CRIMES LEGISLATION AMENDMENT (SERIOUS DRUGS, IDENTITY CRIME AND OTHER MEASURES) BILL 2012

i Crimes Legislation Amendment (Serious Drugs, Identity Crime and Other Measures) Bill

2012 No. , 2012

Contents

1 Short

title

...........................................................................................

2 Commencement

.................................................................................

3 Schedule(s)

........................................................................................

Schedule 1--Serious drugs

Part 1--Amendments

Criminal Code Act 1995

Customs Act 1901

Part 2--Application and transitional

Schedule 2--Identity crime and air travel

Part 1--Identity crime

Criminal Code Act 1995

Part 2--False identity and air travel

Crimes Act 1914

Criminal Code Act 1995

Part 3--Application of amendments

Schedule 3--Other measures

Part 1--Integrity Commissioner functions

Division 1--Amendments

Law Enforcement Integrity Commissioner Act 2006

Division 2--Application

Part 2--Penalty units

Division 1--Amendments

Crimes Act 1914

Division 2--Application

Part 3--Superannuation orders

Division 1--Amendments

Australian Federal Police Act 1979

Crimes (Superannuation Benefits) Act 1989

Crimes Legislation Amendment (Serious Drugs, Identity Crime and Other Measures) Bill 2012

No. , 2012 1

A Bill for an Act to amend various Acts relating to

criminal law and law enforcement, and for other

purposes

The Parliament of Australia enacts:

1 Short title

This Act may be cited as the Crimes Legislation Amendment

(Serious Drugs, Identity Crime and Other Measures) Act 2012.

2 Commencement

(1) Each provision of this Act specified in column 1 of the table

commences, or is taken to have commenced, in accordance with

column 2 of the table. Any other statement in column 2 has effect

according to its terms.

2 Crimes Legislation Amendment (Serious Drugs, Identity Crime and Other Measures) Bill

2012 No. , 2012

Commencement information

Column 1

Column 2

Column 3

Provision(s)

Commencement

Date/Details

1. Sections 1 to 3

and anything in

this Act not

elsewhere covered

by this table

The day this Act receives the Royal Assent.

2. Schedule 1,

Part 1

A single day to be fixed by Proclamation.

However, if the provision(s) do not

commence within the period of 6 months

beginning on the day this Act receives the

Royal Assent, they commence on the day

after the end of that period.

3. Schedule 1,

Part 2

The day after this Act receives the Royal

Assent.

4. Schedule 2

The day after this Act receives the Royal

Assent.

5. Schedule 3,

Part 1

The day after this Act receives the Royal

Assent.

6. Schedule 3,

Part 2

A single day to be fixed by Proclamation.

However, if the provision(s) do not

commence within the period of 1 month

beginning on the day this Act receives the

Royal Assent, they commence on the day

after the end of that period.

7. Schedule 3,

Part 3

The day after this Act receives the Royal

Assent.

Note:

This table relates only to the provisions of this Act as originally

enacted. It will not be amended to deal with any later amendments of

this Act.

(2) Any information in column 3 of the table is not part of this Act.

Information may be inserted in this column, or information in it

may be edited, in any published version of this Act.

3 Schedule(s)

Each Act that is specified in a Schedule to this Act is amended or

repealed as set out in the applicable items in the Schedule

Schedule 1 Serious drugs

Part 1 Amendments

4 Crimes Legislation Amendment (Serious Drugs, Identity Crime and Other Measures) Bill

2012 No. , 2012

Schedule 1--Serious drugs

Part 1--Amendments

Criminal Code Act 1995

1 Subsection 300.1(1) of the Criminal Code

After "20 December 1988", insert "(the TINDAPS Convention)".

2 Section 300.2 of the Criminal Code (definition of border

controlled drug)

Repeal the definition, substitute:

border controlled drug has the meaning given by section 301.4.

3 Section 300.2 of the Criminal Code (definition of border

controlled plant)

Repeal the definition, substitute:

border controlled plant has the meaning given by section 301.5.

4 Section 300.2 of the Criminal Code (definition of border

controlled precursor)

Repeal the definition, substitute:

border controlled precursor has the meaning given by

section 301.6.

5 Section 300.2 of the Criminal Code (definition of

commercial quantity)

Repeal the definition, substitute:

commercial quantity of a serious drug, controlled precursor or

border controlled precursor has the meaning given by

section 301.10.

6 Section 300.2 of the Criminal Code (definition of controlled

drug)

Repeal the definition, substitute:

Serious drugs Schedule 1

Amendments Part 1

Crimes Legislation Amendment (Serious Drugs, Identity Crime and Other Measures) Bill 2012

No. , 2012 5

controlled drug has the meaning given by section 301.1.

7 Section 300.2 of the Criminal Code (definition of controlled

plant)

Repeal the definition, substitute:

controlled plant has the meaning given by section 301.2.

8 Section 300.2 of the Criminal Code (definition of controlled

precursor)

Repeal the definition, substitute:

controlled precursor has the meaning given by section 301.3.

9 Section 300.2 of the Criminal Code

Insert:

determined, in relation to a serious drug, controlled precursor or

border controlled precursor, means:

(a) for a serious drug--determined by the Minister under

section 301.13; or

(b) for a precursor--determined by the Minister under

section 301.14.

10 Section 300.2 of the Criminal Code

Insert:

drug analogue has the meaning given by section 301.9.

11 Section 300.2 of the Criminal Code

Insert:

listed, in relation to a serious drug, means:

(a) for a controlled drug--listed by a regulation made for the

purposes of paragraph 301.1(a); or

(b) for a controlled plant--listed by a regulation made for the

purposes of paragraph 301.2(a); or

the purposes of paragraph 301.4(a); or

Schedule 1 Serious drugs

Part 1 Amendments

6 Crimes Legislation Amendment (Serious Drugs, Identity Crime and Other Measures) Bill

2012 No. , 2012

(d) for a border controlled plant--listed by a regulation made for

the purposes of paragraph 301.5(a).

