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CRIMINAL LAW CONSOLIDATION (OFFENCES OF DISHONESTY) AMENDMENT BILL\TOC\2\CRIMINAL LAW CONSOLIDATION (OFFENCES OF DISHONESTY) AMENDMENT BILL

\IND\Speech:nn:The Hon. M.J. ATKINSON The Hon. M.J. ATKINSON (Attorney-General) obtained leave and introduced a bill for an act to amend the Criminal Law Consolidation Act 1935; to repeal the Secret Commissions Act 1920; and to make related amendments to other acts. Read a first time.

The Hon. M.J. ATKINSON: I move:

That this bill be now read a second time.

The bill is the result of a review of the criminal law in the area of criminal offences punishing dishonesty in its various forms. The review is based on the earlier comprehensive work of the Model Criminal Code Officers Committee (MCCOC), a committee reporting to the Standing Committee of Attorneys-General which, in turn, drew largely on the substantial English experience in reforming of the criminal law in this area. The Model Criminal Code Officers Commit­tee review involved substantial public consultation. After the Model Code Report, published in December 1995, South Australia developed a model reflected in this bill.

The bill (and a brief accompanying explanation) was released for public comment, and the comments received have been taken into consideration. The bill was introduced into the last parliament and passed in another place, but lapsed when parliament was prorogued before the last election. I seek leave to insert the remainder of the second reading explanation in Hansard without my reading it.

Leave granted.

TAKE IN H:\2READEXP\CLCOODAB.DOC

criminal law consolidation (offences of dishonesty) amendment bill 2002 The State of the law in South Australia

South Australian criminal law on theft, fraud, receiving, forgery, blackmail, robbery, and burg­lary is almost entire­ly contained in the Criminal Law Consolidation Act 1935 (the principal Act), Parts 5 and 6, sections 130-236, as largely supple­mented by the common law. The offences are antiquated and inadequate for modern conditions. They are, in general terms, the offences con­tained in the English consolidating statutes of 1827, 1861 and 1916. Those consolidating statutes, in turn, brought together a wide range of diverse specific enactments that went back to the time of Henry III (circa 1224).

The definition of larceny at common law as the `asportation of the property of another with­out their con­sent' dates from the Carrier's Case of 1474.

Cheating was a common law offence from very early times, but false pretences was not made a criminal offence until 1757.

The current South Australian false preten­ces offence (section 195) is in very much the same form as it was originally. The distinction between obtaining by false pretences, on the one hand, and larceny by a trick, on the other, turns on the ques­tion whether the fraud induced the victim to intend to pass property or merely possession to the thief. This is very difficult to understand and apply, and makes no real sense at all. It is only one example of the deficiencies and unnecessary complexities of the current state of the law.

Examples could be multiplied but, in general terms, the posi­tion can be summarised by saying that South Australian law in the areas of theft, fraud, receiving, for­gery, blackmail and robbery (and associated offences) is the common law, as overlaid and supplement­ed by numer­ous other enactments, of various ages, which, in many cases, are inconsistent with the general principles with which they are supposed to work. In addition, there are a large number of anomalies, such as offences directed at the for­gery of currency (sections 217-220) and offences relat­ing to the conduct of company directors (sections 189-194). Neither of these sets of offences are of any use.

South Australia has the most antiquated law in these areas in Australia. It is unnecessarily complex, difficult to understand, full of anomalies and a barrier to the effective enforcement of the law against dishonesty generally, both in this State and nationally.

In 1977, the Mitchell Committee said:

The defects of the present law are that it is unduly complex, lacks coherence in its basic elements and has not kept up to date with techniques of dishonesty. . . . [The] distinctions are difficult enough for lawyers; for laymen they are an abyss of technicality.

The law in South Australia on `secret commissions' is set out in the Secret Commissions Prohibition Act enacted in 1920. It came into effect on 1 January 1921. It creates a series of offences which, broadly speaking, criminalise the behaviour of giving, soliciting, or receiving, payment by or for an agent in order to influence a judgement or deci­sion. Some offences deal with `secret' payments and some do not. Some offences require that the payment be made or received `corruptly' and some do not. The object of the legislation was to create a series of criminal offences dealing with corruption in both private and public life. The of­fences deal with variations on bribery and deceit in dealings. It differs from the more widely known criminal laws dealing with bribery and corruption in that it was primarily aimed at private, rather than public, business dealings.

In 1992, the South Australian Parliament passed the Stat­utes Amendment and Repeal (Public Offences) Act 1992. That Act contained a new regime of public sector oriented corruption offences. Although the current secret commis­sions legislation does cover `servants of the Crown', the 1992 offences dealing with bribery and cor­ruption of public officers and abuse of public office deal comprehen­sively with the serious offences appropriate to this area. The area left untouched by the 1992 reforms is the area of corruption and bribery in private life and busi­ness.

There are a number of reasons why this Act requires an over­haul.

×The Secret Commissions Prohibition Act is drafted in a style common to legislation of that age, but one which makes it hard to understand by and obscure to those who must conform their actions to its dictates. Further, in South Australia, its prohibi­tions have remained in an obscure separate Act of Parliament rather than, as in most other jurisdictions, incorporated into the main­stream of criminal legisla­tion, be that a Criminal Code or a general Crimes Act. At the very least, therefore, the legisla­tion requires a modern form and an integra­tion into the general body of the criminal law.

×Much has changed since the legislation was origi­nally passed. It overlaps with the general criminal law relat­ing to fraud, extor­tion, and bribery and corruption, and the as­sumptions about those areas of the criminal law against which its needs were as­sessed and its scope defined may not be valid today. The same is true, if not more so, about the society in which it operates. The legislation needs to be recon­sidered in light of the current legal and social envi­ronment in which it is intended to operate and, in particu­lar, integrated with bribery and cor­ruption offences.

×While the offences contained in the legislation have not been widely used since its enactment, a number of matters requiring attention has been exposed. These include, sig­nificant confu­sion about the meaning of the word `cor­ruptly', a reversal of onus of proof which could be de­scribed as `draconian', a need to reconsider the applicable penalties, and a peculiar statute of limita­tions which bars action 6 months after the principal discovers the offence.

