Drafting Direction No. 3.5
Offences, penalties, self‑incrimination, secrecy provisions and enforcement powers
Note:	This Drafting Direction contains references to the “head drafter”. It is a reference to the senior person who is responsible for matters of drafting policy. This form is used to enable the Drafting Directions to be applied in other organisations. In OPC the head drafter is FPC for Bills and the PLC for instruments.
Document release 3.1
Reissued 13 February 2013

Contents
Part 1—Criminal Law Guide and Criminal Law Liaison Officer	3
Criminal Law Guide—referral of draft legislation to AGD Criminal Justice Division	3
Requirement for Attorney‑General approval for draft legislation	4
Criminal Law Liaison Officer	4
Part 2—Form of offence provisions	4
Use expression “commits an offence”	4
Expressions to be avoided in creating an offence	4
Part 3—Penalties	5
Criminal offences	5
Penalty units	5
Do not use the expression “Maximum penalty”	5
Civil penalty provisions	5
Part 4—Aggravated offences	5
Part 5—Geographical jurisdiction of offences	6
Offences created on or after 24 May 2001	6
Standard geographical jurisdiction—default rule	6
Extended geographical jurisdiction—optional categories	7
Offences created before 24 May 2001	8
Part 6—General offences created by Chapter 7 of the Criminal Code	8
Offences created by Chapter 7	8
Offences that deal with the same conduct as a Chapter 7 offence	9
Chapter 7 offences should generally be relied on	9
Exception—giving of false evidence	9
Extended meaning of the expression “offence against this [legislation/Part/Division/provision]”	9
Part 7—Privilege against self‑incrimination	10
Basis of privilege	10
Privilege in relation to documents	10
Privilege in relation to answering questions/giving information or evidence	10
Drafting to take account of both privileges	10
Abrogation and preservation of privilege	10
Abrogation of privilege by express words	10
Use and derivative use immunity	11
Abrogation of privilege by phrase “without reasonable excuse”—how to preserve the privilege	11
Part 8—Secrecy provisions	12
Section 70 of the Crimes Act 1914	12
Secrecy provisions to take account of powers of the Parliament and Parliamentary Committees	12
Part 9—Compensation for damage to electronic equipment or data	12
Background	12
Use of model provision	13

Part 1—Criminal Law Guide and Criminal Law Liaison Officer
Criminal Law Guide—referral of draft legislation to AGD Criminal Justice Division
1	You should have regard to the Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers (the Criminal Law Guide) in drafting provisions covered by the Criminal Law Guide.
2	You should bear in mind that the Criminal Law Guide is neither binding nor conclusive, and that Commonwealth criminal law policy necessarily develops in response to changes in Government policy, novel legal issues, and emerging enforcement circumstances.
3	In accordance with the Criminal Law Guide, Pt 1.3.2, draft legislation relating to criminal law matters must be referred to the AGD Criminal Justice Division if drafters consider that the legislation:
(a)	contains novel or complex issues that the Criminal Law Guide does not address; or
(b)	departs significantly from the principles in the Criminal Law Guide.
4	Drafting Direction 4.2, Attachment A, lists matters that may be required to be referred under the Criminal Law Guide, Pt 1.3.2.
5	Departures from fundamental principles  The Criminal Law Guide recommends that AGD Criminal Justice Division should be consulted early in the legislative process if departures from “fundamental criminal law principles” are proposed, and lists examples of such departures at Pt 1.3.2. Such departures from these principles may require positive approval from the Attorney‑General (see paragraph 12 below). If draft legislation includes an approach that would constitute such a departure, the draft should be referred to Criminal Justice Division.
6	Exceptional circumstances  The Criminal Law Guide recommends that certain approaches to criminal law policy should be adopted only in exceptional circumstances. If these approaches are proposed in draft legislation, the draft should be referred to Criminal Justice Division. Examples of relevant recommendations are listed in a note to Drafting Direction 4.2, Attachment A.
7	Other circumstances  In other respects, the office will continue to work with Criminal Justice Division to clarify matters that should, or should not, be referred to that Division under the Criminal Law Guide, Pt 1.3.2. If in doubt, drafters should contact that Division to discuss whether a particular matter should be referred.