12 Section 300.2 of the Criminal Code (definition of

marketable quantity)

Repeal the definition, substitute:

marketable quantity of a serious drug, controlled precursor or

border controlled precursor has the meaning given by

section 301.11.

13 Section 300.2 of the Criminal Code

Insert:

serious drug means one of the following:

(a) a controlled drug;

(b) a controlled plant;

(d) a border controlled plant.

14 Section 300.2 of the Criminal Code

Insert:

TINDAPS Convention has the meaning given by section 300.1.

15 Section 300.2 of the Criminal Code (definition of trafficable

quantity)

Repeal the definition, substitute:

trafficable quantity of a controlled drug, or a controlled plant, has

the meaning given by section 301.12.

16 Division 301 of the Criminal Code

Repeal the Division, substitute:

Serious drugs Schedule 1

Amendments Part 1

Crimes Legislation Amendment (Serious Drugs, Identity Crime and Other Measures) Bill 2012

No. , 2012 7

Division 301--Serious drugs and precursors

Subdivision A--Serious drugs and precursors: definitions

301.1 Meaning of controlled drug

(1) For the purposes of this Part, a controlled drug is a substance,

other than a growing plant, that is:

(a) listed by a regulation as a controlled drug; or

(b) a drug analogue of a listed controlled drug; or

section 301.13 (which deals with emergency determinations

of serious drugs).

Note:

Some conditions must be satisfied before:

(a) a regulation can be made for paragraph (1)(a) (see section 301.7);

(b) a determination can be made for paragraph (1)(c) (see subsection

301.13(2)).

(2) The purpose of subsection (1) is to permit certain substances that

are covered by the TINDAPS Convention, or drug analogues of

such substances, to be treated as controlled drugs for the purposes

of this Part (see also section 300.1).

Note:

For the meaning of drug analogue, see section 301.9.

301.2 Meaning of controlled plant

(1) For the purposes of this Part, a controlled plant is a growing plant

that is:

(a) listed by a regulation as a controlled plant; or

(b) determined by the Minister as a controlled plant under

section 301.13 (which deals with emergency determinations

of serious drugs).

Note:

Some conditions must be satisfied before:

(a) a regulation can be made for paragraph (1)(a) (see section 301.7);

(b) a determination can be made for paragraph (1)(b) (see subsection

301.13(2)).

Schedule 1 Serious drugs

Part 1 Amendments

8 Crimes Legislation Amendment (Serious Drugs, Identity Crime and Other Measures) Bill

2012 No. , 2012

(2) The purpose of subsection (1) is to permit growing plants that are

covered by the TINDAPS Convention to be treated as controlled

plants for the purposes of this Part (see also section 300.1).

301.3 Meaning of controlled precursor

(1) For the purposes of this Part, a controlled precursor is a substance

(including a growing plant) that is:

(a) listed by a regulation as a controlled precursor; or

(b) a salt or ester of a controlled precursor that is so listed; or

section 301.14 (which deals with emergency determinations

of serious drug precursors).

Note:

Some conditions must be satisfied before:

(a) a regulation can be made for paragraph (a) (see section 301.8); or

(b) a determination can be made for paragraph (c) (see subsection

301.14(2)).

(2) The purpose of subsection (1) is to permit certain substances that

are covered by the TINDAPS Convention, or salts or esters of such

substances, to be treated as controlled precursors for the purposes

of this Part (see also section 300.1).

301.4 Meaning of border controlled drug

For the purposes of this Part, a border controlled drug is a

substance, other than a growing plant, that is:

(a) listed by a regulation as a border controlled drug; or

(b) a drug analogue of a listed border controlled drug; or

section 301.13 (which deals with emergency determinations

of serious drugs).

Note 1:

Some conditions must be satisfied before:

(a) a regulation can be made for paragraph (a) (see section 301.7); or

(b) a determination can be made for paragraph (c) (see subsection

301.8(2)).

Note 2:

For the meaning of drug analogue, see section 301.9.

Serious drugs Schedule 1

Amendments Part 1

Crimes Legislation Amendment (Serious Drugs, Identity Crime and Other Measures) Bill 2012

No. , 2012 9

301.5 Meaning of border controlled plant

For the purposes of this Part, a border controlled plant is a

growing plant:

(a) listed by a regulation as a border controlled plant; or

(b) determined by the Minister as a border controlled plant under

section 301.13 (which deals with emergency determinations

of serious drugs).

Note:

Some conditions must be satisfied before:

(a) a regulation can be made for paragraph (a) (see section 301.7); or

(b) a determination can be made for paragraph (b) (see subsection

301.13(2)).

301.6 Meaning of border controlled precursor

(1) For the purposes of this Part, a border controlled precursor is a

substance (including a growing plant) that is:

(a) listed by a regulation as a border controlled precursor; or

(b) a salt or ester of a precursor that is so listed; or

(d) determined by the Minister as a border controlled precursor

under section 301.14 (which deals with emergency

determinations of serious drug precursors).

Note:

Some conditions must be satisfied before:

(a) a regulation can be made for paragraph (a) (see section 301.8); or

(b) a determination can be made for paragraph (d) (see subsection

301.14(2)).

(2) In this section:

immediate precursor of a precursor listed for the purposes of

paragraph (1)(a) means a chemical or compound (other than

another precursor that is so listed) that is an immediate precursor in

the manufacture by a chemical process of the listed precursor.