The Model Criminal Code and the Standing Com­mit­tee of Attorneys-General

In 1991, the Standing Committee of Attorneys-General (SCAG) formed what became the Model Criminal Code Officers Commit­tee (MCCOC) with a remit to make recommendations about a model criminal code for all Australian States and Territories. In September 1992, a special SCAG meeting on complex fraud cases requested MCCOC to give priority to theft and fraud as the first substantive chapter of such a code. This request was based in part on Recom­mendation 8 of the National Crime Authority's conference on white collar crime held in Melbourne in June 1992, which said:

That the various State laws and codes be revised so as to provide uniform fraud legislation as a mechanism for consis­tency for investigation and presentation of evidence in all Australian jurisdictions.

MCCOC took up the issues in the following way. It issued 2 discussion papers; the first, in December 1993, dealing with theft, fraud, robbery and burglary and the second, in July 1994, dealing with blackmail, forgery, bribery and secret commissions. In December 1995, it issued a Final Report which consolidated its recommenda­tions in those areas. The Final Report was based on nation-wide submis­sions (including 40 written submissions) and consulta­tions. In June 1996, MCCOC released a Discus­sion Paper on conspiracy to defraud followed by a Report in May 1997. Implementation of the Model Code recom­menda­tions is a matter for each Australian State and Territory to decide for itself.

It follows that the current law in South Australia in the areas of theft, fraud, receiving, forgery, blackmail, rob­bery, burglary and secret commissions is long overdue for reform. A complete over­haul of the law is overdue, not only on its intrinsic merits, but also in light of the recom­mendations of the National Crime Authority Conference and the special meeting of SCAG.

MCCOC recommended a structure for theft, fraud and related offences based on the English Theft Act. The Theft Act model was developed by the English Criminal Law Revision Committee in 1966 and enacted in England in 1968. It represents an almost entirely fresh start and is, as far as possible, expressed in simple and plain language. Its basics are offences of theft, obtaining by deception, and receiving, with the aggravated offences of robbery, for­gery, burglary and blackmail. There are, in addition, sup­ple­mentary offences, such as taking a motor vehicle with­out consent and making off without payment.

Some form of the Theft Act model has already been enact­ed in Victoria, the Australian Capital Territory and the Northern Territory. The scheme thus has the advantage of having been tested in 3 Australian jurisdictions and, more substantially, in England over the past 28 years. However, the view has been taken that the drafting of the English Theft Act and, in consequence, the MCCOC rec­ommend­ed provisions, is antiquated and does not comply with the drafting style of the South Australian statute book. Conse­quently, an entirely fresh version adopting a substan­tially modified approach to the whole subject has been drafted. The result is a Bill quite different in form from other models, although its effect is very similar.

Theft

The general offence of larceny and the large number of specific offences of larceny, currently contained in sec­tions 131-154 of the principal Act, are to be replaced with a general offence of theft. Hence, specific offences of stealing trees, dogs, oysters, pigeons, and so on, will be subsumed into a general offence. Theft is defined as the taking, retaining, dealing with or disposing of property without the owner's consent dishonestly, intending a seri­ous encroachment on the proprietary rights of the owner.

The core of the meaning of theft (and a number of other of­fences in the Bill) is `dishonesty'. The Bill captures and codifies the meaning of `dishonest' as it has been devel­oped in the English Theft Act environment. `Dishonest' is defined as acting dishonest­ly according to the standards of ordinary people and knowing that one is so acting. This is a community standard of dishonest behav­iour and, accord­ingly, will be a matter for a jury to decide in serious cases.

It may be noted that the definition of dishonesty in­cludes the current common law defence of `claim of right'—that is, a person will not be dishonest if he or she mistak­enly believes that he or she is exercising a right. This is (and has always been) an exception to the old rule that ignor­ance of the law is no excuse, but the mistake must be about some legal or equitable (in the technical sense of that word) right, as opposed to moral right. It is not en­ough that the person thinks that there is some moral right to do what they are doing (such as defrauding rich insur­ance companies). They must believe that they are acting in accordance with law—for example, taking back property which the defendant honestly (but mistaken­ly) believes belongs by law to her.

The old offence of larceny required proof of what was known as an `intention to permanently deprive the owner' of the object of the larceny. The meaning of this phrase became the subject of some litigation at common law. In the case of the Theft Act and this Bill, the law is reduced to a codified form of words, rendering the state of the law more certain. In the case of this Bill, it is referred to as `intending a serious encroachment on an owner's proprietary rights'.

The existing law concerning theft by trustees, rules in relation to theft of real property and the rule relating to `general deficiency' are preserved by the Bill.

In common language, a thief is someone who steals goods and a receiver is someone who pays the thief for the stolen goods. However, it has never been as simple as that. There has always been a considerable overlap between theft and receiving and that overlap has produced complex legal disputes. This has been so ever since the offence of receiv­ing was invented by statute. Sec­tion 196 of the principal Act currently provides as follows:

(2) Charges of stealing any property and of receiving that property or part of that property may be included in separate counts of the same information and those counts may be tried together.

(3) Any person or persons charged in separate counts of the same information with stealing any property and with receiving that property or part of that property may severally be found guilty either of stealing or of receiving the property or part of the property.

Under the modern approach to the area, theft is defined, in law, so widely that all receiving amounts to theft, be­cause theft has moved away from its mediaeval roots as a crime simply involving the taking of possession without consent. The only reason for keeping any crime of receiv­ing is the popular perception that there is some kind of difference between the archetypal thief and the archetypal receiver. This maintains an unnecessary complication in the law and unnecessarily complicates the task for judge and, where it is appropriate, jury. Therefore, the crime of receiving is being formally incorporated into theft and hence the sepa­rate offence of receiving will disappear; but, in deference to the popu­lar conception, the name of receiving will still be referred to in the crime of theft.

Robbery

The traditional offences of robbery and aggravated robbery are retained with no substantive change. The double refer­ences to assault with intent to rob are removed, with as­sault with intent to rob being dealt with by section 270B of the principal Act.

Money-laundering

The offence of money-laundering is transferred from its current location in the principal Act to a Division dealing just with money laundering. An additional offence has been added, directed at a person who ought reasonably to know that the property is tainted. This amendment brings South Australian law into line with all other jurisdictions except New South Wales.

Fraud and Deception

A variety of offences of fraud are replaced by one general offence of deception. The effect of this is to do away with the archaic differences between the various statutory fraud offences and, also, to do away with the archaic difference between the offence of obtaining by false pretences and larceny by a trick. The offence also collapses the distinc­tion between obtaining and attempt to obtain. No actual obtaining as a result of the deception is required.

