Bills Digest No. 46, 2012-13

19 November 2012

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

Monica Biddington
Law and Bills Digest Section 

Date introduced: 10 October 2012

House: House of Representatives

Portfolio: Attorney-General

Commencement: Sections 1 to 3 commence on Royal Assent; Schedule 1, Part 1 commences on Proclamation or within six months of Royal Assent; Schedule 3, Part 2 commences on Proclamation or within one month of Royal Assent; Schedule 1, Part 2, Schedule 2, and Schedule 3, Parts 1 and 3 commence the day after Royal Assent. 

Links: The links to the Bill, its Explanatory Memorandum and second reading speech can be found on the Bill's home page, or through http://www.aph.gov.au/Parliamentary_Business/Bills_Legislation. When Bills have been passed and have received Royal Assent, they become Acts, which can be found at the ComLaw website at http://www.comlaw.gov.au/.

Purpose of the Bill

The purpose of the Crimes Legislation Amendment (Serious Drugs, Identity Crime and Other Measures) Bill 2012 is to amend the Criminal Code Act 1995, the Customs Act 1901, the Crimes Act 1914, the Law Enforcement Integrity Commissioner Act 2006, the Australian Federal Police Act 1979 and the Crimes (Superannuation Benefits) Act 1989 to:

·         move the lists of substances to which the Commonwealth’s serious drug offences apply to regulations, amend emergency determination mechanisms, and establish and refine criteria for listing substances

·         broaden identity crime provisions and create new offences and powers relating to air travel and the use of false identities and

·         widen the Integrity Commissioner’s scope to consider Australian Commission for Law Enforcement Integrity (ACLEI) corruption issues, enable the Integrity Commissioner to delegate the power to conduct public inquiries to an Assistant Integrity Commissioner.

Due to resource issues, this Digest provides a limited overview of the key issues. More specific analysis can be provided on request by contacting the author.

Background

This Bill addresses a few specific issues of Commonwealth criminal law that are mostly administrative in nature. It is a Bill that proposes to plug gaps that have become apparent through the operation of specific Commonwealth offences under the Criminal Code Act 1995 (Criminal Code) such as serious drug offences and identity crime.

Serious Drug Offences

In 2005, the Commonwealth enacted offences into the Criminal Code to target organised drug crime, implementing model offences adopted by the Model Criminal Code Officers Committee of the Standing Committee of Attorneys-General that were published in 1998.[1] These offences were based on existing import/export drug offences in the Customs Act 1901 and additional offences specifically relating to the manufacturing, possession and trafficking of certain quantities of specified substances. It has been a challenge to keep the Criminal Code’s list of illicit substances up to date with the fast-paced developments in drug manufacturing.[2]

The Bill aims to clarify aspects of Commonwealth law including how the Minister for Justice can prohibit the manufacturing, possession or trafficking of substances (drugs, plants and precursor substances) that may be used to create illicit drugs. In the second reading speech, the Attorney‑General emphasised that this Bill is seeking to ensure ‘that Commonwealth laws are up to date and allow for flexible, quick responses to new and emerging drug threats’.[3] Provisions in the Criminal Code contain the mechanisms for listing drugs, plants and precursors. It is also possible that interim regulations and/or emergency determinations can be made. Presently, these regulations and determinations last for up to 12 months or 56 days respectively.[4] The Government considers that it will be more effective for this to be changed to a mechanism that will last for a 12 month period, with the possibility of extension to 18 months.

Identity Crime

The accessibility of new technologies is providing organised criminals opportunities to ‘harness and exploit the identity information of others’.[5] The Bill proposes a number of new offences, including where a person uses a carriage service to make, supply or use identification information for the purpose of passing themselves, or someone else, off as the person identified in the information, with the intention of committing or facilitating the commission of an offence. Some elements of this offence (proposed section 372.1A of the Criminal Code, inserted by item 3 of Schedule 2 to the Bill) are absolute liability offences (that the person used a carriage service and that the offence committed is a Commonwealth/state/territory or foreign indictable offence).The maximum penalty for this offence is five years imprisonment. To be absolutely clear, it will not be an offence to have a false identity online unless a person also has the intention of committing or facilitating the commission of an offence.[6] Note also that there is an existing general dishonesty offence under Division 135 of the Criminal Code, where if the person sets out to gain an advantage (or cause a loss to another) by the dishonest conduct (such as assuming the identity of a person, whether living or dead), an offence with a maximum penalty of five years imprisonment is prescribed.

