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Debates - Eleventh Assembly, First Session - 23/11/2010 - Parliamentary Record No: 16 | |
This is an uncorrected proof of the daily report. It is made available under the condition that it is recognised as such. | |
| Topic: | BILLS |
| Subject: | CRIMINAL CODE AMENDMENT (CRIMINAL DAMAGE) BILL (Serial 141) |
| Date: | 01/12/2010 |
| Member: | Ms LAWRIE |
| Other Speakers: |  |
| Status: | Justice and Attorney-General |
| Bill presented and read a first time Ms LAWRIE (Justice and Attorney-General): Madam Speaker, I move that the bill be now read a second time. The purpose of this bill is to redraft and modernize Part VII, Division 6 of the Criminal Code, bringing the criminal damage offences contained in that division into line with Chapter 4 of the Model Criminal Code. The bill progresses the government’s policy to introduce gradually the Model Criminal Code as prepared by the Model Criminal Code Officers Committee, the Standing Committee of Attorneys-General in 2001, and to revise offences in the Criminal Code so they comply with criminal responsibility provisions in Part IIAA of the Criminal Code. The process began in the Northern Territory, with the Criminal Code Amendment (Criminal Responsibility Reform) Act 2005. That act enacted new general principles upon which persons may be held criminally responsible for their conduct in what is now Part IIAA of the Criminal Code. It has set the foundation for reform of the Criminal Law, and for Part IIAA to be applied to all criminal offences. Since that act, this government has made reforms to the Criminal Code, including: � the law of Homicide, Concealment of Birth and Abortion in Part VI, Division 3 and Division 8; � the law regarding recklessly endangering life and serious harm, negligently causing serious harm or serious harm involving motor vehicles in Part VI, Division 3A; section 192; � sexual intercourse and gross indecency without consent; and � the offence of causing bushfires in Section 240A. In addition, numerous new offences in legislation other than the criminal code have been redrafted so that they comply with Part IIAA off the Criminal Code, both within my Justice portfolio and legislation falling within other ministerial portfolios. There is still some way to go in reforming the Criminal Code – this is a difficult and complex task which needs to be undertaken with careful consideration. This bill represents the next stage in that reform. It repeals most of the old, discrete criminal damage offences in Part VII Division 6, such as the offences of casting away ships or damaging signals, and replaces them with a general criminal damage offence where the definition of property is broad to cover many types of property. The bill will revise and modernise those offences which will be retained under Part VII Division 6 of the Criminal Code, including arson, endangering aircraft, obstructing runways and leaving explosives at a place. The bill also introduces a new offence of sabotage to fill the gap in the law between the offences of criminal damage and terrorism. Madam Speaker, I will now set out the key features of this bill. To achieve the stated objectives, the bill repeals the current criminal damage offence in section 251, the penalty for which depends on the value or type of property involved in the offending. In addition, a number of discrete property damage type offences that are defined by the nature or type of property will be repealed. These offences will be replaced with a single causing damage to property offence. A person will be guilty of a crime if it is proved the person intentionally or recklessly caused damage to the property of another. The crime also incorporates the principle of transferred malice: it matters not whether the person intended to cause or was reckless as to causing damage to the property of one person or the property of another person. Designed to ensure it covers all existing property damage type offences, the new causing damage to property offence simplifies the pre-existing law by removing distinctions based on the type of property, the nature of property damage, or the circumstances in which the destruction or damage took place. Currently, the criminal damage general offence carries penalties of 14, seven or two years imprisonment depending on the type or value of property. There are also a number of other specific criminal damage offences with varying penalties. The new offence will now have a maximum penalty of 14 years imprisonment which is not graded according to the value or type of property. The result is that in some cases the maximum penalties will increase and in others they will stay the same. Although there will only be one maximum penalty for the new offence, it is not intended that a court infer that all criminal damage, no matter how minor, should be considered more serious than they are presently under the Criminal Code. The offence can also be dealt with summarily under section 121A) of the Justices Act, and if so, section 122 of the Sentencing Act would limit the maximum penalty the Court of Summary Jurisdiction could impose is five years imprisonment or 250 penalty units. The bill also introduces a new offence of threatening to cause property damage with graduated maximum penalties of seven or two years imprisonment depending on whether the defendant intended the victim to fear that the property damage would involve death or serious harm to another person. In addition, the bill introduces a preparatory offence of possessing an implement intending to use it to cause property damage or intending another to so use it. This will be a punishable by a maximum penalty of two years imprisonment. The new criminal damage offences are supplemented by new definitions of: � property; � person to whom property belongs; and � damage to property, which will only apply to this division of the Criminal Code. For the purposes of this division, ‘property’ will include tangible property (but not intangible property) including wild animals that are tamed or reduced into possession, and parts of the human body. Property ‘belongs’ to anyone who has possession of it, any proprietary interest in it other than an equitable interest arising only from an agreement to transfer or grant an interest in it, or a constructive trust. The bill also makes clear that the crime of causing damage to property can be made out even where the offender is one of the owners of the property that is owned by more than one person. In addition, an extended definition of ‘damage’ will be introduced by the bill and will now capture a broader range of acts, including interference with property so there is loss or use of function of the property, rather than simply causing physical damage or destruction to property. The bill also provides for a range of more specific offences to supplement the general offence of causing damage to property; namely, the existing offences of arson and causing bushfires in a new offence of sabotage. Arson remains a crime under the Criminal Code; however, it has now been brought in line with the model Criminal Code arson offence and covers damage caused to buildings and conveyances by fire or explosives. The model Criminal Code Officers Committee considered the scope of the offence with preparing the model Criminal Code and considered