Conspiracy to Defraud

The common law offence of conspiracy to defraud remains alone among the abolition of the rest of the common law relating to offences of dishonesty. While this decision is not in line with a determination to codify the law for rea­sons of access and preci­sion, it conforms to the same decision that has been made in Victoria (and other places, notably, the UK). It really is an amorphous `fall back' offence of uncertain content designed to catch innovative dishonesty when all else fails.

There is no doubt at all that conspiracy to defraud catches conduct that goes beyond any specific offences. It exists in 2 main forms which are not mutually exclusive. The first variant was described by an eminent judge as follows:

[A]n agreement by two or more by dishonesty to de­prive a person of something which is his or to which he is or would be or might be entitled and an agreement by two or more by dishonesty to injure some proprietary right of his, suffices to constitute the of­fence of conspiracy to defraud.

This form of the offence does not necessarily involve deception.

The second form of the offence requires a dishonest agree­ment by 2 or more persons to `defraud' another by deceiv­ing him/her into acting contrary to his/her duty. It now appears to be settled that the person deceived need not be a public official and need not suffer any economic loss or prejudice.

Some time ago, the UK Law Commission comprehen­sive­ly surveyed what it thought conspiracy to defraud (which was not caught by the then existing (Theft Act)) law co­vered. The latest summary of the position is quoted below. Like the Law Commission, the position taken by this Bill is that it is not current­ly possible to represent adequately, and in a principled manner, the scope and operation of the protean offence of conspiracy to de­fraud and, therefore, as a matter of practical reality, it must be retained.

. . . we have already concluded, in our conspiracy to defraud report, that we could not recommend any re­strictions on the use of conspiracy to defraud `unless and until ways can be found of preserving its practical advantages for the adminis­tration of justice'. Our view at that time was that conspiracy to defraud added sub­stantially to the reach of the criminal law in the case of certain kinds of conduct (or planned conduct) which should in certain circumstances be criminal. We set out a number of instances of conduct within that category, some of which we have subsequently considered. One such lacuna was that it was not possible to prosecute an individual for obtain­ing a loan by deception. We recommended that the offence of obtaining services by deception, contrary to section 1 of the Theft Act 1978, should extend to such a case; this recommen­dation was repeated in our money transfers report and imple­ment­ed by section 4 of the Theft (Amendment) Act 1996. An­other lacuna, that of corruption not involving con­sider­ation, has been addressed in our recent report on cor­ruption. Yet another, the unauthorised use or dis­clos­ure of confidential information, is the subject of our continuing project on the misuse of trade secrets. There are further possible lacunae that might emerge if con­spiracy to defraud were abolished. We think that the proper course is to await the responses to this consul­tation paper and then, if it is agreed that a general offence of dishonesty would not be appropriate, con­sider whether the matters that we have previous­ly considered as possible lacunae should be the subject of specific new offences. We are very conscious that some of them are highly controver­sial.

Forgery

The current law contains a great many specific offences of forgery which are of considerable age. They are all to be replaced with a general offence of `dishonest dealings with documents' which extends the offence of forgery, based on the pivotal notion of dishonesty, beyond creating and using a false document to dishon­estly destroying, conceal­ing or suppressing a document where a duty (as specified in the Bill) to produce the document exists. There is also a sum­mary offence of strict liability of possession, without lawful excuse, of an article for creat­ing a false document or falsifying a document. It should be noted that the defini­tion of `document' includes electronic information.

Penalties

It is appropriate, at this point, to comment about maximum penal­ties. Forgery maxima provide as good an example as any. Some of the current forgery offences are punishable by life imprisonment. This is merely the result of the abolition of capital punishment (and its replacement by life imprisonment) in relation to non-homicide offences in the nineteenth century, and is absurd in the twenty first. It amounts, in its current state, to an abdication by the legis­lature of any role at all in indicating to the courts the level at which penalties for offences should be set. It is not only the life maxima that are absurd. Interference with a crossing on a cheque with intent to defraud carries a maxi­mum of 14 years compared with, for example, 10 years for the indecent assault of a child under 12 years of age. Pre­serving the sanctity of certain, some­times important, docu­ments is one thing—getting comparative social priorities right is quite another, and it is the latter that should take precedence.

It is not intended by any amendments in the area of penal­ties to send the message to either the judiciary or the general public that the current applicable penalties in practice should be reduced. On the contrary, all that is being done is to fix applicable maxima at a realistic level when compared to other offences of comparable general gravity.

Computer and Electronic Theft/Fraud

It is notorious that the old common law system had great difficulty dealing with the new ways in which various old forms of dishon­esty (and some new ones) were facilitated by the use of electronic and, more recently, computerised forms of money and money's worth. There are essentially 2 ways in which the law can be changed in order to cope with the problem. The first is to try to use definitions in order to integrate the new concepts to a general set of offences. That is the course that has been taken in relation to the new offences relating to the dishonest dealings with docu­ments. The second method is to try to create a specif­ic offence or specific offences to cover the field. The latter is what the Bill tries to do with general dishonesty of­fences. The Division is headed Dishonest Manipulation of Machines and the notions of manipula­tion and machine have been defined specifically with this in mind.

The Problem Of Appropriation

The common law of larceny and, hence, current South Australian law, requires that the offender take and move the goods before they can be stolen. This reflects the requirements of a traditional society in which a thief was seen as someone who took something. But that is inad­equate. The common law had to invent the idea (and of­fence) of `conversion' to cover the idea that a person could come into possession of something lawfully and then unlawfully do something with it. The Theft Act of­fence of theft, and those models derived from it, solve the problems created by this ad hoc approach by basing the offence on the idea of `appropriation' which, in turn, is defined in terms of `any assumption of the rights of the owner'. This concept is, and was intended to be, wider than the com­bined offences of taking and conversion. But it, in turn, has given rise to problems. This can best be illustrated by exam­ple.

Example 1:

Suppose D removes an item from the shelf of a super­market and switches labels with another item with the intention of getting a lower price from the checkout. Is that an act of appro­priation? The answer is—yes. And so it should be. What is the appropri­ation? The answer is—the switching of labels. It cannot be the taking of the item off the shelf, because that is not an act by way of interference with or usurpation of the rights of the owner in any way (and because, otherwise, all shopping would be appropriation—which would not be sen­sible, and the court so held). There is no problem under the general formula of `assumption of the rights of the owner'. The owner has the right to affix the price to the item but D has assumed that right.

