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2002
THE PARLIAMENT OF THE COMMONWEALTH OF
AUSTRALIA
HOUSE OF REPRESENTATIVES
CRIMES
LEGISLATION AMENDMENT
(PEOPLE SMUGGLING, FIREARMS TRAFFICKING
AND OTHER
MEASURES) BILL 2002
EXPLANATORY
MEMORANDUM
(Circulated by authority of the Minister for Justice
and Customs
Senator the Honourable Chris Ellison)
Crimes Legislation Amendment (People Smuggling, Firearms Trafficking And
Other Measures) Bill 2002
General Outline
This Bill
inserts new provisions into the Criminal Code Act 1995 criminalising the
smuggling of persons from Australia to another country, or from a country other
than Australia to a third country, with or without transit through Australia.
Where there is no transit through Australia, the offences will apply where the
person who organised or facilitated the smuggling either engaged in that conduct
in Australia or is an Australian citizen or resident.
The Bill also
contains offences prohibiting making, providing or possessing false travel or
identity documents intended for use in securing the unlawful entry of a person
into a foreign country. An offence of taking possession of or destroying
another person’s travel or identity documents is also included.
The people smuggling offences and all but one of the associated document
offences are based on the Protocol Against The Smuggling Of Migrants By Land,
Sea And Air, Supplementing The United Nations Convention Against Transnational
Organized Crime, to which Australia is a signatory.
This Bill also
inserts into the Criminal Code two cross-border firearms trafficking
offences. The first offence makes it unlawful, in the course of trade and
commerce between the States and Territories to dispose of or acquire a firearm,
where the disposal or acquisition of that firearm is an offence under a State or
Territory law.
A related provision also makes it an offence, in the
course of trade and commerce between the States and Territories, to take or send
a firearm from one State or Territory to another, intending that the firearm
will be disposed of in the other State or Territory in circumstances that would
constitute an offence against the firearm law of that other State or
Territory.
The Bill also amends existing criminal law and justice
legislation. Schedule 3 makes a number of minor amendments to the theft and
fraud offences in the Criminal Code, which have now been in operation for
over a year. Those amendments resolve some problems with the offences which
have emerged during that time. Schedule 3 also amends the sentencing provisions
in the Crimes Act 1914, includes the substance ‘fantasy’ as a
psychotropic drug in the Crimes (Traffic in Narcotic Drugs and Psychotropic
Substances) Act 1990, amends the International Transfer of Prisoners Act
1997 to clearly define the role of the Minister for Immigration and
Multicultural and Indigenous Affairs and amends the Financial Transaction
Reports Act 1988 to ensure that remittance dealers are covered by the
definition of ‘cash dealer’ in that Act. Schedule 3 also fixes a
cross-reference in that Act.
Financial Impact
There is no
financial impact flowing directly from the offence provisions of this Bill.
Abbreviations used in the Explanatory Memorandum
AFP Act Australian Federal Police Act 1979
Crimes Act Crimes Act 1914
Criminal Code Criminal Code Act 1995
‘fantasy’ gamma-hydroxybutyric acid
FTR Act Financial Transaction Reports Act 1988
ITP Act International Transfer of Prisoners Act 1997
Migration Act Migration Act 1958
Smuggling Protocol Protocol Against The Smuggling Of Migrants By Land, Sea And Air, Supplementing The United Nations Convention Against Transnational Organized Crime
TINDAPS Act Crimes (Traffic in Narcotic Drugs and Psychotropic Substances) Act 1990
Trafficking Protocol Protocol To Prevent, Suppress And Punish Trafficking In Persons, Especially Women And Children, Supplementing The United Nations Convention Against Transnational Organized Crime
NOTES ON CLAUSES
Clause 1 Short title
This is a formal clause which
provides for the citation of the Bill.
Clause 2
Commencement
This clause set out when the various parts of the Bill
commence.
Sections 1-4 of the Bill (the short title, the commencement,
the schedules provision and the transitional provision for the Crimes Act
1914 amendments in Schedule 3) will commence on the day that the Bill
receives Royal Assent.
Schedules 1 and 2 of the of the Bill, which insert
people smuggling and firearms trafficking offences into the Criminal Code Act
1995, will commence on the 28th day after the Bill receives Royal
Assent.
Schedule 3 of the Bill contains amendments to a number of Acts.
All of those items except one (Item 23 of Schedule 3) will commence on the
28th day after the Bill receives Royal Assent.
Item 23 of
Schedule 3 amends a cross-reference in the Financial Transaction Reports Act
1988 (FTR Act) to the Commonwealth’s money laundering legislation.
The existing cross-reference is to sections 81 and 82 of the Proceeds of
Crime Act 1987, which will be repealed when the new money laundering
legislation (Division 400 of the Criminal Code) comes into effect on 1
January 2003. To ensure that there is no gap in the application of the relevant
provision in the FTR Act, the amendment is scheduled to commence on 1 January
2003, consistent with the new money laundering legislation to which it refers.
This early application of the provision is justified because the amendment will
not take away a person’s rights, but will actually ensure that a
protection currently in the FTR Act will continue to apply.
Clause 3
Schedule(s)
This clause makes it clear that the Schedules to the Bill
will amend the Acts set out in those Schedules in accordance with the provisions
set out in each Schedule.
Clause 4 Transitional – items 1, 2,
and 3 of Schedule 3
Clause 4 is a transitional provision. Items 1
and 2 of Schedule 3 operate to repeal sections 16G and 19AG from the Crimes
Act 1914 (‘Crimes Act’). Item 3 removes a cross-reference in
subsection 19AR(6) of the Crimes Act to section 19AG.
The effect of
repealing sections 16G and 19AG of the Crimes Act is that when sentencing
federal offenders, courts will no longer have to take into account whether or
not remissions are available in the particular State or Territory in which the
person is being sentenced.
Clause 4 provides that the amendments will
only apply to a sentence which is imposed after the provisions commence.
SCHEDULE 1 – PEOPLE SMUGGLING
Criminal Code
Act 1995
Item 1 The Schedule
The offences in the
Criminal Code Act 1995 are contained in a Schedule (the Criminal
Code). This Item amends that Schedule by adding new Division 73 which is
headed ‘People smuggling and related offences’. Subdivision A of
Division 73 contains offences criminalising the smuggling of persons from
Australia to another country, or from a country other than Australia to a third
country, with or without transit through Australia. Two aggravated people
smuggling offences are also included in Subdivision A.
Subdivision B of
Division 73 contains four offences relating to the falsification, destruction or
misuse of travel or identity documents for the purposes of securing the unlawful
entry of a person into a foreign country.
The people smuggling offences
and most of the document offences in this Schedule are based on the Protocol
Against The Smuggling Of Migrants By Land, Sea And Air, Supplementing The United
Nations Convention Against Transnational Organized Crime (‘Smuggling
Protocol’).
All serious offence provisions are included in the
Criminal Code for convenience. The Criminal Code contains the
general principles by which offences are interpreted, as well as ancillary
offences (such as conspiracy and common purpose) which will apply alongside the
new offences in Division 73. The policy of placing the serious offences
together this way is not only a feature of the Commonwealth Criminal
Code, but also the legislation of most jurisdictions throughout the world.
It is also a feature of the Model Criminal Code which was developed by the
Commonwealth, States and Territories.
Subdivision A – People
smuggling offences
Proposed section 73.1 Offence of people
smuggling
The people smuggling offence in proposed section 73.1 is
based on the offence articulated in Article 6 of the Smuggling
Protocol.
Article 6 relevantly provides that
Each State Party
shall adopt such legislative and other measures as may be necessary to establish
as criminal offences, when committed intentionally and in order to obtain,
directly or indirectly, a financial or other material benefit....the smuggling
of migrants
‘Smuggling of migrants’ is in turn defined in
Article 3 of the Smuggling Protocol to mean the procurement, in order to
obtain, directly or indirectly, a financial or other material benefit, of the
illegal entry of a person into a State Party of which the person is not a
national or a permanent resident.
