House of Representatives

Explanatory Memorandum

(Circulated by authority of the Attorney-General, The Honourable Nicola Roxon MP)

Schedule 2 - Identity crime and air travel

GENERAL OUTLINE

The purpose of Schedule 2 is to expand identity crime offences in the Criminal Code Act 1995 and create new offences and powers relating to air travel and the use of false identities.

Identity crime

Law enforcement agencies have identified identity crime as a significant threat and as one of the fastest growing crimes in Australia. The internet and other new technologies have provided ideal instruments for organised criminals to harness and exploit the identity information of others.

Part 1 of this Schedule expands existing identity crime offences to include dealing in identification information to commit foreign indictable offences, in addition to Commonwealth indictable offences. This will strengthen the current regime for identity crime by capturing individuals located in Australia who engage in international identity crime.

Part 1 also introduces a new offence of dealing in identity information using a carriage service. This will capture persons who use the internet to make, supply or use identification information with the intent of passing themselves, or someone else, off as the person identified in the information for the purpose of committing, or facilitating, a Commonwealth, State, Territory or foreign offence.

False identity and air travel

Part 2 of this Schedule amends the Crimes Act 1914 and the Criminal Code Act 1995 .

The amendments are aimed at enabling law enforcement agencies to target individuals who travel by air under false identities. In particular, they seek to prevent individuals involved in serious and organised crime from taking flights under false identities in order to facilitate criminal activities and avoid police detection.

In its June 2011 report on its Inquiry into the Adequacy of Aviation and Maritime Security Measures to Combat Serious and Organised Crime , the Parliamentary Joint Committee on Law Enforcement (PJCLE) found that criminal networks have infiltrated Australia's aviation and maritime sectors. The PJCLE had regard to evidence that individuals involved in organised crime had been travelling by air under false identities in order to avoid police detection and facilitate criminal activities such as money laundering and illicit drug trafficking.

It is not currently a criminal offence to use false identification information to travel by air, although offences for using falsified official documents may apply such as offences for the use of false passports under the Australian Passports Act 2005 . The PJCLE recommended the creation of a new offence of travelling under a false identity to reduce this vulnerability that is being exploited by criminal networks. The Government agreed to this recommendation in its response to the PJCLE's report, and the amendments in Part 2 give effect to the recommendation.

To support the offences, the Bill will introduce a power to allow police officers at relevant airports to request identification information from individuals where the police officer holds a reasonable suspicion that the person has committed, is committing or intends to commit a serious criminal offence.

Part 1 - Identity crime

Criminal Code Act 1995

Item 1 - at the end of Division 370 of Part 9.5 of the Criminal Code

Section 370.2

Section 370.2 contains a definition of foreign indictable offence that applies to Division 372. Foreign indictable offence has been defined as an offence against a law of a foreign country or part of a foreign country that is constituted by conduct that, if engaged in Australia, could constitute an indictable offence against the law of the Commonwealth.

This definition is modelled on the definition of 'foreign offence' in section 390.1 of the Criminal Code, relating to criminal associations and organisations, and expressly includes offences against the law of a foreign country and offences against a law of part of a foreign country. The definition will ensure that an offence against the law of a particular jurisdiction within a country, such as a State or Province, will be captured by the definition.

Under section 4G of the Crimes Act, offences against a law of the Commonwealth punishable by imprisonment for a period exceeding 12 months are indictable offences, unless the contrary intention appears.

Section 370.3

The intention of section 370.3 is to ensure that State and Territory laws that create overlapping offences will continue to operate alongside Part 9.5 of the Criminal Code. This approach of allowing overlapping Commonwealth, State and Territory offences to operate concurrently is consistent with Parliament's approach to other serious crimes such as terrorism, serious drug offences and telecommunications offences.

Subsection 4C(2) of the Crimes Act protects defendants from double jeopardy by preventing multiple penalties being imposed for substantially the same conduct.

Item 2 - paragraph 372.1(1)(c)

This item repeals paragraph 372.1(1)(c) and substitutes a new paragraph.

Section 372.1 currently provides that it is an offence for a person to deal in identification information with the intention of passing themself, or someone else, off as another person for the purpose of committing, or facilitating the commission of, an indictable offence against the laws of the Commonwealth.

This item expands the offence of dealing in identification to include foreign indictable offences in addition to indictable offences against the law of the Commonwealth. This aims to ensure that a greater range of identity crime can be captured by the dealing in identification information offence.

For example, this amendment will capture a situation where a person deals in identification information in Australia for the purposes of committing fraud in another country. This will allow Australian law enforcement agencies to take action to investigate and prosecute such activities within Australia, potentially preventing the overseas fraud from ever taking place.

Item 3 - after section 372.1 of the Criminal Code

Subsections 372.1A(1) and (2)

New subsection 372.1A(1) makes it an offence to deal in identification information using a carriage service, such as the internet or a mobile phone, with the intention that a person pass themselves off as another person for the purpose of committing, or facilitating the commission of, an indictable offence against the law of the Commonwealth, a State or a Territory or a foreign indictable offence.

'Identification information' and 'deal' in information are defined in section 370.1 of the Criminal Code. Under item 1 of this Schedule, it 'foreign indictable offence' is defined as 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, could constitute an indictable offence against the law of the Commonwealth

An example of such an offence would include a person using the internet to supply identification information such as a driver's licence or financial account number with the intention of passing themselves off as that person to fraudulently acquire a benefit.

To establish the offence in subsection 371.1A(1), the prosecution will need to prove beyond a reasonable doubt that:

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a person intentionally made, supplied or used identification information

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the person did so using a carriage service, and

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the person intended that they, or any other person, would use that identification information to pretend to be, or to pass themself off as, another person for the purpose of committing, or facilitating the commission of, an indictable offence against the law of the Commonwealth, a State or a Territory or a foreign indictable offence.

New subsection 372.1A(2) provides that absolute liability will apply to paragraphs 372.1A(1)(b) and (d). Absolute liability is set out in section 6.2 of the Criminal Code. The effect of applying absolute liability to these elements would be that no fault element needs to be proved and the defence of mistake of fact is not available.

In relation to paragraph 372.1A(1)(b), the application of absolute liability would mean that the prosecution would not be required to prove that the defendant knew or was reckless as to whether a carriage service was used. In relation to paragraph 372.1A(1)(d), the application of absolute liability would mean that the prosecution would not be required to prove that a person knew or was reckless that the offence they were committing with the identification information is an indictable offence against the law of the Commonwealth, a State or a Territory or a foreign indictable offence.

Absolute liability is appropriate and required for these elements of the offence because they are jurisdictional elements which do not relate to the substance of the offence or the culpability of the defendant, but mark a jurisdictional boundary between matters that fall within the legislative power of the Commonwealth and the States. This is consistent with Commonwealth criminal law practice, as described in the Guide to Framing Commonwealth Offences, Civil Penalties and Enforcement Powers . The application of absolute liability is consistent with other offences in the Criminal Code.

This offence will be punishable by a maximum penalty of 5 years imprisonment. This is consistent with the penalty provided for in existing section 372.1 of the

Criminal Code Act 1995.

New subsection 372.1A(5) will insert a new presumption applying to the element that a carriage service was used to engage in the relevant criminal conduct. This element provides the relevant connection to the Commonwealth's constitutional power. The presumption will provide that, in relation to the element of the offence that a carriage service was used, if the prosecution proves beyond a reasonable doubt that the person engaged in the relevant criminal conduct in paragraph 372.1A(1)(a) then it is presumed, unless the person proves to the contrary, that the person used a carriage service to engage in that conduct. The operation of the new presumption is described in detail below (under the heading 'Subsection 372.1A(5)'). Subsections 372.1A(3) and (4)

New subsection 372.1A(3) makes it an offence to deal in identification information obtained using a carriage service, such as the internet or a mobile phone, with the intention that a person pass themselves off as another person for the purpose of committing, or facilitating the commission of, an indictable offence against the law of the Commonwealth, a State or a Territory or a foreign indictable offence.