8	The AGD Criminal Law and Law Enforcement Branch find it very helpful if drafts that come to them for comment contain a brief explanation of why legislation is being referred. This explanation can be provided by drafting notes or by a separate note in the email referring the legislation.
9	As well as helping the Criminal Law and Law Enforcement Branch, this will help instructors by alerting them to provisions that may attract adverse comment in the Parliament. The Senate Standing Committee for the Scrutiny of Bills and the Senate Standing Committee on Regulations and Ordinances now seem to expect that offence, penalty and law enforcement provisions will be drafted in accordance with the Criminal Law Guide. The Criminal Law Guide identifies a number of areas that the Committees have commented on in the past, including where the Committees will expect the explanatory material for the legislation to give reasons for particular aspects of legislation (e.g. strict liability offences, retrospective application and the existence of coercive powers).
10	However, the fact that a provision is flagged by a drafter’s note for the Criminal Law and Law Enforcement Branch does not invariably mean that the provision will end up needing to be explained in the explanatory material for the legislation. The Criminal Law and Law Enforcement Branch may be able to provide guidance to your instructors about whether a matter should be explained.
11	Even if draft legislation dealing with matters covered by the Criminal Law Guide is not required to be referred under the Criminal Law Guide, Pt 1.3.2, reference to Criminal Justice Division is required in some other cases described in Drafting Direction 4.2.
Requirement for Attorney‑General approval for draft legislation
12	Where legislation departs from a fundamental principle in the Criminal Law Guide or where legislation relating to a matter in the Guide is likely to be sensitive or contentious, the Attorney-General may need to personally approve that departure prior to the legislation being introduced into Parliament. The Criminal Justice Division will advise you if the Attorney-General’s approval is required. A letter seeking the Attorney‑General’s approval should be sent to the Attorney‑General at least a week before the proposed date for finalising the draft legislation.
Criminal Law Liaison Officer
13	The office and the Criminal Law and Law Enforcement Branch have each appointed a Liaison Officer.
14	The office’s Criminal Law Liaison Officer (CLLO) is responsible for representing the office at discussions with the Criminal Law and Law Enforcement Branch on general issues to do with criminal law and the Guide. If you come across an issue that you consider would be of general interest to all drafters or that you consider should be discussed with the Criminal Law and Law Enforcement Branch, you should raise the issue with the CLLO.
Part 2—Form of offence provisions
Use expression “commits an offence”
15	You should use the expression “commits an offence” rather than the expression “is guilty of an offence” to create a criminal offence.
Expressions to be avoided in creating an offence
16	You should not use the expression “a person may only”, “a person must only” or “a person may do X only if Y” to create an offence because there is some doubt as to whether these forms attract the operation of subsection 4D(1) of the Crimes Act 1914 (which refers to a contravention of the section or subsection).
Part 3—Penalties
Criminal offences
Penalty units
17	The Crimes Act 1914 provides for a system of penalty units (see sections 4AA and 4AB of that Act).
18	If draft legislation provides for a pecuniary penalty, it should be expressed as a number of penalty units instead of a number of dollars. Section 4AA currently sets the value of a penalty unit at $170. There is one exception relating to Commonwealth‑State cooperative schemes (which is discussed in the Criminal Law Liaison Notes).
19	If you are amending legislation to provide for a new offence and there are existing offences with dollar penalties, you should amend the dollar penalties to refer to penalty units. To do this, you will need the agreement of your instructors and they will need to seek Ministerial approval.
20	Section 4AB provides for penalties expressed in dollars to be converted into penalty units (by dividing the number of dollars by 100, and rounding up to the next whole number if necessary). Under section 4AA, the penalty units are then converted into a dollar amount at the current rate ($170 per penalty unit). Thus, a pecuniary penalty expressed as $2,000 is converted by section 4AB into 20 penalty units, which is in turn converted by section 4AA into a penalty of $3,400.
Do not use the expression “Maximum penalty”
21	You should not use the expression “Maximum penalty” at the foot of a provision.
22	If you are amending legislation to provide for a new offence and there are existing offences with references to “Maximum penalty”, you should amend those references to refer to “Penalty”. You should also repeal the special interpretive provision related to the use of the expression “Maximum penalty”. To do this, you will need the agreement of your instructors and they will need to seek Ministerial approval.
