constituting acommunication'. Under Schedule 1 Part
2 Item 19 of the Bill, a 'communication' can be in any form, including
'speech, music or other sounds etc'. Under the terms of the Bill, therefore, a
person who uses a telephone to 'indirectly' counsel suicide or provide advice
on a method of suicide may be guilty of an offence.
In addition, as the
explanatory memorandum points out:
the offence would apply
to the possession or production of paper leaflets providing instruction on a
particular method of suicide, provided the person engaging in this conduct
intended that the information on the leaflets also be made available on the
Internet.(41)
According to Democrats
Senator Brian Greig:
If this Bill passes, it
will become very difficult or even illegal in Australia for voluntary
euthanasia groups to share information over the phone, host websites, debate
issues online or even to provide help and advice to people who request it by
phone or the internet.(42)
President of the South
Australian Voluntary Euthanasia Society, Frances Coombe, said in response to
the exposure draft that:
We do not advocate
suicide or self-deliverance. Nevertheless the proposed amendments could be used
to inhibit or put an end to our legitimate activities. Competent adults have a
right to end their own lives. It is most important that those who see this as a
possibility should have access to advice to ensure that they do not act
irrationally or by inappropriate means.(43)
In contrast, however,
the explanatory memorandum states that:
These offences are not
intended to capture Internet material that advocates or debates law reform on
euthanasia and/or suicide related issues, as this type of material will
generally not counsel or incite suicide, nor promote or provide instruction on
particular methods of committing suicide. For similar reasons, Internet
material dealing with suicide-related research and suicide prevention or
support material will generally not be caught by the offences.(44)
Schedule 1 items 25-29 amend the Telecommunications
(Interception) Act 1979 to ensure that law enforcement officers can intercept and record
communications relevant to offences under the proposed new
Part 10.6 of the Criminal Code.
Commencement: 28 days after Royal
Assent.
Schedule 2 of the Bill proposes a new Part 9.6 in Chapter 9 of the
Criminal Code ('Dangers to the community').
New Part 9.6 will contain three new
offences 'designed to overlap and complement the State and Territory
contamination of goods offences'.(45) The new offences are:
·
contaminating goods (proposed section 380.2)
·
threatening to contaminate goods (proposed section 380.3) and
·
making false statements about goods being contaminated (proposed section 380.4).
Each offence will carry
a maximum penalty of 10 years imprisonment.
These new offences under Commonwealth law will have extended
geographic reach, allowing prosecution where eg. a threat to contaminate
Australian goods is made from overseas. To enable maximum Commonwealth
coverage, new Part 9.6 is expressly based on
the 'implied nationhood power'(46) in the Constitution, as
well as the Commonwealth's constitutional powers over overseas and interstate
trade,(47) and corporations.(48) The external affairs
power(49) would also provide
jurisdiction where an offence has an overseas element.
The new offences are derived from the 1998 Model Criminal
Code Officers Committee (MCCOC) Report on Contamination of Goods.(50)
Commencement: 28 days after Royal
Assent.
Schedule 3 of the Bill proposes to insert new Part 10.8 'Financial information
offences' in Chapter 10 of the Criminal Code ('National Infrastructure').
These amendments will implement the model offence in the March
2004 MCCOC discussion paper on Credit Card Skimming
Offences.(51) The model offence
criminalises dishonestly obtaining or dealing in personal financial information
without the consent of the person to whom the information relates.
The explanatory
memorandum notes that:
While existing federal, State and Territory fraud and forgery laws
cover many of the activities related to credit and debit card skimming, they do
not comprehensively cover the act of skimming the data, possession of the
skimmed data, or possession or importation of a skimming device.(52)
Apart from credit card
skimming, the proposed offences cover other dishonest dealings with personal
financial information, such as internet banking fraud and obtaining credit card
details or other financial information from discarded bank statements or
receipts.
The maximum penalty for
the proposed offences is imprisonment for 3 5 years.