'Identification information' and 'deal' in information are defined in section 370.1 of the Criminal Code. Under item 1 of this Schedule, 'foreign indictable offence' is defined as an offence against a law of a foreign country or part of a foreign country that is constituted by conduct that, if engaged in Australia, could constitute an indictable offence against the law of the Commonwealth

This offence differs from the offence in subsection 372.1A(1) because it applies where a person deals in identification information in any way where the information was obtained using a carriage service. For example, the offence would apply where a person obtains identification information through a website, but then prints the information out and uses the hard copy version for the purposes of facilitating the commission of another offence.

To establish this offence, the prosecution will need to prove beyond a reasonable doubt that:

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a person intentionally obtained identification information

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the person intentionally did so using a carriage service

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the person made, supplied or used identification information, and

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the person intended that they, or any other person, would use that identification information to pretend to be, or to pass themself off as, another person for the purpose of committing, or facilitating the commission of, an indictable offence against the law of the Commonwealth, a State or a Territory or a foreign indictable offence.

New subsection 372.1A(4) provides that absolute liability will apply to paragraphs 372.1A(3)(b) and (e). Absolute liability is set out in section 6.2 of the Criminal Code. The effect of applying absolute liability to these elements would be that no fault element needs to be proved and the defence of mistake of fact is not available.

In relation to paragraph 372.1A(3)(b), the application of absolute liability would mean that the prosecution would not be required to prove that the defendant knew or was reckless as to whether a carriage service was used. In relation to paragraph 372.1A(3)(e), the application of absolute liability would mean that the prosecution would not be required to prove that a person knew or was reckless that the offence they were committing with the identification information is an indictable offence against the law of the Commonwealth, a State or a Territory or a foreign indictable offence.

Absolute liability is appropriate and required for these elements of the offence because they are jurisdictional elements which do not relate to the substance of the offence or the culpability of the defendant, but mark a jurisdictional boundary between matters that fall within the legislative power of the Commonwealth and the States. This is consistent with Commonwealth criminal law practice, as described in the Guide to Framing Commonwealth Offences, Civil Penalties and Enforcement Powers . The application of absolute liability is consistent with other offences in the Criminal Code.

This offence will be punishable by a maximum penalty of 5 years imprisonment. This is consistent with the penalty provided for in existing section 372.1 of the Criminal Code.

New subsection 372.1A(5) inserts a new presumption applying to the element that a carriage service was used to engage in the relevant criminal conduct. This element provides the relevant connection to the Commonwealth's constitutional power. The presumption will provide that, in relation to the element of the offence that a carriage service was used, if the prosecution proves beyond a reasonable doubt that the person engaged in the relevant criminal conduct in paragraph 372.1A(3)(c) then it is presumed, unless the person proves to the contrary, that the person used a carriage service to engage in that conduct. The operation of the new presumption is described below.

Subsection 372.1A(5)

Subsection 372.1A(5) will insert a new presumption relating to the requirement in paragraphs 372.1A(1)(b) and 372.1A(3)(b) that the relevant criminal conduct was engaged in using a carriage service. The presumption is consistent with existing section 475.1B of the Criminal Code, which relates to telecommunications offences in Division 474 of the Criminal Code.

The purpose of this subsection is to address problems encountered by law enforcement agencies in proving beyond reasonable doubt that a carriage service was used to engage in the criminal conduct. In the context of identity crime, often the evidence that a carriage service was used to engage in the conduct is entirely circumstantial, consisting of evidence that the defendant's computer had identification information of another person on the hard drive, that the computer was connected to the internet and that records show that the computer accessed particular websites with names suggesting an association with identity crime.

Subsection 372.1A creates offences aimed at the use of a carriage service to commit identity crime. To a great extent, these offences rely on the Commonwealth's telecommunications power under the Constitution. Thus, the requirement in subsection 372.1A that the relevant criminal conduct be carried out through a carriage service is a jurisdictional requirement. A jurisdictional element of the offence is an element that does not relate to the substance of the offence or the defendant's culpability, but marks a jurisdictional boundary between matters that fall within the legislative power of the Commonwealth and those that do not.

bsection 372.1A(5) will provide for a new presumption applying to the physical element in the offences in subsections 372.1A(1) and (3) that a carriage service was used to engage in the particular criminal conduct. That is, in paragraphs 372.1A(1)(b) and 372.1A(3)(b) where the physical element of the offence consists of a person using a carriage service to engage in the particular criminal conduct contained in paragraphs 372.1A(1)(a) and 372.1A(3)(a) and the prosecution proves beyond a reasonable doubt that the person engaged in the conduct set out in paragraphs 372.1A(1)(a) and 372.1A(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.

A defendant will bear a legal burden in relation to proving that he or she did not use a carriage service to engage in the conduct. Sections 13.4 and 13.5 of the Criminal Code provide that in the case of a 'legal burden', a defendant must prove the relevant matter on the balance of probabilities. If this is done, it is then for the prosecution to refute the matter beyond reasonable doubt. A legal burden is appropriate because, if the prosecution has proved beyond reasonable doubt that the defendant engaged in the relevant criminal conduct, then the defendant should only be absolved from liability for a Commonwealth identity crime if the defendant can prove they did not use a carriage service to engage in the conduct.

Subsection 372.1A(6)

Subsection 372.1A(6) provides that the dealing in identification information using a carriage service offences in subsections 372.1A(1) and (3) apply even if it is impossible to commit the Commonwealth, State, Territory or foreign indictable offence or the offence is to be committed at a later time. For example, a person may still commit an offence under section 372.1A even if law enforcement agencies intervene to prevent a foreign fraud offence from being committed.

It would not be a defence that the person to whom the information relates consented to the information being made, supplied or used.

A person would not, however, commit these offences by dealing in their own identification information.

Item 4 - paragraph 372.2(1)(c) of the Criminal Code

This item inserts a reference to the new carriage service offences in subsections 372.1A(1) and (3) into the offence of possession of identification information in section 372.2 of the Criminal Code. This will broaden the scope of the 'possession' offence in section 372.2.

The effect of the amendment is that a person commits an offence if they possess identification information and intend that any person will use the identification information to commit an offence that involves dealing in identification information using a carriage service.

For example, this would capture a situation in which a person holds identification information, such as a driver's licence or credit card information, on a personal hard drive where that hard drive may be provided to another person for the purposes of dealing in identification information using the internet. In such circumstances, Australian law enforcement agencies could investigate and prosecute the first person for possession of the identification information so long as it can be shown that it was provided to another person with the intention that it be used to commit an offence against section 372.1 or subsection 372.1A (1) or (3).

Item 5 - paragraph 372.3(1)(d) of the Criminal Code

This item inserts a reference to the new carriage service offences in subsections 372.1A(1) and (3) into the offence of possession of equipment used to make identification documentation in section 372.3 of the Criminal Code. This will broaden the scope of the 'possession of equipment' offence in section 372.3.

The effect of the amendment is that a person commits an offence if they possess equipment and intend that any person will use the equipment to make identification documentation (as defined in section 370.1 of the Criminal Code) with the intention that that identification documentation will be used to commit an offence that involves dealing in identification information using a carriage service.

An example would be where a person has possession of a scanner or copier which they intend to use in order to manufacture a birth certificate with the intention of using that birth certificate to commit an offence. In such circumstances, Australian law enforcement agencies could investigate and prosecute the person for possession of the equipment so long as it can be shown that it was intended to be used to make identification information for the purposes of committing an offence against 372.1 or subsection 372.1A (1) or (3).

Items 6 and 7 - subsections 372.5(1) and (2) of the Criminal Code

This item will amend the existing alternative verdict provision in section 372.5 to include the new carriage service offences in section 372.1A. This will mean that a trier of fact, in a prosecution for an offence under section 372.1 or subsection 372.1A(1) or (3), will be able to find a person guilty of the offence under section 372.2 instead, provided that the person was accorded procedural fairness in relation to that finding of guilt. The trier of fact must be satisfied beyond reasonable doubt that the person is guilty of the section 372.2 offence.

The offence in section 372.2 of possession of identification information is preparatory to the offences of dealing in identification information. As a matter of logic, a person must 'possess' identification information to make, supply or use it in a dealing offence. The point at which the possession offence becomes the dealing offence is when the person passes themself off as another person to commit a relevant offence.