Air travel with a false identity

Implementing recommendations made by the 2011 Parliamentary Joint Committee on Law Enforcement’s Inquiry into the Adequacy of Aviation and Maritime Security Measures to Combat Serious and Organised Crime[7], this Bill creates new offences relating to air travel and the use of false identities. It will be a specific offence under the Criminal Code to use a false identity when identifying oneself for the purpose of travelling on a flight. The maximum penalty for this offence will be 12 months imprisonment.[8] The introduction of these offences would seem necessary in light of research from the Australian Institute of Criminology that has found the use of false identities on aircraft to move around Australia is a part of organised criminal activities.[9] However, there is a sound argument against the introduction of these offences. Arguably, on privacy grounds, a person should be entitled to travel within Australia, between states and territories, without identification, as they can as a passenger in a car or bus.[10]

The Explanatory Memorandum outlines numerous case examples of how these offences will operate on a person using a false identity to travel by air. See pages 55-59 of the Explanatory Memorandum.

Further, the Bill proposes that police are given power to request a person’s identity information if they reasonably suspect that the person has committed, is committing or intends to commit a serious Commonwealth offence (punishable by 12 months imprisonment or more). If a person fails to comply with this request (proposed section 3UM), that person commits an offence (proposed section 3UN) which has a maximum penalty of 20 penalty units.[11]

Integrity Commissioner

The Bill will amend section 15 of the Law Enforcement Integrity Commissioner Act 2006 (LEIC Act)[12] to specify the detection and prevention of corruption as primary functions of the Integrity Commissioner. Further, the Minister will be able to refer an ACLEI corruption issue to the Integrity Commission, except if that issue involves the Integrity Commissioner or an Assistant Integrity Commissioner. An ACLEI corruption issue is defined in section 8(1) of the LEIC Act as an issue whether a person who is, or has been, a staff member of ACLEI:

(a)  has, or may have, engaged in corrupt conduct; or

(b)  is, or may be, engaging in corrupt conduct; or

(c)  will, or may at any time in the future, engage in corrupt conduct.

The proposed amendment to section 219 of the LEIC Act, made by item 5, in Part 1 of Schedule 3 to the Bill, will allow the Integrity Commissioner to delegate his power to conduct a public hearing to an Assistant Integrity Commissioner. This is a curious change, particularly as ACLEI’s submission on the Bill to the Senate Legal and Constitutional Affairs Committee notes that:

The effect of repealing sub-section 219(2) would be to permit the Integrity Commissioner, were the action necessary, to delegate to an Assistant Integrity Commissioner the power to hold a hearing for the purpose of conducting a public inquiry (under section 71 of the LEIC Act).

To date, no public inquiry has been held. However, ACLEI considers that the proposed amendment to section 219 of the LEIC Act would provide operational flexibility, were it required. For instance, it is desirable that the ongoing work of ACLEI—which is a small agency of which the Integrity Commissioner is the statutory head—not be impacted adversely by the management of a public inquiry.

As yet no Assistant Integrity Commissioner has been appointed. Under the LEIC Act, any Assistant Integrity Commissioner must have equivalent qualifications to an Integrity Commissioner, and would be subject to the same, or more stringent, restrictions as the Integrity Commissioner. For example, an Assistant Integrity Commissioner may hold office for up to five years (two years fewer than an Integrity Commissioner) and may exercise powers under the LEIC Act only if delegated them by the Integrity Commissioner under section 219 of the LEIC Act.

Accordingly, the Integrity Commissioner would retain responsibility for the outcomes of any public Inquiry that is conducted under the LEIC Act.[13]

Increase in the value of a Penalty Unit

Finally, and importantly, the Bill will amend the value of the Commonwealth penalty unit. The Government has presented this altruistically as ‘part of the Government’s commitment to cracking down on serious and organised crime… [which] accommodates increases in the Consumer Price Index’.[14] However, increasing the value of a penalty unit by $60 to $170 will add $185 million to consolidated revenue over the next four years and this is significant revenue. Further, the Bill will also introduce a tri-annual review of the penalty unit ‘to ensure its value continues to be regularly maintained in real terms in the future’.[15]

Coalition position

On 30 October 2012, Jamie Briggs, MP said in the Federation Chamber that:

the measures have for the most part been swept into the one bill as a housekeeping exercise to ensure that Commonwealth criminal law is improved and clarified. The coalition support the bill in principle; however, we believe it is important for the bill to be thoroughly examined by the Senate Legal and Constitutional Affairs Legislation Committee due to the wide-ranging nature of the proposed amendments to the criminal law.[16]

There were no other speakers on this Bill.

