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Legislative Assembly for the ACT: 2001 Week 6 Hansard (15 June) . . Page.. 1817 ..

MR STEFANIAK (continuing):

There are other principles, less famous but equally important, contained in the proposed Code. These include the principle that crimes are composed of physical elements (sometimes referred to as the "actus reus" or "guilty act") and fault elements (sometimes referred to as the "mens rea" or "guilty mind"). If any of the requisite elements is not present, no crime has been committed. The Code explains the types of actions or conduct that can make up a physical element of a crime, and defines the four states of mind which most frequently constitute the fault elements for an offence-these are intention, knowledge, recklessness and negligence.

The Code explains how physical elements and fault elements interact, and what factors can negative their existence, thereby providing the defendant with a defence. It also explains how offences with no fault elements, such as offences of strict liability and absolute liability, are to apply and the defences which may apply to such offences.

The Code explains fundamental concepts relating to the burden of proof, setting out the general rules as to who must prove what matters, and to what standard. I trust that these provisions will be of assistance to the Scrutiny of Bills Committee, which has frequently raised queries concerning the burden of proof for proposed offences.

The text of the Code itself is based on Chapter 2 of the Model Criminal Code developed by the Model Criminal Code Officers Committee. That Committee carried out exhaustive research into case law and legislation to develop codified principles that reflect the consensus of opinion on the fundamental principles of criminal responsibility. Chapter 2 has been endorsed by all jurisdictions through the Standing Committee of Attorneys-General, and has already been enacted by the Commonwealth in its Criminal Code Act 1995.

The Code will be implemented in two stages, with this bill comprising the first stage. The second stage will be to review all existing offences under Territory law and where necessary, to redraft them in line with the principles set out in the proposed Code. Consideration will also be given in the second stage to incorporating those principles of criminal responsibility from Chapter 2 of the Model Criminal Code which have not been included in this bill. Those principles include matters such as the age of criminal responsibility which are already covered by legislation in the ACT and which it was not considered necessary to include in the first stage of the process.

As I mentioned previously, the Commonwealth has already enacted Chapter 2 of the Model Criminal Code. The implementation of the ACT's Code is expected to occur smoothly as officers of the Australian Federal Police are already familiar with its requirements, and our Courts have applied its provisions when dealing with offences under Commonwealth laws. I would like to take this opportunity to thank the Commonwealth for making extracts from the Explanatory Memorandum for its legislation available to the ACT.

I commend the Code and the Explanatory Memorandum to the Assembly.

Debate (on motion by Mr Stanhope ) adjourned to the next sitting.

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