If a trier of fact is satisfied that a person possessed identification information with the intention of engaging in conduct that would be an offence under subsection 372.1A(1) or (3), but not that the person committed the more serious dealing offence, the person should not escape prosecution for the preparatory offence, subject to the safeguard of procedural fairness.

Part 2 - False identity and air travel

Crimes Act 1914

Item 8 - after Division 3A of Part IAA

This item inserts a new Division 3B-Powers to require identity information at airports. Division 3B will empower constables to request production of identification information at airports in certain circumstances.

This is necessary in order to support detection and investigation of the offences relating to air travel and false identity in new Division 376 of the Criminal Code. The power will also assist law enforcement authorities in the investigation of other serious offences as it can be used where a constable holds a reasonable suspicion that a person at an airport has committed, is committing, or is intending to commit an offence punishable by imprisonment for 12 months or more.

Division 3B-Powers to require identity information at airports Section 3UL

This section will insert definitions associated with the power to request identity information at airports in new Division 3B.

The definition of constitutional airport is identical to the same term defined in new Division 376 of the Criminal Code (at item 9 of this Schedule). The definition includes two components. The first component, in paragraph (a) of the definition of constitutional airport , is linked to the definition of Commonwealth aerodrome in section 3 of the Crimes (Aviation) Act 1991 . This aspect of the definition is intended to rely on the Commonwealth Parliament's power under subsection 52(i) of the Constitution to make laws with respect to Commonwealth places.

The definition of Commonwealth aerodrome refers to 'an area of land or water in Australia that is owned by the Commonwealth and used, or intended for use, either wholly or partly, for, or in connection with, the arrival, departure or other movement of aircraft', or a core regulated airport within the meaning of the Airports Act 1996 .

Section 7 of the Airports Act lists a number of airports as core regulated airports , including all Australia capital city airports, Sydney West Airport, Gold Coast Airport, Launceston Airport, Alice Springs Airport, Townsville Airport, and any other airport specified by regulation. The Airports Regulations lists a range of regional airports.

The second component in paragraph (b) of the definition of constitutional airport relates to airports that are located in Territories. This aspect of the definition is intended to rely on the Commonwealth Parliament's power under section 122 of the Constitution to make laws with respect to territories.

New section 3UL will insert a definition of government photographic identity document . The definition will cover any government-issued photographic identification such as a passport, driver licence or proof of age card. The definition also includes photographic identities issued by foreign governments, for example foreign passports or national identity cards. Government identity documents have been specified as they are proofs of identity most likely to be accurate. The definition would not include identification documents issued by private bodies, such as credit cards, or documents issued by the Government without a photograph, such as a Medicare card.

New section 3UL will insert a definition of identity document . The definition is based on the definition of evidence of identity in Part IAC of the Crimes Act relating to assumed identities. Identity document is defined broadly to include the documents that would fall within the definition of government photographic identity document (described above) as well as birth certificates, credit cards, student cards, and a variety of other documents that can be used to evidence or indicate a person's identity or any aspect of a person's identity.

The definition of identity document also provides for exclusion of certain documents by regulation, for example if certain types of identity documentation are found to be particularly unreliable or susceptible to fraud. Section 3UM

Under new section 3UM, constables at airports will have the power to request identification from an individual, if a threshold test is satisfied. Due to constitutional considerations, the threshold test differs depending on the nature of the airport at which the request is made.

The term constable has been used for consistency with existing terminology in the Crimes Act. Section 3 of the Crimes Act defines a constable as 'a member or special member of the Australian Federal Police or a member of the police force or police service of a State or Territory'.

Subsection 3UM(1) applies where a request is made at a constitutional airport. Section 3UL defines constitutional airport.

A constable at a constitutional airport can make a request under subsection 3UM(1) if they reasonably suspect that an individual has committed, is committing or intends to commit a Commonwealth, State or Territory offence punishable by imprisonment of 12 months or more. In practice, subsection 3UM(1) would apply to most major airports, including all Australian capital city airports, and all airports located in Territories.

Subsection 3UM(1) relies upon the Commonwealth Parliament's power to make laws with respect to Commonwealth places and Territories.

Subsection 3UM(2) would apply where a request is made at an airport within Australia that is not a constitutional airport. A constable at an airport that is not a constitutional airport can make a request under the section if they reasonably suspect that an individual has committed, is committing or intends to commit a Commonwealth offence punishable by imprisonment of 12 months or more. In practice, subsection 3UM(2) would apply to all remaining Australian airports including Cairns Airport, which is the only international airport that is not a constitutional airport.

Under subsections 3UM(1) and (2), only those individuals who the police reasonably suspect may be involved in serious criminal activity could be asked to provide identification. The threshold of reasonable suspicion is consistent with the threshold for other investigations powers such as search warrants.

Under subsection 3UM(3), once a threshold test in subsections 3UM(1) or (2) is satisfied, a constable may request that the person under suspicion (the suspect) provide evidence of the suspect's identity.

There is currently no requirement for individuals in Australia to carry identification. As a result, the provision allows for a series of cascading requests. The constable may request from the suspect a government photographic identity document in relation to the suspect. If the suspect does not produce such a document, the constable may request some other identity documentation as defined in section 3UL. If the suspect does not produce any identification documentation, the constable may request that the suspect provide their name and address, either verbally or by another method such as in writing.

A person who has been subject to a request under subsection 3UM(3) must comply with the request. Section 3UN sets out an offence of failing to comply with the request.

Subsections 3UM(4) and (5) provide procedural fairness safeguards by inserting duties with which the requesting constable must comply.

Before making a request under subsection 3UM(3), a constable who is not in uniform must comply with subsection 3UM(4). In such a case, the constable is required to show the suspect evidence that the constable is a constable (subparagraph 3UM(4)(a)(i)) and, if the suspect requests, the constable must also comply with the requirements of subsection 3UM(5) (subparagraph 3UM(4)(a)(ii)).

Under paragraph 3UM(4)(b), a constable must inform the suspect that it may be an offence not to comply with the request or to give a false or misleading document or false or misleading information in response to a request.

Subsection 3UM(5) will apply if the constable is not in uniform and the suspect requests further information from the constable, either under subparagraph 3UM(4)(a)(ii) or otherwise. If requested, the constable must give the suspect the constable's name (paragraph 3UM(5)(a)), the address of the constable's place of duty (paragraph 3UM(5)(b)), the constable's identification number if any (paragraph 3UM(5)(c)) and, if the constable has no identification number, the constable's rank ((paragraph 3UM(5)(d)).

The constable would commit an offence under new subsection 3UN(3) if he or she did not comply with these requirements (detailed below).

Subsections 3UN(1) and (2)

Under new subsection 3UN(1), a person would commit an offence if he or she fails to comply with a request under section 3UM and the requesting constable has complied with the duties that apply to the constable under that section. A person can fail to comply with a request under section 3UM if they refuse to provide evidence of their identity, or if they do not provide any appropriate response.

To establish that the offence under section 3UN(1) has been committed, the prosecution will need to prove beyond reasonable doubt that:

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a constable had made a request in accordance with section 3UM

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the suspect intentionally failed to comply with the request, and

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the constable had not failed to comply with his or her duties in subsection 3UM(4).

The offence at subsection 3UN(1) will be punishable by a maximum penalty of 20 penalty units. This penalty is consistent with the penalty for the offences of refusing or failing to comply with a request to provide name and address in relation to preventative detention orders (section 105.21 of the Criminal Code) and protective service offences (section 14I of the Australian Federal Police Act 1979 ).

A note has been included alerting the reader to the fact that, in failing to comply with the request, a person may also be committing the more serious offences of giving or producing false or misleading information under sections 137.1 and 137.2 of the Criminal Code (maximum penalty of 12 months imprisonment) or obstructing a Commonwealth public official (maximum penalty of 2 years imprisonment).