301.7 Serious drugs--conditions for listing by regulation

Before a regulation is made listing a substance or plant as a serious

drug for the purposes of this Part, the Minister must be satisfied

that:

(a) the substance or plant is likely to be taken without

appropriate medical supervision; and

Schedule 1 Serious drugs

Part 1 Amendments

10 Crimes Legislation Amendment (Serious Drugs, Identity Crime and Other Measures)

Bill 2012 No. , 2012

(b) one or more of the following conditions is met:

(i) taking the substance or plant would create a risk of

death or serious harm;

(ii) taking the substance or plant would have a physical or

mental effect substantially similar to that caused by

taking a serious drug that is already listed;

(iii) the substance or plant has the capacity to cause

physiological dependence;

(iv) possession or conduct in relation to the substance or

plant is proscribed under a law of a State, a Territory or

a foreign country that has purposes similar to those of

this Part;

(v) the substance or plant poses a substantial risk to the

health or safety of the public.

301.8 Serious drug precursors--conditions for listing by regulation

Before a regulation is made listing a substance as a controlled

precursor or a border controlled precursor, the Minister must be

satisfied that there is a risk that the substance will be used to

unlawfully manufacture a controlled drug (other than a determined

controlled drug).

301.9 Meaning of drug analogue

(1) For the purposes of this Part, a substance is a drug analogue of a

listed controlled drug, or a listed border controlled drug, if the

substance is any of the following in relation to the listed drug (or in

relation to a primary analogue of the listed drug), however the

substance is obtained:

(a) one of the following (a primary analogue):

(i)

stereoisomer;

(ii) a structural isomer having the same constituent groups;

(iii)

alkaloid;

(b) a structural modification obtained by the addition of one or

more of the following groups:

(i) alkoxy, cyclic diether, acyl, acyloxy, mono-amino or

dialkylamino groups with up to 6 carbon atoms in any

alkyl residue;

Serious drugs Schedule 1

Amendments Part 1

Crimes Legislation Amendment (Serious Drugs, Identity Crime and Other Measures) Bill 2012

No. , 2012 11

(ii) alkyl, alkenyl or alkynyl groups with up to 6 carbon

atoms in the group, where the group is attached to

oxygen (for example, an ester or an ether group),

nitrogen, sulphur or carbon;

(iii) halogen, hydroxy, nitro or amino groups;

following ways:

(i) by the replacement of up to 2 carbocyclic or

heterocyclic ring structures with different carbocyclic or

heterocyclic ring structures;

(ii) by the addition of hydrogen atoms to one or more

unsaturated bonds;

(iii) by the replacement of one or more of the groups

specified in paragraph (b) with another such group or

groups;

(iv) by the conversion of a carboxyl or an ester group into an

amide group;

(d) any other homologue, analogue, chemical derivative or

substance substantially similar in chemical structure.

(2)

However,

drug analogue does not include a substance that is

itself a listed controlled drug or a listed border controlled drug.

Subdivision B--Serious drugs and precursors: commercial,

marketable and trafficable quantities

301.10 Meaning of commercial quantity

For the purposes of this Part, a commercial quantity of a serious

drug, controlled precursor or border controlled precursor is a

quantity not less than that provided by the following table:

Commercial quantities of serious drugs and precursors

Item

Serious drug or

precursor

Commercial quantity (minimum)

A serious drug (other

than a drug analogue),

controlled precursor or

border controlled

precursor

Either:

(a) the quantity listed as a commercial quantity of

the drug or precursor in a regulation made for

the purposes of this section; or

Schedule 1 Serious drugs

Part 1 Amendments

12 Crimes Legislation Amendment (Serious Drugs, Identity Crime and Other Measures)

Bill 2012 No. , 2012

Commercial quantities of serious drugs and precursors

Item

Serious drug or

precursor

Commercial quantity (minimum)

(b) the quantity determined as a commercial

quantity of the drug or precursor by the

Minister under section 301.15 (which deals

with emergency determinations of quantities).

A drug analogue of 1

or more listed

controlled drugs

Either:

(a) for a drug analogue of a single listed

controlled drug--the commercial quantity of

the listed drug; or

(b) for a drug analogue of 2 or more listed

controlled drugs--the smallest commercial

quantity of any of the listed drugs.

A drug analogue of 1

or more listed border

controlled drugs

Either:

(a) for a drug analogue of a single listed border

controlled drug--the commercial quantity of

the listed drug; or

(b) for a drug analogue of 2 or more listed border

controlled drugs--the smallest commercial

quantity of any of the listed drugs.

Note:

A drug analogue of a listed controlled drug, or a listed border

controlled drug, is itself a controlled drug or border controlled drug

(see paragraphs 301.1(b) and 301.4(b), and the definition of drug

analogue in section 301.9).

301.11 Meaning of marketable quantity

For the purposes of this Part, a marketable quantity of a serious

drug, controlled precursor or border controlled precursor is a

quantity not less than that provided by the following table:

Marketable quantities of serious drugs and precursors

Item

Serious drug or

precursor

Marketable quantity (minimum)

A serious drug (other

than a drug analogue),

controlled precursor or

border controlled

precursor

Either:

(a) the quantity listed as a marketable quantity of

the drug or precursor in a regulation made for

the purposes of this section; or

(b) the quantity determined as a marketable

Serious drugs Schedule 1

Amendments Part 1

Crimes Legislation Amendment (Serious Drugs, Identity Crime and Other Measures) Bill 2012

No. , 2012 13

Marketable quantities of serious drugs and precursors

Item

Serious drug or

precursor

Marketable quantity (minimum)

quantity of the drug or precursor by the

Minister under section 301.15 (which deals

with emergency determinations of quantities).

