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		Criminal Reform Amendment Bill - ES.doc
		22-9-06

2006

LEGISLATIVE ASSEMBLY OF THE
NORTHERN TERRITORY

MINISTER FOR JUSTICE AND ATTORNEY-GENERAL

CRIMINAL REFORM AMENDMENT BILL (NO. 2) 2006

SERIAL NO. 71

EXPLANATORY STATEMENT

GENERAL OUTLINE

The Criminal Reform Amendment Bill (No. 2) (“the Bill”) is the second stage in the progressive reform of the 
Northern Territory’s Criminal Code (“the Code”).  

The Criminal Code Amendment (Criminal Responsibility Reform) Act 2005 (“the Act”) sets out the general principles of criminal responsibility which will eventually apply to all Northern Territory offences.  The Act repeals the current offences of manslaughter and dangerous act.  New provisions providing for offences of manslaughter, endangerment and negligent as to serious harm and harm, causing death or serious harm by dangerous driving were enacted.  
The existing offence of sexual intercourse without consent was amended.  The criminal responsibility principles will apply to the offences in this Bill.

The Bill reforms the homicide, suicide and concealment of birth provisions of the Code, repeals the defence of coercion and repeals and replaces the partial defences of provocation and diminished responsibility.

The Bill also provides for renumbering of provisions and replacement of Part and Division Headings required as a result of this staggered implementation of the model provisions.  

NOTES ON CLAUSES

PART 1		PRELIMINARY MATTERS

Clause 1.	Short Title

This is a formal clause which provides for the citation of the Bill.  
The Bill when passed may be cited as the Criminal Reform Amendment Act (No. 2) 2006.

Clause 2.	Commencement

This clause explains that this Act will commence immediately upon commencement of the Criminal Code Amendment (Criminal Responsibility Reform) Act 2005.  That Act commences upon Gazettal.

PART 2	AMENDMENT OF CRIMINAL CODE

Clause 3.	Act Amended

This clause provides that Part 2 of the Bill amends the Criminal Code.

Clause 4.	Definitions

This clause amends the definitions section of the Code to include a definition of “aggravated offence” and “birth” and to omit the definitions of “document” and “police officer”, which are defined in the Interpretation Act, and the definition of “provocation” which, as a result of these amendments, will no longer apply in circumstances other than murder.  

Clause 5.	New sections 1B and 1C

Section 1B:	Person against whom offence may be committed
Section 1C:	Birth

This clause inserts new sections 1B and 1C to replace section 156 of the Code “when a child becomes a human being”.  

Section 1B inserts the definition of a person against whom an offence may be committed, which is a person who is born and who has not already died.  The Reform Act contains the model code definition of death, and section 1C inserts the model code definition of birth.  

Clause 6:	Division of offences

This clause amends section 3 of the Code by adding a note to clarify that an offence is a crime if the penalty for the offence is imprisonment for a period of more than two years, consistent with section 38E of the Interpretation Act. 

Clause 7:	Repeal of sections 34 and 37

This clause repeals sections 34 and 37 (provocation and diminished responsibility) which are replaced by new sections 158 and 159.

Clause 8.	Amendment of section 40

This clause amends section 40, the defence of duress, to extend its application to offences of murder and manslaughter.

Clause 9:	Repeal of section 41

This clause repeals section 41, the defence of coercion, which is unique to the Northern Territory criminal law.  The extension of 
section 40 and the unique existence of the defence of coercion as part of the criminal law in Australia, make the retention of the defence unnecessary.

Clause 10:	Amendment of section 43AA (Application of this Part and relationship with Parts I and II)

This clause amends the heading of section 43AA and amends subsection (3) of 43AA to list those parts of the Code which do not apply in relation to Schedule 1 or declared offences committed after the commencement of this Part. 

Clause 11.	Amendment of section 43BJ (Conspiracy)

This clause amends section 43BJ(1) in relation to the penalty for conspiracy, to take into account the penalties provided for conspiracy in the new provisions e.g. murder.  Section 43BJ provides that “a person who conspires with another person to commit an offence punishable by imprisonment for more than 12 months, or by a fine of 200 penalty units or more is guilty of the offence of conspiracy to commit that offence and is punishable as if the offence to which the conspiracy relates had been committed”.  However, as the penalty for murder is mandatory life imprisonment, this provision is amended to allow for the existing conspiracy penalty for murder, 14 years imprisonment, to be retained.  

The existing conspiracy provision, 282, will still apply to offences not scheduled or declared.

Clause 12.	New Section 43BJA

This clause adds a new section 43BJA in Division 4 to clarify that, unless otherwise stated, offences of attempt, incitement and conspiracy are included in references to offences against an Act or references in an Act to particular offences.

