LAW AND JUSTICE LEGISLATION AMENDMENT (IDENTITY CRIMES AND OTHER MEASURES) BILL 2008

i Law and Justice Legislation Amendment (Identity Crimes and Other Measures) Bill 2008

No. , 2008

Contents

Short title ............................................................................................ 1

Commencement .................................................................................. 1

Schedule(s) ......................................................................................... 3

Schedule 1--Identity crimes

Part 1--Amendments commencing the day after Royal Assent

Criminal Code Act 1995

Part 2--Other amendment

Criminal Code Act 1995

Schedule 2--Administration of justice offences

Part 1--Amendment of the Crimes Act 1914

Part 2--Other amendments

Australian Federal Police Act 1979

Federal Court of Australia Act 1976

International Criminal Court Act 2002

International Transfer of Prisoners Act 1997

International War Crimes Tribunals Act 1995

Mutual Assistance in Criminal Matters Act 1987

Telecommunications (Interception and Access) Act 1979

Transfer o f Prisoners Act 1983

Schedule 3--Director of Public Prosecutions Act 1983

Schedule 4--Anti-Money Launde ring and Counter-Terrorism

Financing Act 2006

Schedule 5--Australian Federal Police Act 1979

Part 1--Amendments commencing on a day to be fixed by

Proclamation

Part 2--Amendments commencing on the day after Royal

Assent

Schedule 6--Judiciary Act 1903

Law and Justice Legislation Amendment (Identity Crimes and Other Measures) Bill 2008 No.

, 2008 1

A Bill for an Act to amend various Acts relating to

law and justice, and for related purposes

The Parliament of Australia enacts:

1 Short title

This Act may be cited as the Law and Justice Legislation

Amendment (Identity Crimes and Other Measures) Act 2008.

2 Commence ment

(1) Each provision of this Act specified in column 1 of the table

commences, or is taken to have commenced, in accordance with

column 2 of the table. Any other statement in column 2 has effect

according to its terms.

2 Law and Justice Legislation Amendment (Identity Crimes and Other Measures) Bi ll 2008

No. , 2008

Commencement information

Column 1

Column 2

Column 3

Provision(s)

Commencement

Date/Details

1. Sections 1 to 3

and anything in

this Act not

elsewhere covered

by this table

The day on which this Act receives the

Royal Assent.

2. Schedule 1,

Part 1

The day after this Act receives the Royal

Assent.

3. Schedule 1,

Part 2

The later of:

(a) the start of the day after this Act receives

the Royal Assent; and

(b) the commencement of Part 1 of

Schedule 2 to the Same-Sex

Relationships (Equal Treatment in

Commonwealth Laws--General Law

Reform) Act 2008.

However, the provision(s) do not commence

at all if the event mentioned in paragraph (b )

does not occur.

4. Schedules 2, 3

and 4

The day after this Act receives the Royal

Assent.

5. Schedule 5,

Part 1

A single day to be fixed by Proclamation.

However, if any of the provision(s) do not

commence with in the period of 6 months

beginning on the day on which this Act

receives the Royal Assent, they commence

on the first day after the end of that period.

6. Schedule 5,

Part 2

The day after this Act receives the Royal

Assent.

7. Schedule 6

A single day to be fixed by Proclamation.

However, if any of the provision(s) do not

commence with in the period of 6 months

beginning on the day on which this Act

receives the Royal Assent, they commence

on the first day after the end of that period.

8. Schedule 7

The day after this Act receives the Royal

Assent.

Law and Justice Legislation Amendment (Identity Crimes and Other Measures) Bill 2008 No.

, 2008 3

Note:

This table relates only to the provisions of this Act as originally

passed by both Houses of the Parliament and assented to. It will not be

expanded to deal with provisions inserted in this Act after assent.

(2) Column 3 of the table contains additional information that is not

part of this Act. Information in this column may be added to or

edited in any published version of this Act.

3 Schedule(s)

Each Act that is specified in a Schedule to this Act is amended or

repealed as set out in the applicable items in the Schedule

concerned, and any other item in a Schedule to this Act has effect

according to its terms.

Schedule 1 Identity crimes

Part 1 A mend ments commencing the day after Royal Assent

4 Law and Justice Legislation Amendment (Identity Crimes and Other Measures) Bill 2008

No. , 2008

Schedule 1

Identity crimes

Part 1

Amendments commencing the day after

Royal Assent

Criminal Code Act 1995

1 After Part 9.4 of the Criminal Code

Insert:

Part 9.5--Identity crime

Division 370--Preliminary

370.1 Definitions

In this Code:

deal, in identification information, includes make, supply or use

any such information.

identification documentation means any document or other thing

that:

(a) contains or incorporates identification information; and

(b) is capable of being used by a person for the purpose of

pretending to be, or passing the person off as, another person

(whether living, dead, real or fictitious).

identification information means information, or a document,

relating to a person (whether living, dead, real or fictitious) that is

capable of being used (whether alone or in conjunction with other

information or documents) to identify or purportedly identify the

person, including any of the following:

(a) a name or address;

(b) a date or place of birth, whether the person is married or has

a de facto partner, relatives' identity or similar information;

(d) a passport or passport number;

(e) biometric data;

Identity crimes Schedule 1

Amend ments commencing the day after Royal Assent Part 1

Law and Justice Legislation Amendment (Identity Crimes and Other Measures) Bill 2008 No.