Example 2:

Suppose D1, D2 and D3 go into a supermarket. D1 and D2 distract the manager while D3 takes 2 bottles of whiskey from the shelf and conceals them in her shopping bag. Is there an appropriation? The answer is—yes. Where is the appropri­ation? On parity of rea­soning, it has to be the concealment of the bottles. It is very hard to find an exact usurpation of the rights of the owner there.

Other examples can be given. This sort of problem gave rise to some complex and confusing English court deci­sions on the subject. The result appears to be that the general concept of appro­priation has become so wide as to have virtually no limits at all. In that case, it is reasonable to question whether it serves any useful purpose.

The solution to this problem adopted by the Bill is to return to basic concepts of taking, retaining, dealing with, or disposing of, property, including the notion of conver­sion, and to supplement these ways of describing theftuous offences with supplementary offences which specifically cover the margins of appropriation.

So, for example, the instance of label swapping in example 1 is dealt with by an offence of dishonest interfer­ence with merchan­dise. Other famous examples are in­cluded under an offence of dishonest exploitation of ad­vantage. These offences savour of both theft and fraud and so are set out on their own.

This set of offences also contains a generalised offence of making off without payment. The current offence, which is con­tained in section 11 of the Summary Offences Act 1953, is con­fined to food and lodging, but there is no sound reason (but for the accidents of history) why that should be so and, indeed, there has been a consistent de­mand from the petrol station industry for a general offence to criminalise `drive-offs' from petrol stations. This of­fence will cover that situation.

Preparatory Conduct—Going Equipped

The current law contains a series of offences labelled `nocturnal offences'. These include the offence of being armed at night with a dangerous or offensive weapon intending to use the weapon to commit certain offences, possession of housebreaking equipment at night, and being in disguise or being in a building at night intending to commit certain offences. These offences also attract gener­ally disproportionately high maximum penalties ranging from 7 to 10 years imprisonment. The current offences are also limited in that they are only committed if the relevant conduct takes place at night.

These offences derive originally from the notorious Waltham Black Act of 1722 (9 Geo 1, c 22) entitled `An Act for the more effectual punishing of wicked and evil disposed Persons going armed in Disguise, and doing Injuries and Violences to the Per­sons and Properties of His Majesty's Subjects, and for the more speedy bringing of Offenders to Justice'. In fact, the Waltham Black Act was the most severe Act passed in the eighteenth centu­ry and no other Act contained so many offences punishable by death.

The current provisions of section 171 of the principal Act (Nocturnal offences) derive from that Act. For exam­ple, the Waltham Black Act was so called because it made it an offence to be out at night with a blacked up face. The offence was aimed at nocturnal poachers. That provision is now in section 171(3) (`being in disguise at night with intent'). There seems no obvious modern justification for such an offence, particularly one punish­able by 7 to 10 years imprisonment. The offence in section 171(4) (`being in a building at night with intent') has been dealt with more comprehensively by the home invasion amendments of 1999.

It is proposed to deal with the offence in section 171(1) (`being armed at night with a dangerous or offensive weapon with intent') in 2 ways. First, the proposed of­fence in what would become section 270C will cover possession of any article with intent in relation to offences of dishon­esty, whether it be during the day or at night. However, the ambit of the current offence will be limited, in that it must occur in `suspicious circumstances', as defined in the Bill. It is suggested that this limitation is justified by the true purpose of the offence; that is, to catch behaviour prepara­tory to the commission of a more serious offence. Second, insofar as the current offence deals with possession of weapons with intent to commit an offence against the person (as opposed to an offence of dishones­ty), a corres­ponding offence is proposed to be enacted as section 270D. It can then be reviewed in its proper context when offences against the person are examined in the future.

Similarly, it is proposed to replace the offence in sec­tion 171(2) (`possession of housebreaking implements') with new section 270C. This section will cover possession of any article with intent, whether it be during the day or at night. However, again, the ambit of the current offence will be limited in that it must occur in `suspicious circum­stances', as defined in the Bill. It follows that mere possession of housebreaking implements at night is pro­posed no longer to be an offence as such, but will have to occur in suspicious circumstances as defined.

In general, therefore, it is proposed to replace these out­moded offences with modern offences, with suitable pen­alties, directed at similar conduct. The Division is headed `Preparatory Conduct', for these offences are aimed at conduct which is more remote from the offence than an attempted offence, extending to behav­iour which is pre­paratory to the commission of an offence. It is for that reason that an intention to commit an offence in suspicious circumstances is required.

Secret Commissions

The South Australian Secret Commissions Prohibition Act 1920 is the current source of law on this subject, and its shortcomings have been addressed above. The Bill, there­fore, proposes a new Part in the principal Act to replace the Secret Commissions Act. The offences concern unlaw­ful bias in commercial relationships. They cover both public and private sector fiduciaries. The essence of the offences is the exercise of an unlawful bias in the relation­ship, resulting in a benefit or a detriment undisclosed at the time of the transaction. The series of offences also includes a correla­tive offence of the bribery of a fiduciary.

Blackmail

Blackmail (or extortion, as it is sometimes known) has always been regarded as a serious offence and there are a number of variations on the offence in the principal Act. These are all old specific variations on the main theme, and the essence of the proposal contained in the Bill is to generalise them into one offence. The difficult part of the offence(s) is, and has always been, that the demand must be `unwarranted', and the Bill propos­es that the test be analogous to that proposed for the equally slippery notion of `dishonesty'; that is, a demand will be `unwarranted' if it is improper according to the standards of ordinary people and if the accused knows that this is so.

Piracy

The part of the principal Act under review contains a series of very serious offences indeed, dealing with piracy. These offences are very old and are, more or less, almost identical to the English statutes from which they were copied. For example, the offence contained in section 208 of the Act is almost word for word from the Piracy Act of 1699 and the offence of trading with pirates in section 211 is almost word for word from the Piracy Act of 1721. These are all punishable by life imprisonment as a result of the abolition of the death penalty.

It should be obvious that there is not a great deal of piracy in South Australia but that some offence of piracy should be on the criminal statute book, not only because of the obligations imposed by international conventions, but also because of the complexities surrounding the reach of State and Commonwealth criminal laws in the seas sur­rounding the State. The Bill, therefore, contains updated piracy offences. Advice is being sought from the Commonwealth about a co-operative legal regime in this area. The old piracy offences are punishable by life impris­onment and that maximum penalty is retained in the Bill.

