THE ISSUES

1.1 Section 316(1) of the Crimes Act 1900 (NSW) provides that where a person has committed a “serious offence”, it is an offence in certain circumstances for another person who knows or believes that the offence has been committed to fail to report the information to the police or an appropriate authority.¹ The maximum penalty for an offence under s 316(1) is imprisonment for two years. “Serious offence” is defined in s 311(1) of the Crimes Act 1900 (NSW) as an offence punishable by imprisonment for five years or more or life.

1.2 Sections 316(2) and 316(3) of the Crimes Act 1900 (NSW) provide that it is an offence to accept or agree to accept certain benefits in consideration for committing an offence under s 316(1).² The maximum penalty for this offence is imprisonment for five years.

1.3 This Discussion Paper considers whether the offences contained in s 316 of the Crimes Act 1900 (NSW) should be amended or abolished.

THE COMMISSION’S REFERENCE

1.4 On 1 August 1997 the Attorney General, the Hon Jeff Shaw QC MLC, referred to the Commission the question whether the offences contained in s 316 should be abolished or amended.

1.5 In 1994 the Criminal Law Review Division of the Attorney General’s Department commenced a review of s 316.³ In October 1995, a Working Party of the Criminal Law Review Division of the Attorney General’s Department was convened to examine the use of s 316 and to consider whether it was necessary to develop guidelines to clarify the meaning of “reasonable excuse” in the section. In 1996, the Working Party proposed that s 316 be amended so that the consent of the Director of Public Prosecutions be required in relation to the continuance of prosecutions under s 316 of certain classes of persons, which were to be prescribed by regulation.⁴

1.6 This proposal was adopted in a 1997 bill to amend s 316.⁵ The Bill was assented to on 30 September 1997, but has not yet been proclaimed.⁶ It is expected that the Act will come into operation by the end of 1997. Parliamentary Counsel have commenced drafting regulations under the Act which it is expected will come into operation simultaneously with the Act.

THE STRUCTURE OF THIS PAPER

1.7 This Discussion Paper adopts the following structure:

• Chapter 1 states the issue and sets out the Commission’s terms of reference.

• Chapter 2 outlines the law in New South Wales.

• Chapter 3 analyses the law in other Australian jurisdictions and in overseas jurisdictions with similar offences.

• Chapter 4 addresses the issues whether the law of New South Wales should be amended or whether all or part of s 316 of the Crimes Act 1900 (NSW) should be abolished, and contains the Commission’s preliminary proposals.

1. See para 2.2.

2. See para 2.2.

3. The review was prompted by criticisms of s 316. See New South Wales Anti-Discrimination Board, “Discrimination - The Other Epidemic” Report of the Inquiry into HIV and AIDS Related Discrimination, (April 1992) at 47-48. Concerns about the scope of the section were also raised with the New South Wales Attorney General by the Minister for Health on 2 November 1992 and by the Law Society of New South Wales on 21 September 1993. The New South Wales Sexual Assault Committee raised concerns about the operation of s 316 at a meeting of the Committee on 13 August 1993.

4. Minutes of meeting of Working Party on s 316 of the Crimes Act 1900 (NSW), 14 March 1996.

5. Crimes Legislation Amendment Bill 1997 (NSW) cl 3. See para 4.31.

6. Crimes Legislation Amendment Act 1997 (NSW) s 3.