‘Illegal entry’ is defined
in Article 3 to mean crossing borders without complying with the necessary
requirements for legal entry into the receiving State.
As far as
practicable and appropriate, the people smuggling offence in proposed section
73.1 follows the offence and definitions set out in the Smuggling
Protocol.
Proposed paragraph 73.1(1)(a) sets out the physical element of
conduct for the people smuggling offence.
The conduct element in the
Smuggling Protocol definition of ‘smuggling of migrants’ is the
‘procurement’ of the illegal entry of a person. Whilst
‘procure’ is not defined in the Smuggling Protocol, it has a broad
meaning at common law, and includes all aspects of activity associated with
people smuggling. However, to make the scope of the offence clear on its face,
proposed section 73.1 does not use the term ‘procure’, but instead
uses ‘organises or facilitates’. As well as clearly covering all
conduct associated with people smuggling, using ‘organises or
facilitates’ is consistent with the use of that term in the relevant
Migration Act 1958 (‘Migration Act’) people smuggling
offences (sections 232A and 233A).
Where the person has already
obtained a benefit for organising or facilitating the entry of a person into a
foreign country, the fault element of intention will attach to the physical
element of organising or facilitating, by operation of the default fault
elements in section 5.6 of the Criminal Code. Where the person organises
or facilitates the entry of another person with the intention of obtaining a
benefit, subparagraph 73.1(1)(d)(ii) will supply the applicable fault
element.
Proposed paragraph 73.1(1)(b) sets out one of the physical
elements of circumstance that must be present for the offence to be committed
– that the entry of the person into the foreign country does not comply
with the entry requirements under that country’s law.
This
element is derived from the definitions in the Smuggling Protocol of
‘smuggling of migrants’ and ‘illegal entry’. By
application of the default fault elements in section 5.6 of the Criminal
Code, the fault element of recklessness will attach to that physical
element. This means that the person who organises or facilitates the entry of
the other person into a foreign country must be reckless as to the fact that
that entry did not comply with the requirements of the country being entered. A
person is reckless with respect to a circumstance if he or she is aware of a
substantial risk that the circumstance exists or will exist, and having regard
to the circumstances known to him or her it is unjustifiable to take that
risk.
The definition of ‘smuggling of migrants’ also refers
to the illegal entry of a person into a country of which the person is not a
national or a permanent resident. The fact that a person is not a national
(citizen) or a permanent resident is not included in proposed paragraph
73.1(1)(b), but it set out as a separate element at proposed paragraph
73.1(1)(c).
That the person is not a citizen or permanent resident does
not effect the culpability of the people smuggler, but is an important limit on
the scope of the offence, and ensures that only people smuggling activity
covered by the Smuggling Protocol is prosecuted under this provision. Other
activity involving the unlawful entry of a person into a country of which she or
he is a citizen or permanent resident is more appropriately dealt with under
other the relevant laws of the country being unlawfully entered.
Because of the nature of this element of the offence, it has been
separated out from those in paragraph 73.1(1)(b) and absolute liability has been
applied to it by subsection 73.1(2). The application of absolute liability
means that it will not be necessary for the prosecution to prove a fault element
in relation to that particular physical element, and that the defence of mistake
of fact will not be available to the defence. It will still be necessary to
show that the person was not a citizen or permanent resident of the particular
country at that time.
Proposed paragraph 73.1(1)(d) sets out the third
circumstance which must be present for the people smuggling offence to occur.
Both Article 6 and the definition of ‘smuggling of migrants’
in the Smuggling Protocol require that the people smuggling be carried out in
order to obtain, directly or indirectly, a financial or other material benefit.
Proposed paragraph 73.1(1)(d) refers only to obtaining or having
obtained a ‘benefit’. ‘Benefit’ is defined in the
Dictionary of the Criminal Code to include any advantage and is not
limited to property. This will cover both financial and other material
benefits, as well as favours, services and other advantages
The term
‘directly or indirectly’ is wide enough to capture situations where
the people smuggler does not physically receive the money or benefit, but
organises for the money or benefit to go elsewhere – for example, to a
spouse, or to another person to pay off a debt.
The people smuggling
offences in Division 73 apply to a broader range of countries that the offences
set out in the Smuggling Protocol. The Smuggling Protocol defines
‘smuggling in migrants’ as activity which occurs in respect of a
State Party. The offences in Division 73 will apply where a person is smuggled
into any foreign country, regardless of whether that country is a State Party or
not. To limit the countries to which this offence applies would be to limit its
effectiveness. Although the offences in Division 71 are in places broader than
the Smuggling Protocol, they are within Constitutional power.
The
offence in proposed section 73.1 is punishable by a maximum penalty of 10 years
imprisonment or 1000 penalty units ($110,000), or both. This penalty is
consistent with consistent with the maximum penalty for the offence of smuggling
people into Australia (section 233 of the Migration Act).
Proposed
subsection 73.1(3) establishes that a reference in the Criminal Code to
the offence of people smuggling is a reference to the offence set out in
proposed subsection 73.1(1). This makes it clear that the offence referred to
in the aggravated people smuggling offence in proposed subsection 73.2(1) is the
offence in proposed subsection 73.1(1).
Proposed section 73.2 Aggravated offence of people smuggling
(exploitation etc.)
Proposed section 73.2 provides for an aggravated
people smuggling offence. The aggravated offence will exist where the elements
of the people smuggling offence in proposed subsection 73.1(1) are present, and
where that offence occurred in prescribed aggravating
circumstances.
Those circumstances are derived from Article 6 of the
Smuggling Protocol, which relevantly provides that aggravating circumstances to
the offence of people smuggling should include circumstances that endanger, or
are likely to endanger, the lives or safety of the migrants concerned, or that
entail inhuman or degrading treatment, including for exploitation, of such
migrants.
The aggravating circumstances are set out in paragraphs
73.2(1)(a)-(c).
Proposed paragraph 73.2(1)(a) covers where the
perpetrator of the people smuggling offence commits that offence intending that
the person being smuggled will be exploited after that person enters the foreign
country.
‘Exploitation’ is not defined in the Smuggling
Protocol. The Bill does not give an exhaustive list of what may constitute
exploitation, but does set out a number of circumstances which constitute
exploitation. The examples of exploitation provided for in this Bill are
derived from the definition in Article 3 of the Protocol To Prevent, Suppress
And Punish Trafficking In Persons, Especially Women And Children, Supplementing
The United Nations Convention Against Transnational Organized Crime
(‘Trafficking Protocol’).
Article 3 of the Trafficking
Protocol provides that ‘exploitation shall include, at a minimum, the
exploitation of the prostitution of others or other forms of sexual
exploitation, forced labour or services, slavery or practices similar to
slavery, servitude or the removal of organs’.
The definition of
‘exploitation’ in proposed subsection 73.2(2) includes slavery,
sexual servitude, forced labour and the removal of organs. Slavery is already
an offence under the Criminal Code, and is defined broadly enough to
capture both slavery and debt bondage, which is a practice similar to slavery.
Sexual servitude is likewise already an offence under the Criminal
Code.
The definition of ‘forced labour’ in the aggravated
offence is modelled on the definition of sexual servitude.
‘Threat’ is defined to mean a threat of force, a threat to
cause a person’s deportation and a threat of any other detrimental action.
The definition provides that a threat of detrimental action is only a threat for
the purposes of the provision if there are no reasonable grounds for the threat
of that action in connection with the provisions of labour or services by a
person. What constitutes reasonable grounds will be a matter of fact to be
determined by the trier of fact.
The definition of ‘threat’
is based on the definition in the sexual servitude offence in Division 270. As
with the definition in Division 270, ‘threat’ is intended to cover
threats to other persons as well as the person who is subject to the condition
of forced labour.