, 2008 5

(f) a voice print;

(g) a credit or debit card, its number, or data stored or encrypted

on it;

(h) a financial account number, user name or password;

(i) a digital signature;

(j) a series of numbers or letters (or both) intended for use as a

means of personal identification;

(k) an ABN.

Division 372--Identity fraud offences

372.1 Dealing in identification information

(1) A person (the first person) commits an offence if:

(a) the first person deals in identification information; and

(b) the first person intends that any person (the user) (whether or

not the first person) will use the identification information to

pretend to be, or to pass the user off as, another person

(whether living, dead, real or fictitious) for the purpose of:

(i) committing an offence; or

(ii) facilitating the commission of an offence; and

offence against a law of the Commonwealth.

Penalty: Imprisonment for 5 years.

Note:

Deal, in identification information, includes make, supply or use any

such information. See section 370.1.

(2) Absolute liability applies to the paragraph (1)(c) element of the

offence.

Note:

For absolute liability, see section 6.2.

(3) This section applies:

(a) even if:

(i) committing the offence referred to in paragraph (1)(b) is

impossible; or

(ii) the offence referred to in paragraph (1)(b) is to be

committed at a later time; and

Schedule 1 Identity crimes

Part 1 A mend ments commencing the day after Royal Assent

6 Law and Justice Legislation Amendment (Identity Crimes and Other Measures) Bill 2008

No. , 2008

(b) whether or not the person to whom the identification

information concerned relates consented to the dealing in the

identification information.

(4) This section does not apply to dealing in the first person's own

identification information.

372.2 Possession of identification information

(1) A person (the first person) commits an offence if:

(a) the first person possesses identification information; and

(b) the first person intends that any person (whether or not the

first person) will use the identification information to engage

in conduct; and

against section 372.1.

Penalty: Imprisonment for 3 years.

(2) Absolute liability applies to the paragraph (1)(c) element of the

offence.

Note:

For absolute liability, see section 6.2.

(3) This section applies whether or not the person to whom the

identification information concerned relates consented to the

possession of the identification information.

(4) This section does not apply to the possession of the first person's

own identification information.

372.3 Possession of equipment used to make identification

documentation

(1) A person (the first person) commits an offence if:

(a) the first person possesses equipment; and

(b) the first person intends that any person (whether or not the

first person) will use the equipment to make identification

documentation; and

referred to in paragraph (b)) will use the identification

documentation to engage in conduct; and

Identity crimes Schedule 1

Amend ments commencing the day after Royal Assent Part 1

Law and Justice Legislation Amendment (Identity Crimes and Other Measures) Bill 2008 No.

, 2008 7

(d) the conduct referred to in paragraph (c) constitutes an offence

against section 372.1.

Penalty: Imprisonment for 3 years.

(2) Absolute liability applies to the paragraph (1)(d) element of the

offence.

Note:

For absolute liability, see section 6.2.

372.4 Extended geographical jurisdiction--category A

Section 15.1 (extended geographical jurisdiction--category A)

applies to an offence against this Division.

372.5 Alte rnative verdict

(1) This section applies if, in a prosecution for an offence against

section 372.1, the trier of fact is not satisfied that the defendant is

guilty of the offence, but is satisfied beyond reasonable doubt that

the defendant is guilty of an offence against section 372.2.

(2) The trier of fact may find the defendant not guilty of the offence

against section 372.1 but guilty of the offence against

section 372.2, so long as the defendant has been accorded

procedural fairness in relation to that finding of guilt.

372.6 Atte mpt

It is not an offence to attempt to commit an offence against this

Division.

Division 375--Victims' certificates

375.1 Certificate may be issued by magistrate in relation to victim of

identity crime

(1) A magistrate may, on application by a person (the victim), issue a

certificate under this section if the magistrate is satisfied, on the

balance of probabilities, that:

(a) another person (the dealer) has dealt in identification

information; and

Schedule 1 Identity crimes

Part 1 A mend ments commencing the day after Royal Assent

8 Law and Justice Legislation Amendment (Identity Crimes and Other Measures) Bill 2008

No. , 2008

(b) the dealer intended that any person (the user) (whether or not

the dealer) would use the identification information to

pretend to be, or to pass the user off as, another person

(whether the victim or another person living, dead, real or

fictitious) for the purpose of:

(i) committing an offence; or

(ii) facilitating the commission of an offence; and

caused in relation to the victim's personal or business affairs;

and

(d) the offence referred to in paragraph (b) is an indictable

offence against a law of the Commonwealth.

Note:

Deal, in identification information, includes make, supply or use any

such information. See section 370.1.

(2) This section applies:

(a) even if:

(i) committing the offence referred to in paragraph (1)(b) is

impossible; or

(ii) the offence referred to in paragraph (1)(b) is to be

committed at a later time; and

(b) whether or not the person to whom the identification

information concerned relates consented to the dealing in the

identification information.

375.2 Content of certificate

(1) A certificate issued under section 375.1 must:

(a) identify the victim; and

(b) describe the dealing in identification information.

(2) The certificate may contain such other information as the

magistrate considers appropriate.

(3) The certificate must not identify the dealer.

375.3 Relation to civil and criminal proceedings

(1) The magistrate may issue a certificate under section 375.1 whether

or not:

(a) the dealer is identifiable; or

Identity crimes Schedule 1

Amend ments commencing the day after Royal Assent Part 1

Law and Justice Legislation Amendment (Identity Crimes and Other Measures) Bill 2008 No.