Maximum Penalties

The subject of maximum penalties has been discussed in part above. In general terms, the maximum penalties pro­vided for this sequence of offences in current legislation are inconsistent and the product of uncorrected historical accident, with the exception of the offences relating to serious criminal trespass, where the law was renewed and the will of Parliament firmly expressed in late 1999. An attempt has been made to rationalise the rest. It is repeat­ed that there is no intention to send a message that any of this rationalisation is directed at a lowering of currently applic­able actual penalties. The law relating to serious criminal trespass remains substantively the same as that passed in 1999.

The following table compares the old maximum penal­ties and those proposed by the Bill.

Old New

Maximum Maximum

Offence Penalty Penalty

Larceny (General) 5 years 10 years

Larceny (Various specific) Up to 8 years 2 years to 10 years

Robbery 14 years 15 years

Aggravated robbery Life Life

Receiving 8 years 10 years

Money laundering $200 000 or $200 000 or

20 years 20 years

(individ­ual) (individual)

$600 000 (body $600 000

corporate (body

corporate)

Fraud (Deception) 4 years (general offence) 10 years

7 years

(some specific

offences)

Forgery (Dishonest Various, but up to 10 years

dealings with life in a number

documents) of instances

Dishonest manipulation N/A 10 years

of machines

Miscellaneous dishonesty N/A 2 years offences to 10 years

Nocturnal offences 7 to 10 years up to 7 years

(Prepatory offences)

Secret commissions $1 000 or 6 months 7 years

offences (indi­vidual)

$2 000 (body corporate)

Blackmail Various—2 years 15 years

to life

Piracy offences Life Life

Miscellaneous

Although the focus of this Bill is on offences of dishonesty and related matters, including necessary consequential amendments, it now also contains some miscellaneous amendments to the princi­pal Act which would, in the absence of this Bill, be contained in a portfolio measure.

Clauses 10 and 11 of the Bill contain drafting amend­ments to the provisions of the principal Act dealing with mental incompe­tence designed to tidy up some wording to better achieve the purposes of these provisions. Clause 17 of the Bill removes an archaic reference to insanity from the principal Act, hitherto over­looked.

Clause 18 of the Bill provides for a regulation making power. There has not been a general regulation making power provided for in the principal Act to date, but recent­ly a situation arose in which it would have been expedient to have such a power. It is not, how­ever, contemplated that the power would be used very often.

Conclusion

This Bill represents a major reform effort in a technical and complex area of the criminal law. Technical and complex it may be but, in a sense, there are few more important areas of the law. A great deal of the workings of the criminal justice system are spent in the area of offences of dishones­ty. Dishonesty is distress­ingly prevalent, but it has ever been thus. The law of South Australia has, for many years, been burdened with an increasingly antiquat­ed legislative framework which represents the law as it essentially was in 1861 and earlier. This Bill is an attempt to reform and codify the law on the subject, bring it up to date, sweep away anachronisms and provide a fair and reasonable offence structure.

I commend the Bill to the House.

Explanation of clauses

Clause 1: Short title

Clause 2: Commencement

These clauses are formal.

Clause 3: Amendment of s. 5—Interpretation

This clause proposes to insert the definition of local government body into section 5(1) of the principal Act.

Clause 4: Substitution of ss. 130-166

Sections 130 to 166 of the principal Act (which comprise much of the current Part 5 of the principal Act) are to be repealed and new Parts 5 (Offences of Dishonesty) and 6 (Secret Commissions) are to be substituted.

PART 5: OF­FENCES OF DIS­HONESTY

DIVISION 1—PRELIMINARY

This Division is necessary for under­standing how new Part 5 is to be inter­preted and applied in relation to a person's conduct and the criminal law.

130. Inter­pretation

New section 130 contains a number of definitions for the purposes of the new Part, includ­ing definitions of benefit, deception, detriment, fundamental mistake, manipulate (a machine), own­er (of property), proceeds, property, stolen property and tainted property.

131. Dis­honesty

New section 131 discusses what makes a person's conduct dishon­est (and, therefore, liable to crimi­nal sanction). The concept of what constitutes dis­honest conduct flows through­out new Part 5.

There are 2 limbs to dishonest conduct. A person's conduct is dishonest if—

1.the person acts dis­hon­estly accord­ing to the standards of ordinary people (a question of fact to be decided according to the jury's own know­ledge and experi­ence); and

2.the person knows that he or she is so acting.

The con­duct of a person who acts in a particular way is not dishonest if the person honestly but mistak­enly be­lieves that he or she has a legal or equi­table right to act in that way.

132. Con­sent of owner

Reference to the consent of the owner of property extends to—

×the implied consent of the owner; or

×the actual or implied consent of a person who has actual or implied authority to consent on behalf of the owner.

A person is taken to have the implied consent of another if the person hon­estly be­lieves in the consent from the words or conduct of the other. A consent obtained by dishonest deception cannot be regarded as consent.

133. Operation of this Part

This clause provides that new Part 5 operates to the exclusion of offences of dishonesty that exist at common law or under laws of the Imperial Parliament. However, the common law offence of conspira­cy to defraud continues as part of the crimi­nal law of South Australia.

DIVISION 2—THEFT

134. Theft (and re­ceiv­ing)

Three things must be satisfied for a person to commit theft. A person is guilty of theft if the person takes, re­ceives, retains, deals with or disposes of property—

×dishonest­ly; and

×without the owner's consent; and

×intending to deprive the owner per­manent­ly of the property or to make a serious en­croach­ment on the owner's proprietary rights.

The maximum penalty for theft is imprisonment for 10 years.

Subclause (2) ex­plains how a person intends to make a seri­ous en­croach­ment on an owner's proprietary rights. This will occur if the per­son in­tends—

×to treat the property as his/her own to dispose of regard­less of the owner's rights; or

×to deal with the proper­ty in a way that creates a substan­tial risk (of which the person is aware) that the owner will not get it back or that, when the owner gets it back, its value will be substan­tially im­paired.

A person may com­mit theft of property—

×that has lawfully come into his/her possession; or

×by the mis­use of powers that are vested in the person as agent or trustee or in some other ca­pacity that allows the person to deal with the proper­ty.

However, if a person honestly believes that he/she has ac­quired a good title to property, but it later ap­pears that the title is defec­tive because of a defect in the title of the trans­feror or for some other reason, the later reten­tion of the property, or any later dealing with the property, by the per­son cannot amount to theft.