Subsection 3UN(2) provides that strict liability applies to paragraphs 3UN(1)(a) and (c). Strict liability is set out in section 6.1 of the Criminal Code. The effect of applying strict liability to an element of an offence will mean that no fault element needs to be proved and the defence of mistake of fact is available. Accordingly, the prosecution will be required to prove that the constable did in fact make a request in accordance with section 3UM, and that the constable complied with their duties in subsection 3UM(4), but will not need to prove that the person knew that the request was in accordance with subsection 3UM(4) or that the person knew that the constable had complied with his or her duties. Applying strict liability is appropriate in these circumstances as the defendant's knowledge of those issues is not relevant to their culpability. However, the general defence of mistake of fact will be available to the defendant.

The defence of mistake of fact is set out in section 9.2 of the Criminal Code. The defence provides that a person is not criminally responsible for an offence that includes a physical element to which strict liability applies if:

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at or before the time of the conduct constituting the physical element, the person considered whether or not a fact existed, and is under a mistaken but reasonable belief about those facts, and

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had those facts existed, the conduct would not have constituted an offence.

Subsection 3UN(3)

Under subsection 3UN(3), a constable would commit an offence if he or she fails to comply with the duties set out in subsection 3UM(4). Those duties require the constable to provide evidence of their position as a constable if they are not in uniform, and to inform the suspect of the consequences of non-compliance with a request.

To establish that the offence under subsection 3UN(3) has been committed, the prosecution will need to prove beyond reasonable doubt that:

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the constable is reckless as to whether they are subject to the requirements in section 3UM(4), being that they are about to make a request under section 3UM

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the constable intentionally engages in conduct, and

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the constable's conduct recklessly breaches the requirements as set out in subsection 3UM(4).

The offence at subsection 3UN(1) will be punishable by a maximum penalty of 5 penalty units. This penalty is consistent with the maximum penalty for a similar offence in subsection 105.21(4) of the Criminal Code.

Subsection 3UN(4)

Subsection 3UN(4) sets out what constitutes conduct for the purpose of the offences. The provision clarifies that both the doing of an act or an omission to perform an act constitute conduct for the purposes of section 3UN.

For example, a plain clothes constable at an airport forms a reasonable suspicion that a person is committing an offence applicable to subsections 3UM(1) or (2). The constable proceeds with making a request of the suspect under section 3UM without providing the suspect with evidence that they are a constable and without informing the suspect that it may be an offence not to comply with the request. These omissions are considered conduct for the purposes of paragraph 3UN(3)(b).

Criminal Code Act 1995

Item 9 - At the end of Part 9.5 of the Criminal Code

This item will insert a new Division 376-False identity and air travel-at the end of Part 9.5 of the Criminal Code. Division 376 will contain offences for:

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using a false identity at a constitutional airport for the purpose of travelling on a flight (new section 376.2)

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using a false identity to obtain a flight ticket via a carriage service (new

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subsection 376.3(1))

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taking a flight using a ticket obtained via a carriage service under a false identity (new subsection 376.3(2))

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using a false identity to obtain a ticket for a constitutionally covered flight (new subsection 376.4(1)), and

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taking a constitutionally covered flight using a ticket obtained using a false identity (new subsection 376.4(2))

Section 376.1

This section will contain definitions relevant to new Division 376.

The definition of air passenger ticket is based on to the definition of the same term in the Air Passenger Ticket Levy (Collection) Act 2001 . The definition is wide enough to include physical tickets (such as a boarding card) and electronic tickets (such as an e-ticket that can be displayed on a mobile telephone for scanning). Air passenger ticket can refer to a single or multiple flights, meaning single tickets with multiple journey sectors are included in the definition. There is no requirement for an air passenger ticket to be purchased, and as a result all means by which a person is entitled to travel on a flight or flights are covered, including complimentary flights and flights obtained by exchanging rewards points.

The definition of false is intended to cover instances where identification information is materially, and not merely technically, false with respect to the person being identified. Instances where a person's identification may not be considered false despite a discrepancy between their formal name and purported name in a given situation include:

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where the person uses a more common version of their name, such as Ken instead of Kenneth

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where the person uses a former name (such as a maiden name) and the person is generally known by both names, or

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where the person is commonly known by a name different from their formal name, such as their middle name.

The definition of false includes the term identification information , which refers to the existing definition in section 370.1 of the Criminal Code. Identification information has been defined broadly, and includes:

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information such as name or address, for example a name on a flight ticket or booking confirmation, and

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an identity document, such as a driver licence or passport.

Section 376.2

New section 376.2 creates an offence when a person uses false identification information at a constitutional airport to identify themselves to travel on a flight.

To establish that the offence under section 376.2 has been committed, the prosecution will need to prove beyond reasonable doubt that:

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the defendant intentionally uses information at a place

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the defendant does so reckless as to whether the information is used to identify the defendant as a passenger on a flight

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the defendant is reckless as to whether the information is identification information

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the defendant is reckless as to whether the information is false in relation to the defendant, and

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the place is a constitutional airport.

Examples of where section 376.2 would apply include:

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a person checks in for a flight at Kingsford Smith Airport (a constitutional airport) under a false name, for the purposes of taking a flight from Sydney to Canberra

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a person shows a boarding pass under a false name at a Tullamarine Airport (a constitutional airport) gate, in order to board a flight from Melbourne to Adelaide

•

a person provides a false name or shows false identification at Canberra Airport (a constitutional airport), in order to purchase a ticket for a flight from Wagga Wagga to Dubbo.

Recklessness has been applied as the fault element for the conduct element in paragraph 376.2(1)(b). Section 5.4 of the Criminal Code contains the definition of recklessness. A person is reckless with respect to a result if he or she is aware of a substantial risk that the result will occur, and, having regarding to the circumstances, it is unjustifiable to take the risk. Recklessness has been applied for the element in paragraph 376.2(1)(b) of the offence as it is the standard fault element for this type of physical element under the Criminal Code.

Paragraph 376.2(1)(d) requires the information to be 'false' in relation to the defendant. The offence is not intended to cover situations where there is a mere discrepancy between the name that an individual is travelling under and their identity. The proposed definition of false in section 376.1 is intended to cover instances where identification information is materially, and not merely technically, false with respect to the person being identified. The definition of false is described in detail at section 376.1, above.

The existing Criminal Code defence of lawful authority under section 10.5 would apply in other situations where individuals may fly under names other than their own for legitimate purposes, for example, persons in witness protection.

The maximum penalty for the offence will be 12 months imprisonment. This penalty has been applied as the offence is similar in nature to the offences of providing false or misleading documents in Part 7.4 of the Criminal Code, which carry a maximum penalty of 12 months imprisonment.

Subsection 376.2(2) will specify that absolute liability applies to paragraph 376.2(1)(e). This element relates to whether the place in which the defendant uses information is a constitutional airport.

As indicated by the note to subsection 376.2(2), absolute liability is set out in section 6.2 of the Criminal Code. The effect of applying absolute liability to an element of an offence means that no fault element needs to be proved and the defence of mistake of fact under section 9.2 of the Criminal Code is not available. Accordingly, the prosecution will not be required to prove that the defendant knew or was reckless as to the fact that the place at which the defendant uses information is a constitutional airport.

Absolute liability is appropriate and required for the element in the offence that relates to a constitutional airport because this element is a jurisdictional element of the offence. A jurisdictional element of the offence is an element that does not relate to the substance of the offence, but marks a jurisdictional boundary between matters that fall within the legislative power of the Commonwealth and those that do not. The issue of whether the defendant intended to engage in the conduct at a constitutional airport is not relevant to their culpability. This is consistent with Commonwealth criminal law practice, as described in the Guide to Framing Commonwealth Offences, Civil Penalties and Enforcement Powers .

Subsection 376.2(3) contains a definition of constitutional airport. The definition has two components. The first component in paragraph 376.2(3)(a) is linked to the definition of Commonwealth aerodrome in section 3 of the Crimes (Aviation) Act 1991 . The definition of Commonwealth aerodrome refers to 'an area of land or water in Australia that is owned by the Commonwealth and used, or intended for use, either wholly or partly, for, or in connection with, the arrival, departure or other movement of aircraft', or a core regulated airport within the meaning of the Airports Act 1996 .