Clause 13:	Amendment of section 72 (Definitions)

This clause amends section 72 to take into account the renumbering of the Code resulting from various amendments.

Clause 14:	Repeal and substitution of Part VI, Division 1A heading – Subdivision 1 – Right of occupants etc. to safety from attack by intruders.

This clause substitutes a new Heading 1A into Part VI of the Code.

Clause 15:	New Part VI, Division 1, Subdivision 2 – Subdivision 2 - Interpretation

Section 149B.	Definitions
Section 194C.	Causing Death or harm

This clause inserts a new Subdivision into the Code as a part of the restructuring, and includes a new definition of “aggravated offence” to clarify that an aggravated offence under 174G applies to offences of recklessly endangering life and recklessly endangering serious harm.

It also renumbers the existing 174A “causing death or harm” provision.

Clause 16:	Repeal and substitution of sections 156 to 164

This clause repeals sections 156 to 164 of the Code and substitutes the Model Code provisions of murder, punishment for murder, attempted murder, and conspiracy to murder.  It renumbers the existing manslaughter and punishment for manslaughter provisions.

Section 156.	Murder
Section 157.	Punishment for murder, attempted murder and conspiracy to murder

The murder provision is consistent with the current fault elements for that crime, that is, intention to kill or an intention to cause serious harm and removes constructive murder from the NT Criminal Code.

Section 158.	Trial for murder – partial defence of provocation

This clause inserts a re-drafted partial defence of provocation 
(the existing provision 34 being repealed by clause 8 of this Bill).  
The re-drafted defence is based on the common law as stated by the 
High Court in Stingel affirmed in the case of Masciantonio. The new provision restricts the defence to the offence of murder, and removes from the determining of the gravity of the provocation, consideration of the subjective characteristics of the defendant, such as cultural and ethnic traits, which the Court considered to be irrelevant to the standard of self-control imposed by law; that of the hypothetical ordinary person facing that degree of provocation.  

Section 159.	Trial for murder – partial defence of diminished responsibility

In accordance with recent reviews of this defence, it has been 
re-drafted so that the focus is placed, not on the defendant’s mental impairment, but rather whether his or her mental capacity was impaired, as a result of an underlying mental condition, to such an extent that he or she was unable to control his or her actions, or understand events or judge whether the conduct was right or wrong.  The provision makes it clear that the defendant is presumed to be of normal mind until proved otherwise, on the balance of probabilities, by the defence.  Self-induced intoxication must be ignored in determining the defendant’s impairment.  The Model Code does not contain this defence.  However, the 
New South Wales Crimes Law Reform Commission recommended that the defence be retained.  This clause is modeled on section 23A of the New South Wales Crimes Act.

Section 160.	Manslaughter
Section 161.	Punishment for manslaughter

These provisions have been renumbered.

Section 162.	Assisting and encouraging suicide

The current offence (section 168) of “aiding suicide” is replaced with a provision which combines the Model Code provisions of assisting suicide and encouraging suicide, but retains the current penalty of maximum life imprisonment for assisting or encouraging another person to kill or attempt to kill himself or herself.  

Section 163	Concealment of birth

This clause renumbers the existing provision.

Clause 17:

This clause repeals section 167, 168 and 171 to 174A.

Sections 172 and 173 are redrafted.  Section 174 is repealed and redrafted in the Medical Services Act.

Clause 18:	New Part VI, Divisions 8 and 9

Division 8	Abortion

Clause 208A	Definition

This clause provides a definition of drug to include poison (as is the case in the current provision)

Clause 208B	Procuring abortion 

This clause re-drafts the existing section 172 and retains the current penalty. The provision includes a cross-reference to section 11 of the Medical Services Act, which provides for medical termination of pregnancy.

Clause 208C	Supplying things for abortion

This clause redrafts the existing section 173 and retains the current penalty.  The provision includes a cross-reference to section 11 of the Medical Services Act, which provides for medical termination of pregnancy.

Divison 9	Defences

This clause inserts a new Part VI Division 9 to include the general Model Code defences against offences in the new Part VI, of:

Section 208D.	Activities involving serious harm or risk of death or serious harm

·	Where conduct is engaged in by the person for the purpose of benefiting the other person or pursuant to a socially acceptable function or activity, where the conduct was reasonable;

Section 208E.	Law enforcement officers

·	Where the person is, at the time of the offence, a public officer acting in the court of his or her duty as a police officer, prison officer or other law enforcement officer, and the conduct is reasonable in the circumstances for performing that duty.

As Part II of the Criminal Code will not apply to scheduled offences, this provision is necessary to provide a defence for police and prison officers in circumstances involving a scheduled offence.  
Currently, section 28 of the Criminal Code would apply.