, 2008 9

(b) subject to subsection (2)--any proceedings (whether civil or

criminal) have been or can be taken against a person for or in

relation to the dealing, or are pending.

(2) The magistrate must not issue a certificate under section 375.1 if

doing so would prejudice any proceedings.

(3) The certificate is not admissible in any proceedings.

375.4 Powe r conferred on magistrate personally

(1) Power is conferred by this Division on a magistrate only in a

personal capacity and not as a court or a member of a court.

(2) The magistrate need not accept the power conferred.

(3) A magistrate exercising a power under this Division has the same

protection and immunity as if he or she were exercising that power

as, or as a member of, the court of which the magistrate is a

member.

2 Dictionary in the Criminal Code

Insert:

ABN (short for Australian Business Number) has the meaning

given by section 41 of the A New Tax System (Australian Business

Number) Act 1999.

3 Dictionary in the Criminal Code

Insert:

deal, in identification information, has a meaning affected by

section 370.1.

4 Dictionary in the Criminal Code

Insert:

identification documentation has the meaning given by

section 370.1.

5 Dictionary in the Criminal Code

Insert:

Identity crimes Schedule 1

Other amend ment Part 2

Law and Justice Legislation Amendment (Identity Crimes and Other Measures) Bill 2008 No.

, 2008 11

Part 2

Other amendment

Criminal Code Act 1995

6 Dictionary in the Criminal Code

Insert:

de facto partner, in relation to a person, has the meaning given by

the Acts Interpretation Act 1901.

Schedule 2 Admin istration of justice offences

Part 1 A mend ment of the Crimes Act 1914

12 Law and Justice Legislation Amendment (Identity Crimes and Other Measures) Bill

2008 No. , 2008

Schedule 2

Administration of justice

offences

Part 1

Amendment of the Crimes Act 1914

1 Subsection 3(1)

Insert:

criminal detention has the meaning given by section 45A.

2 Subsection 3(1)

Insert:

federal criminal detention has the meaning given by section 45A.

3 Subsection 3(1)

Insert:

federal judicial proceeding has the meaning given by section 31.

4 Subsection 3(1)

Insert:

judicial proceeding has the meaning given by section 31 (other

than in section 3L).

5 Subsection 3(1)

Insert:

judicial tribunal has the meaning given by section 31.

6 Before section 31

Insert:

Division 1--Preliminary

7 Section 31

Repeal the section, substitute:

Admin istration of justice offences Schedule 2

Amend ment of the Crimes Act 1914 Part 1

Law and Justice Legislation Amendment (Identity Crimes and Other Measures) Bill 2008 No.

, 2008 13

31 Judicial proceeding and tribunal definitions

In this Act:

federal judicial proceeding means:

(a) a judicial proceeding in or before:

(i) a federal court; or

(ii) a court exercising federal jurisdiction; or

(iii) a court of a Territory; or

(b) a judicial proceeding before a body or person acting under a

law of:

(i) the Commonwealth; or

(ii) a Territory.

judicial proceeding means (other than in section 3L):

(a) a proceeding in or before a court; or

(b) a proceeding:

(i) before a body, or a person, acting under a law of the

Commonwealth, of a State or of a Territory; and

(ii) in which evidence may be taken on oath.

judicial tribunal means a body or person (other than a court)

before whom a judicial proceeding is conducted.

8 Before section 34

Insert:

Division 2--Judges and magistrates

9 Section 34

Repeal the section, substitute:

34 Judge or magistrate acting oppressively or when inte rested

Excessive and unreasonable bail

(1) A person commits an offence if:

(a) the person is a judge or magistrate; and

(b) the judge or magistrate is required or authorised by law to

admit a person accused of an offence to bail; and

Schedule 2 Admin istration of justice offences

Part 1 A mend ment of the Crimes Act 1914

14 Law and Justice Legislation Amendment (Identity Crimes and Other Measures) Bill

2008 No. , 2008

bail; and

(d) the requirement is an abuse of the judge's or magistrate's

office; and

(e) the offence referred to in paragraph (b) is an offence against a

law of the Commonwealth.

Penalty: Imprisonment for 2 years.

(2) Subsection (1) does not apply if the judge or magistrate has a

reasonable excuse.

Note:

A defendant bears an evidential burden in relation to the matter in

subsection (2) (see subsection 13.3(3) of the Criminal Code).

(3) Absolute liability applies to the paragraph (1)(e) element of the

offence.

Note:

For absolute liability, see section 6.2 of the Criminal Code.

Acting when interested

(4) A person commits an offence if:

(a) the person is a judge or magistrate; and

(b) the judge or magistrate perversely exercises jurisdiction in a

matter; and

and

(d) the jurisdiction is federal jurisdiction.

Penalty: Imprisonment for 2 years.

(5) Absolute liability applies to the paragraph (4)(d) element of the

offence.

Note:

For absolute liability, see section 6.2 of the Criminal Code.

10 Before section 35

Insert:

Division 3--Evidence and witnesses

11 Sections 35 to 40

Repeal the sections, substitute:

Admin istration of justice offences Schedule 2

Amend ment of the Crimes Act 1914 Part 1

Law and Justice Legislation Amendment (Identity Crimes and Other Measures) Bill 2008 No.