A drug analogue of 1

or more listed

controlled drugs

Either:

(a) for a drug analogue of a single listed

controlled drug--the marketable quantity of

the listed drug; or

(b) for a drug analogue of 2 or more listed

controlled drugs--the smallest marketable

quantity of any of the listed drugs.

A drug analogue of 1

or more listed border

controlled drugs

Either:

(a) for a drug analogue of a single listed border

controlled drug--the commercial quantity of

the listed drug; or

(b) for a drug analogue of 2 or more listed border

controlled drugs--the smallest commercial

quantity of any of the listed drugs.

Note:

A drug analogue of a listed controlled drug, or a listed border

controlled drug, is itself a controlled drug or border controlled drug

(see paragraphs 301.1(b) and 301.4(b), and the definition of drug

analogue in section 301.9).

301.12 Meaning of trafficable quantity

For the purposes of this Part, a trafficable quantity of a controlled

drug or a controlled plant is a quantity not less than that provided

by the following table:

Trafficable quantities of controlled drugs and plants

Item

Controlled drug or

plant

Trafficable quantity (minimum)

1 A

controlled

drug

(other than a drug

analogue) or a

controlled plant

Either:

(a) the quantity listed as a trafficable quantity of

the drug or plant in a regulation made for the

purposes of this section; or

(b) the quantity determined as a trafficable

quantity of the drug or plant by the Minister

Schedule 1 Serious drugs

Part 1 Amendments

14 Crimes Legislation Amendment (Serious Drugs, Identity Crime and Other Measures)

Bill 2012 No. , 2012

Trafficable quantities of controlled drugs and plants

Item

Controlled drug or

plant

Trafficable quantity (minimum)

under section 301.15 (which deals with

emergency determinations of quantities).

A drug analogue of 1

or more listed

controlled drugs

Either:

(a) for a drug analogue of a single listed

controlled drug--the trafficable quantity of

the listed drug; or

(b) for a drug analogue of 2 or more listed

controlled drugs--the smallest trafficable

quantity of any of the listed drugs.

Note:

A drug analogue of a listed controlled drug is itself a controlled drug

(see paragraph 301.1(b) and the definition of drug analogue in

section 301.9).

Subdivision C--Serious drugs and precursors: emergency

determinations

301.13 Emergency determinations--serious drugs

(1) The Minister may, by legislative instrument, determine that:

(a) a substance, other than a growing plant, is a controlled drug

or a border controlled drug; or

(b) a growing plant is a controlled plant or a border controlled

plant.

(2) The Minister must not make a determination under subsection (1)

unless he or she is satisfied:

(a) that there is an imminent and substantial risk that the

substance or plant will be taken without appropriate medical

supervision; and

(b) one or more of the following conditions is met:

(i) taking the substance or plant may create a risk of death

or serious harm;

(ii) taking the substance or plant may have a physical or

mental effect substantially similar to that caused by

taking a listed serious drug;

(iii) there is limited or no known lawful use of the substance

or plant in Australia, and the substance or plant has been

Serious drugs Schedule 1

Amendments Part 1

Crimes Legislation Amendment (Serious Drugs, Identity Crime and Other Measures) Bill 2012

No. , 2012 15

found by a public official in the course of the

performance of the official's duties;

(iv) the substance or plant may pose a substantial risk to the

health or safety of the public.

(3) The Minister must not make more than one determination under

this section in relation to a particular substance or plant.

301.14 Emergency determinations--serious drug precursors

(1) The Minister may, by legislative instrument, determine that a

substance (including a growing plant) is a controlled precursor or a

border controlled precursor.

(2) The Minister must not make a determination under subsection (1)

unless he or she is satisfied that there is an imminent and

substantial risk that the substance will be used to unlawfully

manufacture a controlled drug.

(3) The Minister must not make more than one determination under

this section in relation to a particular substance or plant.

301.15 Emergency determinations--commercial, marketable and

trafficable quantities

(1) The Minister may, by legislative instrument, determine:

(a) a quantity of a serious drug as a commercial or marketable

quantity of the drug; or

(b) a quantity of a controlled drug or a controlled plant as a

trafficable quantity of the drug or plant; or

precursor as a commercial or marketable quantity of the

precursor.

(2) However, the Minister may only make a determination of a

commercial, marketable or trafficable quantity of a serious drug,

controlled precursor or border controlled precursor under

subsection (1) if there is no regulation currently in force listing

such a quantity of the drug or precursor.

Note:

The definitions of commercial quantity, marketable quantity and

trafficable quantity in Subdivision B allow for regulations to list such

quantities of serious drugs and precursors.

Schedule 1 Serious drugs

Part 1 Amendments

16 Crimes Legislation Amendment (Serious Drugs, Identity Crime and Other Measures)

Bill 2012 No. , 2012

301.16 Emergency determinations--effectiveness

(1) A determination under this Subdivision in relation to a substance

(including a growing plant) or a quantity of such a substance has

effect:

(a) from the time the determination is registered (within the

meaning of the Legislative Instruments Act 2003); and

(b) for the period of 12 months from that registration, or such

shorter period as is specified in the determination, as

extended (if at all) under subsection (2).

(2) If exceptional circumstances prevent the listing (by regulation) of

the substance or quantity, to the same effect, the Minister may, by

legislative instrument, extend the period during which the

determination is in force by a further period or periods.

(3) The Minister must not extend the period under subsection (2) with

the effect that the determination would stay in force for longer than

18 months after the time the determination is registered (within the

meaning of the Legislative Instruments Act 2003).

(4) A determination made under this Subdivision has no effect to the

extent that it is inconsistent with a regulation made for the

purposes of Subdivision A.