The second aggravating circumstance is set out in
proposed paragraph 73.2(1)(b). That paragraph covers where, during the
commission of the people smuggling offence, the perpetrator of that offence
subjects the smuggled person to cruel, inhuman or degrading treatment.
As
with proposed paragraph 73.2(1)(a), the aggravating elements in this paragraph
are derived from the Smuggling Protocol.
‘Cruel, inhuman or
degrading treatment’ is not defined. Whether or not certain conduct
constitutes cruel, inhuman or degrading treatment will be a matter determined by
the trier of fact on the facts of the relevant case.
The third
aggravating circumstances is set out in proposed paragraph 73.2(1)(c). That
paragraph covers where during the commission of the people smuggling offence,
the perpetrator of that offence engages in conduct which gives rise to a danger
of death or serious harm occurring to the smuggled person. The definition used
in paragraph 73.2(1)(c) is derived from the recommendations of the Model
Criminal Code Officers Committee in its 1998 Report on Non Fatal Offences
Against the Person.
The offence in proposed section 73.2 is punishable by
a maximum penalty of 20 years imprisonment or 2000 ($220,000) penalty units, or
both.
Proposed section 73.3 Aggravated offence of people smuggling
(at least 5 people)
The aggravated offence in 73.2 is not derived
from the Smuggling Protocol, but is consistent with the Migration Act offences
relating to the smuggling of groups of five or more people.
The offence
mirrors the physical and fault elements of the primary offence in proposed
section 73.1, the only difference being that the smuggling involves at least
five people.
This means that the perpetrator will need to organise or
facilitate the entry of at least 5 persons into a foreign country, and be
reckless as to whether or not each of the 5 persons is entitled to enter that
foreign country. Further, the smuggler will have to obtain or have obtained a
benefit for that particular act of smuggling.
If in a trial for this
aggravated offence the trier of fact (the jury) is not satisfied that the person
committed the aggravated offence but is satisfied that the person committed the
people smuggling offence in section 73.1, proposed subsection 73.3(3) provides
that the trier of fact may give an alternative verdict. This is included
because it is possible that although charged with smuggling five persons, the
trier of fact may only be satisfied that the defendant intended to smuggle a
lesser amount of people.
The offence in proposed section 73.3 is punishable
by a maximum penalty of 20 years imprisonment or 2000 penalty units ($220,000),
or both. This penalty is consistent with consistent with the maximum penalty
for the aggravated people smuggling offence in the Migration Act (sections 232A
and 233A).
Proposed section 73.4 Jurisdictional
requirement
Part 2.7 of the Criminal Code provides general
jurisdictional provisions, including provision for extraterritorial application
of offences in the Criminal Code. Part 2.7 also provides for specific
categories of extended geographical jurisdiction (see sections 15.1 to 15.4).
The offences in Subdivision A of Division 73 apply a modified form of
the extended jurisdiction provided for in section 15.2 (‘Category B’
jurisdiction). Category B jurisdiction is determined according to where the
conduct and result elements of the offence occurs. In addition to the standard
jurisdiction (conduct occurring entirely in Australia or on an Australian ship
or aircraft), Category B extends the operation of offences to cover conduct
which occurs wholly outside Australia where either a result of the conduct
occurs wholly or partly in Australia (or wholly or partly on board an Australian
aircraft or ship), or where the perpetrator of the offence is an Australian
citizen, a resident of Australia or a body corporate incorporated by or under a
law of the Commonwealth or of a State or Territory.
The proposed people
smuggling offences are designed to capture certain instances of people smuggling
– that is, smuggling from Australia or from one foreign country to another
foreign country, either via Australia or not. The offences are not designed to
also cover entry into Australia, as that situation is dealt with under the
Migration Act.
By modifying the application of Category B jurisdiction,
the scope of the offences can be appropriately limited. As the jurisdiction is
modified, it would not be sufficient for the provision to simply state that
Category B jurisdiction applies. Proposed section 73.4 sets out the modified
extended jurisdiction and how it applies to both the primary and ancillary
offence provisions.
Under the modified Category B jurisdiction, a person
will only commit a people smuggling offence if:
(1) the person is an
Australian citizen or a resident of Australia and the conduct constituting the
offence occurs wholly outside Australia, or
(2) both the conduct
constituting the alleged offence occurs wholly or partly inside Australia and a
result of the conduct occurs, or is intended to occur, outside of
Australia.
Unlike regular Category B jurisdiction, the modified
jurisdiction does not cover conduct which occurs entirely in Australia with no
result occurring overseas. This is because the people smuggling offences
require there to be a result occurring overseas (ie, illegal entry into a
foreign country). Thus, there is no need for that part of the Category B
jurisdiction. Other parts of the Category B jurisdiction have been excluded for
similar reasons.
Proposed section 73.5 Attorney-General’s
consent required
Proposed subsection 73.5(1) provides that
prosecution proceedings for an offence against one of the provisions in
Subdivision A of Division 73 may only be taken with the written consent of the
Attorney-General. The consent of the Attorney-General is an important
safeguard, and ensures that all relevant factors are taken into account before
the step of prosecuting an offence which is concerned with the breach of another
country’s borders.
Proposed subsection 73.5(2) makes it clear
that whilst prosecution proceedings may not proceed without the consent of the
Attorney-General, preliminary measures such as arresting and charging the person
may still occur. This subsection ensures that arrest, charge and remand, which
may require urgent action, are not prevented because of the need to gain the
Attorney-General’s written consent. It is clear from this section that an
investigation may be instituted or continue even if the consent of the
Attorney-General for the prosecution proceedings has not yet been obtained.
Subdivision B – Document offences related to people
smuggling and unlawful entry into foreign countries.
The document
offences in proposed sections 73.8, 73.9 and 73.10 are based on the offences
prescribed in Article 6 of the Smuggling Protocol. The offence in 73.11 is not
based on the Smuggling Protocol, but complements the other document
offences.
Article 6 of the Smuggling Protocol relevantly provides that
countries should criminalise the activity of producing, procuring, providing or
possessing a fraudulent travel or identity document where that activity is
carried out for the purpose of enabling the smuggling of migrants and in order
to obtain, directly or indirectly, a financial or other material
benefit.
Article 3 of the Smuggling Protocol defines ‘fraudulent
travel or identity document’ to mean any travel or identity document
that
a) has been falsely made or altered in some material way by anyone
other than a person or agency lawfully authorized to make or issue the travel or
identity document on behalf of a State
b) has been improperly issued or obtained through misrepresentation, corruption or duress or in any other unlawful manner, or
c) is being used by a person other than the rightful holder
The offences are framed so that they may capture both the person who
makes or provides the document, and the person who will use the document to
obtain the unlawful entry of another person into a foreign country (eg, the
people smuggler), but not the person whose unlawful entry into a foreign country
would be facilitated by the document.
Proposed section 73.6 Meaning
of travel or identity document
All of the offences in
Subdivision B of Division 73 are about travel or identity documents. Proposed
section 73.6 sets out the types of documents which are included as identity and
travel documents, but does not provide an exhaustive list. Whether or not a
document will be a travel or identity document will be a matter of fact
determined by the court.
Proposed section 73.7 Meaning of false
travel or identity document
Proposed subsection 73.7(1) contains
a detailed definition of what is a ‘false travel or identity
document’. A document is a false travel or identity document regardless
of whether the entire document or just a part of it is false.
The
definition in proposed subsection 73.7(1) is based on the existing definition of
‘false documents’ in Part 7.7 of the Criminal Code (Forgery
and related offences), and also incorporates the first paragraph of the
definition of ‘fraudulent travel or identity document’ contained in
Article 3 of the Smuggling Protocol.
The definition covers documents or
parts of documents which suggest that they were made by a person, or on the
authority of a person, when they were not. Similarly, it covers a document or
part of document which purports to have been made in particular terms when it
was not, or made in particular terms on the authority of a person, when it was
not.