, 2008 15

35 Giving false testimony

(1) A person commits an offence if:

(a) the person gives false testimony touching a matter; and

(b) the person does so:

(i) in a judicial proceeding; or

(ii) with the intention of instituting a judicial proceeding;

and

(d) the judicial proceeding is a federal judicial proceeding.

Penalty: Imprisonment for 5 years.

(2) Strict liability applies to the paragraph (1)(c) element of the

offence.

Note:

For strict liability, see section 6.1 of the Criminal Code.

(3) Absolute liability applies to the paragraph (1)(d) element of the

offence.

Note:

For absolute liability, see section 6.2 of the Criminal Code.

(4) For the purposes of this section, it is immaterial:

(a) whether the testimony is given:

(i) on oath or not on oath; or

(ii) orally or in writing; or

(b) whether the court or judicial tribunal to which the testimony

is given:

(i) is properly constituted; or

(ii) is held in the proper place; or

witness; or

(d) whether the testimony is admissible.

36 Fabricating evidence

(1) A person commits an offence if:

(a) the person:

(i) fabricates evidence; or

(ii) makes use of fabricated evidence; and

Schedule 2 Admin istration of justice offences

Part 1 A mend ment of the Crimes Act 1914

16 Law and Justice Legislation Amendment (Identity Crimes and Other Measures) Bill

2008 No. , 2008

(b) the person does so with the intention of misleading a court or

judicial tribunal in a judicial proceeding; and

Penalty: Imprisonment for 5 years.

(2) Absolute liability applies to the paragraph (1)(c) element of the

offence.

Note:

For absolute liability, see section 6.2 of the Criminal Code.

36A Intimidation of witnesses etc.

(1) A person (the first person) commits an offence if:

(a) the first person:

(i) threatens, intimidates or restrains another person; or

(ii) uses violence to, or inflicts an injury on, another person;

(iii) causes or procures violence, damage, loss or

disadvantage to another person; or

(iv) causes or procures the punishment of another person;

and

(b) the first person does so on account of the other person having

appeared, or being about to appear, as a witness in a judicial

proceeding; and

Penalty: Imprisonment for 5 years.

(2) Absolute liability applies to the paragraph (1)(c) element of the

offence.

Note:

For absolute liability, see section 6.2 of the Criminal Code.

37 Corruption of witnesses

Agreements or understandings

(1) A person (the first person) commits an offence if:

(a) the first person:

(i) gives, confers or procures any property, or benefit, of

any kind to, upon or for another person; or

Admin istration of justice offences Schedule 2

Amend ment of the Crimes Act 1914 Part 1

Law and Justice Legislation Amendment (Identity Crimes and Other Measures) Bill 2008 No.

, 2008 17

(ii) promises or offers to give, to confer, to procure or to

attempt to procure any property, or benefit, of any kind

to, upon or for another person; or

(iii) asks for, receives or obtains any property, or benefit, of

any kind for himself or herself or another person; or

(iv) agrees to receive or to obtain any property, or benefit, of

any kind for himself or herself or another person; and

(b) the first person does so upon an agreement or understanding

that any person called, or to be called, as a witness in a

judicial proceeding will:

(i) give false testimony; or

(ii) withhold true testimony; and

Penalty: Imprisonment for 5 years.

(2) Absolute liability applies to the paragraph (1)(c) element of the

offence.

Note:

For absolute liability, see section 6.2 of the Criminal Code.

Inducing false testimony

(3) A person commits an offence if:

(a) the person does an act; and

(b) the person does so with the intention of inducing a person

called, or to be called, as a witness in a judicial proceeding:

(i) to give false testimony; or

(ii) to withhold true testimony; and

Penalty: Imprisonment for 5 years.

(4) Absolute liability applies to the paragraph (3)(c) element of the

offence.

Note:

For absolute liability, see section 6.2 of the Criminal Code.

38 Deceiving witnesses

(1) A person (the first person) commits an offence if:

(a) the first person:

Schedule 2 Admin istration of justice offences

Part 1 A mend ment of the Crimes Act 1914

18 Law and Justice Legislation Amendment (Identity Crimes and Other Measures) Bill

2008 No. , 2008

(i) practises any fraud or deceit to a person called, or to be

called, as a witness in a judicial proceeding; or

(ii) makes or exhibits any false statement, representation,

token or writing to a person called, or to be called, as a

witness in a judicial proceeding; and

(b) the first person does so with the intention of affecting the

testimony of the other person; and

Penalty: Imprisonment for 2 years.

(2) Absolute liability applies to the paragraph (1)(c) element of the

offence.

Note:

For absolute liability, see section 6.2 of the Criminal Code.

39 Destroying evidence

(1) A person commits an offence if:

(a) the person knows that a book, document or thing of any kind

is, or may be, required in evidence in a judicial proceeding;

and

(b) the person:

(i) destroys the book, document or thing; or

(ii) renders the book, document or thing illegible,

undecipherable or incapable of identification; and

document or thing from being used in evidence; and

(d) the judicial proceeding is a federal judicial proceeding.

Penalty: Imprisonment for 5 years.

(2) Absolute liability applies to the paragraph (1)(d) element of the

offence.

Note:

For absolute liability, see section 6.2 of the Criminal Code.