301.17 Emergency determinations--publication

(1) The Minister must, on or before the day on which a determination

under this Subdivision is registered (within the meaning of the

Legislative Instruments Act 2003):

(a) make a public announcement of the determination; and

(b) cause a copy of the announcement to be published:

(i) on the internet; and

(ii) in a newspaper circulating in each State, the Australian

Capital Territory and the Northern Territory.

(2) An announcement made under subsection (1) is not a legislative

instrument.

17 At the end of paragraphs 307.4(1)(b), 307.7(1)(c) and

307.10(1)(c) of the Criminal Code

Serious drugs Schedule 1

Amendments Part 1

Crimes Legislation Amendment (Serious Drugs, Identity Crime and Other Measures) Bill 2012

No. , 2012 17

Add ", other than a determined border controlled drug or a determined

border controlled plant".

18 At the end of paragraph 308.1(1)(b) of the Criminal Code

Add ", other than a determined controlled drug".

19 Division 314 of the Criminal Code

Repeal the Division.

Customs Act 1901

20 Subsection 51A(1)

Omit "301.8 or 301.9 of the Criminal Code", substitute "Subdivision C

of Division 301 of the Criminal Code (which deals with emergency

Ministerial determinations of serious drugs and precursors)".

21 Subsection 112A(1)

Omit "301.8 of the Criminal Code", substitute "section 301.13 of the

Criminal Code (which deals with emergency Ministerial determinations

of serious drugs)".

22 Subsection 112A(3)

Omit "301.9 of the Criminal Code", substitute "section 301.14 of the

Criminal Code (which deals with emergency Ministerial determinations

of serious drug precursors)".

Schedule 1 Serious drugs

Part 2 Application and transitional

18 Crimes Legislation Amendment (Serious Drugs, Identity Crime and Other Measures)

Bill 2012 No. , 2012

Part 2--Application and transitional

23 Application--offences committed after commencement

The amendments made by this Schedule apply in relation to offences

against Part 9.1 of the Criminal Code that are committed on or after the

commencement of Part 1 of this Schedule.

Note:

For the commencement of Part 1 of this Schedule, see section 2 of this Act.

24 Transitional--listing of existing serious drugs and

precursors by regulation

(1)

This item applies in relation to a substance or plant that, immediately

before the commencement of this item, was listed under Division 314 of

the Criminal Code as belonging to any of the following classes of

substances or plants (the substance's or plant's Criminal Code class):

(a) a controlled drug;

(b) a controlled plant;

(d) a border controlled drug;

(e) a border controlled plant;

(f) a border controlled precursor.

(2)

Sections 301.7 and 301.8 of the Criminal Code, as amended by Part 1 of

this Schedule, do not apply in relation to a regulation made for the

purposes of Subdivision A of Division 301 of the Criminal Code (as so

amended) listing the substance or plant as belonging to the same

Criminal Code class as that to which it belonged immediately before the

commencement of this item.

Note 1: Sections 301.7 and 301.8 of the Criminal Code, as so amended, provide that some

conditions must be satisfied before new regulations can be made listing a substance or

plant as belonging to a Criminal Code class.

Note 2: For the commencement of this item, see section 2 of this Act.

Identity crime and air travel Schedule 2

Identity crime Part 1

Crimes Legislation Amendment (Serious Drugs, Identity Crime and Other Measures) Bill 2012

No. , 2012 19

Schedule 2--Identity crime and air travel

Part 1--Identity crime

Criminal Code Act 1995

1 At the end of Division 370 of Part 9.5 of the Criminal Code

Add:

370.2 Definition of foreign indictable offence

In Division 372:

foreign indictable offence means an offence against a law of a

foreign country or part of a foreign country that is constituted by

conduct that, if engaged in in Australia, would constitute an

indictable offence against a law of the Commonwealth.

370.3 Concurrent operation intended

(1) This Part is not intended to exclude or limit the concurrent

operation of any law of a State or Territory.

(2) Without limiting subsection (1), this Part is not intended to exclude

or limit the concurrent operation of a law of a State or Territory

that makes:

(a) an act or omission that is an offence against a provision of

this Part; or

(b) a similar act or omission;

an offence against the law of the State or Territory.

(3) Subsection (2) applies even if the law of the State or Territory does

any one or more of the following:

(a) provides for a penalty for the offence that differs from the

penalty provided for in this Part;

(b) provides for a fault element in relation to the offence that

differs from the fault elements applicable to the offence

under this Part;

from the defences applicable to the offence under this Part.

Schedule 2 Identity crime and air travel

Part 1 Identity crime

20 Crimes Legislation Amendment (Serious Drugs, Identity Crime and Other Measures)

Bill 2012 No. , 2012

2 Paragraph 372.1(1)(c) of the Criminal Code

Repeal the paragraph, substitute:

(i) an indictable offence against a law of the

Commonwealth; or

(ii) a foreign indictable offence.

3 After section 372.1 of the Criminal Code

Insert:

372.1A Dealing in identification information that involves use of a

carriage service

Dealing in identification information using a carriage service

(1) A person (the first person) commits an offence if:

(a) the first person deals in identification information; and

(b) the first person does so using a carriage service; and

not the first person) will use the identification information to

pretend to be, or to pass the user off as, another person

(whether living, dead, real or fictitious) for the purpose of:

(i)

committing

offence;

(ii) facilitating the commission of an offence; and

(d) the offence referred to in paragraph (c) is:

(i) an indictable offence against a law of the

Commonwealth; or

(ii) an indictable offence against a law of a State or

Territory; or

(iii) a foreign indictable offence.

Penalty: Imprisonment for 5 years.

Note:

Deal, in identification information, includes make, supply or use any

such information. See section 370.1.

(2) Absolute liability applies to the paragraphs (1)(b) and (d) elements

of the offence.

Note:

For absolute liability, see section 6.2.