Civil penalty provisions
23	The Acts Interpretation Act 1901 contains the following definition:
penalty unit, including in relation to a civil penalty provision, has the meaning given by section 4AA of the Crimes Act 1914.
24	If you use the expression “penalty unit” in a civil penalty provision, that definition will have effect for the purposes of that provision (and you should not include a separate definition of “penalty unit”).
Part 4—Aggravated offences
25	There are two main methods of creating aggravated offences.
26	The first method is to create an offence separate from the primary offence, and for the aggravating circumstances to be an element of that separate offence. See for example sections 132.2 and 132.3, and 132.4 and 132.5, of the Criminal Code.
27	The second method is to create a single offence, and provide a higher penalty according to whether the offence is an aggravated offence. An aggravated offence is then defined in another provision to be an offence against the primary provision in which a particular aggravating circumstance is present. See for example sections 270.6 to 270.8 of the Criminal Code.
28	To avoid any risk of breaching section 80 of the Constitution, any aggravated offence created using the second method should be accompanied by a provision ensuring that the aggravating circumstances are alleged in the charge. For example:
	(#)	If the prosecution intends to prove an aggravated offence, the charge must allege the relevant aggravated offence.
29	The issues are discussed in Cheng v The Queen (2000) 203 CLR 248, where the offence concerned was section 233B of the Customs Act 1901, and the aggravating circumstances which affected the penalty were contained in section 235 of that Act.
Part 5—Geographical jurisdiction of offences
30	This Part deals with Part 2.7 of the Criminal Code, which is about the geographical jurisdiction of offences.
31	Part 2.7 of the Criminal Code commenced on 24 May 2001.
Offences created on or after 24 May 2001
32	The objects of Part 2.7 of the Criminal Code in relation to offences created on or after 24 May 2001 are:
(a)	to provide a default rule (section 14.1) setting out the standard geographical jurisdiction for offences created on or after 24 May 2001; and
(b)	to enable drafters to select one of 4 optional categories of extended geographical jurisdiction for offences created on or after 24 May 2001.
Standard geographical jurisdiction—default rule
33	Standard geographical jurisdiction (section 14.1) is a narrow territorial‑based type of geographical jurisdiction. Standard geographical jurisdiction will apply automatically to offences created on or after 24 May 2001, unless the contrary intention appears.
34	If you are drafting a provision creating an offence, you should consider whether to:
(a)	do nothing and accept the automatic application of standard geographical jurisdiction as set out in section 14.1; or
(b)	create a contrary intention for the purposes of that section.
Extended geographical jurisdiction—optional categories
35	If you are drafting a provision creating an offence and the offence needs to have an extra‑territorial operation, you should consider whether to:
(a)	apply one of the optional categories of extended geographical jurisdiction set out in Part 2.7 of the Criminal Code; or
(b)	draft an alternative provision about geographical jurisdiction (although you should discuss this approach with the head drafter).
36	The optional categories are as follows:

Extended geographical jurisdiction	
Provision	Category of extended geographical jurisdiction	Summary	
Section 15.1	Category A	Coverage of conduct that occurs wholly or partly in Australia.
Coverage of Australian citizens and Australian bodies corporate for what they do anywhere in the world.
Coverage of conduct that has a result in Australia.
If the conduct occurs wholly in a foreign country, and the offender is not an Australian citizen or an Australian body corporate, there is a defence based on the law of the foreign country.	
Section 15.2	Category B	Coverage of conduct that occurs wholly or partly in Australia.
Coverage of Australian citizens, Australian bodies corporate and Australian residents for what they do anywhere in the world.
Coverage of conduct that has a result in Australia.
If the conduct occurs wholly in a foreign country, and the offender is not an Australian citizen or an Australian body corporate, there is a defence based on the law of the foreign country.	
Section 15.3	Category C	Unrestricted coverage.
If the conduct occurs wholly in a foreign country, and the offender is not an Australian citizen or an Australian body corporate, there is a defence based on the law of the foreign country.	
Section 15.4	Category D	Unrestricted coverage.
There is no defence based on the law of the foreign country where the conduct occurs.	
37	The following is an example of a provision applying one of those categories to an offence:
	(3)	Section 15.3 of the Criminal Code (Extended geographical jurisdiction—category C) applies to an offence against subsection (1).