Section 7 of the Airports Act lists a number of airports as a 'core regulated airport', including all Australia capital city airports, Sydney West Airport, Gold Coast Airport, Launceston Airport, Alice Springs Airport, Townsville Airport, and any other airport specified by regulation. The Airports Regulations lists a range of regional airports. The first component of the definition is intended to rely on the Commonwealth Parliament's power under subsection 52(i) of the Constitution to make laws with respect to Commonwealth places.

The second component of the definition of constitutional airport in paragraph 376.2(3)(b) relates to airports that are located in a Territory. This aspect of the definition is intended to rely on the Commonwealth Parliament's power under section 122 of the Constitution to make laws with respect to territories. In accordance with section 3A of the Criminal Code, the definition includes external Territories.

The definition of constitutional airport is consistent with the definition in new section 3UL of the Crimes Act in relation to powers to require identity information at airports. This is described in detail at item 8 of this Schedule.

Subsection 376.3(1)

Subsection 376.3(1) applies to individuals who obtain flight tickets using a carriage service using a false identity with respect to the person who will take the flight. This offence is necessary as, in practice, the vast majority of tickets for flights are purchased over the internet (either directly from an airline's website or through a third party website) or over the telephone and the carriage service element provides a connection to the Commonwealth's constitutional power.

To establish that the offence in subsection 376.3(1) has been committed, the prosecution will need to prove beyond reasonable doubt that:

•

the defendant intentionally used information

•

the defendant used the information:

•

reckless as to whether, as a result of their use of the information, a ticket for a flight was obtained by the defendant or another person

•

reckless as to whether the information was used to identify the defendant or another person as a passenger on the flight

•

the defendant was reckless as to whether the information was identification information

•

the defendant was reckless as to whether that information was false in relation to the person who would take, or intended to take, the flight using the ticket

•

the ticket was obtained (note the carriage service presumption in subsection 376.3(3))

•

the flight starts or ends within Australia.

Subsection 376.3(1) is intended to capture a number of scenarios in which a flight ticket can be obtained using a false identity. The offence is framed so that it applies where the defendant uses false information to cause the defendant or another person such as a travel agent to obtain a ticket. The offence could also apply where a person obtains a flight ticket from a third party website. The offence is also framed to capture the situation where a person purchases a ticket for another person, where the booking name is false with respect to that other person.

In the following examples Adelle would be committing an offence under subsection 376.3(1):

•

Adelle uses the internet to book a flight under the name of Belinda, when Adelle intends to use the ticket herself.

•

Adelle calls an airline to book a flight under the name of Belinda, knowing or being reckless as to whether Claire would use the ticket to fly.

•

Adelle engages a travel agent to book a flight for herself, but provides the name of Belinda to the travel agent for the purpose of booking the ticket. The agent makes the booking over the internet.

Paragraph 376.3(1)(d) requires the information to be 'false' in relation to the defendant. The offence is not intended to cover situations where there is a mere discrepancy between the name that an individual is travelling under and their identity. The proposed definition of false in section 376.1 is intended to cover instances where identification information is materially, and not merely technically, false with respect to the person being identified. The definition of false is described in detail at section 376.1, above.

The offence at subsection 376.3(1) will be punishable by a maximum penalty of 12 months imprisonment. This penalty has been applied as the offence is similar in nature to the offences of providing false or misleading documents in Part 7.4 of the Criminal Code, which carry a maximum penalty of 12 months imprisonment.

Subsection 376.3(2)

Subsection 376.3(2) applies to and individual who takes a flight using a ticket in a false identity that has been obtained using a carriage service. The offence in subsection 376.3(2) applies regardless of whether the defendant was involved in obtaining the ticket or not.

To establish that the offence under section 376.3(2) has been committed, the prosecution will need to prove beyond reasonable doubt that:

•

the defendant intentionally took a flight using an air passenger ticket

•

the defendant:

•

intentionally used identification information to obtain the ticket, or

•

was reckless as to whether another person used identification information to obtain the ticket

•

the defendant was reckless as to whether the information would result in the identification of a person as a passenger on the flight

•

the defendant was reckless as to whether the information was false in relation to the defendant

•

a ticket for the flight was obtained using a carriage service (note the carriage service presumption in subsection 376.3(3))

•

the flight starts or ends within Australia.

In the following examples Stephen would be committing an offence under subsection 376.3(2):

•

Stephen takes a flight using a ticket that he purchased over the internet in the name of Tom.

•

Stephen takes a flight using a ticket that Tom purchased over the telephone, the ticket is in the name of Tom, and Stephen was reckless as to whether the name on the ticket he used was false (note: Tom may also have committed an offence under subsection 376.3(1) if he knew or was reckless to the fact that Stephen would be using the ticket that has been issued in Tom's name).

•

Stephen takes a flight using a ticket that Tom obtained through a travel agent, who booked the flight over the internet, and the ticket is in the name of Jerry (note: Tom may also have committed an offence under subsection 376.3(1) if he knew or was reckless to the fact that Stephen or someone else would be using the ticket that has been issued under the name of Jerry).

Two different fault elements apply to paragraph 376.3(2)(b) depending on who obtained the ticket using the false identification information. Where the defendant obtained the ticket, the element relates to conduct of the defendant in using or having used identification information, which carries a default fault element of intention.

Where another person obtained the ticket, the element is a circumstance in which the defendant's conduct occurred, which carries a default fault element of recklessness.

Section 5.4 of the Criminal Code contains the definition of recklessness. A person is reckless with respect to a result if he or she is aware of a substantial risk that the result will occur, and, having regarding to the circumstances, it is unjustifiable to take the risk.

Under subsection 376.3(2), the prosecution would need to show that the defendant was aware of a substantial risk that a ticket was obtained by another person using false identification information.

Paragraph 376.3(2)(d) requires the information to be 'false' in relation to the defendant. The offence is not intended to cover situations where there is a mere discrepancy between the name that an individual is travelling under and their identity. The definition of false in section 376.1 is intended to cover instances where identification information is materially, and not merely technically, false with respect to the person being identified. The definition of false is described in detail at section 376.1, above.

The offence at subsection 376.3(2) will be punishable by a maximum penalty of 12 months imprisonment. This penalty has been applied as the offence is similar in nature to the offences of providing false or misleading documents in Part 7.4 of the Criminal Code, which carry a maximum penalty of 12 months imprisonment.

Subsection 376.3(3)

Subsection 376.3(3) provides for a presumption that a carriage service was used to obtain the flight ticket for the purposes of paragraphs 376.3(1)(e) and 376.3(2)(e). The presumption is similar to the presumption in section 475.1B(1) of the Criminal Code in relation to telecommunications offences.

The presumption will provide that, in relation to the element of the offences that a carriage service was used, if the prosecution proves beyond reasonable doubt that a ticket for a flight was obtained, then it is presumed, unless the defendant proves to the contrary, that a carriage service was used to obtain that ticket.

Its effect is that it is presumed that a person (the defendant or another person) used a carriage service to obtain the ticket, if the prosecution can prove beyond reasonable doubt that the air passenger ticket to which the offence relates was obtained. The presumption can be rebutted if the defendant is able to prove on the balance of probabilities that a carriage service was not used to obtain the ticket.

The carriage service element of the offences in section 376.3 provides a necessary connection to the Commonwealth's constitutional power. Insertion of the presumption is necessary to address problems experienced by law enforcement agencies in proving beyond reasonable doubt that a carriage service was used to engage in relevant conduct. A presumption in this instance is appropriate, given it is not an element that goes to the substance of the offence, or to the person's criminal culpability, but is a jurisdictional element. That is, an element marking a boundary between matters that fall within the legislative power of the Commonwealth and those that do not.

Subsection 376.3(4)

Subsection 376.3(4) will specify that absolute liability applies to paragraphs 376.3(1)(e) and (f) and paragraphs 376.3(2)(e) and (f). These elements relate to whether a carriage service was used to obtain a flight ticket and that the relevant flight starts or ends within Australia in subsections 376.3(1) and (2) respectively.