40 Preventing witnesses from attending Court

(1) A person (the first person) commits an offence if:

(a) another person has been subpoenaed or summoned to attend

as a witness in a judicial proceeding; and

Admin istration of justice offences Schedule 2

Amend ment of the Crimes Act 1914 Part 1

Law and Justice Legislation Amendment (Identity Crimes and Other Measures) Bill 2008 No.

, 2008 19

(b) the first person prevents the other person from attending as a

witness, or from producing anything in evidence, pursuant to

the subpoena or summons; and

Penalty: Imprisonment for 1 year.

(2) Absolute liability applies to the paragraph (1)(c) element of the

offence.

Note:

For absolute liability, see section 6.2 of the Criminal Code.

12 Before section 41

Insert:

Division 4--Perverting the course of justice

13 Subsection 41(1)

Repeal the subsection, substitute:

(1) A person commits an offence if:

(a) the person conspires with another person:

(i) to charge any person falsely with an offence; or

(ii) to cause any person to be falsely charged with an

offence; and

(b) the offence referred to in paragraph (a) is an offence against a

law of:

(i) the Commonwealth; or

(ii) a Territory.

Penalty: Imprisonment for 10 years.

(1A) Absolute liability applies to the paragraph (1)(b) element of the

offence.

Note:

For absolute liability, see section 6.2 of the Criminal Code.

14 Subsections 42(1) and (2)

Repeal the subsections, substitute:

(1) A person commits an offence if:

Schedule 2 Admin istration of justice offences

Part 1 A mend ment of the Crimes Act 1914

20 Law and Justice Legislation Amendment (Identity Crimes and Other Measures) Bill

2008 No. , 2008

(a) the person conspires with another person to obstruct, to

prevent, to pervert or to defeat the course of justice in

relation to a judicial power; and

(b) the judicial power is the judicial power of the

Commonwealth.

Penalty: Imprisonment for 10 years.

(2) Absolute liability applies to the paragraph (1)(b) element of the

offence.

Note:

For absolute liability, see section 6.2 of the Criminal Code.

15 Subsections 43(1) and (2)

Repeal the subsections, substitute:

(1) A person commits an offence if:

(a) the person attempts to obstruct, to prevent, to pervert or to

defeat the course of justice in relation to a judicial power; and

(b) the judicial power is the judicial power of the

Commonwealth.

Penalty: Imprisonment for 10 years.

(2) Absolute liability applies to the paragraph (1)(b) element of the

offence.

Note:

For absolute liability, see section 6.2 of the Criminal Code.

16 Sections 44 and 45

Repeal the sections, substitute:

44 Compounding offences

(1) A person (the first person) commits an offence if:

(a) the first person:

(i) asks for, receives or obtains any property, or benefit, of

any kind for himself or herself or another person; or

(ii) agrees to receive or to obtain any property, or benefit, of

any kind for himself or herself or another person; and

(b) the first person does so upon an agreement or understanding

that the first person will:

(i) compound or conceal an offence; or

Admin istration of justice offences Schedule 2

Amend ment of the Crimes Act 1914 Part 1

Law and Justice Legislation Amendment (Identity Crimes and Other Measures) Bill 2008 No.

, 2008 21

(ii) abstain from, discontinue or delay a prosecution for an

offence; or

(iii) withhold evidence of an offence; and

offence against a law of:

(i) the Commonwealth; or

(ii) a Territory.

Penalty: Imprisonment for 3 years.

(2) Absolute liability applies to the paragraph (1)(c) element of the

offence.

Note:

For absolute liability, see section 6.2 of the Criminal Code.

45 Inserting advertisements without authority of court

(1) A person commits an offence if:

(a) the person inserts in the Gazette, or in a newspaper, an

advertisement purporting to be published under the authority

of a court; and

(b) the person does so:

(i) without authority; or

(ii) knowing the advertisement to be false in any material

particular; and

authority of:

(i) a federal court; or

(ii) a court exercising federal jurisdiction; or

(iii) a court of a Territory.

Penalty: Imprisonment for 2 years.

(2) Absolute liability applies to the paragraph (1)(c) element of the

offence.

Note:

For absolute liability, see section 6.2 of the Criminal Code.

17 Before section 46

Insert:

Schedule 2 Admin istration of justice offences

Part 1 A mend ment of the Crimes Act 1914

22 Law and Justice Legislation Amendment (Identity Crimes and Other Measures) Bill

2008 No. , 2008

Division 5--Escape from criminal detention

45A Criminal detention definitions

In this Act:

criminal detention: a person is in criminal detention if the person:

(a) is arrested in respect of an offence; or

(b) is in custody in respect of an offence; or

(i) the person is unfit to be tried in respect of an offence; or

(ii) the person has been acquitted of an offence because of

mental illness at the time of the offence; or

(iii) the person has been convicted of an offence and a court

has ordered that the person be detained for the purposes

of receiving treatment for a mental illness that

contributed to the commission of the offence.

Example: Paragraph (c) includes detention under:

(a)

Division 6 of Part IB (unfitness to be tried); or

(b)

Division 7 of Part IB or section 20BS (mental illness).

federal criminal detention means criminal detention in respect of

an offence against a law of:

(a) the Commonwealth; or

(b) a Territory (other than the Australian Capital Territory).