38	The order in which the categories appear in Part 2.7 of the Criminal Code does not imply which category should be preferred in a particular case.
39	If you are drafting a provision to apply one of the categories to an offence in draft legislation, you should consider whether there is any conflict between that provision and any other provision that relates to the geographical operation of the draft legislation. If there is a conflict, you will need to consider how to avoid the conflict.
Offences created before 24 May 2001
40	The objects of Part 2.7 of the Criminal Code in relation to offences created before 24 May 2001 are:
(a)	to enable drafters to apply standard geographical jurisdiction (section 14.1) to an offence created before 24 May 2001; and
(b)	to enable drafters to apply one of the optional categories of extended geographical jurisdiction to an offence created before 24 May 2001.
41	If you are amending an offence created before 24 May 2001, you do not have to consider Part 2.7 of the Criminal Code unless you are instructed to draft a provision dealing with the geographical jurisdiction of the offence.
42	If you are drafting a provision dealing with the geographical jurisdiction of an offence created before 24 May 2001, you should consider whether to:
(a)	apply standard geographical jurisdiction to the offence; or
(b)	apply one of the optional categories of extended geographical jurisdiction to the offence.
43	The following is an example of a provision applying standard geographical jurisdiction to an offence:
	(4)	Section 14.1 of the Criminal Code (Standard geographical jurisdiction) applies to an offence against subsection (1).
Part 6—General offences created by Chapter 7 of the Criminal Code
Offences created by Chapter 7
44	This Part deals with Chapter 7 of the Criminal Code, which creates the following kinds of general offences:
(a)	theft and other property offences;
(b)	fraudulent conduct;
(c)	false or misleading statements, information or documents;
(d)	making unwarranted demands with menaces;
(e)	bribery, corrupting benefits and abuse of public office;
(f)	forgery and falsification of documents;
(g)	giving information derived from false or misleading documents;
(h)	harming, or threatening to harm, Commonwealth public officials;
(i)	impersonating Commonwealth public officials;
(j)	obstructing Commonwealth public officials.
Offences that deal with the same conduct as a Chapter 7 offence
Chapter 7 offences should generally be relied on
45	The Attorney‑General’s Department has a policy against the unnecessary proliferation of offences in Commonwealth laws. A key object of Chapter 7 of the Criminal Code is to minimise the number of offences in other Commonwealth laws. Accordingly, these Criminal Code offences should be relied on, in preference to including in a draft offence provisions that cover some or all of the same conduct, unless there are special circumstances that justify departing from this rule.
Exception—giving of false evidence
46	The Chapter 7 offences relating to false or misleading information or documents could apply to the giving of false evidence in certain circumstances. However, the Criminal Law and Law Enforcement Branch of the Attorney‑General’s Department has advised that, as a matter of policy, the Chapter 7 offences relating to false or misleading information or documents should not be relied on to deal with the giving of false evidence. 
Extended meaning of the expression “offence against this [legislation/Part/Division/provision]”
47	You should consider whether the expression “offence against this [legislation/Part/Division/provision]”, when used in legislation other than the Criminal Code, should be given an extended definition so that it includes some or all of the offences created by Chapter 7 of the Criminal Code that relate to the legislation, Part, Division or provision concerned.
48	In particular, you should consider whether a provision that confers investigative powers in relation to an “offence against this [legislation/Part/Division/provision]” should extend to the investigation of Chapter 7 offences that relate to the legislation, Part, Division or provision concerned.
49	The following is an example of an extended definition of the expression “offence against this [legislation]”:
offence against this [legislation] includes an offence against Chapter 7 of the Criminal Code that relates to this [legislation].
Part 7—Privilege against self‑incrimination
Basis of privilege
Privilege in relation to documents
50	The privilege against self‑incrimination in relation to documents is the privilege of a person to refuse to produce a document on the ground that the production of the document might incriminate the person. It is not a privilege based on the ground that the contents of the document might incriminate the person.
Privilege in relation to answering questions/giving information or evidence
51	The privilege against self‑incrimination in relation to the answering of questions or the giving of information or evidence is a privilege of a person to refuse to answer a question or to give information or evidence on the ground that the answer, information or evidence might incriminate the person.