As indicated in the note to subsection 376.4(4), absolute liability is set out in section 6.2 of the Criminal Code. The effect of applying absolute liability to an element of an offence is that no fault element needs to be proved and the defence of mistake of fact under section 9.2 of the Criminal Code is not available. Accordingly, the prosecution will not be required to prove that the defendant knew or was reckless as to the fact that a carriage service was used to obtain the ticket (note the operation of the presumption in subsection 376.3(3)), and that the relevant flight starts or ends within Australia.

Absolute liability is appropriate and required for these elements in the offences that relate to use of a carriage service and where a flight starts and ends because these elements are jurisdictional elements of the offences. A jurisdictional element of an offence is an element that does not relate to the substance of the offence, but marks a jurisdictional boundary between matters that fall within the legislative power of the Commonwealth and those that do not. The issue of whether a carriage service was used to obtain a flight ticket or whether the flight started or ended within Australia is not relevant to the defendant's culpability. This is consistent with Commonwealth criminal law practice, as described in the Guide to Framing Commonwealth Offences, Civil Penalties and Enforcement Powers .

Subsection 376.4(1)

Subsection 376.4(1) will insert an offence relating to obtaining a flight ticket under a false identity, where the flight is a constitutionally covered flight. The effect of the provision is that any person who books a flight under a false identity commits an offence, where the flight falls within the definition of constitutional flight .

To establish that the offence in subsection 376.4(1) has been committed, the prosecution will need to prove beyond reasonable doubt that:

•

the defendant intentionally used information

•

the defendant used the information:

•

reckless as to whether, as a result of their use of the information, a ticket for a flight was obtained by the defendant or another person

•

reckless as to whether the information was used to identify the defendant, or another person, as a passenger on the flight

•

the defendant was reckless as to whether the information was identification information

•

the defendant was reckless as to whether the information was false in relation to the person who takes, or intends to take, the flight using the ticket

•

the flight is a constitutional flight.

Subsection 376.4(1) is drafted to capture a number of scenarios in which a ticket for a constitutional flight can be obtained using a false identity. Subparagraph 376.4(1)(b)(i) is framed so that it applies if the defendant uses false information to cause the defendant or another person such as a travel agent to obtain a ticket, with the defendant being culpable in both scenarios. Paragraph 376.4(1)(d) is framed to capture the situation where a person purchases a ticket for another person, where the booking name is false with respect to that other person.

In the following examples Manny would be committing an offence under subsection 376.4(1):

•

Manny books a ticket under the name of Nick, for a flight from Canberra to the Gold Coast (a flight that starts in a territory), when Manny intends to use the ticket himself.

•

Manny books a charter flight ticket under the name of Nick, for a flight from Sydney to Melbourne (a commercial flight between two states), knowing or being reckless as to whether Oliver would use the ticket to fly.

•

Manny engages a travel agent to book a flight for himself, the agent books a flight ticket to travel from Sydney to Bangkok (a commercial flight between Australia and a foreign country), but Manny provides the name of Nick to the travel agent for the purpose of booking the ticket.

•

Manny engages a travel agent purportedly to book a flight for Nick, the agent books a flight from Darwin to Alice Springs (a flight that starts and ends in a territory), and Manny knew or was reckless as to whether Oliver would use the ticket to fly.

Paragraph 376.4(1)(d) requires the information to be 'false' in relation to the defendant. The offence is not intended to cover situations where there is a mere discrepancy between the name that an individual is travelling under and their identity. The definition of false in section 376.1 is intended to cover instances where identification information is materially, and not merely technically, false with respect to the person being identified. The definition of false is described in detail at section 376.1, above.

The offence at subsection 376.4(1) will be punishable by a maximum penalty of 12 months imprisonment. This penalty has been applied as the offence is similar in nature to the offences of providing false or misleading documents in Part 7.4 of the Criminal Code, which carry a maximum penalty of 12 months imprisonment.

Subsection 376.4(2)

Subsection 376.4(2) will create an offence applying to individuals who fly on a constitutionally covered flight, regardless of whether the defendant was involved in obtaining the ticket or not.

To establish that the offence under section 376.4(2) has been committed, the prosecution will need to prove beyond reasonable doubt that:

•

the defendant intentionally took a flight using an air passenger ticket

•

the defendant intentionally used identification information, or the defendant was reckless as to whether another person used identification information (whichever applies in the circumstances), to obtain the ticket

•

the defendant was reckless as to whether the information would result in the identification of a person as a passenger on the flight

•

the defendant was reckless as to whether the information was false in relation to the defendant, and

•

the flight is a constitutional flight.

In the following examples Diana would be committing an offence under subsection 376.4(2):

•

Diana takes a flight from the Gold Coast to Canberra (a flight that ends in a Territory) using a ticket she purchased under the name of Elizabeth.

•

Diana takes a flight from Sydney to Melbourne (a commercial flight between two states) using a ticket that Elizabeth purchased, the ticket is in the name of Elizabeth, and Diana was reckless as to whether the name on the ticket she used was false (note: Elizabeth may have committed an offence under subsection 376.4(1) if she knew or was reckless to the fact that Diana would be using the ticket that has been issued in Elizabeth's name).

•

Diana takes a flight from Sydney to Bangkok (a commercial flight between Australia and a foreign country) using a ticket that Elizabeth obtained through a travel agent using Elizabeth's frequent flyer points, the ticket is in the name of Fay, and Diana was reckless as to whether the name on the ticket she used was false (note: Elizabeth may also have committed an offence under subsection 376.4(1) if she knew or was reckless to the fact that Diana or someone else would be using the ticket that has been issued under the name of Fay).

Two different fault elements apply to paragraph 376.4(2)(b), which relates to use of identification information to obtain a flight ticket. Where the defendant obtained the ticket, the element relates to conduct of the defendant in using or having used identification information, which carries a default fault element of intention. Where another person obtained the ticket, the element relates to a circumstance in which the defendant's conduct occurred, which carries a default fault element of recklessness. In this case, the prosecution would need to show that the defendant was reckless as to whether that other person had used false identification information (with respect to the defendant) to obtain a flight ticket, which the defendant then used to take a flight.

Paragraph 376.4(2)(d) requires the information to be 'false' in relation to the defendant. The offence is not intended to cover situations where there is a mere discrepancy between the name that an individual is travelling under and their identity. The definition of false in section 376.1 is intended to cover instances where identification information is materially, and not merely technically, false with respect to the person being identified. The definition of false is described in detail at section 376.1, above.

The offence at subsection 376.4(2) will be punishable by a maximum penalty of 12 months imprisonment. This penalty has been imposed as the offence is similar in nature to the offences of providing false or misleading documents in Part 7.4 of the Criminal Code, which carry a maximum penalty of 12 months imprisonment.

Subsection 376.4(3)

Subsection 376.4(3) will specify that absolute liability applies to paragraphs 376.4(1)(e) and 376.4(2)(e). These elements relate to whether a flight to which an air passenger ticket relates or a flight that is taken by the defendant is a constitutional flight in subsections 376.4(1) and (2) respectively.

As indicated by the note to subsection 376.2(2), absolute liability is set out in section 6.2 of the Criminal Code. The effect of applying absolute liability to an element of an offence is that no fault element needs to be proved and the defence of mistake of fact under section 9.2 of the Criminal Code is not available. Accordingly, the prosecution will not be required to prove that the defendant knew or was reckless as to the fact that the flight to which an offence under section 376.4 is a constitutional flight.

Absolute liability is appropriate and required for these elements in the offences that relate constitutional flights because these elements are jurisdictional elements of the offences. A jurisdictional element of an offence is an element that does not relate to the substance of the offence, but marks a jurisdictional boundary between matters that fall within the legislative power of the Commonwealth and those that do not. The issue of whether a carriage service was used to obtain a flight ticket or whether the flight started or ended within Australia is not relevant to the defendant's culpability. This is consistent with Commonwealth criminal law practice, as described in the Guide to Framing Commonwealth Offences, Civil Penalties and Enforcement Powers .

Subsection 376.4(4)

Subsection 376.4(4) sets out the definition of constitutional flight , being:

(a)

a flight that starts or ends in a Territory

(b)

a flight between Australia and a foreign country in the course of trade and commerce, where the flight is a passenger flight, or

(c)

a flight between one State and another State in the course of trade and commerce, where the flight is a passenger flight.