Commencement: 28 days after Royal
Assent
Schedule 4 Item 1 amends section 11.2 of
the Criminal Code to assist a jury when it is unsure whether an accused has
themselves committed an offence or has instead been
complicit in the offence. As the explanatory memorandum notes, 'such cases are
most likely to occur where two persons are each charged with the primary
offence and with complicity and common purpose in the alternative'.(53) Item 1 inserts new subsection
11.2(7) providing that in where a jury is satisfied in such a situation
that the accused is responsible for the crime it can find the person guilty.
Schedule 4 Items 5 to 7 will amend sections 9.3
and 9.4 of the Criminal Code which provide that a person can be criminally
responsible even if they are ignorant of or mistaken about the statute or
subordinate legislation creating the offence. Under the current provisions, a
person is however not criminally responsible if
·
the statute or subordinate legislation 'is expressly
or impliedly to the contrary effect', or
·
if 'the ignorance or mistake negates a
fault element that applies to a physical element of the offence.'
Under the proposed amendments, the first exception would only
apply where the statute or subordinate legislation 'is expressly to the contrary effect'.
The second exception is removed entirely.
The explanatory
memorandum notes that it is proposed to remove the word 'impliedly' from the
first exception because of the frequent use of cross-referencing legislation.
There is a concern that:
a simple cross-reference
in an offence to another provision would 'impliedly' require the person to have
knowledge of that particular provision to be criminally liable for the offence.(54)
The explanatory
memorandum also explains that the second exception will be removed because this
situation will be covered by the amended first exception:
'Expressly' will be evidenced where a fault element as provided in
sections 5.1 of the Criminal Code is specifically included
in the relevant physical element of the criminal offence.
Accordingly, where a
criminal offence provision does contain an express fault element which together
with the relevant physical element requires the defendant to know or have an
awareness of the law, the general principle [that 'ignorance of the law is no
excuse'] will not apply.(55)
Commencement: The main items of significance in Schedule 5 commence 28 days after
Royal Assent.
Schedule 5 Item 2 inserts a reference to
the Prostitution Act 1992 (ACT) in subparagraph
15(1)(b)(ii) of the Crimes (Aviation) Act 1991. The proposed provision
will make it an offence to engage in child prostitution on board an
Australian-registered aircraft outside Australia. The explanatory
memorandum notes that this will ensure that the application of Australia s
criminal laws on board aircraft complies with Australia s international obligations
under the Optional Protocol to the Convention of the Rights of the Child on the
sale of children, child prostitution and child pornography.(56)
Schedule 5 Items 3 to 8 amend section 233B of the Customs Act
1901 which makes it an
offence to illegally import narcotics in response to the decision of the NSW
District Court in R v Ismail (26 May 2003). In
that case the court held that the prosecution not only had to prove that the
act of importing was intentional but that the accused intentionally brought a
prohibited item into Australia. The explanatory memorandum notes that until R v Ismail the prosecution only had
to show that the accused was 'reckless' as to whether the imported item was
prohibited.(57)
These amendments will ensure that the proof requirements in
relation to prosecutions for such offences under the Customs Act are returned
to the situation before the R v Ismail decision.
Schedule 5 Items 10 and
11 amend section 15 of the Mutual
Assistance in Criminal Matters Act 1987 to remove the need for a
foreign country, when seeking mutual assistance in a criminal matter, to
specifically request that a search warrant be obtained if this is required
under Australian law. The explanatory memorandum notes that under the proposed
amendments a foreign country need only ask the Attorney-General to arrange for
evidential material to be obtained. The Attorney-General can then
exercise his or her own discretion to determine whether a search warrant is the
appropriate means by which the material should be obtained.(58)
The Bill pre-empts the
outcome of the review into the regulation of illegal or offensive content on
mobile telephones and other mobile devices announced by the then Minister for
Communications, Information Technology and the Arts in July 2004. The Bill
introduces extensive additional regulation of 'carriage services' including
mobile communication devices. Parliament may wish to defer final consideration
of the Bill until the review is completed. Having access to the outcome of the
review would enable Parliament to be better informed about the suitability of
key aspects of the Bill.