Drafting to take account of both privileges
52	You should bear the differences between these two privileges in mind whenever you draft a provision to provide expressly for a privilege or to abrogate a privilege. Sorby v Commonwealth (1983) 46 ALR 237 contains a discussion of the privilege against self‑incrimination.
Abrogation and preservation of privilege
53	The Senate Standing Committee for the Scrutiny of Bills has recognised that abrogating the privilege against self‑incrimination represents a serious loss of personal liberty for persons who are subject to questioning, and the Committee will question whether there is a public benefit in the abrogation of the principle that outweighs the loss of personal liberty. The Committee is likely to accept the abrogation of the privilege only if the matters requiring evidence are peculiarly within the knowledge of the person concerned and there is some sort of immunity against the use of any information obtained (see the discussion below about use and derivative use immunity).
54	The general position of the Attorney‑General’s Department is that the privilege against self‑incrimination should be maintained. If you are instructed to abrogate the privilege in particular circumstances, you should ask your instructor to contact the Evidence Section in the Attorney‑General’s Department at an early stage to discuss the instructions.
Abrogation of privilege by express words
55	If the policy is to abrogate the privilege against self‑incrimination, you should include the following provision:
	(1)	A person is not excused from [giving information/giving evidence/producing a document/answering a question under (insert a reference to the relevant provisions)] on the ground that the [information/evidence/production of the document/answer to the question] might tend to incriminate the person or expose the person to a penalty.
56	The Australian Government Solicitor has advised (opinion 05058036 dated 13 July 2005) that if a statute is held to abrogate the privilege against self‑incrimination, it will probably also be held to abrogate the privilege against self‑exposure to civil penalties. The opinion noted that in Pyneboard Pty Ltd v Trade Practices Commission (1983) 152 CLR 328, the judges pointed to the bizarre consequences of construing the provisions in question in such a way that a person could be compelled to admit confession of a criminal offence yet be excused from admitting a contravention of a civil penalty.
57	Section 187 of the Evidence Act 1995 abolishes the privilege against self‑incrimination for bodies corporate. If the provisions referred to in subsection (1) set out in paragraph 55 could apply to individuals and bodies corporate, then the subsection should refer to a person (to avoid any argument that the privilege is not abrogated for bodies corporate in the particular case). If the provisions referred to in subsection (1) could only apply to individuals, then you may change subsection (1) to refer to an individual instead of a person.
Use and derivative use immunity
58	The Criminal Law Guide contains a discussion of the “use” and “derivative use” immunity provisions that are usually included if the privilege against self‑incrimination is abrogated. If you are instructed to provide for a “use” and “derivative use” immunity, you should include the following provision:
	(2)	However, in the case of an individual:
	(a)	the [information given/evidence given/document produced/answer given]; and
	(b)	[giving the information/giving the evidence/producing the document/answering the question]; and
	(c)	any information, document or thing obtained as a direct or indirect consequence of [giving the information/giving the evidence/producing the document/the answering of the question];
are not admissible in evidence against the individual in [insert reference to relevant proceedings and exceptions].
59	The Attorney‑General’s Department has advised that subsection (2) set out above should only apply to individuals. If subsection (1) set out in paragraph 55 refers to an individual instead of a person, you should omit the words “in the case of an individual” from subsection (2).
60	You should discuss with your instructors the proceedings and exceptions to be referred to in subsection (2). You should consider civil proceedings and criminal proceedings. It is common to refer to “criminal proceedings other than proceedings for an offence against section 137.1 or 137.2 of the Criminal Code that relates to [insert reference to relevant provisions]”. 
Abrogation of privilege by phrase “without reasonable excuse”—how to preserve the privilege
61	In 1984 the Full Court of the Supreme Court of Queensland in Price v McCabe; Ex parte Price (1984) 55 ALR 319 held that a provision of an Act that made it an offence to fail to answer questions or produce documents, without reasonable excuse, abrogated the privilege against self‑incrimination.
62	Although the decision has been criticised, if you include a provision in a draft creating an offence in similar terms and the policy is not to abrogate the privilege against self‑incrimination, you should include a further provision along the following lines:
	(4)	It is a reasonable excuse for a person to refuse or fail to answer a question or produce a document on the ground that to do so might tend to incriminate the person or expose the person to a penalty.