Identity crime and air travel Schedule 2

Identity crime Part 1

Crimes Legislation Amendment (Serious Drugs, Identity Crime and Other Measures) Bill 2012

No. , 2012 21

Dealing in identification information obtained using a carriage

service

(3) A person (the first person) commits an offence if:

(a) the first person obtains identification information; and

(b) the first person does so using a carriage service; and

(d) the first person intends that any person (the user) (whether or

not the first person) will use the identification information to

pretend to be, or to pass the user off as, another person

(whether living, dead, real or fictitious) for the purpose of:

(i)

committing

offence;

(ii) facilitating the commission of an offence; and

(e) the offence referred to in paragraph (d) is:

(i) an indictable offence against a law of the

Commonwealth; or

(ii) an indictable offence against a law of a State or

Territory; or

(iii) a foreign indictable offence.

Penalty: Imprisonment for 5 years.

Note:

Deal, in identification information, includes make, supply or use any

such information. See section 370.1.

(4) Absolute liability applies to the paragraphs (3)(b) and (e) elements

of the offence.

Note:

For absolute liability, see section 6.2.

Presumption that conduct was engaged in using carriage service

(5) If the prosecution proves beyond reasonable doubt that a person

engaged in the conduct referred to in paragraph (1)(a) or (3)(a),

then it is presumed, unless the person proves to the contrary, that

the person used a carriage service to engage in that conduct.

Note:

A defendant bears a legal burden in relation to the matter in this

subsection. See section 13.4.

Application of section

(6) This section applies:

(a)

even

if:

Schedule 2 Identity crime and air travel

Part 1 Identity crime

22 Crimes Legislation Amendment (Serious Drugs, Identity Crime and Other Measures)

Bill 2012 No. , 2012

(i) committing the offence referred to in paragraph (1)(c) or

(3)(d) is impossible; or

(ii) the offence referred to in paragraph (1)(c) or (3)(d) is to

be committed at a later time; and

(b) whether or not the person to whom the identification

information concerned relates consented to the dealing in the

identification information.

(7) This section does not apply to dealing in the first person's own

identification information.

4 Paragraph 372.2(1)(c) of the Criminal Code

After "section 372.1", insert "or subsection 372.1A(1) or (3)".

5 Paragraph 372.3(1)(d) of the Criminal Code

After "section 372.1", insert "or subsection 372.1A(1) or (3)".

6 Subsection 372.5(1) of the Criminal Code

After "section 372.1", insert "or subsection 372.1A(1) or (3)".

7 Subsection 372.5(2) of the Criminal Code

After "section 372.1", insert "or subsection 372.1A(1) or (3) (as the

case requires)".

Identity crime and air travel Schedule 2

False identity and air travel Part 2

Crimes Legislation Amendment (Serious Drugs, Identity Crime and Other Measures) Bill 2012

No. , 2012 23

Part 2--False identity and air travel

Crimes Act 1914

8 After Division 3A of Part IAA

Insert:

Division 3B--Powers to require identity information at

airports

3UL Definitions--Division 3B

In this Division:

constitutional airport means:

(a) a Commonwealth aerodrome within the meaning of the

Crimes (Aviation) Act 1991 (see section 3 of that Act); or

(b) another airport, if the airport is in a Territory.

government photographic identity document means an identity

document providing photographic identification of a person that is

issued by:

(a) the government of the Commonwealth or a State or Territory;

(b) the government of a foreign country or part of a foreign

country.

identity document:

(a) means a document (such as a driver's licence, birth

certificate, credit card or identity card) that evidences or

indicates, or can be used to evidence or indicate, a person's

identity or any aspect of a person's identity; but

(b) does not include a document prescribed by regulation for the

purposes of this definition.

Schedule 2 Identity crime and air travel

Part 2 False identity and air travel

24 Crimes Legislation Amendment (Serious Drugs, Identity Crime and Other Measures)

Bill 2012 No. , 2012

3UM Identity information at airports--requirements

Scope of section

(1) A constable may make a request under this section of a person (a

suspect) if:

(a) the request is made at a constitutional airport; and

(b) the constable reasonably suspects that the suspect has

committed, is committing or intends to commit an offence

against a law of the Commonwealth, or a law of a State or

Territory, punishable by imprisonment for 12 months or

more.

(2) A constable may also make a request under this section of a person

(a suspect) if:

(a) the request is made at an airport other than a constitutional

airport; and

(b) the constable reasonably suspects that the suspect has

committed, is committing or intends to commit an offence

against a law of the Commonwealth punishable by

imprisonment for 12 months or more.

Evidence of identity

(3) The constable may request the suspect to give the constable

evidence of the suspect's identity by:

(a) producing a government photographic identity document

issued in relation to the suspect, if held by the suspect; and

(b) if the suspect does not produce a government photographic

identity document as requested under paragraph (a)--

producing another identity document in relation to the

suspect, if held by the suspect; and

requested under paragraph (a) or (b)--giving the constable

the suspect's name and address.

Constable's duties

(4) The constable must, before making a request under subsection (3):

(a) if the constable is not in uniform:

Identity crime and air travel Schedule 2

False identity and air travel Part 2

Crimes Legislation Amendment (Serious Drugs, Identity Crime and Other Measures) Bill 2012

No. , 2012 25

(i) show the suspect evidence that the constable is a

constable; and

(ii) if the suspect requests--comply with subsection (5);

and

(b) in any case--inform the suspect that it may be an offence not

to comply with the request, or to give the constable a false or

misleading document, or false or misleading information, in

response to the request.

(5) If the constable is not in uniform, the constable must give the

suspect any of the following information if requested by the

suspect:

(a) the constable's name;

(b) the address of the constable's place of duty;

(d) if the constable has no identification number--the

constable's rank.