Committee consideration

The Bill was referred to the Senate Legal and Constitutional Affairs Committee for inquiry and report by 19 November 2012.[17]

At the time of publication of this Digest, three submissions are listed on the website, from the Commonwealth Director of Public Prosecutions, Australian Commission for Law Enforcement Integrity and the Australian Crime Commission. These submissions broadly support the Bill.

Financial implications

Part 2 of Schedule 3 of the Bill increases pecuniary penalties for Commonwealth criminal offences. A penalty unit will be changed from $110 to $170, with effect from no later than one month after the Bill receives Royal Assent. Commonwealth penalties are generally expressed in the form of penalty units (rather than specific values) to assist in the consistent and relatively easy adjustment of these penalties in line with inflation. Penalty units were last increased in 1997. This measure is estimated to have a gain to revenue of $185.0 million.[18]

Statement of Compatibility with Human Rights

As required under Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 (Cth), the Government has assessed the Bill’s compatibility with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of that Act. The Government considers that the Bill is compatible.[19] A discussion of the human rights implications, particularly the presumption of innocence and the right to privacy are discussed at pages 4-14 of the Explanatory Memorandum. The Government considers that, to the extent that these measures may limit those rights and freedoms, such limitations are reasonable, necessary and proportionate in achieving the intended outcomes.

Key issues and provisions

The changes to the serious drug offences provisions in Part 9 of the Criminal Code are to replace the terminology of ‘legislative instrument’ to ‘regulation’. The regulations will be subject to the standard disallowance procedures under the Legislative Instruments Act 2003.

A new Division 3B is proposed to be inserted into the Crimes Act 1914, by item 8 of Schedule 2 to the Bill. This Division will give police the powers to request identity information at airports by persons they suspect have committed, are committing, or intend to commit an offence that is punishable by 12 months imprisonment or more. Proposed section 3UN of the Crimes Act, in new Division 3B, will make it an offence for a person to fail to comply with the police request for identity. The penalty for the offence is 20 penalty units.[20]

The Law Enforcement Integrity Commissioner Act 2006 (LEIC Act) sets out the powers and functions of the Integrity Commissioner and establishes the Australian Commission for Law Enforcement Integrity. The Bill will give the Integrity Commissioner the new specified functions of detecting and preventing corrupt conduct in law enforcement agencies (proposed paragraphs 15(aa) and 15(da) respectively) of the LEIC Act. Further, the Minister will be given the discretion to refer an ACLEI corruption issue to the Integrity Commissioner, but not if it relates to the Integrity Commissioner or Assistant Integrity Commissioner (proposed new subsection 156(3)).

Part 3 of Schedule 2 of the Bill will change the value of a ‘penalty unit’ by omitting $110 from subsection 4AA(1) of the Crimes Act 1914 and substitute $170. Further a new subsection 4AA(1A) will require the Attorney-General to cause a review of the amount of a penalty unit to be conducted as soon as possible after each third anniversary of the day an alteration of a penalty unit last came into force. In this case, it will be some time in 2016.

Concluding comments

This Bill makes changes to criminal laws relating to serious drug offences and identity crime. The laws about the prescribing of substances by interim and longer-lasting regulations are an efficiency administrative measure that will assist law enforcement authorities in keeping pace with illicit drug manufacturers. The measures relating to identity crime implement the 2011 Parliamentary Joint Committee on Law Enforcement’s recommendations to address the issue of false identities used by organised crime groups at airports. The change to the penalty unit is long overdue and will provide $185 million over four years in revenue from Commonwealth offenders.

Members, Senators and Parliamentary staff can obtain further information from the Parliamentary Library on (02) 6277 2500.

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ISSN 1328-8091

[1].              The Model Criminal Code Officers Committee of the Standing Committee of Attorneys-General, Serious drug offences, October 1998, chapter 6, viewed 14 November 2012, http://www.sclj.gov.au/agdbasev7wr/sclj/documents/pdf/mcloc_mcc_chapter_6_serious_drug_offences_report.pdf

[2].              For a practical understanding of the offences under Part 9.1 of the Criminal Code, see the Commonwealth Director of Public Prosecutions, ‘Director’s litigation instruction’, no. 8, September 2012, viewed 15 November 2012, http://www.cdpp.gov.au/Publications/Directors-Litigation-Instructions/Directors-Litigation-Instruction-08.pdf