Theft com­mitted by receiving stolen prop­erty from an­other amounts to the offence of receiv­ing (but it is not es­sential to use that description of the of­fence in an instru­ment of charge). If a person is charged with re­ceiving, the court may, if satis­fied beyond reasonable doubt that the defend­ant is guilty of theft but not that the theft was committed by receiv­ing stolen prop­erty from an­other, find the defend­ant guilty of theft.

135. Spe­cial provi­sion with regard to land and fixtures

A trespass to land, or other phys­ical interference with land, cannot amount to theft of the land (even when it re­sults in acquisition of the land by ad­verse possession), but a thing attached to land, or forming part of land, can be stolen by severing it from the land.

136. General deficiency

A person may be charged with, and convicted of, theft by refer­ence to a general deficiency in money or other property, and it is not necessary, in such a case, to establish any particu­lar act or acts of theft.

DIVISION 3—ROBBERY

137. Rob­bery

A person who commits theft is guilty of robbery if—

×the person uses force, or threatens to use force, against an­other in order to commit the theft or to escape from the scene of the of­fence; and

×the force is used, or the threat is made, at the time of, or immedi­ately be­fore or after, the theft.

The maximum penalty for robbery is imprisonment for 15 years.

A person who com­mits rob­bery is guilty of aggravated robbery if the per­son—

×commits the robbery in company with one or more other persons; or

×has an offen­sive weapon with him/her when com­mitting the robbery.

The maximum penalty for aggra­vated robbery is imprisonment for life.

If 2 or more per­sons jointly com­mit robbery in company, each is guilty of aggravat­ed robbery.

DIVISION 4—MONEY LAUN­DER­ING

138. Money laundering

A person who engages, directly or indirectly, in a transaction involv­ing property the person knows to be taint­ed property is guilty of an offence. The maximum penalty for a natural person convicted of money laundering is imprisonment for 20 years and for a body corpo­rate a fine of $600 000.

A person who engag­es, directly or indirect­ly, in a transac­tion involv­ing tainted property in circum­stances in which the person ought reasonably to know that the property is tainted is guilty of an offence. The maxi­mum pen­alty for a natural per­son con­victed of such an offence is imprison­ment for 4 years and for a body cor­porate a fine of $120 000.

A transac­tion includes any of the following:

×bringing property into the State;

×receiving property;

×being in possession of proper­ty;

×concealing property;

×disposing of property.

DIVISION 5—DECEPTION

139. Deception

A person who dishonestly de­ceives another in order to benefit (see new section 130) him/herself or a third person, or cause a detri­ment (see new section 130) to the person subjected to the deception or a third person is guilty of an offence the maxi­mum penalty for which is imprison­ment for 10 years.

DIVISION 6—DISHONEST DEAL­INGS WITH DOCU­MENTS

140. Dis­honest deal­ings with docu­ments

For the purposes of this new sec­tion, a document is false if the document gives a misleading impression about—

×the nature, validity or effect of the docu­ment; or

×any fact (such as, for exam­ple, the identity, capacity or official position of an apparent signatory to the docu­ment) on which its validity or effect may be depend­ent; or

×the exist­ence or terms of a transaction to which the docu­ment ap­pears to relate.

A true copy of a document that is false under the criteria prescribed above is also false.

A person engages in conduct to which this new sec­tion applies if the per­son—

×creates a document that is false; or

×falsifies a document; or

×has possession of a docu­ment knowing it to be false; or

×produces, publishes or uses a docu­ment know­ing it to be false; or

×destroys, conceals or suppresses a docu­ment.

Proposed subsection (4) pro­vides that a person is guilty of an offence if the person dishonestly engages in conduct to which this proposed section ap­plies intend­ing one of the follow­ing:

×to deceive another, or people gen­erally, or to facili­tate deception of another, or people gen­erally, by some­one else;

×to exploit the ignor­ance of another, or the ignor­ance of people gen­erally, about the true state of affairs;

×to manipu­late a machine or to facilitate manipula­tion of a machine by someone else,

and, by that means, to benefit him/herself or an­other, or to cause a detriment to an­other. The maximum penalty for such an offence is imprisonment for 10 years.

A person cannot be convicted of an of­fence against pro­posed sub­section (4) on the basis that the person has con­cealed or suppressed a document unless it is established that—

×the person has taken some positive step to conceal or sup­press the docu­ment; or

×the person was under a duty to re­veal the existence of the docu­ment and failed to comply with that duty; or

×the person, knowing of the exist­ence of the docu­ment, has re­sponded dishonestly to inquiries directed at finding out whether the document, or a docu­ment of the rel­evant kind, ex­ists.

It is a sum­mary of­fence (pen­alty of imprison­ment for 2 years) if a person has, in his/her possession, without lawful ex­cuse, any article for creating a false docu­ment or for falsifying a document.

DIVISION 7—DISHONEST MA­NIPU­LA­TION OF MA­CHINES

141. Dis­honest ma­nipula­tion of machines

A person who dishonestly ma­nipulates a machine (see new section 130) in order to benefit him/herself or another, or cause a detriment to another, is guilty of an offence, the penalty for which is imprisonment for 10 years.

A person who dis­honestly takes ad­vantage of the mal­func­tion of a machine in order to benefit him/herself or another, or cause a detriment to another, is guilty of an offence, the penalty for which is impris­on­ment for 10 years.

DIVISION 8—DISHONEST EX­PLOIT­ATION OF ADVAN­TAGE

142. Dis­honest ex­ploit­ation of position of advantage

This new section applies to the follow­ing advantages:

×the advan­tage that a person who has no dis­ability or is not so se­verely dis­abled has over a per­son who is subject to a mental or physical disability;

×the advan­tage that one person has over another where they are both in a particular situation and one is famili­ar with local conditions (see new section 130) while the other is not.

A person who dis­honestly exploits an advantage to which this pro­posed section ap­plies in order to benefit him/herself or another or cause a detriment to another is guilty of an offence and liable to a penalty of impris­on­ment for up to 10 years.

DIVISION 9—MISCELLANEOUS OF­FENCES OF DIS­HONESTY

143. Dis­honest inter­fer­ence with merchan­dise

A person who dishonestly inter­feres with merchandise, or a label attached to merchandise, so that the person or someone else can get the merchandise at a reduced price is guilty of a sum­mary offence (imprisonment for a maximum of 2 years).

