CHAPTER 2

Key issues

2.1        The submissions which the committee received for its inquiry all expressed support for the Bill and did not identify any issues of concern in relation to the Bill's schedules. For this reason, the committee has contained its comments to those aspects of the Bill addressed in the submissions received. The Explanatory Memorandum (EM) to the Bill sets out the proposed amendments in detail.

Schedule 1 – Serious drugs

2.2        The EM to the Bill explains that the purpose of Schedule 1 of the Bill is to 'strengthen the Commonwealth's serious drug offences framework.'[1] The Bill seeks to do this by amending Chapter 9 of the Criminal Code Act 1995 (Criminal Code) and making consequential amendments to the Customs Act 1901.

2.3        The changes set out in Part 1 of Schedule 1 will amend Part 9.1 of the Criminal Code in relation to serious drugs by amending Divisions 300, 301, 307, 308, and 314 of Part 9.1.

Part 1 of Schedule 1 – Amendments

Division 314 of the Criminal Code

2.4        Existing Division 314 of the Criminal Code lists by name and sets out quantities of 'controlled' and 'border controlled' drugs, plants and precursors. Item 19 of Schedule 1 of the Bill will repeal Division 314, and the items and quantities listed in Division 314 will be moved into the Criminal Code Regulations 2002.[2]

2.5        The EM explains that transferring these listings into regulations is 'appropriate' as it will allow:

...the Government to respond swiftly to proscribe new substances that arise as the illicit drugs market evolves. In addition, it will permit new and emerging substances to be included in the regulations more quickly than listing substances in the Criminal Code, where an amendment to the list requires a legislative amendment.[3]

Division 301 of the Criminal Code

2.6        Existing Division 301 of the Criminal Code enables the Minister to make interim regulations, for a period of twelve months; and emergency determinations, for a period of 28 days, in relation to certain substances.[4] This power is currently necessary as the substances and quantities that are 'controlled' or 'border controlled' are identified specifically by name and quantity, in the provisions of Division 314. The repeal of Division 314, as proposed by the Bill, will require that existing Division 301 be repealed and replaced with a new division.

2.7        Proposed new Subdivision C of Division 301 (serious drugs and precursors: emergency determinations)[5] will improve the existing mechanisms which enable the Minister to make an emergency determination in certain circumstances.[6] The emergency determination mechanism:

...aims to increase public safety by ensuring that substances with unknown or unidentified harms can be prohibited in a responsive manner, until such time as an appropriate assessment has been made.[7]

2.8        Under the existing provisions, emergency determinations are only effective for a period of 28 days, or such shorter period as specified.[8] The proposed amendments will extend this time period to 12 months, with the possibility for extension to 18 months.[9]

2.9        The EM explains that change is required as the existing timeframe has proven insufficient to obtain and assess evidence on which to base decisions and that increasing the period of time for which emergency determinations remain effective will:

...allow for expert analysis in determining the harms of a substance and, on the basis of this assessment, for an informed decision to be made about whether it should be listed indefinitely in the regulations.[10]

Divisions 307 and 308 of the Criminal Code

2.10      Items 17 and 18 of Schedule 1 of the Bill will amend Divisions 307 and 308 (import-export and possession offences) of the Criminal Code to provide an exemption from criminal offences where border controlled drugs or border controlled plants are the subject of an emergency determination:

On the basis that an emergency determination can be made in relation to a substance where the known risks may not yet be fully substantiated and that may later be found to have no known harms, it is not appropriate to subject an individual to criminal punishment on the basis of possessing a small quantity of the substance.[11]

Comments by submitters in respect of Schedule 1 of the Bill

2.11      Of the three submissions received by the committee, two commented on Schedule 1 of the Bill to express support for the proposed amendments.

2.12      The Australian Crime Commission (ACC) submitted:

The ACC fully supports provisions which ensure that the Commonwealth's serious drug offences framework can quickly respond to new and emerging substances. As such, the ACC supports...[the Bill]...and believes this approach will strengthen the Commonwealth's ability to adapt to and address the changing illicit drug markets.[12]

2.13      Similarly, in respect of Schedule 1 of the Bill, the Commonwealth Director of Public Prosecutions (CDPP) advised:

The CDPP sees benefit in these amendments which will ensure the Commonwealth's serious drug offences framework remains up to date and is better able to respond to new and emerging substances.[13]

Schedule 2 – Identity crime and air travel

2.14      Schedule 2 of the Bill sets out amendments that seek to expand existing identity crime offences in Division 372 of Part 9.5 of the Criminal Code, and provide for new offences and powers relating to air travel and the use of false identities in both the Criminal Code and Part 1AA of the Crimes Act 1914 (Crimes Act).[14]