3UN Identity information at airports--offences relating to

section 3UM

Offence by suspect

(1) A person commits an offence if:

(a) a constable makes a request of the person under subsection

3UM(3); and

(b) the person fails to comply with the request; and

Penalty: 20 penalty units.

Note:

The following more serious offences may also apply:

(a) giving false or misleading information (see section 137.1 of the

Criminal Code);

(b) producing a false or misleading document (see section 137.2 of

the Criminal Code);

the Criminal Code).

(2) Strict liability applies to paragraphs (1)(a) and (c).

Note:

For strict liability, see section 6.1 of the Criminal Code.

Schedule 2 Identity crime and air travel

Part 2 False identity and air travel

26 Crimes Legislation Amendment (Serious Drugs, Identity Crime and Other Measures)

Bill 2012 No. , 2012

Offence by constable

(3) A person commits an offence if:

(a) the person is subject to a requirement under subsection

3UM(4); and

(b) the person engages in conduct; and

Penalty: 5 penalty units.

(4) In this section:

engage in conduct means:

(a) do an act; or

(b) omit to perform an act.

Criminal Code Act 1995

9 At the end of Part 9.5 of the Criminal Code

Add:

Division 376--False identity and air travel

376.1 Definitions for Division 376

In this Division:

air passenger ticket, for a flight, means a ticket, or electronic

record, on the basis of which a person is treated as being entitled to

travel as a passenger on:

(a) the flight; or

(b) a journey that includes the flight.

false: identification information relating to a person is false if it is

false in a material particular that affects the capacity of the

information to be used (whether alone or in conjunction with other

information or documents) to identify the person.

Note:

For the meaning of identification information, see section 370.1.

Identity crime and air travel Schedule 2

False identity and air travel Part 2

Crimes Legislation Amendment (Serious Drugs, Identity Crime and Other Measures) Bill 2012

No. , 2012 27

376.2 False identification information--at constitutional airports

(1) A person (the defendant) commits an offence if:

(a) the defendant uses information at a place; and

(b) the defendant does so reckless as to whether the information

is used to identify the defendant as a passenger on a flight;

and

(d) the information is false in relation to the defendant; and

(e) the place is a constitutional airport.

Penalty: Imprisonment for 12 months.

(2) Absolute liability applies to paragraph (1)(e).

Note:

For absolute liability, see section 6.2.

(3) In this section:

constitutional airport means:

(a) a Commonwealth aerodrome within the meaning of the

Crimes (Aviation) Act 1991 (see section 3 of that Act); or

(b) another airport, if the airport is in a Territory.

376.3 False identification information--air passenger tickets

obtained using a carriage service

Carriage service offence--using information to obtain an air

passenger ticket

(1) A person (the defendant) commits an offence if:

(a) the defendant uses information; and

(b) the defendant does so:

(i) with the result that an air passenger ticket for a flight is

obtained (whether by the defendant or another person);

and

(ii) reckless as to whether the information is used to identify

the defendant, or another person, as a passenger on the

flight; and

(d) the information is false in relation to the person who takes, or

intends to take, the flight using the ticket; and

Schedule 2 Identity crime and air travel

Part 2 False identity and air travel

28 Crimes Legislation Amendment (Serious Drugs, Identity Crime and Other Measures)

Bill 2012 No. , 2012

(e) a carriage service is used (whether by the defendant or

another person) to obtain the ticket; and

(f) the flight starts or ends within Australia.

Penalty: Imprisonment for 12 months.

Carriage service offence--taking a flight using an air passenger

ticket

(2) A person (the defendant) commits an offence if:

(a) the defendant takes a flight using an air passenger ticket; and

(b) identification information was used (whether by the

defendant or another person) to obtain the ticket; and

passenger on the flight; and

(d) the information is false in relation to the defendant; and

(e) a carriage service was used (whether by the defendant or

another person) to obtain the ticket; and

(f) the flight starts or ends within Australia.

Penalty: Imprisonment for 12 months.

General

(3) In a prosecution for an offence against subsection (1) or (2), if the

prosecution proves beyond reasonable doubt that an air passenger

ticket was obtained, then it is presumed, unless the defendant

proves to the contrary, that a carriage service was used to obtain

the ticket.

Note:

A defendant bears a legal burden in relation to the matter in this

subsection: see section 13.4.

(4) Absolute liability applies to paragraphs (1)(e) and (f) and (2)(e)

and (f).

Note:

For absolute liability, see section 6.2.

Identity crime and air travel Schedule 2

False identity and air travel Part 2

Crimes Legislation Amendment (Serious Drugs, Identity Crime and Other Measures) Bill 2012

No. , 2012 29

376.4 False identification information--air passenger tickets for

constitutional flights

Constitutional flight offence--using information to obtain an air

passenger ticket

(1) A person (the defendant) commits an offence if:

(a) the defendant uses information; and

(b) the defendant does so:

(i) with the result that an air passenger ticket for a flight is

obtained (whether by the defendant or another person);

and

(ii) reckless as to whether the information is used to identify

the defendant, or another person, as a passenger on the

flight; and

(d) the information is false in relation to the person who takes, or

intends to take, the flight using the ticket; and

(e) the flight is a constitutional flight.

Penalty: Imprisonment for 12 months.

Constitutional flight offence--taking a flight using an air

passenger ticket

(2) A person (the defendant) commits an offence if:

(a) the defendant takes a flight using an air passenger ticket; and

(b) identification information was used (whether by the

defendant or another person) to obtain the ticket; and

passenger on the flight; and

(d) the information is false in relation to the defendant; and

(e) the flight is a constitutional flight.

Penalty: Imprisonment for 12 months.