Parliament should consider whether an exception for use of a
person's own computer, telephone or mobile phone should be included in relation
to proposed section 474.4 prohibiting use of
'interception devices'. While 'interception' as commonly understood (and as defined
in the Telecommunications (Interception) Act 1979)(59) would not seem to
include access by the intended recipient, Parliament might note the view of EFA
that:
the provisions appear to
place people who sell, possess, etc. a modem or mobile phone etc. in breach of
the Criminal Code Act. Even if that would not currently be the result, it
appears it will if amendments to the TI [Telecommunications Interception] Act concerning
delayed access messages, substantially similar to those in the TI Bill 2004,
are enacted. Obviously such an outcome would be ludicrous and would not be
enforced.(60)
Parliament should consider the concerns raised above in relation
to the 'menacing or harassing' element of the new offence inproposed section 474.17, in particular whether
it is appropriate to make use of a telecommunications/carriage service an
offence even where there is no intention to menace or harass and no actual
menacing or harassment occurs.
There are a number of issues with the 'causing offence' element of proposed
section 474.17 i.e. using a 'carriage service' in a way that reasonable person
would regard as 'offensive' that Parliament should consider:
1.
The proposed offence covers both content that may be 'morally'
offensive to the public in general without a particular target, as well as
comments, publications or other material that may offend and may be
intentionally targeted at people from a particular race or religion or with
some other special background. Parliament might consider whether vilification
for racial/religious reasons should be covered in the same provision as a
general 'morality' offence. In EFA's view, it is:
highly inappropriate to attempt to deal with such matters by way
of laws criminalising 'offensive' use of a carriage service. Matters of
vilification should be dealt with under laws of general application and we note
that HREOC has previously ordered removal of Internet content found to be in
breach of the C'th Racial Hatred Act.(61)
The proposed offence is not limited to 'any form of communication to the public', i.e. there is no
distinction between private and public comment as in the Commonwealth Racial
Discrimination Act and equivalent State/Territory legislation. While the
Government states that the offence is aimed, amongst other things, at 'racial
or religious vilification', there has been no explanation of why the new
provision is needed on top of existing legislation which already covers
racial/religious slurs made in public (including under State and Territory laws
making such conduct a criminal offence).
2.
Are the standards listed in proposed
section 473.4 for deciding whether reasonable people would regard material as
'offensive' appropriate for the new criminal offence in proposed
section 474.17? As the explanatory memorandum said, these standards are copied
from the standards used by the Classification Board under the Classification
(Publications, Films and Computer Games) Act in deciding what rating to give
publications, films and computer games.
On one hand, there is
the argument that 'offensive' material should be defined consistently across
all Commonwealth legislation.
On the other hand, are
the 'moral' standards that the Classification Board must use in determining
what is currently acceptable for showing to Australian society appropriate for
use in a court of law in deciding whether to convict a person of the proposed
new offence punishable by up to 3 years in prison? It is one thing to select
individuals representing Australian society to be on the Classification Board,
and for the Board then to judge a film against its members' standards of
'morality, decency and propriety' and their assessment of 'literary, artistic
or educational merit'. It is quite another to require a judge or a non-expert
selection of jurors to decide what is meant in a strict legal sense by eg
'standards of propriety generally accepted by reasonable adults', let alone to
determine whether particular material has 'literary or artistic merit'.
Allowing a court to convict and imprison people based on these
types of legal 'standards' appears to be a throw-back to the type of situation
in eg the 1971 Oz obscenity trial in the United Kingdom.(62)
3.