The definition also covers a document or part of a document which
purports to have been altered by a person, or on the authority of a person, when
the document was not so altered. Further, the definition covers a document or
part of document which purports to have been made by a person, or on the
authority of a person, who never existed. The definition also covers documents
or parts of documents which falsely purport to have been made or altered on a
particular date, at a particular time, in a particular place or in other
circumstances.
Proposed subsections 73.7(2) and (3) make it clear that `making' can include
`altering' and that `document' includes purported copies of documents. It is
necessary to carefully define all the possible ways of manipulating documents.
Proposed section 73.8 Making, providing or possessing a false travel
or identity document
The offence in proposed section 73.8 is based on
the offence articulated in Article 6 of the Smuggling Protocol, and the
definition of ‘false travel or identity’ document set out in
proposed subsection 73.7. The offence criminalises the activity of a person
who, to obtain a benefit, makes, provides or possesses a false travel or
identity document, intending that it will be used to facilitate the unlawful
entry of another person into a foreign country.
This offence is
punishable by 10 years imprisonment, a fine of 1000 penalty units ($100,000), or
both. This penalty is consistent with maximum penalties for comparable forgery
offences in the Criminal Code and document offences in the Migration
Act.
Proposed section 73.9 Providing or possessing a travel or
identity document issued or altered dishonestly or as a result of
threats
The offence in proposed section 73.9 is also based on the
Smuggling Protocol, and picks up the second paragraph of the definition of
‘fraudulent travel or identity document’ contained in Article 3 of
that Protocol.
The offence criminalises the activity of a person who, to
obtain a benefit, provides or possesses a travel or identity document, knowing
that the issue of that document or the alteration of that document was obtained
dishonestly or by threats, and intending that it will be used to facilitate the
unlawful entry of another person into a foreign
country.
‘Threat’ is not defined, but proposed subsection
73.9(2) provides that a threat may be express or implied, conditional or
unconditional. Not defining 'threat' is consistent with the approach in the
Criminal Code. 'Threat' is only defined in relation to the sexual
servitude offence in Division 270, and the sexual slavery offences in Division
268 (war crimes and offences against humanity) because of the nature of those
particular offences. Elsewhere, threat is not defined but there are examples of
what a threat may be - see for example the postal offence at section 471.11 and
the threatening to cause harm to a Commonwealth officer offence at section
147.2.
The definition of ‘dishonest’ provided in proposed
subsection 73.9(3) is also based on existing definitions within the Criminal
Code – see for example sections 130.3 and 470.2. Whether or not the
issue or alternation of the document was dishonest will be a matter to be
determined by the trier of fact (proposed subsection 73.9(4)).
This
offence is punishable by 10 years imprisonment, a fine of 1000 penalty units
($100,000), or both. This penalty is consistent with maximum penalties for
comparable forgery offences in the Criminal Code and document offences in
the Migration Act.
Proposed section 73.10 Providing or possessing a
travel or identity document to be used by a person who is not the rightful
user
The offence in proposed section 73.10 is also based on the
Smuggling Protocol, and picks up the third paragraph of the definition of
‘fraudulent travel or identity document’ contained in Article 3 of
that Protocol.
The offence criminalises the activity of a person who, to
obtain a benefit, provides or possesses a travel or identity document, intending
that the document will be used to facilitate the unlawful entry of another
person into a foreign country, in circumstances where the person knows that the
document does not apply to the person who is entering the foreign
country.
This offence is punishable by 10 years imprisonment, a fine of 1000 penalty
units ($100,000), or both. This penalty is consistent with maximum penalties
for comparable forgery offences in the Criminal Code and document
offences in the Migration Act.
Proposed section 73.11 Taking
possession of or destroying another person’s travel or identity
document
The offence in proposed section 73.11 is not based on the
Smuggling Protocol, but the need for such an offence has arisen in the
operational context.
The provision makes it an offence to take
possession of or destroy a genuine travel or identity document with the
intention of concealing the identity or nationality of a person who is to be or
is being smuggled. The offence is aimed at those involved in people smuggling,
who routinely remove the travel and identity documents of those persons being
smuggled.
The ancillary offence provisions in Division 11 of the
Criminal Code will apply to this offence, as they apply to the other
offences in the Criminal Code, and will cover the situation where the
smuggler instructs another person to destroy the documents.
As with the
other document offences in this Subdivision, this offence is punishable by 10
years imprisonment, a fine of 1000 penalty units ($100,000), or both.
Proposed section 73.12 Jurisdictional requirement
The
offences in Subdivision B of Division 73 apply the extended jurisdiction
provided for in section 15.2 (‘Category B’ jurisdiction). Category
B jurisdiction is determined according to where the conduct and result elements
of the offence occurs. In addition to the standard jurisdiction (conduct
occurring entirely in Australia or on an Australian ship or aircraft), Category
B extends the operation of offences to cover conduct which occurs wholly outside
Australia where either a result of the conduct occurs wholly or partly in
Australia (or wholly or partly on board an Australian aircraft or ship), or
where the perpetrator of the offence is an Australian citizen, a resident of
Australia or a body corporate incorporated by or under a law of the Commonwealth
or of a State or Territory.
SCHEDULE 2 – CROSS-BORDER FIREARMS
TRAFFICKING
Criminal Code Act 1995
Item 1
The Schedule
The offences in the Criminal Code Act 1995 are
contained in a Schedule (the Criminal Code). This Item amends that
Schedule by inserting Chapter 9 of the Criminal Code, titled
‘Dangers to the community’. Item 1 inserts into Chapter 9 Part
9.4, headed ‘Dangerous weapons’ which in turn contains Division
360, headed ‘Cross-border firearms trafficking’. This Division
includes offences, in the context of trade or commerce among or between the
States and Territories, criminalising the disposal and acquisition of a firearm
where an offence has been committed against an existing State or Territory
firearms law. In the longer term Chapter 9 is likely to include serious drug
and other community harm offences.
Proposed section 360.1 Disposal
and acquisition of a firearm
The cross-border firearm offences
inserted into Division 360 regulate the unlawful disposal or acquisition of a
firearm where that activity occurs in the context of interstate trade or
commerce. The offences rely on the existing State and Territory offences
governing the disposal and acquisition of a firearm.
Whilst the
objectives of each State and Territory’s legislation are generally common
there is considerable variation in the legislation when describing what
constitutes the sale or disposal of a firearm or the purchase or acquisition of
a firearm. For example some Acts refer to ‘sale’ of a firearm
whereas others refer to ‘disposal’ of a firearm and others include
commercial arrangements which, by virtue of their temporary nature, fall short
of a sale.
Proposed section 360.1 defines what is meant by
‘disposes of a firearm’ and ‘acquires a
firearm’.
In order to encompass circumstances constituting all
sorts of disposal of a firearm, subsection 360.1(1) defines ‘disposes of a
firearm’ to include:
• straightforward sale transactions
(paragraph 360.1(1)(a))
• commercial transactions which fall short of a permanent sale, such as leasing (paragraph 360.1(1)(b)), and
• the transfer of a firearm to another where whilst ownership may not
permanently transfer, the receiver does have, at least, temporary use of the
firearm (paragraph 360.1(1)(c)).
Similarly, in order to encompass all
sorts of acquisition of a firearm subsection 360.1(2) defines ‘acquires a
firearm’ to include:
• straightforward purchase transactions
(paragraph 360.1(2)(a))
• commercial transactions which fall short of a permanent sale, such as renting (paragraph 360.1(2)(b)), and
• the transfer of a firearm to another where whilst ownership may not
permanently transfer, the receiver does have, at least, temporary use of the
firearm (paragraph 360.1(2)(c)).
The definitions in proposed
section 360.1 are not exhaustive. The examples provided are intended to
encompass all possible disposal and acquisition offences that currently occur in
State and Territory law and are designed to include the widest range of
instances where a transfer in a proprietary interest in a firearm occurs.
In the event that States or Territories subsequently amend what is
covered in their acquisition or disposal offences the Commonwealth definition is
designed to be flexible enough to encompass those changes.
