Wednesday, 19 August 2015
Crimes Legislation Amendment (Powers, Offences and Other Measures) Bill 2015; In Committee
I move Australian Greens amendment (1) on sheet 7736:
(1) Schedule 5, page 10 (lines 1 to 26), to be opposed.
The Australian Greens share the strong concerns raised by the Law Council of Australia and others about the introduction of a new form of extended criminal liability into the Commonwealth Criminal Code. Schedule 5 would amend the Criminal Code to insert the concept of 'knowingly concerned' as an additional form of secondary criminal liability into section 11.2. That would mean that where persons are knowingly concerned in the commission of an offence under the Criminal Code and the Crimes Act they would be liable for the offence. The problem with this change is that it adds a new category of criminal liability to an already extensive secondary liability regime under the Criminal Code. The existing regime already makes it an offence to attempt or to aid and abet or to conspire with another to commit an offence. The concept of 'knowingly concerned' was specifically considered and rejected twice as a form of secondary liability when the Criminal Code was being delivered.
In her wrap-up of the bill, Senator Fierravanti-Wells tried to assuage concerns I had raised about the amorphous nature of adding this concept and said that there would be a requirement to have intentionally participated in the commission of the offence, but that begs the question why then they could not be prosecuted under an existing category of criminal liability such as conspiracy or aiding and abetting. From a human rights and rule of law perspective, we should always set a high hurdle of necessity before sweeping new forms of criminal liability are introduced to Australia. In this case, legal commentators overwhelmingly agree the government has not come even close to justifying why we need this new concept of 'knowingly concerned' or what it would actually add in practical terms to the existing extended liability provisions in the Criminal Code. For these reasons, the Australian Greens do not support the changes to introduce the concept of 'knowingly concerned' as a general principle of criminal responsibility and this amendment would remove schedule 5 from the bill.