The categories of constitutional flight at paragraph 376.4(4)(a) rely upon the Commonwealth Parliament's power under section 122 of the Constitution to make laws with respect to territories.

The categories of constitutional flight at paragraphs 376.4(4)(b) and (c) rely upon the Commonwealth Parliament's power under subsection 51(i) of the Constitution to make laws with respect to trade and commerce with other countries and among the states. In practice, these paragraphs would apply to any commercial or chartered flight between Australia and another country or between Australian states, where a flight is a passenger flight (i.e. not solely for cargo).

This section would apply to the majority of flights within, into or out of Australia.

Section 376.5

This section applies Category D extended geographical jurisdiction to the offences in new sections 376.3 and 376.4, which relate to flight tickets that have been obtained using a carriage service and constitutionally covered flights respectively.

Section 15.4 of the Criminal Code sets out the meaning of Category D extended geographical jurisdiction. Application of section 15.4 to an offence will result in the offence applying whether or not the conduct constituting the alleged offence occurs in Australia, and whether or not a result of the conduct constituting the alleged offence occurs in Australia.

For the offences of obtaining a ticket for a flight under subsections 376.3(1) and 376.4(1), this means the offence would apply where the defendant used false identification information outside Australia in order to obtain an air passenger ticket. For example, a person may be located in a foreign country when they purchase a ticket for a constitutionally covered flight or purchase the ticket using a carriage service (provided that the booked flight started or ended in Australia).

For the offences in subsections 376.3(2) and 376.4(2), this means the offence would apply where the defendant takes a flight from a foreign country to Australia. For example, the offence would apply where a person takes a flight from Paris to Brisbane using a ticket obtained using a false identity.

Part 3 - Application of amendments

Item 10 - Amendments made by Part 2

Subsection (1) of this item provides that the new Division 3B of Part IAA of the Crimes Act 1914 can be applied to individuals reasonably suspected, on or after commencement, of relevant serious offences. However, those suspected offences can relate to conduct or circumstances that occurred before commencement. This does not create any retrospective liability.

Subsection (2) of this item provides that the new Division 376 of the Criminal Code applies to conduct and circumstances that occur on or after commencement.

As indicated in the note in this item, this item commences on the day after the Crimes Legislation Amendment (Serious Drugs, Identity Crime and Other Measures) Bill receives Royal Assent. CHAPTER>Schedule 3 - Other measures

GENERAL OUTLINE

The purpose of Schedule 3 is to make amendments relating to the functions of the Law Enforcement Integrity Commissioner, the value of penalty units and superannuation orders.

Integrity Commissioner functions

Part 1 amends the Law Enforcement Integrity Commissioner Act 2006 (LEIC Act) to strengthen the Commonwealth public sector integrity system by clarifying the functions of the Integrity Commissioner.

The LEIC Act sets out the powers and functions of the Integrity Commissioner and establishes the Australian Commission for Law Enforcement Integrity (ACLEI) as a supporting statutory agency. The main objectives of the Integrity Commissioner and ACLEI are the maintenance and strengthening of the integrity of law enforcement at the Commonwealth level.

These amendments clarify the function of the Integrity Commissioner with respect to detection and prevention of corruption, widen the Integrity Commissioner's scope to consider ACLEI corruption issues and enable the Integrity Commissioner to delegate the power to conduct public inquiries to an Assistant Integrity Commissioner.

Penalty units

Part 2 amends the Crimes Act to adjust the value of the penalty unit to accommodate increases in the Consumer Price Index (CPI) and to provide for the regular review of the value of the penalty unit moving forward.

The value of monetary penalties for criminal offences in Commonwealth legislation and Territory ordinances is regulated by the penalty unit mechanism established in Part 1A of the Crimes Act. Section 4AA of the Crimes Act specifies the monetary value of a penalty unit at any particular time. The penalty unit mechanism allows the maximum monetary penalty for all offences under Commonwealth law, or Territory ordinances, to be automatically adjusted with a single amendment to section 4AA of the Crimes Act. This removes the need for multiple legislative amendments and ensures that monetary penalties in Commonwealth legislation and Territory ordinances remain comparable.

Superannuation orders

Part 3 amends the Crimes (Superannuation Benefits) Act 1989 (the CSB Act) and the Australian Federal Police Act 1979 (the AFP Act).

These two Acts provide for the forfeiture and recovery of employer funded superannuation benefits that are payable, or have been paid, to employees who have been convicted of corruption offences, and sentenced to more than 12 months' imprisonment. Under the two Acts, 'employees' include public servants, members of the Australian Defence Force and Australian Federal Police, parliamentarians and judges.

The amendments will make it clear that a superannuation order can be made in relation to employer benefits accrued during all periods of Commonwealth employment, not just the period of employment in which the corruption offence was committed.

This will ensure that the legislation applies equally to all employees who have committed a corruption offence while an employee, regardless of whether an employee has one continuous period of employment or more than one separate periods of employment.

Part 1 - Integrity Commissioner functions

Division 1 - Amendments

Law Enforcement Integrity Commissioner Act 2006

Item 1 - before paragraph 15(a)

This item inserts a new paragraph 15(aa) into the LEIC Act, which adds the detection of corrupt conduct in law enforcement agencies to the Integrity Commissioner's functions.

Section 3 sets out the objects of the LEIC Act and section 15 sets out the functions of the Integrity Commissioner. However, aspects of section 3 - the detection and prevention of corrupt conduct - were previously not translated into corresponding functions of the Integrity Commissioner under section 15.

Reference to an explicit detection function under section 15 better reflects the LEIC Act's objects and provides a legislative basis for the detection aspects of the Integrity Commissioner's work, augmenting the investigative process and enabling ACLEI to take a proactive approach to dealing with corruption.

Item 2 - after paragraph 15(d)

This item inserts a new paragraph 15(da) into the LEIC Act, which adds the prevention of corrupt conduct in law enforcement agencies to the Integrity Commissioner's functions.

Section 3 sets out the objects of the LEIC Act and section 15 sets out the functions of the Integrity Commissioner. However, aspects of section 3 - the detection and prevention of corrupt conduct - were previously not translated into corresponding functions of the Integrity Commissioner under section 15.

Reference to an explicit prevention function under section 15 better reflects the LEIC Act's objects and provides a legislative basis for the prevention aspects of the Integrity Commissioner's work, augmenting the investigative process and enabling ACLEI to take a proactive approach to dealing with corruption.

Item 3 - subsection 104(5)

This item corrects an error in subsection 104(5) of the LEIC Act, omitting a reference to 'an authorisation' and substituting 'a delegation'.

Subsection 104(5) refers to 'an authorisation under section 219'. However, section 219 makes no reference to an authorisation but rather a delegation.

Item 4 - subsection 156(3)

This item replaces subsection 156(3) of the LEIC Act to give the Minister discretion to refer an ACLEI corruption issue to the Integrity Commissioner, unless it involves the Integrity Commissioner or an Assistant Integrity Commissioner.

Under subsection 156(2)(a) of the LEIC Act, the Minister can refer a corruption issue involving a member of ACLEI to the Integrity Commissioner for investigation, allowing the Integrity Commissioner to manage to potential internal corruption issues. However, subsection 156(3) prevents the Integrity Commissioner investigating an issue involving ACLEI staff appointed under the Public Service Act 1999 . This is highly restrictive as the majority of ACLEI staff are appointed under the Public Service Act.

Subsection 156(3) also requires the Integrity Commissioner to notify the Minister of the alleged ACLEI corruption issue as soon as practicable. This provides no opportunity to undertake a preliminary investigation to identify the basis of the claim and whether external investigation is warranted.

In addition to limiting the Integrity Commissioner's ability to manage internal corruption issues, the restriction in subsection 156(3) unnecessarily limits the Integrity Commissioner's ability to manage internal staffing issues and results in significant expenditure on independent, external investigations.

Item 5 - subsection 219(2)

This item repeals subsection 219(2) of the LEIC Act.

Currently, section 219 of the LEIC Act enables the Integrity Commissioner to delegate all or any of his or her powers to an Assistant Integrity Commissioner, however, subsection 219(2) prevents this applying to the Integrity Commissioner's power to hold public hearings.