2.15      Submissions to the inquiry did not raise any concerns in relation to the amendments proposed in Schedule 2 of the Bill. The ACC stated its support for the introduction of offences relating to identity crime and air travel:

The ACC welcomes and supports the creation of new offences relating to air travel and the use of false identities. The ACC has previously supported this measure and continues to be supportive of measures that harden the aviation environment against exploitation by serious and organised crime groups.[15]

Schedule 3 – Other measures

2.16      Schedule 3 of the Bill is comprised of three parts which propose amendments to the Law Enforcement Integrity Commissioner Act 2006 (LEIC Act), the Crimes Act, the Australian Federal Police Act 1979 (AFP Act) and the Crimes (Superannuation Benefits) Act 1989 (CSB Act).[16]

Part 1 of Schedule 3 – Integrity Commissioner functions

2.17      Part 1 of Schedule 3 of the Bill proposes minor amendments to the LEIC Act that seek to strengthen Commonwealth public sector integrity by:

• clarifying the functions of the Integrity Commissioner in relation to the detection and prevention of corruption (items 1–2 of Schedule 3);[17] and
• broadening the Integrity Commissioner's scope to consider corruption issues (items 4–5 of Schedule 3).[18]

Part 2 of Schedule 3 – Penalty units

2.18      The Crimes Act currently specifies the monetary value of a penalty unit incurred for the commission of a Commonwealth criminal offence. The present value of the penalty unit is $110.[19] Part 2 of Schedule 3 of the Bill seeks to increase the current monetary value of a penalty unit from $110 to $170 and introduce a requirement that the value of the penalty unit be reviewed every three years to ensure the value accommodates changes in the consumer price index (items 7–8 of Schedule 3).[20]

2.19      In its submission to the inquiry, the ACC outlined its support for Part 2 of Schedule 3 of the Bill:

The ACC welcomes and supports the triennial review of the amount of a penalty unit as is prudent practice to ensure the deterrent factor remains high.[21]

Part 3 of Schedule 3 – Superannuation orders

2.20      Part 3 of Schedule 3 of the Bill sets out amendments to the CSB Act and the AFP Act in relation to superannuation orders. These Acts contain provisions that ensure that if a public servant is convicted of corruption and sentenced to 12 or more months imprisonment, any employer funded superannuation benefits that are payable, or have been paid to them, are forfeited or recovered.[22] According to the EM, the proposed amendments (items 10–13 of Schedule 3) will clarify that a superannuation order for forfeiture or recovery of employer funded superannuation benefits in these circumstances can be made in relation to employer funded superannuation benefits accrued 'during all periods of Commonwealth employment, not just the period of employment in which the corruption offence was committed'.[23]

Comments by submitters in respect of Schedule 3 of the Bill

2.21      In its submission, the Australian Commission for Law Enforcement Integrity (ACLEI) expressed support for Part 1 of Schedule 3 of the Bill (concerning the functions of the Integrity Commissioner):

[These provisions] will clarify and give prominence to the complementary roles of the Integrity Commissioner, namely detecting, investigating and preventing corrupt conduct in the agencies in the LEIC Act jurisdiction.[24]

2.22      ACLEI also indicated its support for the amendments that seek to broaden the Integrity Commissioner's ability to consider corruption matters, stating that the amendment to enable the Minister 'to refer an allegation of corrupt conduct relating to an ACLEI staff member to the Integrity Commissioner for investigation' will provide the Minister with additional flexibility. Further:

No matter who investigates an ACLEI corruption issue, the LEIC Act contains provisions to ensure the transparency of such investigations.[25]

2.23      In respect of item 5 of Schedule 3, which proposes an amendment to enable the Integrity Commissioner to delegate to an Assistant Integrity Commissioner the power to hold a public hearing in relation to an allegation of corruption, ACLEI stated:

ACLEI considers that the proposed amendment to section 219 of the LEIC Act would provide operational flexibility, were it required.[26]

2.24      ACLEI explained that, in such circumstances, the Integrity Commissioner would remain responsible for the outcomes of the public hearing.[27]

Committee view

2.25      The committee is supportive of the Bill and considers that the proposed amendments it contains will ensure that Australia's criminal laws are responsive in addressing organised crime, corruption and white collar crime, and in protecting the public from the threats that those activities present. In particular, the committee considers that the Bill will ensure that the Commonwealth's serious drug offences framework is able to respond efficiently to the emergence of new drug threats in the community, and will substantially strengthen the current regime relating to identity crime offences.

Recommendation 1

2.26           The committee recommends that the Senate pass the Bill.

 

Senator Trish Crossin
Chair

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