It may be that parts of proposed
section 473.4 are too vague to be regarded as a 'law' in accordance with section
51 of the Constitution. Section 51 gives Parliament the 'power to make laws for
the peace, order and good government of the Commonwealth'. However, merely
including something in legislation is not enough to make it a 'law'. It must
provide or allow for the identification of a sufficiently certain standard
against which to measure conduct. As one commentator has said in relation to
Canadian constitutional law:
It is a principle of fundamental justice in Canada that a statute
is 'void for vagueness' if its prohibitions are not clearly defined. A vague
law offends the values of constitutionalism. It does not provide sufficiently
clear standards to avoid arbitrary and discriminatory applications by those
charged with enforcement. It does not provide reasonable notice of what is
prohibited so that citizens can govern themselves safely.(63)
As the Australian High Court said in Plaintiff S157 (2003) (in relation to a
suggestion that the Migration Act 1958 could authorise a
'totally open-ended discretion' by the Minister about which 'aliens' could
enter Australia):
The provisions canvassed
by the Commonwealth would appear to lack that hallmark of the exercise of
legislative power identified by Latham CJ in The
Commonwealth v Grunseit,(64) namely, the
determination of 'the content of a law as a rule of conduct or a declaration as
to power, right or duty'.(65)
Parliament might consider whether the standards specified in proposed
section 473.4 have a sufficiently certain legal (as opposed to social) meaning to qualify as
a 'law' in the sense used in section 51 of the Constitution.
4.
Directing courts to consider 'social' criteria in deciding whether
use of a carriage service is 'offensive' may breach the separation of powers
doctrine in the Constitution, which prevents Australian courts when exercising
federal jurisdiction from discharging 'non-judicial functions'. So while
consideration of such factors by a non-judicial body such as the Classification
Board would not raise a constitutional issue, the same does not apply when such
factors are taken into account by a 'chapter III' court.
5.
There is no requirement to take such factors into account in
relation to the 'offensive' use of a 'postal or similar service' in existing
section 471.12 of the Criminal Code.
6.
The offence in proposed
section 474.17 appears to cover not only distribution of 'offensive' material
but also access to such material on the internet. As such the
offence could in effect criminalise access to material which it is not illegal
to possess offline under State and Territory censorship laws.(66)
In light of the above issues, Parliament might consider whether
the 'causing offence' element of proposed
section 474.17 adds any useful regulation of the internet and other 'carriage
services' beyond that which already exists under State and Territory law.
Parliament should also consider carefully the wording of the
proposed definitions, which include 'depictions' or 'representations' of those
who 'appear to be' engaged in a 'sexual
pose', 'descriptions' of persons who are 'implied to be' engaged in a sexual
pose, as well as, 'descriptions' of, for example, 'the breasts of a female
person' who 'is implied to be' under 18. This
appears to extend the range material that could be held to be 'child
pornography' or 'child abuse' material if it is 'offensive' well beyond that
caught by State and Territory legislation.
In addition, the Classification Board's standards as incorporated
in proposed section 473.4 are applied to determine
what is 'offensive' for the purpose of a 'child pornography' or 'child abuse
material' offence in proposed sections 474.19-20 and
474.22-23. See the discussion in
the section immediately above on the suitability of these standards for use in
criminal proceedings.
Parliament may wish to
consider whether it is appropriate to have definitions of 'child pornography'
and 'child abuse' material covering a potentially very wide range of material
coupled with uncertain standards for determining whether such material is
'offensive' for offences that are punishable by up to ten years imprisonment.
In addition, the Bill will make legitimate educational and other
research into these areas through use of the internet or other 'carriage
service' subject to written approval from the Minister. As Young Media
Australia has asked, what about 'community organisations with a bona fide,
demonstrated interest in protection of children?'(67) Such organisations would
have no defence under proposed sections 474.21 or 474.24 if they conduct research
into child pornography if they had not obtained written Ministerial approval.
These provisions establish a cumbersome process for legitimate research. An
alternative would be to specify a defence for using of a carriage service for
'child pornography' or 'child abuse material' if an organisation can
demonstrate that educational/scientific research was for a legitimate purpose.
A more general issue raised by the introduction by the Bill of new
offences applying to use of the internet is the added difficulty for publishers
and producers who want to distribute through the internet of keeping track of
the applicable laws. There is already a variety of State and Territory as well
as Commonwealth legislation that must be consulted. Given that the
classification scheme for the internet comes under the Broadcasting Services
Act, it may have made the
compliance task of internet publishers and producers easier if the Bill had
amended that Act to include the new offences rather than inserting them in the
Criminal Code.