To date, ACLEI has not held any public hearings (private hearings are preferred for protection of both witnesses and information). However, there may be a time where public hearings become necessary and the ability of an Assistant Integrity Commissioner to conduct a public hearing would provide flexibility in the event that the workload of the Commissioner prevents him from holding such a hearing personally.

Division 2 - Application

Item 6 - application of amendment

This item clarifies that the amendments to the LEIC Act apply in relation to conduct engaged in before, on or after the commencement of the amendments.

This is consistent with the existing definitions of 'engages in corrupt conduct' and 'corruption issue' in sections 6 and 7 of the LEIC Act.

Part 2 - Penalty units

Division 1 - Amendments

Crimes Act 1914

Item 7 - subsection 4AA(1) (definition of penalty unit )

Subsection 4AA(1) of the Crimes Act specifies the monetary value of a penalty unit at any particular time. Currently, subsection 4AA(1) defines a penalty unit as $110.00.

To accommodate increases in the Consumer Price Index (CPI), this item will amend the definition of 'penalty unit' so that the value of the penalty unit is set at $170.00.

Item 8 - after subsection 4AA(1)

This item will insert new subsection 4AA(1A) into the Crimes Act.

New subsection 4AA(1A) will require the Attorney-General to cause a review of the value of the penalty unit, as defined in subsection 4AA(1), every three years after the date the value of the penalty unit was last reviewed. This will ensure that the value of the penalty unit is regularly reviewed and amended to accommodate changes in the CPI moving forward.

Division 2 - Application

Item 9 - application of amendments

This item will set out the application of amendments made by this Schedule to section 4AA of the Crimes Act.

This item makes it clear that the amendment to subsection 4AA(1) applies only in relation to an offence which is committed on or after the commencement of the item. This will ensure that the increased value of the penalty unit will apply only to offences committed after the commencement of this Schedule, being a date to be fixed by proclamation.

This item also makes it clear that new subsection 4AA(1A) applies to the alteration to the value of the penalty unit made by this Schedule, and to all future alterations. This will ensure that the requirement for the Attorney-General to cause a review of the value of the penalty unit every three years after the date it was last reviewed will apply to the amendment made by item 7 of this Schedule, and to all future alterations.

Part 3 - Superannuation orders

Division 1 - Amendments

Australian Federal Police Act 1979

Item 10 - paragraph 46(3)(a)

Section 46 of the AFP Act deals with the making of a superannuation order in respect of a person who has been convicted of a corruption offence.

A 'corruption offence' is defined in section 41 of the AFP Act to mean an offence by a person who was an AFP employee, or an old law member or staff member, at the time the offence was committed, being an offence that involved an abuse of office, corruption or perverting or attempting to pervert the course of justice.

Subsection 46(3) requires a court to work out, and specify in the superannuation order, the amount it thinks reflects the value of the sum of the employer contributions or benefits made or payable by the Commonwealth or a Commonwealth organisation in respect of the person under any superannuation scheme. It also requires the court to include in the superannuation order an order that the specified amount be paid to the Commonwealth or the Commonwealth organisation.

This item amends existing paragraph 46(3)(a) of the AFP Act to clarify that the reference to employer contributions or benefits made or payable in respect of the person under any superannuation scheme includes contributions or benefits made or payable for any period of employment, not just a period during which the offence was committed.

This will clarify that the legislation applies equally to all AFP employees who have committed a corruption offence while an employee, regardless of whether an employee has one continuous period of employment or more than one separate periods of employment.

Item 11 - paragraph 46(4)(a) (definition of AB ( amount of benefits ))

Section 46 of the AFP Act deals with the making of a superannuation order in respect of a person who has been convicted of a corruption offence.

A 'corruption offence' is defined in section 41 of the AFP Act to mean an offence by a person who was an AFP employee, or an old law member or staff member, at the time the offence was committed, being an offence that involved an abuse of office, corruption or perverting or attempting to pervert the course of justice.

Subsection 46(4) refers to a situation where employer contributions or benefits in respect of the person under any superannuation scheme have already been paid to the person. It requires a court to specify, in the superannuation order, the amount worked out using a formula subtracting employee contributions from the value of the sum of the employer benefits paid by the Commonwealth or a Commonwealth organisation in respect of the person under the superannuation scheme. It also requires the court to include in the superannuation order an order that the specified amount be paid to the Commonwealth or the Commonwealth organisation.

This item amends existing paragraph 46(4)(a) of the AFP Act to clarify that the reference to benefits paid in respect of the person under the superannuation scheme includes or benefits made for any period of employment, not just a period during which the offence was committed.

This will clarify that the legislation applies equally to all AFP employees who have committed a corruption offence while an employee, regardless of whether an employee has one continuous period of employment or more than one separate periods of employment.

Crimes (Superannuation Benefits) Act 1989

Item 12 - paragraph 19(3)(a)

Section 19 of the CSB Act deals with the making of a superannuation order in respect of a person who has been convicted of a corruption offence.

A 'corruption offence' is defined in section 2 of the CSB Act to mean an offence by a person who was an employee at the time the offence was committed, being an offence that involved an abuse of office, corruption or perverting or attempting to pervert the course of justice.

Subsection 19(3) requires a court to work out, and specify in the superannuation order, the amount it thinks reflects the value of the sum of the employer contributions or benefits made or payable by the Commonwealth or a Commonwealth authority in respect of the person under any superannuation scheme. It also requires the court to include in the superannuation order an order that the specified amount be paid to the Commonwealth or the Commonwealth authority.

This item amends existing paragraph 19(3)(a) of the CSB Act to clarify that the reference to employer contributions or benefits made or payable in respect of the person under any superannuation scheme includes contributions or benefits made or payable for any period of employment, not just a period during which the offence was committed.

This will clarify that the legislation applies equally to all employees who have committed a corruption offence while an employee, regardless of whether an employee has one continuous period of employment or more than one separate periods of employment.

In relation to a person who is taken to be employed by the Commonwealth under section 7 of the CSB Act, 'employment' will have a corresponding meaning in accordance with section 18A of the Acts Interpretation Act 1901 .

Item 13 - paragraph 19(4)(a) (definition of AB ( amount of benefits ))

Section 19 of the CSB Act deals with the making of a superannuation order in respect of a person who has been convicted of a corruption offence.

A 'corruption offence' is defined in section 2 of the CSB Act to mean an offence by a person who was an employee at the time the offence was committed, being an offence that involved an abuse of office, corruption or perverting or attempting to pervert the course of justice.

Subsection 19(4) refers to a situation where employer contributions or benefits in respect of the person under any superannuation scheme have already been paid to the person. It requires a court to specify, in the superannuation order, the amount worked out using a formula subtracting employee contributions from the value of the sum of the employer benefits paid by the Commonwealth or a Commonwealth authority in respect of the person under the superannuation scheme. It also requires the court to include in the superannuation order an order that the specified amount be paid to the Commonwealth or the Commonwealth authority.

This item amends existing paragraph 19(4)(a) of the CSB Act to clarify that the reference to benefits paid in respect of the person under the superannuation scheme includes or benefits made for any period of employment, not just a period during which the offence was committed. This will clarify that the legislation applies equally to all employees who have committed a corruption offence while an employee, regardless of whether an employee has one continuous period of employment or more than one separate periods of employment.

CSB Act, 'employment' will have a corresponding meaning in accordance with section 18A of the Acts Interpretation Act 1901 .

Division 2 - Application

Item 14 - application of amendments: the Australian Federal Police Act 1979

This item makes it clear that the amendments made by items 10 and 11 above to section 46 of the AFP Act apply in relation to a superannuation order applied for on or after the commencement of this item, regardless of whether an offence to which the order relates was committed before or after the commencement date.

Item 15 - application of amendments: the Crimes (Superannuation Benefits) Act 1989

This item makes it clear that the amendments made by items 12 and 13 above to section 19 of the CSB Act apply in relation to a superannuation order applied for on or after the commencement of this item, regardless of whether an offence to which the order relates was committed before or after the commencement date.