Proposed
subsection 360.2 Cross-border offence of disposal or acquisition of a firearm
Proposed section 360.2 makes it a Commonwealth offence to engage in
conduct in the course of interstate trade and commerce which contravenes a State
or Territory firearms law about the disposal or acquisition of a
firearm.
The disposal and acquisition of firearms is governed by State
and Territory legislation. The offence in proposed section 360.2 relies on
importing elements of those State and Territory offences to ensure that the
Commonwealth does not create offences with different or conflicting
requirements.
Proposed subsection 360.2(1) sets out the elements of the
offence.
Pursuant to proposed paragraph 360.2(1)(a), there must be three
things present for the offence to be committed:
• a person must
engage in conduct,
• that conduct must occur in the course of trade or commerce among the States between the Territories or between a Territory and a State, and
• that conduct must constitute an offence against a firearm law.
‘Firearm law’ is defined in proposed subsection 360.2(3) to
mean a law of a State or Territory which is prescribed by
Regulations.
Conduct that is an offence but that does not take place in
the context of trade or commerce among the States between the Territories or
between a Territory and a State will not be covered by proposed section 360.2
(but may still be prosecuted under relevant State or Territory legislation).
Whether a disposal or acquisition is within the context of trade or commerce
will be established by the circumstances surrounding the disposal or
acquisition
The scope of the firearm law which must be breached is
regulated by proposed paragraph 360.2(1)(b). That paragraph provides that the
‘primary element’ of the firearm offence must be either the disposal
of a firearm or the acquisition of a firearm. Disposal and acquisition of a
firearm are defined in proposed section 360.1)
The term ‘primary
element’ is used in proposed paragraph 360.2(1)(b) because there may be
some offences committed against State and Territory firearm laws in the course
of interstate trade or commerce which would not necessarily involve behaviour
that the cross-border trafficking offences are designed to target. For example,
an offence against a State or Territory firearm law where a bona fide seller
fails to safely convey a firearm across a State or Territory border should not
attract the same penalties that a purchaser in illicit cross-border trafficking
should incur.
The maximum penalty for this offence is 10 years
imprisonment or a fine of 2,500 penalty units ($275,000), or
both.
Absolute liability has been applied to the elements contained in
paragraph 360.2(1)(a). However, in establishing that the person engaged in
conduct which constituted a State or Territory firearm law, the physical and
fault elements of the particular State or Territory offence will be imported
into the Commonwealth offence, and accordingly each of those elements must be
established. Absolute liability has been applied to that element to prevent a
default fault element applying by application of section 5.6 of the Criminal
Code, which would in effect be a superfluous fault element to be proved on
top of those already existing in the State or Territory offence.
The
application of absolute liability to the fact that that conduct must occur in
the course of trade or commerce among the States between the Territories or
between a Territory and a State is consistent with the application of absolute
liability to similar ‘jurisdictional’ provisions in other parts of
the Criminal Code. That part of the offence provides the connection to
Commonwealth power, and does not affect the offender’s
culpability.
Proposed section 360.3 Taking or sending a firearm
across borders
There are 3 physical elements which must be present
for the cross border offence of disposal or acquisition of a firearm in proposed
section 360.2 to be committed.
Paragraph 360.3(1)(b) requires that the
offender do so intending that the firearm will be disposed of in the other State
or Territory. The disposal in the other State or Territory may be by the taker
or sender or the disposal may be undertaken by an associate or accomplice of the
taker or sender. In the event of the disposal being undertaken by someone other
than the taker or sender, the disposal may occur sometime after the taking or
sending. This provision also targets illegal couriers who are agents in the
illegal firearms trafficking who may not be subject to various disposal or
acquisition offences, yet are paid a premium to convey the illegal
firearms.
Paragraph 360.3(1)(c) requires that an offender must either
know or be reckless as to whether any disposal of a firearm or acquisition
subsequent to the disposal will contravene the relevant State or Territory law
in the receiving State or Territory. State and Territory laws impose a high
standard of regulation on bona fide sellers or disposers of firearms. These
requirements include a seller or disposer conveying any weapon in a safe fashion
and requiring evidence from any purchaser or acquirer that that purchaser or
acquirer is also bona fide.
The maximum penalty for this offence is 10
years imprisonment or a fine of 2,500 penalty units ($275,000), or
both.
Proposed section 360.4 Concurrent operation intended
Proposed section 360.4 ensures that any State or Territory law which
would otherwise apply still has application. This is important, as firearms
offences are generally the responsibility of the States and Territories. Unlike
the State and Territories the Commonwealth does not operate a firearm licensing
regime. The breach of a State or Territory law in the course of interstate trade
or commerce is necessary to trigger the Commonwealth offences.
SCHEDULE 3 – OTHER MEASURES
Schedule 3 amends a
number of law and justice Acts. The Schedule makes a number of minor amendments
to the theft and fraud offences in the Criminal Code, which have now been
in operation for over a year. The amendments resolve some issues which have
emerged during that time. Schedule 3 also amends the sentencing provisions in
the Crimes Act 1914, includes the substance ‘fantasy’ as a
psychotropic drug in the Crimes (Traffic in Narcotic Drugs and Psychotropic
Substances) Act 1990, amends the International Transfer of Prisoners Act
1997 to clearly define the role of the Minister for Immigration and
Multicultural and Indigenous Affairs and amends the Financial Transaction
Reports Act 1988 to ensure that remittance dealers are covered by the
definition of ‘cash dealer’ in that Act. Schedule 3 also fixes a
cross-reference in that Act.
Crimes Act 1914
Item
1 Section 16G
This Item repeals section 16G of the Crimes Act
1914 (‘Crimes Act’)
Section 16G provides that where a
federal sentence is to be served in a State or Territory prison where State or
Territory sentences cannot be remitted or reduced, the court must take that
matter into account in determining the length of sentence and adjust the
sentence accordingly. Section 19AG of the Crimes Act has the same effect with
regard to the determination of non-parole periods. Item 2 of this Schedule
repeals section 19AG.
The provisions were introduced in 1989 following
the abolition of remissions in New South Wales. The inclusion of sections 16G
and 19AG was intended to address concerns that New South Wales’ abolition
of remissions would result in higher sentences being imposed on federal
prisoners in that state than any other jurisdiction.
However, as more
jurisdictions have abolished remissions (only Western Australia and Tasmania
still have some form of remission), sections 16G and 19AG have had the effect of
reducing the maximum applicable prison term for all Commonwealth offences by one
third. Further, West Australian legislation abolishing remissions is intended to
commence in 2003, and the Tasmanian Attorney-General has signalled an intent to
remove automatic remissions. In any event, remissions in Tasmania have already
been reduced from one third of most sentences to a maximum of three months.
In addition, the provisions have created intra-state disparity between
Commonwealth and State prisoners in jurisdictions where there are no state
remissions. This is contrary to Commonwealth sentencing policy which promotes
the maintenance of intra-state parity of sentences.
There has been
considerable judicial consideration and criticism of the application of 16G and
19AG on the grounds outlined above, and it is undesirable that the maximum
prison terms which appear on the statute books are discounted in this way.
Given the abolition of remissions in most jurisdictions, and their limited
application in Tasmania at the present time, it is appropriate that sections 16G
and 19AG now be repealed.
Clause 2 of this Bill provides that the
amendments will come into effect 28 days after the Bill receives Royal Assent.
Clause 4 of this Bill provides that the amendments will only apply to a sentence
which is imposed after the provisions commence.
Item 2 Section
19AG
Item 2 repeals section 19AG of the Crimes Act, for the reasons
set out under Item 1 of this Schedule.
Item 3 Subsection
19AR(6)
Item 3 removes a cross-reference in subsection 19AR(6) of the
Crimes Act to section 19AG (which is repealed by Item 2 of this
Schedule).