18 Sections 46 to 48

Repeal the sections, substitute:

46 Aiding prisoner to escape

(1) A person (the first person) commits an offence if:

(a) another person (the prisoner) is in criminal detention; and

(b) the first person aids the prisoner:

(i) to escape from that detention; or

(ii) to attempt to escape from that detention; and

detention; and

(d) the detention is lawful federal criminal detention.

Admin istration of justice offences Schedule 2

Amend ment of the Crimes Act 1914 Part 1

Law and Justice Legislation Amendment (Identity Crimes and Other Measures) Bill 2008 No.

, 2008 23

Penalty: Imprisonment for 5 years.

(2) Absolute liability applies to the paragraph (1)(d) element of the

offence.

Note:

For absolute liability, see section 6.2 of the Criminal Code.

(3) Subsection (1) does not apply if, before the escape or attempted

escape, the first person:

(a) terminates his or her aid to the prisoner; and

(b) takes all reasonable steps to prevent the escape or attempted

escape.

Note:

A defendant bears an evidential burden in relation to the matter in

subsection (3) (see subsection 13.3(3) of the Criminal Code).

(4) The first person may be found guilty of the offence even if the

prisoner has not been prosecuted for, or has not been found guilty

of, an offence in relation to the escape or attempted escape.

46A Aiding prisone r to escape--conveying thing into prison etc.

(1) A person (the first person) commits an offence if:

(a) another person (the prisoner) is in criminal detention; and

(b) the first person conveys a thing into a prison, lock-up or other

place of criminal detention; and

escape of the prisoner from the prison, lock-up or other place;

and

(d) the detention is lawful federal criminal detention.

Penalty: Imprisonment for 5 years.

(2) Absolute liability applies to the paragraph (1)(d) element of the

offence.

Note:

For absolute liability, see section 6.2 of the Criminal Code.

47 Escaping

(1) A person commits an offence if:

(a) the person is in criminal detention; and

(b) the person escapes from that detention; and

Schedule 2 Admin istration of justice offences

Part 1 A mend ment of the Crimes Act 1914

24 Law and Justice Legislation Amendment (Identity Crimes and Other Measures) Bill

2008 No. , 2008

Penalty: Imprisonment for 5 years.

(2) Absolute liability applies to the paragraph (1)(c) element of the

offence.

Note:

For absolute liability, see section 6.2 of the Criminal Code.

47A Rescuing a prisone r from criminal detention

(1) A person (the first person) commits an offence if:

(a) another person (the prisoner) is in criminal detention; and

(b) the first person rescues the prisoner from that detention by

force; and

Penalty: Imprisonment for 14 years.

(2) Absolute liability applies to the paragraph (1)(c) element of the

offence.

Note:

For absolute liability, see section 6.2 of the Criminal Code.

47B Person unlawfully at large

(1) A person commits an offence if:

(a) the person was in criminal detention in a prison, lock-up or

other place of criminal detention; and

(b) the detention was lawful federal criminal detention; and

or Territory (other than the Australian Capital Territory), the

person leaves the prison, lock-up or other place; and

(d) the person refuses, or fails, to return to the prison, lock-up or

other place in accordance with that permission.

Penalty: Imprisonment for 5 years.

(2) Absolute liability applies to the paragraph (1)(b) element of the

offence.

Note:

For absolute liability, see section 6.2 of the Criminal Code.

(3) Paragraph (1)(d) does not apply if the person has a reasonable

excuse.

Note:

A defendant bears an evidential burden in relation to the matter in

subsection (3) (see subsection 13.3(3) of the Criminal Code).

Admin istration of justice offences Schedule 2

Amend ment of the Crimes Act 1914 Part 1

Law and Justice Legislation Amendment (Identity Crimes and Other Measures) Bill 2008 No.

, 2008 25

47C Pe rmitting escape

(1) A person (the first person) commits an offence if:

(a) the first person is:

(i) an officer of a prison, lock-up or other place of criminal

detention; or

(ii) a constable; or

(iii) a Commonwealth officer; and

(b) the first person is charged for the time being with the

criminal detention of another person (the prisoner); and

prisoner to escape from the detention; and

(d) the detention is lawful federal criminal detention.

Penalty: Imprisonment for 5 years.

(2) Absolute liability applies to the paragraph (1)(d) element of the

offence.

Note:

For absolute liability, see section 6.2 of the Criminal Code.

48 Harbouring etc. an escapee

(1) A person (the first person) commits an offence if:

(a) the first person knows that another person (the escapee) has

escaped from a place where the other person was held in

criminal detention; and

(b) the first person harbours, maintains or employs the escapee;

and

Penalty: Imprisonment for 5 years.

(2) Absolute liability applies to the paragraph (1)(c) element of the

offence.

Note:

For absolute liability, see section 6.2 of the Criminal Code.

19 Before section 49

Insert:

Schedule 2 Admin istration of justice offences

Part 1 A mend ment of the Crimes Act 1914

26 Law and Justice Legislation Amendment (Identity Crimes and Other Measures) Bill

2008 No. , 2008

Division 6--Seized property

20 Section 49

Repeal the section, substitute:

49 Removing prope rty under seizure

(1) A person commits an offence if:

(a) property has been attached, or taken, under the process or

authority of a court; and

(b) the court was:

(i) a federal court; or

(ii) exercising federal jurisdiction; or

(iii) a court of a Territory; and

the property; and

(d) the person does so with the intention of hindering or

defeating the attachment or process.

Penalty: Imprisonment for 2 years.