Part 8—Secrecy provisions
Section 70 of the Crimes Act 1914
63	Before including an express secrecy provision in a draft, you should consider whether section 70 of the Crimes Act 1914 is adequate (about disclosure of information by Commonwealth officers). There is a wide definition of “Commonwealth officer” in section 3 of that Act. There must be a duty not to disclose for section 70 of that Act to be effective.
Secrecy provisions to take account of powers of the Parliament and Parliamentary Committees
64	Secrecy provisions generally prevent the disclosure of information “except for the purposes of [the legislation] or otherwise in connection with the performance of duties under [the legislation]”.
65	Several years ago a secrecy provision was included in legislation that also included a provision imposing on a parliamentary joint committee a duty to “monitor and review” the performance of the authority whose members were subject to the secrecy provision.  Controversy arose concerning the ambit of the secrecy provision in respect of an authority member called to give evidence to the parliamentary committee.
66	Whenever you include a secrecy provision in a draft that extends to information that may, by virtue of another provision of that draft, be the subject of inquiry by the Parliament or a parliamentary committee, you should ensure that the secrecy provision specifies the circumstances in which that information might be divulged to the Parliament or that parliamentary committee.
67	This could be done, in appropriate cases, by including a definition at the end of the secrecy provision to make clear that “the performance of duties under the [legislation]” includes the giving of evidence to the Parliament or to the specified parliamentary committee.
68	An opinion of the Solicitor‑General (Volume 93, page 5048, 12 August 1991) may be relevant to this issue. The opinion is actually, but apparently incorrectly, dated 12 August 1990.
Part 9—Compensation for damage to electronic equipment or data
Background
69	Until 1998, section 3M of the Crimes Act 1914 contained the standard provision dealing with compensation for damage to electronic equipment operated by officials exercising search powers under Commonwealth laws.
70	In 1998, as a result of advice from the Australian Government Solicitor about deficiencies in the standard provision (ref. 98037080), the provision was revised. The revised version has been further developed since.
Use of model provision
71	The provision set out below should be used as the model for all new provisions of this kind.
72	In the context of the 1998 advice, the Australian Government Solicitor advised that it was not essential to redraft existing provisions that use the original form. However, if you are amending legislation that contains the old form of the provision, it would be desirable to redraft it if time permits and if your instructors do not object.
**  Compensation for damage to electronic equipment
	(1)	This section applies if:
	(a)	as a result of equipment being operated as mentioned in [identify provisions that allow specified people to enter premises and operate equipment on the premises to see whether the equipment or disks etc. contain material such as evidential material or material relating to compliance]:
	(i)	damage is caused to the equipment; or
	(ii)	the data recorded on the equipment is damaged; or
	(iii)	programs associated with the use of the equipment, or with the use of the data, are damaged or corrupted; and
	(b)	the damage or corruption occurs because:
	(i)	insufficient care was exercised in selecting the person who was to operate the equipment; or
	(ii)	insufficient care was exercised by the person operating the equipment.
	(2)	The Commonwealth must pay the owner of the equipment, or the user of the data or programs, such reasonable compensation for the damage or corruption as the Commonwealth and the owner or user agree on.
	(3)	However, if the owner or user and the Commonwealth fail to agree, the owner or user may institute proceedings in the Federal Court of Australia for such reasonable amount of compensation as the Court determines.
	(4)	In determining the amount of compensation payable, regard is to be had to whether the occupier of the premises, or the occupier’s employees or agents, if they were available at the time, provided any appropriate warning or guidance on the operation of the equipment.
	(5)	For the purposes of subsection (1):
damage, in relation to data, includes damage by erasure of data or addition of other data.

Peter Quiggin
First Parliamentary Counsel
13 February 2013

Document History	
Release	Release date	Document number	
1.0	1 May 2006	s06pf330.v01.doc	
1.1	2 May 2007	s06pf330.v03.doc	
2.0	13 Nov 2007	s06pf330.v06.doc	
2.1	12 October 2010	s06pf330.v11.docx	
3.0	2 October 2012	s06pf330.v25.docx	
3.1	13 February 2013	s06pf330.v26.docx	
Note:	Before the issue of the current series of Drafting Directions, this Drafting Direction was known as Drafting Direction No. 2 of 2006 and Drafting Direction No. 16 of 2005.