that arson should apply to specific forms of property including, at the core of the offence, the setting fire to another person’s house or a workplace. The scope was also extended to motor vehicles, aircraft, and motorised vessels. The government, however, decided to extend the scope also to non-motorised vessels such as yachts, given their prevalence in the NT lifestyle, and some people call their yacht or other non-motorised vessel their home. Equally, the definition of ‘building’ is defined to include a structure, whether or not movable, which is adapted or designed for residential purposes which include, for example, a caravan. Clearly, the offence of arson acknowledges the intrinsic value of the property to people’s everyday life and the propensity for catastrophic damage or loss of life as may be, for example, it may be the case of damaging an aircraft by fire. It recognises that destruction by fire or explosives is unpredictable and potentially devastating. The revised crime of arson is now more consistent with community expectations and understanding about the nature of the offence. Members will recall this offence was the subject of the Criminal Code Amendment (Arson) Bill 2010, which was introduced to the Legislative Assembly by the Leader of the Opposition on 18 August 2010. The opposition bill sought to amend the offence of arson under section 239 of the Criminal Code so it would include setting fire to a motor vehicle and the trailer attached to it, which is currently not considered to be the subject of arson. The government agrees with the policy behind the expansion of this definition to motor vehicles and trailers attached to them; however, with this bill the government goes further by reforming the entire Part 7, Division 6 rather than making ad hoc or piecemeal amendments. The bill retains the existing bushfires offence as inserted into the Criminal Code by the Criminal Code Amendment (Bushfires) Bill of 2009. Members will recall those changes arose from a decision of the Standing Committee of Attorneys-General in Canberra in April 2009 in response to the tragedy of the Victorian bushfires. Those devastating bushfires in February 2009 brought to the forefront of the minds of all Australians the catastrophic damage to life, property, and environment which can result from bushfires. The offence continues to apply to people who intentionally or recklessly cause a fire and who then create the risk of the spread of fire. The emphasis of the offence is on the recklessness as to the spread of the fire to vegetation. By introducing a new offence of sabotage, the bill also fills a gap identified in Australian domestic law in relation to acts of terrorism. In most jurisdictions, property damage offences only capture relatively minor offences of this type, and are unsuitable for use against terrorists, primarily because many of the offences are not punishable with penalties of appropriate severity. With this bill, the government proposes the offence of sabotage covers these situations. The offences of sabotage and threatened sabotage are directed at terrorists and other who attempt or threaten to destroy public facilities, infrastructure, government offices, or services. The bill before the Assembly seeks to emphasise the gravity of the danger that sabotage represents by creating such an offence. Like arson, sabotage offences are punishable by penalties substantially exceeding the 14-year maximum for causing damage to property. The new offence of sabotage is designed to apply where there is a very serious threat to public facilities. Sabotage requires proof of conduct which was intended to cause major economic loss, major disruption to government functions, or a major disruption to the use of services by the public. Threatened sabotage extends to conduct which is intended to induce fear of major economic loss, major disruption to government functions, or a major disruption to the use of services by the public. The bill includes a definition of ‘public facility’ for the purposes of the sabotage offences, which includes both privately- and publicly-owned facilities. ‘Public facility’ will include a government facility, public infrastructure for the provision of water, sewerage, energy, fuel, communication or other services, public information systems, public transport facilities, or a public place including any premises, land, or water open to the public. The definition of damage that applies to this provision is wide enough to capture circumstances where, for example, the damage or disruption cause or threatened is the result of a crude, physical attack or an attack by electronic means. This new offence will ensure that those who attack the Northern Territory’s critical infrastructure will face severe consequences as the maximum penalty for this offence is on par with arson, at life imprisonment. The bill retains the current offences of endangering aircraft, obstructing runways and leaving explosives at a place because it was recognised that the revised criminal damage, arson, and the new sabotage offence may not cover these existing offences. With respect to the existing offence of obstructing railways, the new Rail Safety Act and its regulations adequately cover the criminality as well as the offences of criminal damage or sabotage, depending on the circumstances. With respect to the existing offence of taking dangerous goods onto an aircraft in current section 248, section 23 of the Commonwealth Civil Aviation Act covers the field. The application the criminal damage provisions, including arson, sabotage and bush fires, continue to be extended by the general doctrines of attempt, complicity and conspiracy, that it imparts 2AA Division 4 of the code. The bill also includes a new subdivision 3, which comprises the new exceptions to criminal responsibility of consent and claim of right. These exceptions apply to all offences in Part 7, division 6, except sabotage. They are included to ensure that persons who lawfully engage in conduct which would otherwise be regarded as criminal damage or arson, on or over property in which they have authority or have been given authority, will be excused from criminal responsibility. During the drafting of this bill, the Department of Justice engaged in targeted consultation with stakeholders from both government and non-government organisations, including the Department of the Chief Minister, Security and Emergency Recovery; the Office of the Director of Public Prosecutions; NT Police, Fire and Emergency Services; the Department of Resources; the Department of Lands and Planning; North Australian Aboriginal Justice Agency; NT Legal Aid Commission; the Law Society of the Northern Territory; the Criminal Lawyers Association of the Northern Territory and the Northern Territory Bar Association. I thank those who were involved in the consultation for their very useful input. Madam Speaker, this bill provides a comprehensive reform of the law of criminal damage representing a holistic approach to the law in this area. It modernises and brings into the 21st century, the crimes of arson and criminal damage and especially by introducing the new offence of sabotage, responding to the modern trends in criminal threats and activity. I commend the bill to honourable members and I table a copy of the explanatory statement. Debate adjourned. | |