Section 208F.	Evidential burden of proof

The evidential burden of proof for a defendant who wishes to deny criminal responsibility by relying on a provision of the Division bears an evidential burden in relation to the matter (see s.43BU of the 
Reform Act – “Evidential burden of proof – defence”.)

Clause 19:	Repeal of section 287

This clause repeals section 287, conspiring to murder, as this is now contained in new section 157 (clause 18).

Clause 20.	Amendment of section 317 (Charge of homicide of a child)

This clause amends section 317 to accord with the re-drafted concealment of birth provision.

Clause 21:	Repeal and substitution of Schedule 1

This clause amends Schedule 1 to update those provisions of the Code to which Part 11AA now applies.

PART 3 - 	AMENDMENT OF YOUTH JUSTICE ACT

Clause 22:	Act Amended 

This clause provides that Part 3 amends the Youth Justice Act	

Clause 23:	Amendment of section 82 (Powers of Supreme Court in Sentencing)

This clause amends section 82 of the Youth Justice Act to correct references to newly arranged and numbered provisions.

MINISTER FOR HEALTH

MEDICAL SERVICES AMENDMENTMENT BILL 2006

SERIAL NO. …….

GENERAL OUTLINE

The reform of the Criminal Code provides an opportunity for the provisions relating to medical termination of pregnancy to be removed from criminal legislation, and placed into health legislation.  The purpose of the Bill is to place the substance of section 174 of the Criminal Code in the Medical Services Act, clarify the provision by more structured drafting, and remove the requirement for an obstetrician/gynaecologist to perform medical terminations.

The Medical Services Amendment Bill contains the redrafted section 174 of the Criminal Code.  That section provides for lawful termination of pregnancy procedures to be carried out in a hospital.  It sets the standards of care required for the medical procedures involving termination of pregnancy.  
In recognition of modern medical practice, it also amends the existing section by removing a requirement for a specialist obstetrician or gynaecologist to perform this procedure.

NOTES ON CLAUSES

PART 1		PRELIMINARY MATTERS

Clause 1.	Short Title

This is a formal clause which provides for the citation of the Bill.  
The Bill when passed may be cited as the Medical Services Amendment Act 2006.

Clause 2.	Commencement

This clause explains that this Act will commence immediately after commencement of the Criminal Reform Amendment Act (No. 2) 2006.  

Clause 3.	Act amended

This clause states that the Act amends the Medical Services Act.

Clause 4.	New section 11

This clause inserts a new section 11 into the Medical Services Act.

Subclause (1) 
This subclause provides for lawful termination of pregnancy in 
non-emergency circumstances.  It allows a medical practitioner, after examining a woman and reasonably believing her to be not more than 14 weeks pregnant, to perform provide medical treatment intending to procure a miscarriage, where the practitioner and another medical practitioner are of the opinion that the continuance of the pregnancy would involve greater risk of injury to the woman, physical or mental, than if the pregnancy were terminated, or there is a substantial risk that the child may be born seriously handicapped.  The practitioner must obtain the consent of the appropriate person to carry out the treatment, and it must be undertaken in a hospital, within the first 14 weeks of pregnancy.  

Subclause (2)
This subclause requires that, where reasonably practicable, at least one of the two medical practitioners required to provide an opinion in relation to the need for a medical termination within the first 14 weeks of pregnancy must be that of a gynecologist or obstetrician.  In any case, there is still a requirement for two medical practitioners to be of the opinion that in all the circumstances set out in clause (1) the medical termination is necessary.  

Subclause (3) 
This subclause sets out the circumstances where it is lawful for a medical practitioner to provide emergency treatment intending it to procure the miscarriage of a woman who is not more than 23 weeks pregnant, where the medical practitioner is of the opinion that the termination of the pregnancy is immediately necessary to prevent serious harm occurring to the woman’s physical or mental health, then with the appropriate consent, the practitioner may give medical treatment to terminate the pregnancy.

Subclause (4) 
This sub-clause provides that it is lawful for a medical practitioner to give medical treatment intending it to procure a miscarriage of a woman, if the treatment is given in good faith for the purpose only of preserving her life. 

Subclause (4)
This sub-clause sets out the requirements for consent.  Where a woman is at least 16 years of age and capable in law of consenting to a medical treatment, the woman’s consent is the appropriate consent.  Where the woman is under 16 years of age, the consent of both parents, or legal guardian is required.  If a woman is over 16 but incapable in law of giving consent, then the practitioner must obtain consent from a legal guardian.

Subclause (5)
This sub-clause makes it clear that there is no duty for any person to procure or assist in medical termination, or associated procedures.

Subclause (6)
This subclause requires that medical practitioners carrying out the treatment for medical termination are required to act with professional care and according to law.  

Subclause (7) provides definitions of “medical treatment” to include surgery, and “woman” to include any female.