Crimes (Traffic in Narcotic Drugs and Psychotropic
Substances) Act 1990
Item 4 Part 1 of Schedule 3 (after table
item dealing with Fenetylline)
Under the Crimes (Traffic in
Narcotic Drugs and Psychotropic Substances) Act 1990 (‘TINDAPS
Act’) 'psychotropic substance' is defined to mean those substances listed
in Schedule 3 of that Act. At present gamma-hydroxybutyric acid
(‘fantasy’) is not included in the list of psychotropic substances.
As ‘fantasy’ is not contained in that Schedule, law enforcement
agencies are unable to obtain a warrant under the Telecommunications
(Interception) Act 1979 in relation to an investigation into trafficking in
fantasy which does not involve importation. As ‘fantasy’ is able to
be manufactured within Australia, this poses a significant and on-going problem
to relevant investigations.
The substances listed in Schedule 3 of the
TINDAPS Act are taken from Schedules I, II, III and IV of the UN Convention on
Psychotropic Substances 1971. As ‘fantasy’ is now on Schedule IV of
that convention, it is appropriate that it be included in Schedule 3 of the
TINDAPS Act.
Schedule 3 of the TINDAPS Act is divided into two parts.
Part 1 lists psychotropic substances with the minimum weights constituting
trafficable and commercial quantities in each case. Part 2 lists those
psychotropic substances which are legally available for certain purposes and for
which, therefore, there are not trafficable and commercial quantities. Offences
involving substances in Part 2 carry lower penalties.
Item 4 includes
'fantasy' in Part 1 of Schedule 3, and lists minimum weights constituting
trafficable and commercial quantities of that substance. It is appropriate to
include ‘fantasy’ in Part 1 as it is already listed as a narcotic
substance under the Customs (Narcotic Substances) Regulations. The explanatory
statement accompanying those Regulations notes that ‘fantasy’ has no
approved therapeutic use in Australia. The commercial and trafficable amounts
of 'fantasy' are also listed in those Regulations.
The minimum weights
constituting trafficable and commercial quantities of ‘fantasy’ are
the same as those amounts set out in the Customs (Narcotic Substances)
Regulations. Those amounts are as follows:
• Commercial, 1
kilogram.
• Trafficable, 2 grams.
It is important to maintain
consistency between the amounts prescribed in the TINDAPS Act and the Customs
(Narcotic Substances) Regulations.
Criminal Code Act
1995
Item 5 The Schedule (paragraph 131.7(1)(b) of the
Criminal Code)
Item 5 amends section 131.7 of the Criminal
Code.
The effect of section 131.7 is that a person who receives
property by another’s fundamental mistake may commit the offence of theft
under section 131.1 of the Criminal Code if (i) the person is under a
legal obligation to make restoration (in whole or in part) of the
property or its proceeds and (ii) they decide not to restore that
property.
Item 5 amends the provision so that it will apply where the
person is under a legal obligation to make restoration (in whole or in part) of
the property, its proceeds or value. This amendment is
necessary because currently the section does not apply where the person is only
under a legal obligation to make restoration of the value of the
property. As property may not always be tangible, and thus able to be restored,
this gap is problematic.
For example, two persons may operate a joint
bank account into which one person’s social security payments are made.
Where that person dies, but Centrelink is not informed of the person’s
death, it may continue to make payments into that bank account. The surviving
account holder will not commit theft under section 131.1 if he or she decides to
“keep the money” knowing that it has been paid by mistake. This is
because the property (the payments) received by the surviving account holder is
strictly speaking not money but a chose in action, being a right to sue on the
debt now owed to the account holder by the bank for the amount of the payments
made by Centrelink.
That property – the chose in action –
is intangible property, and thus is unable to be restored. Further, until money
is withdrawn from the account there could be no question of there being an
obligation to restore that money as the proceeds of the chose in action. In any
event, where money is withdrawn from the account it may be unclear whether a
legal obligation would arise to restore the actual money withdrawn. For
example, the amount of the payments credited to the account may have been mixed
with payments from other sources.
However, the account holder would be
under a legal obligation from the outset to restore to Centrelink the
value of that chose in action.
Comparable provisions refer to an
obligation to restore either the property obtained by another’s
mistake, its proceeds or the value of that property (Crimes Act
1958 (Victoria); Theft Act 1968 (UK)). This amendment brings section
131.7 into line with comparable legislation.
Item 6 The Schedule
(paragraph 135.2(1) of the Criminal Code)
Subsection 135.2(1)
of the Criminal Code makes it an offence to obtain a financial advantage
from a Commonwealth entity where the person knows or believes that he or she is
not eligible to receive that financial advantage.
Item 6 amends the
structure of subsection 135.2(1) to separate the physical element that the
financial advantage is gained from a Commonwealth entity from the other elements
of the offence, and to apply absolute liability to that element.
That the
advantage is gained from a Commonwealth entity is a jurisdictional element in
that it limits the ambit of the relevant offence to fraud committed against the
Commonwealth. It is not a substantive element of the offence which should
affect the culpability of the offender.
Currently under subsection
135.2(1), the prosecution must prove that the alleged offender was aware that he
or she was obtaining an advantage from a Commonwealth entity. The difficulty
with that requirement is that although the person may be aware he or she is
obtaining an advantage from ‘the Government’, in many cases the
person will not be aware that he or she is obtaining an advantage from the
Commonwealth.
The effect of the amendment made by Item 6 is to remove
any requirement that the alleged offender be aware that it was the Commonwealth
they were dealing with in committing the offence. It will still be necessary
for the prosecution to show that the financial advantage was in fact gained from
a Commonwealth entity.
This application of absolute liability is
consistent with its application in both the Criminal Code and other
Commonwealth legislation and would ensure the effective and efficient
enforcement of these offences.
Item 7 The Schedule (paragraph
135.2(2) of the Criminal Code)
Subsection 135.2(2) of the
Criminal Code makes it an offence to obtain a financial advantage for
another person from a Commonwealth entity where the person knows or believes
that the other person is not eligible to receive that financial advantage.
Item 7 amends the structure of subsection 135.2(2) to separate the
physical element that the financial advantage is gained from a Commonwealth
entity from the other elements of the offence, and to apply absolute liability
to that element.
That the advantage is gained from a Commonwealth entity
is a jurisdictional element in that it limits the ambit of the relevant offence
to fraud committed against the Commonwealth. It is not a substantive element of
the offence which should affect the culpability of the offender.
Currently
under subsection 135.2(2), the prosecution must prove that the alleged offender
was aware that he or she was obtaining an advantage from a Commonwealth entity.
The difficulty with that requirement is that, although the person may be aware
he or she is obtaining an advantage from ‘the Government’, in many
cases the person will not be aware that he or she is obtaining an advantage from
the a Commonwealth entity as defined
The effect of the amendment made by
Item 7 is to remove any requirement that the alleged offender be aware that it
was the Commonwealth they were dealing with in committing the offence. It will
still be necessary for the prosecution to show that the financial advantage was
in fact gained from a Commonwealth entity.
This application of
absolute liability is consistent with its application in both the Criminal
Code and other Commonwealth legislation and would ensure the effective and
efficient enforcement of these offences.
Item 8 The Schedule (after
subsection 136.1(1) of the Criminal Code)
Subsection 136.1(1)
of the Criminal Code makes it an offence to provide a false or misleading
statement in particular types of applications, knowing that the statement is
false or misleading. The offence applies where the statement is made to a
Commonwealth entity, a person exercising powers or performing functions under or
in connection with a Commonwealth law, or in compliance or purported compliance
with a law of the Commonwealth (subparagraphs 136.1(1)(d)(i)-(iii)).
That
the statement be made to a Commonwealth entity, a person exercising powers or
functions under Commonwealth law, or in compliance with a Commonwealth law
serves to limit the application of the offence.
Item 8 inserts a new
subsection, 136.1(1A), which applies absolute liability to the physical elements
set out in subparagraphs 136.1(1)(d)(i)-(iii).