(2) Absolute liability applies to the paragraph (1)(b) element of the

offence.

Note:

For absolute liability, see section 6.2 of the Criminal Code.

Admin istration of justice offences Schedule 2

Other amend ments Part 2

Law and Justice Legislation Amendment (Identity Crimes and Other Measures) Bill 2008 No.

, 2008 27

Part 2

Other amendments

Australian Federal Police Act 1979

21 Subsection 4(1) (subparagraph (a)(i) of the definition of

protective service offence)

Omit "(other than paragraph (b))".

Federal Court of Australia Act 1976

22 Subsection 32P(2)

Before "judicial proceeding", insert "federal".

International Criminal Court Act 2002

23 Section 183

Repeal the section, substitute:

183 Aiding persons to escape etc.

Sections 46, 46A, 47A, 47C and 48 of the Crimes Act 1914 have

effect as if:

(a) arrest pursuant to this Act were arrest in respect of an offence

against a law of the Commonwealth; and

(b) custody while in Australia pursuant to this Act were custody

in respect of an offence against a law of the Commonwealth.

International Transfer of Prisoners Act 1997

24 After section 56

Insert:

56A Aiding persons to escape etc.

Division 5 of Part III of the Crimes Act 1914 has effect as if:

Schedule 2 Admin istration of justice offences

Part 2 Other amendments

28 Law and Justice Legislation Amendment (Identity Crimes and Other Measures) Bill

2008 No. , 2008

(a) custody or detention in Australia under this Act were custody

in respect of an offence against a law of the Commonwealth;

and

(b) arrest under section 56 of this Act were arrest in respect of an

offence against a law of the Commonwealth.

International War Crimes Tribunals Act 1995

25 Section 80

Repeal the section, substitute:

80 Aiding persons to escape etc.

Sections 46, 46A, 47A, 47C and 48 of the Crimes Act 1914 have

effect as if:

(a) arrest pursuant to this Act were arrest in respect of an offence

against a law of the Commonwealth; and

(b) custody while in Australia pursuant to this Act were custody

in respect of an offence against a law of the Commonwealth.

Mutual Assistance in Criminal Matters Act 1987

26 Section 25A

Repeal the section, substitute:

25A Aiding persons to escape etc.

Sections 46, 46A, 47A, 47C and 48 of the Crimes Act 1914 have

effect as if:

(a) arrest under section 25 of this Act were arrest in respect of an

offence against a law of the Commonwealth; and

(b) custody while in Australia under a request under section 16

of this Act were custody in respect of an offence against a

law of the Commonwealth.

27 Section 31A

Repeal the section, substitute:

Admin istration of justice offences Schedule 2

Other amend ments Part 2

Law and Justice Legislation Amendment (Identity Crimes and Other Measures) Bill 2008 No.

, 2008 29

31A Aiding persons to escape etc.

Sections 46, 46A, 47A, 47C and 48 of the Crimes Act 1914 have

effect as if:

(a) arrest under section 31 of this Act were arrest in respect of an

offence against a law of the Commonwealth; and

(b) custody while in Australia in accordance with a direction

under paragraph 29(1)(d) of this Act were custody in respect

of an offence against a law of the Commonwealth.

Telecommunications (Interception and Access) Act 1979

28 Paragraph 5D(8)(b)

After "46", insert ", 46A".

Transfer of Prisoners Act 1983

29 Subsection 26(1)

Omit "as if a reference in that section", substitute "of this Act as if a

reference in the definition of federal criminal detention in

section 45A".

30 Subsection 26(2)

Omit "that section", substitute "the definition of federal criminal

detention in section 45A of that Act".

Schedule 3 Director of Pub lic Prosecutions Act 1983

30 Law and Justice Legislation Amendment (Identity Crimes and Other Measures) Bill

2008 No. , 2008

Schedule 3

Director of Public Prosecutions

Act 1983

1 Subsection 31(1)

After "all or any of his or her", insert "functions or".

2 Subsection 31(1)

Omit "other than his or her powers", substitute "other than those".

3 After subsection 31(1)

Insert:

(1AA) If a function is delegated under subsection (1) to a person referred

to in paragraph 29(b), the person need not accept the function

delegated.

4 After subsection 31(1A)

Insert:

(1B) The Director may, either generally or as otherwise provided by the

instrument of delegation, by writing signed by him or her, delegate

to:

(a) a person performing a similar role under a law of a State or

Territory; or

(b) a member of the staff of a State or Territory authority (within

the meaning of subsection 15(3)) who is a legal practitioner;

to institute or conduct prosecutions for offences against the

laws of the State or Territory; or

(d) a person included in a class of persons prescribed by the

regulations for the purposes of this paragraph;

all or any of the Director's functions and powers under the

following provisions:

(e) paragraphs 6(1)(a), (b), (c), (d) and (e);

(f) paragraph 6(1)(n) (so far as it relates to the functions covered

by paragraph (e) of this subsection);

(g) subsections 6(2A), (2B) and (2C);

Director of Public Prosecutions Act 1983 Schedule 3

Law and Justice Legislation Amendment (Identity Crimes and Other Measures) Bill 2008 No.

, 2008 31

(h) subsections 9(7), (8A) and (8B);

(i) other provisions of this Act prescribed by the regulations for

the purposes of this paragraph.

(1C) If a function is delegated under subsection (1B) to a person, the

person need not accept the function delegated.