General

(3) Absolute liability applies to paragraphs (1)(e) and (2)(e).

Note:

For absolute liability, see section 6.2.

Schedule 2 Identity crime and air travel

Part 2 False identity and air travel

30 Crimes Legislation Amendment (Serious Drugs, Identity Crime and Other Measures)

Bill 2012 No. , 2012

(4) In this section:

constitutional flight means:

(a) a flight that starts or ends in a Territory; or

(b) a flight between Australia and a foreign country in which an

aircraft is used in the course of trade or commerce, for the

carriage of passengers; or

aircraft is used in the course of trade or commerce, for the

carriage of passengers.

376.5 False identification information--extended jurisdiction

(Category D)

Section 15.4 of the Criminal Code (extended geographical

jurisdiction--category D) applies to the offences in sections 376.3

and 376.4.

Identity crime and air travel Schedule 2

Application of amendments Part 3

Crimes Legislation Amendment (Serious Drugs, Identity Crime and Other Measures) Bill 2012

No. , 2012 31

Part 3--Application of amendments

10 Amendments made by Part 2

(1)

Division 3B of Part IAA of the Crimes Act 1914, as inserted by Part 2

of this Schedule, applies in relation to persons reasonably suspected of

offences whether the offences are suspected of having been committed

before, on or after the commencement of this item.

(2)

Division 376 of the Criminal Code, as inserted by Part 2 of this

Schedule, applies in relation to conduct and circumstances arising on or

after the commencement of this item.

Note:

This item commences on the day after this Act receives the Royal Assent (see

section 2).

Schedule 3 Other measures

Part 1 Integrity Commissioner functions

32 Crimes Legislation Amendment (Serious Drugs, Identity Crime and Other Measures)

Bill 2012 No. , 2012

Schedule 3--Other measures

Part 1--Integrity Commissioner functions

Division 1--Amendments

Law Enforcement Integrity Commissioner Act 2006

1 Before paragraph 15(a)

Insert:

(aa) to detect corrupt conduct in law enforcement agencies;

2 After paragraph 15(d)

Insert:

(da) to prevent corrupt conduct in law enforcement agencies;

3 Subsection 104(5)

Omit "an authorisation", substitute "a delegation".

4 Subsection 156(3)

Repeal the subsection, substitute:

(3) The Minister must not refer the ACLEI corruption issue to the

Integrity Commissioner for investigation under Division 3 if the

ACLEI corruption issue relates to the conduct of:

(a) the Integrity Commissioner; or

(b) an Assistant Integrity Commissioner.

5 Subsection 219(2)

Repeal the subsection.

Division 2--Application

6 Application of amendment

Subsection 156(3) of the Law Enforcement Integrity Commissioner Act

2006, as in force after the commencement of this item, applies in

relation to corrupt conduct engaged in before, on or after that

commencement.

Other measures Schedule 3

Penalty units Part 2

Crimes Legislation Amendment (Serious Drugs, Identity Crime and Other Measures) Bill 2012

No. , 2012 33

Part 2--Penalty units

Division 1--Amendments

Crimes Act 1914

7 Subsection 4AA(1) (definition of penalty unit)

Omit "$110", substitute "$170".

8 After subsection 4AA(1)

Insert:

(1A) The Attorney-General must cause a review of the amount of a

penalty unit to be conducted as soon as possible after each third

anniversary of the day an alteration of the amount of a penalty unit

last came into force.

Division 2--Application

9 Application of amendments

(1)

The amendment made by item 7 of this Schedule applies in relation to

an offence committed after the commencement of this item.

Note:

Subitem (1) mirrors subsection 4F(1) of the Crimes Act 1914.

(2)

Subsection 4AA(1A) of the Crimes Act 1914, as inserted by this

Schedule, applies in relation to the alteration of the amount of a penalty

unit made by this Schedule, and future alterations.

Schedule 3 Other measures

Part 3 Superannuation orders

34 Crimes Legislation Amendment (Serious Drugs, Identity Crime and Other Measures)

Bill 2012 No. , 2012

Part 3--Superannuation orders

Division 1--Amendments

Australian Federal Police Act 1979

10 Paragraph 46(3)(a)

After "superannuation scheme", insert "for any period of employment

(not just a period during which the offence was committed)".

11 Paragraph 46(4)(a) (definition of AB (amount of benefits))

After "the scheme", insert "for any period of employment (not just a

period during which the offence was committed)".

Crimes (Superannuation Benefits) Act 1989

12 Paragraph 19(3)(a)

After "superannuation scheme", insert "for any period of employment

(not just a period during which the offence was committed)".

13 Paragraph 19(4)(a) (definition of AB (amount of benefits))

After "the scheme", insert "for any period of employment (not just a

period during which the offence was committed)".

Division 2--Application

14 Application of amendments: the Australian Federal Police

Act 1979

Section 46 of the Australian Federal Police Act 1979, as amended by

this Schedule, applies in relation to a superannuation order applied for

on or after the commencement of this item, whether an offence to which

the order relates was committed before, on or after that commencement.

15 Application of amendments: the Crimes (Superannuation

Benefits) Act 1989

Other measures Schedule 3

Superannuation orders Part 3

Crimes Legislation Amendment (Serious Drugs, Identity Crime and Other Measures) Bill 2012

No. , 2012 35

Section 19 of the Crimes (Superannuation Benefits) Act 1989, as

amended by this Schedule, applies in relation to a superannuation order

applied for on or after the commencement of this item, whether an

offence to which the order relates was committed before, on or after that

commencement.

Commonwealth of Australia Bills

CRIMES LEGISLATION AMENDMENT (SERIOUS DRUGS, IDENTITY CRIME AND OTHER MEASURES) BILL 2012