New Criminal Code definitions ‘will cause nothing but confusion’
The adoption of new definitions for the Criminal Code will result in unnecessary confusion, argues the Law Council of Australia.
The Senate legal and constitutional affairs legislation committee has released its report into the Crimes Legislation Amendment (Combatting Corporate Crime) Bill 2019, in which it supported changes to definitions, albeit with dissenting views from non-government members of the committee.
In a statement late last week, LCA president Pauline Wright said that the proposed changes, notably the intent to redefine “dishonesty” – which could make substantive changes to as many as 58 federal dishonesty offences throughout the Criminal Code – is of particular concern.
“These changes could lead to a situation where someone who believed that he or she was acting according to ordinary people’s standards, could be found to be criminally dishonest, so long as he or she was wrong, even reasonably, about what those standards are. That’s going to be very confusing,” she said.
“It also dilutes the requirement for the mental element of a criminal offence to be present and does not conform with fundamental principles of criminal law. The current definition of dishonesty has been the law in England for 50 years and was recommended by an expert committee with representatives from every Australian jurisdiction in 1995.
“This change would set the Commonwealth at odds with jurisdictions like New South Wales, South Australia and the ACT which changed their definitions of dishonesty to follow the Commonwealth’s lead and to promote national uniformity.”
LCA believes that any change to the definition of dishonesty before the Australian Law Reform Commission (ALRC) report on corporate criminal responsibility is handed down in April would be premature and counterproductive, the statement noted.
“Given that the ALRC is considering issues that are intrinsically linked, it is difficult to understand why there is any need to push through this legislation,” Ms Wright said.
“It is clear to us that the existing requirement to satisfy both an objective and subjective test should be maintained in the context of the Criminal Code.”