Parliament may wish to consider whether it is appropriate under proposed
sections 474.30 to 474.32 of the Bill that:
·
A person can commit an offence even if there is no suicide or even
attempt at suicide, and that
·
Material that 'directly or indirectly' counsels or incites
suicide or promotes a particular method of suicide is sufficient for an offence
to be committed. It might be questioned whether material that 'indirectly' or
'in passing' counsels, incites or promotes suicide should make a person liable
for criminal prosecution. In addition, it might be questioned whether the use
of 'indirectly' in this context provides a sufficiently certain legal standard
for courts to measure conduct against.
The claim in the explanatory memorandum that 'Internet material
that advocates or debates law reform on euthanasia' and 'Internet material
dealing with suicide-related research'(68) will not 'generally' be
caught by the proposed offences seems problematic. The Bill specifically does
not provide any defence for such activities. If the intention behind publishing
such research is to counsel suicide or promote a particular method of suicide,
there will be an offence under the Bill.
Passage of the Bill in
its current form will produce inconsistencies between State and Federal law on
suicide-related material. For example, under section 31C of the NSW Crimes Act,
a person must actually 'aid or abet' or 'incite or counsel' another person to
commit or attempt suicide. So, for example, obtaining information in physical
form from a library, perhaps with the intention of passing it to a terminally
ill relative, would not be an offence under NSW law until actual assistance or
incitement occurs (and suicide or an attempt results). Such an activity is also
beyond the reach of Commonwealth law.
Under proposed provision 474.30, however, obtaining
exactly the same material from the internet with the intention of passing it to
the terminally ill relative for their use will be an offence punishable by a
fine of up to $110 000.
It is unclear why the
Government chose to introduce such a variety of new offences in the one Bill.
As the South Australian Voluntary Euthanasia Society noted:
It is particularly
unfortunate that the proposed amendments link the controversial and ill-defined
issue of the promotion of suicide to the distribution of child pornography,
which is universally abhorrent. The presentation of these disparate issues as a
package deal has the potential to distort debate and to bias the outcome.(69)
Former Northern
Territory Chief Minister Marshall Perron said the Federal Parliament should
consider assisting suicide as a separate matter:
The argument is that
lumping it in with other matters such as child pornography makes it almost
unchallengeable and that is what the minister hopes What parliamentarian is
going to get up and speak against this in parliament. It is too hot to handle.(70)
See Main Provisions section for comments on proposed
sections 474.5 (wrongful delivery of communications), 474.15 (use of a carriage service
to make a threat).
1.
R v Brislan; Ex parte Williams (1935) 54 CLR 262
(radio); Jones v Commonwealth (1965) 112 CLR 206
(television).
2.
54 CLR 262 at 280.
3.
Ibid at 282 3.
4.
The Age, 28 July 2004, p. 4.
5.
Based on Arts Law Centre of Australia, 'Classification and
Censorship' athttp://www.artslaw.com.au/reference/infoclassification/index.html; and Halsbury's Laws of
Australia, 80-1985, 'Censorship' 175 6.
6.
Specific internet censorship regulation was introduced by the Broadcasting Services
Amendment (Online Services) Act 1999.
7.
Explanatory memorandum p. 37. For further background on regulation
of internet content, see Department of Communications, Information Technology
and the Arts, 'Broadcasting and Online Regulation' at http://www.dcita.gov.au/Article/0,,0_1-2_10-3_481-4_13871,00.html
9.
Explanatory memorandum, p. 33.
10. Section 18C.
11. Section 26.
12. E.g. Anti-Discrimination
Act 1977 (NSW) sections 20C and 20D.
13. Censorship Act 1996 (WA) section 60.
14. Ibid, section 3.
15. Classification of
Publications Act 1991 (Qld), Part 3.
16. Ibid, section 3.
17. This paragraph based on
Lawbook Company, Laws of Australia, Chapter 8, Related
Offences Part B, Suicide, 'Assisting Suicide Attempt' [192].
18. See:
http://www.ag.gov.au/www/agdHome.nsf/AllDocs/28614E7E165BD55DCA256E55000B56F6?OpenDocument.
19. Hon. Daryl Williams,
Minister for Communications, Information Technology and the Arts, News Release 109/04, 15 July 2004.
21. Telecommunications Act
section 7, emphasis added.