144. Mak­ing off without payment

A person who, knowing that pay­ment for goods or services is required or expected, dishonestly makes off in­tending to avoid payment is guilty of a summary offence (imprisonment for up to 2 years).

However, this pro­posed section does not apply if the trans­ac­tion for the supply of the goods or services is unlawful or unen­force­able as con­trary to public pol­icy.

PART 6: SECRET COMMIS­SIONS

DIVISION 1—PRELIMINARY

145. Inter­pretation

New section 145 contains defini­tions of words used in new Part 6. In par­ticular, a person who works for a pub­lic agency (as defined) by agreement between the person's employer and the public agency or an authority respon­sible for staff­ing the public agency is to be regarded, for the purposes of this new Part, as an employee of the public agency.

DIVISION 2—UNLAWFUL BIAS IN COM­MER­CIAL RE­LATION­SHIPS

146. Fidu­ciaries

A person is, for the purposes of this new Part, to be regarded as a fiduciary of another (the principal) if—

×the person is an agent of the other (under an express or implied authority); or

×the person is an em­ployee of the other; or

×the person is a public officer and the other is the public agency of which the person is a member or for which the person acts; or

×the person is a partner and the other is another partner in the same part­ner­ship; or

×the person is an officer of a body cor­porate and the other is the body corporate; or

×the person is a lawyer and the other is a client; or

×the person is engaged on a com­mercial basis to provide advice or recommen­dations to the other on invest­ment, business manage­ment or the sale or purchase of a business or real or per­sonal proper­ty; or

×the person is engaged on a com­mercial basis to provide advice or recommen­dations to the other on any other sub­ject and the terms or circum­stances of the engage­ment are such that the other (that is, the princi­pal) is rea­son­ably enti­tled to ex­pect that the advice or recom­men­dations will be disinte­rest­ed or that, if a pos­sible con­flict of interest exists, it will be disclosed.

147. Exer­cise of fidu­ciary func­tions

A fiduciary exercises a fiduciary func­tion if the fiduciary—

×exercises or inten­tionally refrains from exer­cising a power or function in the affairs of the principal; or

×gives or intentional­ly refrains from giv­ing ad­vice, or makes or intentional­ly refrains from mak­ing a rec­ommen­dation, to the princi­pal; or

×exercises an influ­ence that the fiducia­ry has because of the fiduciary's position as such over the princi­pal or in the affairs of the princi­pal.

148. Un­lawful bias

A fiduciary exercises an unlawful bias if—

×the fiducia­ry has received (or expects to receive) a benefit from a third party for exercis­ing a fidu­ciary func­tion in a particular way and the fiducia­ry exercis­es the function in the relevant way with­out appro­priate disclosure of the benefit or expected benefit; and

×the fiduciary's failure to make ap­propriate disclosure of the benefit or expected benefit is intentional or reckless.

Appropri­ate disclos­ure is made if the fidu­ciary dis­closes to the princi­pal the nature and value (or approxi­mate value) of the benefit and the identity of the third party from whom the benefit has been (or is to be) received.

149. Of­fence for fiduciary to exercise unlawful bias

A fiduciary who exercises an unlawful bias is guilty of an of­fence and liable to a maximum penalty of imprison­ment for 7 years.

150. Brib­ery

A person who bribes a fiduciary to exercise an unlawful bias is guilty of an offence and liable to a penal­ty of imprisonment for up to 7 years.

A fiduciary who ac­cepts a bribe to exercise an unlawful bias is guilty of an offence and liable to a penalty of im­prison­ment for up to 7 years.

It is pro­posed that this new section will apply even though the relevant fiduciary relationship had not been formed when the benefit was given or offered if, at the rel­evant time, the fiducia­ry and the person who gave or offered to give the benefit an­ticipated the forma­tion of the relevant fiduciary relationship or the forma­tion of fidu­ciary rela­tion­ships of the relevant kind.

DIVISION 3—EXCLUSION OF DEFENCE

151. Exclu­sion of defence

It is not a defence to a charge of an offence against new Part 6 to establish that the provision or acceptance of benefits of the kind to which the charge relates is customary in a trade or business in which the fiduciary or the person giving or offering the ben­efit was engaged.

Clause 5: Substitution of heading

It is proposed that sections 167 to 170 (as amended in a minor consequential manner—see clauses 6 and 7 below) will become a separate Part of the principal Act. These sections would comprise new Part 6A to be headed `SERI­OUS CRIMINAL TRESPASS'.

Clause 6: Amendment of s. 167—Sacrilege

Clause 7: Amendment of s. 168—Serious criminal trespass

On the passage of the Bill, the use of the term `larceny' will become obsolete and `theft' will, instead, be used. The amend­ments proposed in these clauses are consequential.

Clause 8: Substitution of ss. 171 to 236

It proposed to repeal sections 171 to 236 of the principal Act and to substitute the following new Parts dealing with blackmail and piracy.

PART 6B: BLACK­MAIL

171. Inter­pretation

New section 171 contains defini­tions of words and phrases use in this new Part, including demand, harm, menace, serious offence and threat.

The ques­tion wheth­er a defendant's conduct was im­proper according to the standards of ordinary people is a question of fact to be decided according to the jury's own know­ledge and experi­ence and not on the basis of evidence of those standards.

172. Black­mail

A person who menaces another intend­ing to get the other to sub­mit to a de­mand is guilty of black­mail and liable to impris­onment for up to 15 years. The object of the demand is irrel­evant.

PART 6C: PIRACY

173. Inter­pretation

A person commits an act of piracy if—

×the person, acting with­out reason­able excuse, takes con­trol of a ship, while it is in the course of a voyage, from the person law­fully in charge of it; or

×the person, acting with­out reason­able excuse, commits an act of vio­lence against the captain or a member of the crew of a ship, while it is in the course of a voyage, in order to take con­trol of the ship from the person lawfully in charge of it; or

×the person, acting with­out reason­able excuse, boards a ship, while it is in the course of a voyage, in order to take con­trol of the ship from the person lawfully in charge of it, endan­ger the ship or steal or damage the ship's cargo; or

×the person boards a ship, while it is in the course of a voy­age, in order to commit robbery or any other act of vio­lence against a passenger or a mem­ber of the crew.

174. Piracy

A person who commits an act of piracy is guilty of an offence and liable to imprisonment for life.

