Prime Minister and Cabinet Legislation Amendment (Application of Criminal Code) Regulations 2001 (No. 1) 2001 No. 328
EXPLANATORY STATEMENT
Statutory Rules 2001 No. 328
Issue by the authority of the Prime Minister
Public Employment (Consequential and Transitional) Act 1999
Public Service Act 1999
Prime Minister and Cabinet Legislation Amendment (Application of Criminal Code) Regulations 2001 (No. 1)
Schedule 1 of the Public Employment (Consequential and Transitional) Amendment Act 1999 (the PECTA Act) repealed the Merit Protection (Australian Government Employees) Act 1984 (the Merit Protection Act), which provided for the establishment and operation of the Merit Protection and Review Agency. Section 14 of the PECTA Act provides that the Governor-General may make regulations prescribing matters required or permitted by the Act to be prescribed or necessary or convenient for carrying out or giving effect to the Act, including the continued operation of the Merit Protection Act for certain purposes.
Regulations 4.4 and 4.5 of the Public Employment (Consequential and Transitional) Regulations 1999 (the PECTA Regulations) provide that the Merit Protection Act continues in force to allow for the determination of outstanding appeals to Disciplinary Appeals Committees and Redeployment and Retirement Appeal Committees. Subregulation 4.2(4) of the PECTA Regulations provides that the Merit Protection (Australian Government Employee) Regulations, which were previously made under section 85 of the Merit Protection Act, continue in force to the extent necessary for the continued operation of the Merit Protection Act.
The Public Service Act 1999 provides a framework for public service employment. Section 79 of the Act provides that the Governor-General may make regulations required or permitted by the Act to be prescribed, or necessary or convenient for carrying out or giving effect to the Act.
The purpose of the Regulations is to amend offence provisions in the Merit Protection (Australian Government Employee) Regulations (as continued in force by the PECTA Act and PECTA Regulations) and the Public Service Regulations to 'harmonise' them with the Criminal Code (the Code).
The Code, which is contained in the Criminal Code Act 1995, establishes general principles of criminal responsibility and a standard approach to the formulation of Commonwealth criminal offences. It commenced on 15 December 2001. The Code may inadvertently change the operation of some offences that were drafted prior to its development. These offences need to be harmonised with the Code by amending them in a way that ensures that they continue to operate in the way originally intended after the Code's commencement.
The Regulations harmonise the Merit Protection (Australian Government Employee) Regulations and the Public Service Regulations with the Code in two ways:
• they make it clear that a defence of reasonable excuse applies to some of the offences. These offences were drafted in such a way that it was not clear whether a reasonable excuse was a defence which could be pleaded by the defendant, or a part of the offence which needed to be proved by the prosecution; and
• they make it clear that strict liability principles apply to some offences or parts of offences. Ordinarily, a defendant must do an act and do it with a guilty mind in order to be convicted of an offence. Strict liability principles apply where a defendant may be convicted even though he or she did not have a guilty mind. Several offences in the Merit Protection (Australian Government Employee) Regulations and the Public Service Regulations are intended to apply strict liability principles. In order to ensure that they continue to apply, the Regulations amend the offence provisions to state this expressly.
The Regulations commenced on 15 December 2001.
Overview
The Prime Minister and Cabinet Legislation Amendment (Application of Criminal Code) Regulations 2001 (No. 1) were enacted to address the need for harmonising certain offence provisions in the Merit Protection (Australian Government Employee) Regulations and the Public Service Regulations with the Criminal Code. This was achieved by clarifying that a defence of reasonable excuse applies to some offences, and by expressly stating that strict liability principles apply to certain offences or parts of offences, thereby ensuring these provisions continue to operate as originally intended. The Regulations were issued under the authority of the Prime Minister, in accordance with the Public Employment (Consequential and Transitional) Act 1999 and the Public Service Act 1999, and commenced on 15 December 2001.
Scope and Application
The Prime Minister and Cabinet Legislation Amendment (Application of Criminal Code) Regulations 2001 (No. 1) applies to the Merit Protection (Australian Government Employee) Regulations and the Public Service Regulations, ensuring their provisions align with the general principles of criminal responsibility and standard approach to Commonwealth criminal offences established by the Criminal Code Act 1995. These regulations affect entities involved in public service employment, particularly those who may be subject to disciplinary actions under the repealed Merit Protection (Australian Government Employees) Act 1984, as continued by the Public Employment (Consequential and Transitional) Amendment Act 1999. The Regulations aim to harmonise certain offences by clarifying the applicability of defences such as reasonable excuse and strict liability principles. They commenced on 15 December 2001, the same date as the Criminal Code, and are intended to ensure that the continued operation of the Merit Protection Act and associated regulations remains consistent with the new legal framework. The scope of the Regulations is limited to the specified amendments required for harmonisation with the Criminal Code, without extending to other areas of public service employment or other legislative instruments.
Key Provisions
The main operative sections of the Prime Minister and Cabinet Legislation Amendment (Application of Criminal Code) Regulations 2001 (No. 1) are contained within Schedule 1 of the Public Employment (Consequential and Transitional) Amendment Act 1999 (PECTA Act) and the Public Service Act 1999. These regulations were made under section 14 of the PECTA Act and section 79 of the Public Service Act. Their purpose is to amend offence provisions in the Merit Protection (Australian Government Employee) Regulations and the Public Service Regulations to ensure they are consistent with the Criminal Code Act 1995. These amendments were necessary to maintain the intended operation of certain offences after the commencement of the Criminal Code.
The Regulations impose obligations on parties and entities governed by the Merit Protection (Australian Government Employee) Regulations and the Public Service Regulations. They clarify that a defence of reasonable excuse applies to certain offences where it was previously unclear. Additionally, they explicitly state that strict liability principles apply to some offences or parts of offences, meaning that a defendant may be convicted even if they did not have a guilty mind. These obligations are intended to ensure that the application of these regulations remains consistent with the principles established by the Criminal Code.
The Regulations also establish consequences for breaches of the amended offence provisions. While the Explanatory Statement does not detail specific penalties, it is likely that breaches of the Merit Protection (Australian Government Employee) Regulations and the Public Service Regulations, as amended by these Regulations, could result in civil or criminal penalties. Given that the offences are aligned with the Criminal Code, penalties would be in accordance with the Code. Under the Criminal Code, the maximum penalties for offences vary depending on the severity of the offence, with potential fines and imprisonment terms available. The precise penalties would depend on the specific offence committed and the jurisdiction in which it occurred.