[3].              N Roxon, ‘Second reading speech: Crimes Legislation Amendment (Serious Drugs, Identity Crime and Other Measures) Bill 2012’, House of Representatives, Hansard, 10 October 2012, p. 11 764, viewed 19 November 2012, http://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;query=Id%3A%22chamber%2Fhansardr%2F64910c49-3706-419c-93d6-134834c0ae37%2F0019%22

[4].              In relation to interim regulations, see sections 301.1 to 301.5 of the Criminal Code. In relation to emergency determinations, see section 301.11. Compare the current timeframe in section 301.11 with proposed section 301.16, which allows the determination to have effect for a period of 12 months. The Criminal Code is available at: http://www.comlaw.gov.au/Details/C2012C00776

[5].              N Roxon, op. cit., p. 11 765.

[6].              For further information on the organised criminal activities involving identity fraud, see the Australian Crime Commission, Cyber crime, fact sheet, April 2011, viewed 15 November 2012, http://www.crimecommission.gov.au/publications/crime-profile-series-fact-sheet/cyber-crime

[7].              Parliamentary Joint Committee on Law Enforcement, Inquiry into the adequacy of aviation and maritime security measures to combat serious and organised crime, June 2011, Canberra, viewed 15 November 2012, http://www.aph.gov.au/Parliamentary_Business/Committees/Senate_Committees?url=le_ctte/aviation_maritime/report/index.htm

[8].              See proposed Division 376 of the Criminal Code, inserted by item 9 of Schedule 2 to the Bill.

[9].              G Knowles, ‘Criminals duck airport security’, The West Australian, 14 July 2010, viewed 19 November 2012, http://au.news.yahoo.com/thewest/a/-/wa/7581007/criminals-duck-airport-security/ and see also: M Plumb, C Carver and W Snell, ‘Domestic airline passengers flying in false names: disorganising organised crime’, PowerPoint slides for Australian Institute of Criminology, circa 2010, viewed 16 November 2012, http://www.aic.gov.au/events/aic%20upcoming%20events/2010/~/media/conferences/2010-isoc/presentations/plumb.pdf

[10].               See also B Sandilands, ‘Does photo id really improve airport security?’, Crikey, 30 April 2011, viewed 10 November 2012, http://blogs.crikey.com.au/planetalking/2011/04/30/does-photo-id-really-improve-airport-security/

[11].              Information on ‘penalty units’ is set out below.

[12].              The Law Enforcement Integrity Commissioner Act 2006 is available at: http://www.comlaw.gov.au/Details/C2012C00419

[13].              Australian Commissioner for Law Enforcement Integrity, Submission to the Senate Standing Committee on Legal and Constitutional Affairs, Inquiry into the Crimes Legislation Amendment (Serious Drugs, Identity Crime and Other Measures) Bill 2012, 25 October 2012, viewed 15 November 2012, http://www.aph.gov.au/Parliamentary_Business/Committees/Senate_Committees?url=legcon_ctte/crimes_serious_drugs/submissions.htm

[14].              N Roxon, ‘Second reading speech’, op. cit., p. 11 764.

[15].              Ibid.

[16].              J Briggs, ‘Second reading speech: Crimes Legislation Amendment (Serious Drugs, Identity Crime and Other Measures) Bill 2012’, House of Representatives, Debates, 30 October 2012, p. 12 668, viewed 19 November 2012, http://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;query=Id%3A%22chamber%2Fhansardr%2Ff3460e8f-bde4-4fc5-8d67-52fdc5190016%2F0255%22

[17].              Senate Standing Legal and Constitutional Affairs Committee, Inquiry into the Crimes Legislation Amendment (Serious Drugs, Identity Crime and Other Measures) Bill 2012, 2012, viewed 19 November 2012, http://www.aph.gov.au/Parliamentary_Business/Committees/Senate_Committees?url=legcon_ctte/crimes_serious_drugs/index.htm

[18].              Australian Government, Mid-year economic and fiscal outlook, Appendix A – policy decisions taken since the 2012–13 budget: cross portfolio, viewed 12 November 2012, http://www.budget.gov.au/2012-13/content/myefo/html/08_appendix_a_revenue-04.htm

[19].              The Statement of Compatibility with Human Rights can be found at pages 4 to 14 of the Explanatory Memorandum to the Bill.

[20].              A penalty unit, on commencement of this Bill, will be $170; section 4AA of the Crimes Act 1914 with amendment made by item 7 of Schedule 3 to the Bill.