Defence Legislation Amendment (Application of Criminal Code) Act 2001
Act No. 141 of 2001 as amended
This compilation was prepared on 3 June 2003
[This Act was amended by Act No. 63 of 2002
and Act No. 135 of 2003]
Amendments from Act No. 63 of 2002
[Schedule 2 (item 10) amended Item 41 of Schedule 1
Schedule 2 (item 10) commenced on 2 October 2001]
Amendments from Act No. 135 of 2003
[Schedule 2 (item 28) repealed and substituted subsection 2(2)]
Schedule 2 (item 9) commenced on 1 October 2001]
Prepared by the Office of Legislative Drafting,
Attorney‑General’s Department, Canberra
Contents
1 Short title...................................
2 Commencement...............................
3 Schedule(s)..................................
4 Application of amendments........................
Schedule 1—Amendment of Acts
Part 1—Amendments relating to the Criminal Code
Approved Defence Projects Protection Act 1947
Control of Naval Waters Act 1918
Defence Act 1903
Defence Force Discipline Act 1982
Defence Force Retirement and Death Benefits Act 1973
Defence Forces Retirement Benefits Act 1948
Defence (Special Undertakings) Act 1952
Military Superannuation and Benefits Act 1991
Naval Defence Act 1910
Weapons of Mass Destruction (Prevention of Proliferation) Act 1995
Part 2—Technical amendment
Defence Force Discipline Act 1982
An Act relating to the application of the Criminal Code to certain offences, and for other purposes
[Assented to 1 October 2001]
The Parliament of Australia enacts:
1 Short title
This Act may be cited as the Defence Legislation Amendment (Application of Criminal Code) Act 2001.
2 Commencement
(1) Sections 1, 2, 3 and 4 commence on the day on which this Act receives the Royal Assent.
(2) Part 1 of Schedule 1 commences on 15 December 2001.
(3) Part 2 of Schedule 1 is taken to have commenced immediately after the commencement of item 35 of Schedule 2 to the Defence Legislation Amendment (Enhancement of the Reserves and Modernisation) Act 2001.
3 Schedule(s)
Subject to section 2, each Act that is specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Act has effect according to its terms.
4 Application of amendments
(1) Each amendment made by this Act applies to acts and omissions that take place after the amendment commences.
(2) For the purposes of this section, if an act or omission is alleged to have taken place between 2 dates, one before and one on or after the day on which a particular amendment commences, the act or omission is alleged to have taken place before the amendment commences.
Schedule 1—Amendment of Acts
Part 1—Amendments relating to the Criminal Code
Approved Defence Projects Protection Act 1947
1 After section 3
Insert:
3A Application of the Criminal Code
Chapter 2 of the Criminal Code applies to all offences against this Act.
Note: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.
2 Subsection 4(1)
Repeal the subsection, substitute:
(1) A person is…
Overview
The Defence Legislation Amendment (Application of Criminal Code) Act 2001 was enacted to address the issue of inconsistent application of criminal liability across various Defence Acts. This Act seeks to harmonise the application of the Criminal Code to offences under several Defence-related statutes, ensuring a more consistent and comprehensive approach to criminal responsibility. Enacted by the Parliament of Australia, the primary policy objective of this legislation is to provide a unified framework for the prosecution and punishment of offences related to the Defence Force, thereby enhancing the effectiveness of military justice and the protection of national security interests.
Scope and Application
The Defence Legislation Amendment (Application of Criminal Code) Act 2001 applies to various defence-related acts, including the Approved Defence Projects Protection Act 1947, Control of Naval Waters Act 1918, Defence Act 1903, Defence Force Discipline Act 1982, Defence Force Retirement and Death Benefits Act 1973, Defence Forces Retirement Benefits Act 1948, Defence (Special Undertakings) Act 1952, Military Superannuation and Benefits Act 1991, Naval Defence Act 1910, and Weapons of Mass Destruction (Prevention of Proliferation) Act 1995. This legislation aims to align these acts with the general principles of criminal responsibility outlined in Chapter 2 of the Criminal Code. The amendments apply to acts and omissions occurring after the amendments commence, with specific commencement dates for different parts of the Act. The legislation primarily targets defence members, defence civilians, and other individuals associated with the Defence Force, including members of the Australian Cadet Corps and the Naval Reserve Cadets, and it has a national jurisdictional reach within Australia. There are no stated exclusions, exemptions, or thresholds in the Act. The application of the Act may be extended or restricted through subordinate instruments, such as regulations or orders, although the specific details of such instruments are not provided in the Act itself.
Key Provisions
- The Defence Legislation Amendment (Application of Criminal Code) Act 2001 (Cth) amends several existing Acts to align their criminal provisions with the principles outlined in Chapter 2 of the Commonwealth Criminal Code. Specifically, the Act applies Chapter 2 of the Criminal Code to various defence-related offences, ensuring that general principles such as recklessness, negligence, and strict liability are uniformly applied across these statutes. For instance, the Act amends the Defence Act 1903 to include provisions for offences such as failing to attend a summons to give evidence before a tribunal, refusal to produce documents, and making false statements. The Defence Force Discipline Act 1982 is similarly amended to incorporate definitions of terms like "property" and "engage in conduct," and to redefine ancillary offences and the application of the Criminal Code to service offences.
- Entities and individuals governed by these Acts face obligations such as adhering to lawful commands, attending tribunals, and reporting information relevant to national security. Failure to comply with these obligations can result in penalties including fines and imprisonment. For example, a person found guilty of assaulting a superior officer can face imprisonment for up to 2 years, while failure to report information received from the enemy can result in imprisonment for up to 15 years. Certain offences, such as providing the enemy with material assistance or engaging in conduct that imperils the success of operations against the enemy, carry a maximum penalty of life imprisonment.
- Civil and criminal consequences for breach of these provisions include fines and imprisonment, with maximum penalties varying depending on the severity of the offence. For instance, the Act specifies imprisonment for up to 15 years for offences such as abandoning or surrendering a post to the enemy, and up to 7 years for offences related to prohibited areas under the Defence (Special Undertakings) Act 1952. Some offences are designated as strict liability offences, meaning that the prosecution does not need to prove intent, while others require proof of intent or knowledge. Defences such as reasonable excuse or lawful authority may be available in certain circumstances, though the burden of proof often lies with the defendant.
- Area of Law
- Criminal Law
- Military Law
- Instrument
- Act
- Concepts
- Commencement Provisions
- Offence Provisions
- Civil Penalty Provisions
- Enforcement Powers
- Prohibited Conduct
- Regulatory Standards