Currently under subsection
136.1(1), the prosecution must prove that the alleged offender was aware that he
or she was making a false statement to a Commonwealth entity, person exercising
powers or functions under Commonwealth law, or that the statement was being made
in compliance with a Commonwealth law. The difficulty with that requirement is
that although the person may be aware he or she is making a statement in
connection with an application to ‘the Government’, in many cases
the person will not be aware that the statement is being made to the
Commonwealth.
The effect of the amendment made by Item 8 is to remove
any requirement that the alleged offender be aware that it was the Commonwealth
they were dealing with in committing the offence. It will still be necessary
for the prosecution to show that the statement was made to the relevant
Commonwealth entity etc.
This application of absolute liability is
consistent with its application in both the Criminal Code and other
Commonwealth legislation and would ensure the effective and efficient
enforcement of these offences.
Item 9 The Schedule (after
subsection 136.1(4) of the Criminal Code)
Subsection 136.1(4)
of the Criminal Code makes it an offence to provide a false or misleading
statement in particular types of applications, reckless as to whether or not the
statement is false or misleading. The offence applies where the statement is
made to a Commonwealth entity, a person exercising powers or performing
functions under or in connection with a Commonwealth law, or in compliance or
purported compliance with a law of the Commonwealth (subparagraphs
136.1(4)(d)(i)-(iii)).
That the statement be made to a Commonwealth
entity, a person exercising powers or functions under Commonwealth law, or in
compliance with a Commonwealth law serves to limit the application of the
offence.
Item 9 inserts a new subsection, 136.1(4A), which applies
absolute liability to the physical elements set out in subparagraphs
136.1(4)(d)(i)-(iii).
Currently under subsection 136.1(4), the
prosecution must prove that the alleged offender was aware that he or she was
making a false statement to a Commonwealth entity, person exercising powers or
functions under Commonwealth law, or that the statement was being made in
compliance with a Commonwealth law. The difficulty with that requirement is
that although the person may be aware he or she is making a statement in
connection with an application to ‘the Government’, in many cases
the person will not be aware that the statement is being made to the
Commonwealth.
The effect of the amendment made by Item 9 is to remove
any requirement that the alleged offender be aware that it was the Commonwealth
they were dealing with in committing the offence. It will still be necessary
for the prosecution to show that the statement was made to the relevant
Commonwealth entity etc.
This application of absolute liability is
consistent with its application in both the Criminal Code and other
Commonwealth legislation and would ensure the effective and efficient
enforcement of these offences.
Item 10 The Schedule (after
subsection 137.1(1) of the Criminal Code)
Subsection 137.1(1)
of the Criminal Code makes it an offence to provide false or misleading
information to a Commonwealth entity, a person exercising powers or performing
functions under or in connection with a Commonwealth law, or where the
information is given in compliance or purported compliance with a law of the
Commonwealth.
That the information is given to a Commonwealth entity, a
person exercising powers or functions under Commonwealth law, or in compliance
with a Commonwealth law serves to limit the application of the offence. Those
three alternate elements are set out in subparagraphs
137.1(1)(c)(i)-(iii).
Item 10 inserts a new provision, subsection
137.1(1A), which applies absolute liability to the physical elements set out in
subparagraphs 137.1(1)(c)(i)-(iii).
Currently under subsection 137.1(1),
the prosecution must prove that the alleged offender was aware that he or she
was making giving false or misleading information to a Commonwealth entity, a
person exercising powers or functions under Commonwealth law, or in compliance
with a Commonwealth law. The difficulty with that requirement is that although
the person may be aware he or she is providing information to a Government body
or representative, in many cases the person will not be aware that the statement
is being made to the Commonwealth.
The effect of the amendment made by
Item 10 is to remove any requirement that the alleged offender be aware that it
was the Commonwealth they were dealing with in committing the offence. It will
still be necessary for the prosecution to show that the information was given to
the relevant Commonwealth entity etc.
This application of absolute
liability is consistent with its application in both the Criminal Code
and other Commonwealth legislation and would ensure the effective and efficient
enforcement of these offences.
Item 11 The Schedule (subparagraph
145.2(3)(a)(i) of the Criminal Code)
Item 11 amends
subparagraph 145.2(3)(a)(i) so that a prosecution must show an alleged offender
intended to dishonestly cause a computer or other device to respond to
the false document.
The offence in subsection 145.2(3) concerns
the possession of a false document with the intention that it be used to cause a
computer or other device to respond to it as if it were a genuine document, for
the purpose of dishonestly obtaining a gain or causing a loss. At present a
prosecution does not have to show the alleged offender intended to
dishonestly cause a computer or other device to respond to the false
document, as is required under the counterpart offences in subsections 144.1(3)
and 145.1(3) of the Criminal Code.
This amendment will fix subsection
145.2(3) so that it corresponds to subsections 144.1(3) and
145.1(3).
Item 12 The Schedule (after subsection 147.1(1A) of the
Criminal Code)
Section 147.1 of the Criminal Code makes
it an offence to cause harm to a Commonwealth public official, punishable by a
maximum penalty of 10 years imprisonment. Where the official is a judicial
officer or law enforcement officer, the maximum penalty for the offence is 13
years imprisonment. Section 147.1, in so far as it relates to causing harm to a
law enforcement officer, replaces a similar provision in the Australian
Federal Police Act 1979 (AFP Act), which was punishable by a maximum term of
two years imprisonment.
Section 4J of the Crimes Act 1914 provides
that (unless otherwise stated) only offences punishable by a maximum penalty of
10 years or less imprisonment are able to be dealt with summarily. Where a
matter is dealt with summarily under section 4J, that section provides for a
lesser sentence to be imposed. The maximum penalty that can be imposed is a
sentence of 2 years imprisonment and/or a fine of 120 penalty units (paragraph
4J(3)(b) of the Crimes Act ).
Currently, an offence against 147.1 of the
Criminal Code which is committed against a Commonwealth judicial officer
or a Commonwealth law enforcement officer cannot be dealt with on a summary
basis (as it has a penalty exceeding the 10 year maximum specified in section 4J
of the Crimes Act). Such an offence can only be dealt with on a summary basis
if it does not allege that the victim was a Commonwealth law enforcement or
judicial officer, but just that the victim was a Commonwealth public
official.
Where the prosecution does not believe the assault of a law
enforcement officer should be dealt with in a higher court, but should be dealt
with summarily, it has adopted the practice of charging the assault as causing
harm to a Commonwealth public official (and not a Commonwealth law enforcement
or judicial officer). Whilst this enables the offence to be dealt with
summarily, it does not meet the policy objective that a higher penalty should
apply where the harm was caused to a law enforcement officer.
Item 12
inserts proposed subsection 147.1(1A) which expressly provides that an offence
against 147.1 which is committed against a Commonwealth judicial officer or a
Commonwealth law enforcement officer may be dealt with on a summary basis. Both
the defendant and the prosecution must consent to the offence being heard
summarily, and the court of summary jurisdiction must be satisfied that it is
appropriate for particular charge to be so dealt with.
Item 12 also
inserts proposed subsection 147.1(1B), which provides for a lesser penalty to be
imposed where a matter under section 147.1 is dealt with summarily. Proposed
subsection 147.1(1) prescribes a maximum penalty of 2 years imprisonment and/or
a fine of 120 penalty units, which is consistent with the maximum penalty able
to be imposed for offences heard summarily by virtue of section 4J of the Crimes
Act.
Item 13 The Schedule (paragraphs 148.1(2)(a) and (b) of the
Criminal Code)
Section 148.1 of the Criminal Code makes
it an offence for a person other than a Commonwealth official to impersonate a
Commonwealth public official (subsection 148.1(1)) or falsely represent himself
or herself as a Commonwealth public official (subsection 148.1(2).
The
false representation offence is limited in its application by the requirement
that the person falsely represent that they are another person in that
person’s capacity as a Commonwealth official. The effect of this
requirement is that a person who falsely represents that they are a Commonwealth
public official but does not state that they are someone else would not be
guilty of an offence. This requirement also blurs the distinction between the
impersonation offence in 148.1(1) and the false representation offence in
148.1(2).