22. EFA describes itself as
'a non-profit national organisation representing Internet users concerned with
on-line freedoms and rights', see http://www.efa.org.au/AboutEFA/#who.
23. EFA submission in
response to the Exposure Draft of the
Crimes Legislation Amendment (Telecommunications Offences and Other Measures)
Bill 2004 and associated Explanatory Notes, see
http://www.efa.org.au/Publish/efasubm-agd-teleco.html#47415.
24. See definitions in proposed
section 473.1.
25. Explanatory memorandum,
p. 31.
26. For example, section 21
of the Crimes Act 1958 (Victoria) provides
that:
A person who, without
lawful excuse, makes to another person a threat to
(a)
intending that that other person would fear the threat would be
carried out; or
being reckless as to
whether or not that other person would fear the
threat would be carried
out-
is guilty of an
indictable offence.
Penalty: Level 6
imprisonment (5 years maximum).
27. Explanatory memorandum,
p. 33.
28. Ibid.
29. Criminal Code section
5.4.
30. EFA, op. cit.
31. Senator Alston, Minister
for Communications, Information Technology and the Arts, and Senator Ellison,
Minister for Justice and Customs, Joint Media
Release, 153/03, 20 August
2003.
32. EFA, op. cit.
33. Subsection 85ZE(2)
34. Explanatory memorandum,
Crimes Legislation Amendment (Telecommunications Offences and Other Measures)
Bill 2004, p. 14.
35. EFA, op. cit.
36. Proposed section 473.1
states that 'material' includes material in any form, or combination of forms,
capable of constituting a communication. 'Communication' in turn is defined in Schedule 1 item
19 of the Bill.
37. Explanatory memorandum,
pp. 38, 42
38. Ibid, p. 44.
39. Ibid, p. 45.
40. Ibid, p. 51.
41. Ibid, p. 52.
42. Democrats media release
04/302 19 April 2004.
43. Letter to Minister for
Justice and Customs, Senator Ellison, 12 April 2004, published athttp://www.saves.asn.au/resources/newsletter/jul2004/item3.htm.
44. Explanatory memorandum,
p. 52.
45. Ibid, p. 63.
46. The High Court has held
that there is a 'nationhood power' implied in the Constitution allowing the
Commonwealth to legislate for matters which are 'inherently national'.[1] (Davis v Commonwealth (1988) 166 CLR 79).
47. Section 51(1)
Constitution.
48. Section 51(20)
Constitution.
49. Section 51(29)
Constitution.
50. http://www.law.gov.au/www/rwpattach.nsf/viewasattachmentPersonal/5DE0B9AA3D0C3CA5CA256BB300049FDA/$file/modelcode_ch8_publicorder_offences.pdf
51. http://www.ag.gov.au/www/agdHome.nsf/AllDocs/RWPF2336E9517064C20CA256E5B000E639D?OpenDocument
52. Explanatory memorandum,
p. 71.
53. Ibid, p. 75.
54. Ibid, p. 76.
55. Ibid.
56. Ibid, p. 78.
57. Ibid.
58. Ibid, p. 80.
59. Section 6.
60. EFA, op. cit.
61. Ibid.
62. See e.g. 'Oz trial
lifted lid on porn squad bribery', at http://pers-www.wlv.ac.uk/~fa1871/oztrial.htm, from Guardian
Unlimited Website, 13 November 1999
63. Peter Hogg, Constitutional
Law of Canada (1992), p. 864.
64. (1943) 67 CLR 58 at 82.
65. (2003) 211 CLR 476 at
513.
66. EFA, op. cit.
67. Young Media Australia, Submission on
the Exposure Draft of the Crimes Legislation Amendment (Telecommunications
Offences and Other Measures) Bill 2004, April 2004.
68. Explanatory memorandum,
p. 52.
69. http://www.saves.asn.au/resources/newsletter/jul2004/item3.htm
70. Sunday Territorian, 2 May 2004, p. 4.
Peter Prince and Roy
Jordan
2 August 2004
Bills Digest Service
Information and Research Services
2 August 2004
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 2004
© Commonwealth of Australia 2004
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