Clause 9: Amendment of s. 237—Definitions

This amendment is consequential on the amendment pro­posed to section 5 of the principal Act by clause 3.

Clause 10: Amendment of s. 269G—What happens if trial judge decides to proceed first with trial of objective elements of offence

Section 269G should have provided for the Court to direct that a person who was found to be mentally incompetent under that section be declared liable to supervision under the relevant Part. This amendment corrects a drafting oversight.

Clause 11: Amendment of s. 269Y—Appeals

In place of section 354(4) of the principal Act (see clause 17 of the Bill), this clause proposes to amend section 269Y of the principal Act dealing with appeals. Section 269Y is located in that Part of the principal Act (Part 8A) which makes provision for mental impair­ment within the criminal justice system. The proposed amendment will confer powers on the appellate court where the court is of the opinion that the appellant was mentally impaired or unfit to stand trial.

Clause 12: Amendment of s. 270B—Assaults with intent

Section 270B of the principal Act provides that a person who assaults another with intent to commit an offence to which the section applies is guilty of an offence. The proposed amendment to this section is consequential. The note to section 270B (which refers to larceny) is to be struck out and a subsection inserted that provides that the section will apply to the following offences:

×an offence against the person;

×theft or an offence of which theft is an element;

×an offence involving interference with, damage to, or destruc­tion of, property that is punishable by imprison­ment for 3 years of more.

Clause 13: Insertion of Part 9 Div. 4

New Division 4 is to be inserted in Part 9 of the principal Act after section 270B dealing with conduct preparatory to the possible commission of an offence.

DIVISION 4—PREPARATORY CONDUCT

270C. Going equipped for commission of offence of dishon­esty or offence against property

A person who is, in suspicious circum­stances, in possession of an article intending to use it to com­mit an of­fence to which new sec­tion 270C ap­plies is guilty of an offence, the maxi­mum penalty for which is—

×if the maxi­mum pen­alty for the in­tended of­fence is life impris­on­ment or imprison­ment for 14 years or more—imprisonment for 7 years;

×in any other case—imprisonment for one-half the maxi­mum period of imprison­ment fixed for the in­tended of­fence.

It is pro­posed that this new section will apply to the follow­ing offences:

×theft (or receiving) or an of­fence of which theft is an ele­ment;

×an offence against Part 6A (Seri­ous Crimi­nal Tres­pass);

×unlawfully driving, using or interfering with a motor vehi­cle;

×an offence against Part 5 Division 6 (Dishon­est Deal­ings with Docu­ments);

×an offence against Part 5 Division 7 (Dishon­est Ma­nipula­tion of Ma­chines);

×an offence involving interfer­ence with, dam­age to or de­struc­tion of property punishable by impris­onment for 3 years or more.

A person is in suspi­cious cir­cum­stances if it can be rea­sonably inferred from the person's conduct or circum­stances surround­ing the person's conduct (or both) that the per­son—

×is proceed­ing to the scene of a pro­posed of­fence; or

×is keeping the scene of a pro­posed offence under sur­veil­lance; or

×is in, or in the vicinity of, the scene of a pro­posed of­fence await­ing an op­portunity to commit the offence.

270D. Going equipped for commission of offence against the person

A person who is armed, at night, with a dangerous or offensive weapon intend­ing to use the weapon to commit an offence against the person is guilty of an offence.

The maxi­mum pen­alty for such an offence is—

×if the of­fender has been previ­ously con­victed of an offence against the person or an offence against this proposed section (or a corres­pond­ing previous enact­ment)—imprisonment for 10 years;

×in any other case—imprisonment for 7 years.

Clause 14: Amendment of s. 271—General power of arrest

On the passage of the Bill, the use of the term `larceny' will become obsolete and `theft' will, instead, be used. The amendment proposed in this clause is consequential.

Clause 15: Repeal of ss. 317 and 318

These sections of the principal Act are obsolete and are to be repealed.

Clause 16: Insertion of Part 9 div. 15

The following new Division is to be inserted in Part 9 of the principal Act after section 329.

DIVISION 15—OVERLAPPING OF­FENCES

330. Over­lapping offences

No objection to a charge or a convic­tion can be made on the ground that the defendant might, on the same facts, have been charged with, or convicted of, some other offence.

Clause 17: Amendment of s. 354—Powers of Court in special cases

When the power to detain for the Governor's pleasure was re­moved and replaced with the provisions in the principal Act in relation to persons being declared liable to supervi­sion under Part 8A, one reference to the power to detain for the Governor's pleasure was accidentally retained. This clause proposes to strike out sec­tion 354(4), which con­tains this reference. Subsection (4) relates to the powers of the appellate court to quash a conviction and order detention where it appears to the court that the appellant was `insane' at the time of commission of the offence. The powers of the court set out in subsection (4) will be pro­vided for by the proposed amend­ment to section 269Y of the principal Act (see clause 11 of the Bill).

Clause 18: Insertion of Part 12

New part 12 is to be inserted after section 369 of the prin­cipal Act.

PART 12: REGULA­TIONS

370. Regu­lations

The Governor may make regula­tions for the purposes of the Act.

Clause 19: Further amendments of principal Act and related amendments to other Acts

The principal Act is further amended as set out in Sched­ule 2, while Schedule 3 provides for related amendments to other Acts.

Schedule 1: Repeal and Transi­tional Provision

The Secret Commissions Prohibition Act 1920 is to be repealed as a consequence of new Part 6.

The principal Act as in force before the commencement of this measure will apply to offences committed before this measure becomes law. The principal Act as amended by this measure will apply to offences committed on or after this measure becomes law.

Schedule 2: Further amendment of Criminal Law Consolida­tion Act 1935

These amendments remove italicised headings in the principal Act and replace them with, where relevant, Divi­sional headings.

Schedule 3: Related Amendments to Other Acts

Schedule 3 contains amendments that are related to the amend­ments proposed to the criminal law by this measure to the follow­ing Acts:

×Criminal Assets Confiscation Act 1996

×Criminal Law (Sentencing) Act 1988

×Criminal Law (Undercover Oper­ations) Act 1995

×Financial Transaction Reports (State Provisions) Act 1992

×Kidnapping Act 1960

×Road Traffic Act 1961

×Shop Theft (Alternative Enforce­ment) Act 2000

×Summary Offences Act 1953

×Summary Procedure Act 1921.

One White

Mr HAMILTON-SMITH secured the adjournment of the debate.