House of Representatives

Explanatory Memorandum

(Circulated by authority of the Minister for Justice and Customs Senator the Honourable Chris Ellison)

General Outline

This Bill will repeal the telecommunications offences in the Crimes Act 1914 and replace them with new and updated telecommunications offences in the Criminal Code . Updating and moving existing Crimes Act offences into the Criminal Code is a part of the process of placing all the Commonwealth's serious offences in the Code.

Since the enactment of the existing telecommunications offences in 1989, the telecommunications environment has changed substantially, both in terms of the regulatory environment and the technology available. The offences account for this change and better reflect the community's increased dependence on telecommunications and the harm that can be done by misuse or disruption.

The Bill contains important new offences that will prescribe appropriate penalties for persons involved in the sexual abuse of children in a number of different contexts. Producing, distributing and accessing child pornography and child abuse material rightly outrages the Australian community. New offences targeting the exploitation of children in this way are included in the Bill. The proposed offences prohibiting child pornography and child abuse material focus on the use offenders make of the anonymity of new technological tools, such as the Internet, to further their exploitative ends. In line with the tough federal crimes sex tourism offences in the Crimes Act 1914 , new offences will also target online 'grooming' activities by sexual predators. Unfortunately, adults are increasingly exploiting the anonymity of the Internet to forge relationships with children as a first step in luring them for sexual abuse. The Bill provides a responsible criminal law response to these abhorrent practices.

Also among the new and updated offences proposed to be included in the Criminal Code are offences dealing with menacing, harassing or offensive use of a telecommunications service, including the Internet; modification of the International Mobile Equipment Identity (IMEI) number of mobile phones; copying of mobile phone Subscriber Identity Module (SIM) card data; threats and hoaxes made using a telecommunications service; and improper use of the emergency call service.

The Bill also inserts into the Criminal Code Part 9.6 - 'Contamination offences' - which contains new offences targeting those who contaminate, falsely state that they have contaminated or threaten to contaminate, goods intending to cause public alarm, economic loss or (for some offences) harm to public health. These offences are designed to complement existing State and Territory offences, providing coverage for contamination or threatened contamination which is of national significance.

Schedule 3 of the Bill will insert new Part 10.8 - 'Financial information offences' - into Chapter 10 of the Criminal Code ('National Infrastructure'). This Part will criminalise dishonestly obtaining, or dealing in, personal financial information without the consent of the person to whom the information relates. This Part will also criminalise possession, control or importation of a thing with the intention that the thing be used to commit the offence of dishonestly obtaining or dealing in personal financial information.

These amendments flow from the Model Criminal Code Officers' Committee (MCCOC) March 2004 discussion paper on Credit Card Skimming Offences. Credit card skimming is the process by which legitimate credit card data is illicitly captured or copied, usually by electronic means. The MCCOC discussion paper identified a gap in federal, State and Territory laws in their coverage of that activity. These amendments will address that gap at a federal level, using the Australian Government's power under the Constitution to make laws with respect to banking (section 51(xii)) and corporations (section 51(xx)).

The Bill also makes a number of minor amendments to Chapter 2 of the Criminal Code , which establishes the general principles of Commonwealth criminal law. The amendments will clarify the operation of the general principles, which now apply to all Commonwealth criminal law. The Bill also clarifies the fault elements of two offence provisions, and makes amendments to other criminal law and justice legislation.

Financial Impact

There is no financial impact flowing directly from the offence provisions of this Bill.

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 1-3 of the Bill (the short title, the commencement and the schedules provision) will commence on the day that the Bill receives Royal Assent.

Schedule 1 of the Bill, which inserts new telecommunications offences into the Criminal Code Act 1995 , will commence the day after a period of six months after the Bill receives Royal Assent. This will enable the orderly implementation of the measures, including the making of amendments to Regulations.

Schedule 2 (Contamination of goods offences), Schedule 3 (Financial information offences) and Schedule 4 (Other amendments of the Criminal Code ) will each commence on the 28th day after the Bill receives Royal Assent. These are simpler offences that can be implemented more quickly.

Schedule 5 of the Bill contains amendments to a number of Acts. Briefly, those amendments clarify the operation of part of the Customs Act 1901 , make some minor amendments to the Crimes (Aviation) Act 1991 and make procedural amendments to the Mutual Assistance in Criminal Matters Act 1987 . All of those items except one (Item 9 of Schedule 5) will commence on the 28th day after the Bill receives Royal Assent.

Item 9 of Schedule 5 amends the Cybercrime Act 2001 to correct a misdescription of the date of another piece of legislation - it will amend '1997' to the correct date, '1979'. This provision will commence at the time that the amended provision commenced. Given the technical nature of the amendment and the fact that the amendment does not effect any substantive change to the law, this backdating is not inappropriate.

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.