Item 13 amends the false representation offence to provide that
a person falsely represents himself or herself to be a Commonwealth public
official in a particular capacity (when he or she is not a Commonwealth public
official in that capacity), whether or not that person also falsely represents
that he or she is another person.
Item 14 The Schedule (subsection
148.1(2A) of the Criminal Code)
The amendment made by Item 14
to subsection 148.1(2A) is consequential to the amendment in Item 13.
As
the offence in subsection 148.1(2) no longer requires a person to represent
himself or herself as another person, but only requires a person to represent
himself or herself in another capacity, the references in paragraphs
148.1(2A)(a) and (b) to ‘the other person’ are no longer
necessary.
Item 15 The Schedule (subparagraph 148.1(3)(a)(ii) of the
Criminal Code)
Subsection 148.1(3) makes it an offence for a
person other than a Commonwealth official to impersonate a Commonwealth public
official (subparagraph 148.1(3)(a)(i)) or falsely represent himself or herself
as a Commonwealth public official (subparagraph 148.1(3)(a)(ii), where that
person does so with intention of obtaining a gain, causing a loss or influencing
the exercise of a public duty or function.
Item 15 amends subparagraph
148.1(3)(a)(ii) on the same basis and in the same way as Item 13 amends
subsection 148.1(2), by removing the requirement that the person committing the
offence represents himself or herself to be another person. As amended, the
offence requires only that the person falsely represent that he or she is a
Commonwealth public official in a particular capacity
Item 16 The
Schedule (subsection 148.1(3A) of the Criminal Code)
The
amendment made by Item 16 to subsection 148.1(3A) is consequential to the
amendment in Item 15.
As the offence in subparagraph 148.1(3)(a)(ii)
no longer requires a person to represent him or her self as another person,
but only requires a person to represent himself or herself in another capacity,
the references in paragraphs 148.1(1)(3A)(a) and (b) to ‘the other
person’ are no longer necessary.
Item 17 The Schedule
(paragraphs 148.2(2)(a) and (b) of the Criminal Code)
Section
148.2 of the Criminal Code makes it an offence for a Commonwealth public
official to impersonate a Commonwealth public official (subsection 148.2(1)) or
falsely represent himself or herself as a Commonwealth public official
(subsection 148.2(2).
The false representation offence is limited in its
application by the requirement that the Commonwealth public official falsely
represent that they are another person in that person’s capacity as a
Commonwealth official. The effect of this requirement is that a person who
falsely represents that they are a Commonwealth public official but does not
state that they are someone else would not be guilty of an offence. This
requirement also blurs the distinction between the impersonation offence in
148.2(1) and the false representation offence in 148.2(2).
Item 17 amends
the false representation offence to provide that a Commonwealth official falsely
represents himself or herself to be a Commonwealth public official in a
particular capacity (when he or she is not a Commonwealth public official in
that capacity), whether or not that person also falsely represents that he or
she is another person.
Item 18 The Schedule (subsection 148.2(2A)
of the Criminal Code)
The amendment made by Item 18 to
subsection 148.2(2A) is consequential to the amendment in Item 17.
As the
offence in subsection 148.2(2) no longer requires a person to represent him or
her self as another person, but only requires a person to represent himself or
herself in another capacity, the references in paragraphs 148.2(2A)(a) and (b)
to ‘the other person’ are no longer necessary.
Item 19
The Schedule (subparagraph 148.2(3)(a)(ii) of the Criminal
Code)
Subsection 148.2(3) makes it an offence for a person other than
a Commonwealth official to impersonate a Commonwealth public official
(subparagraph 148.2(3)(a)(i)) or falsely represent himself or herself as a
Commonwealth public official (subparagraph 148.2(3)(a)(ii), where that person
does so with intention of obtaining a gain, causing a loss or influencing the
exercise of a public duty or function.
Item 19 amends subparagraph
148.2(3)(a)(ii) on the same basis and in the same way as Item 17 amends
subsection 148.2(2), by removing the requirement that the person committing the
offence represents himself or herself to be another person. As amended, the
offence requires only that the person falsely represent that he or she is a
Commonwealth public official in a particular capacity
Item 20 The
Schedule (subsection 148.2(3A) of the Criminal Code)
The
amendment made by Item 20 to subsection 148.2(3A) is consequential to the
amendment in Item 19.
As the offence in subparagraph 148.2(3)(a)(ii)
no longer requires a person to represent himself or herself as another
person, but only requires a person to represent himself or herself in another
capacity, the references in paragraphs 148.2(1)(3A)(a) and (b) to ‘the
other person’ are no longer necessary.
Financial Transaction
Reports Act 1988
Item 21 Subsection 3(1) (subparagraph
(k)(ib) of the definition of cash dealer)
Item 21 of Schedule
3 amends subparagraph (k)(ib) of the definition of "cash dealer" in subsection
3(1) of the Financial Transaction Reports Act 1988 (FTR Act). The item
inserts the words "or making electronic funds transfers" into the subparagraph
to ensure that a person who carries on a business of remitting or transferring
currency or prescribed commercial instruments or making electronic funds
transfers into or out of Australia on behalf of other persons is included in the
definition of cash dealer. This amendment, together with the amendment at item
22 of Schedule 3, is intended to remove any doubt that the actual transfer of
currency into or out of Australia is required for remittance dealers to be
within the definition of "cash dealer".
Item 22 Subsection 3(1)
(after paragraph (k) of the definition of cash dealer)
Item 22
of Schedule 3 inserts a new paragraph (l) into the definition of "cash dealer"
in subsection 3(1) of the FTR Act. The new paragraph (l) is intended to ensure
that persons who carry on a business in Australia on behalf of other persons of
arranging for remittance of funds outside Australia or for remittance of funds
into Australia are within the definition of "cash dealer". This amendment,
together with the amendment at item 21 is intended to ensure that the term "cash
dealer" includes "hawala" or "underground banking"; in other words that it
covers a person who carries on a business of transmission of money or value
including through informal money or value transfer systems or networks.
Item 23 Section 17
Item 23 of Schedule 3 is a technical
amendment to section 17 FTR Act to ensure that the existing protection for cash
dealers from money laundering offences in the Proceeds of Crime Act 1987 will
carry over to the replacement money laundering offences in Division 400 of the
Criminal Code.
International Transfer of Prisoners Act
1997
Item 24 Subsection 4(1)
This item inserts a
definition of ‘Immigration Minister’ into the interpretation section
of the International Transfer of Prisoners Act 1997 (the ITP Act).
This is required due to the amendment of sections 13 and 57 of the ITP
Act.
Item 25 At the end of section 13
This item amends
section 13 of the ITP Act to require consultation between the Attorney-General
and the Immigration Minister as to whether a prisoner is eligible under
subsection 13(1) of the ITP Act. Subsection 13(1) of the ITP Act requires a
prisoner to be an Australian citizen or a permanent resident under the Migration
Act to be eligible for transfer. The proposed subsection 13(2)(b) of the
ITP Act is intended to allow consultation about whether the Immigration Minister
is intending to revoke a prisoner’s citizenship or visa, even though the
prisoner may be eligible at the time he or she makes the request.
Item
26 Section 57
This item replaces the current section 57 of the ITP
Act. The proposed section provides that the Attorney-General must obtain
the consent of the Immigration Minister prior to consenting to the transfer of a
Tribunal prisoner to Australia. The previous section 57 of the ITP Act required
the consent of the Immigration Minister to be given before the Attorney-General
could make any decision under the ITP Act, and required this consent for all
incoming and outgoing prisoners who were not Australian citizens. This was not
administratively effective. The proposed section is limited to Tribunal
prisoners, and the consent of the Immigration Minister is only required if the
Attorney-General is proposing to consent to the transfer of a prisoner.