5 Subsection 31(2)

After "A", insert "function or".

6 Subsection 31(2)

After "when", insert "performed or".

7 Subsection 31(2)

After "been", insert "performed or".

8 Subsection 31(3)

After "prevent", insert "the performance of a function or".

9 After section 32

Insert:

32A Immunity from civil proceedings

(1) No civil action, suit or proceeding lies against the following

persons:

(a) the Director;

(b) a member of the staff of the Office;

section 31;

in relation to an act done, or omitted to be done, in good faith by

the person in the performance or exercise, or the purported

performance or exercise, of any function, duty or power under, or

in relation to, this Act.

(2) No civil action, suit or proceeding lies against a person employed

under subsection 27(3) in relation to an act done, or omitted to be

done, in good faith by the person for the purposes of the

performance of the functions of the Director.

Schedule 3 Director of Pub lic Prosecutions Act 1983

32 Law and Justice Legislation Amendment (Identity Crimes and Other Measures) Bill

2008 No. , 2008

Note:

Subsection (1) applies to the extent that the Director's functions or

powers are delegated to a person employed under subsection 27(3).

(3) No civil action, suit or proceeding lies against a person referred to

in section 29 whose services are made available to the Director in

relation to an act done, or omitted to be done, in good faith by the

person for the purpose of assisting the Director.

Note:

Subsection (1) applies to the extent that the Director's functions or

powers are delegated to a person referred to in section 29 whose

services are made available to the Director.

(4) No civil action, suit or proceeding lies against the AGS in relation

to an act done, or omitted to be done, in good faith by the AGS in

performing a function or exercising a power under an arrangement

made under subsection 32(1).

(5) No civil action, suit or proceeding lies against:

(a) the Chief Executive Officer of the AGS; or

(b) a person employed under subsection 55ZB(1) of the

Judiciary Act 1903;

in relation to an act done, or omitted to be done, in good faith by

the person in assisting the AGS to perform a function or exercise a

power under an arrangement made under subsection 32(1) of this

Act.

(6) In subsections (4) and (5):

AGS has the meaning given by subsection 32(4).

Anti-Money Laundering and Counter-Terrorism Financing Act 2006 Schedule 4

Law and Justice Legislation Amendment (Identity Crimes and Other Measures) Bill 2008 No.

, 2008 33

Schedule 4

Anti-Money Laundering and

Counter-Terrorism Financing Act 2006

1 Subsection 61(2)

After "affix", insert ", or arrange for another person to affix,".

2 Paragraph 62(2)(a)

After "notice", insert ", or communicate the information contained in

the notice in the manner prescribed by the AML/CTF Rules,".

3 Paragraph 62(2)(b)

After "given", insert ", or cause to be communicated the information

contained in the notice in the manner prescribed by the AML/CTF

Rules,".

4 Subparagraphs 124(1)(a)(iv) and (1)(b)(iv) and (v)

After "subsection 49(1)", insert ", in so far as that subsection relates to a

communication under section 41".

5 At the end of subsections 128(4) and (9)

Add:

; or (c) was obtained under section 16 of the Financial Transaction

Reports Act 1988.

6 After subsection 130(3)

Insert:

(3A) Paragraph (3)(a) does not apply to AUSTRAC information that:

(a) was obtained under section 41; or

(b) was obtained under section 49, in so far as that section relates

to a communication under section 41; or

Reports Act 1988.

7 After subsection 131(3)

Insert:

(3A) Subsection (3) does not apply to AUSTRAC information that:

Schedule 4 Anti-Money Laundering and Counter-Terrorism Financing Act 2006

34 Law and Justice Legislation Amendment (Identity Crimes and Other Measures) Bill

2008 No. , 2008

(a) was obtained under section 41; or

(b) was obtained under section 49, in so far as that section relates

to a communication under section 41; or

Reports Act 1988.

8 Application

(1)

The amendments of section 62 of the Anti-Money Laundering and

Counter-Terrorism Financing Act 2006 made by this Schedule apply in

relation to aircraft or ships leaving a place outside Australia on or after

the commencement of this item.

(2)

The amendment of section 124 of the Anti-Money Laundering and

Counter-Terrorism Financing Act 2006 made by this Schedule applies

in relation to court or tribunal proceedings instituted on or after the

commencement of this item.

(3)

The amendment of section 128 of the Anti-Money Laundering and

Counter-Terrorism Financing Act 2006 made by this Schedule applies

in relation to information obtained under section 16 of the Financial

Transaction Reports Act 1988 before, on or after the commencement of

this item.

(4)

The amendments of sections 130 and 131 of the Anti-Money

Laundering and Counter-Terrorism Financing Act 2006 made by this

Schedule apply in relation to AUSTRAC information obtained before,

on or after the commencement of this item.

Australian Federal Police Act 1979 Schedule 5

Amend ments commencing on a day to be fixed by Proclamation Part 1

Law and Justice Legislation Amendment (Identity Crimes and Other Measures) Bill 2008 No.

, 2008 35

Schedule 5

Australian Federal Police Act

1979

Part 1

Amendments commencing on a day to be

fixed by Proclamation

1 Subsection 40LA(3)

Omit "blood", substitute "breath".

Note:

The heading to section 40LA is replaced by the heading "Authorised managers may

require AFP appointees to undergo alcohol screening tests etc.".

2 Paragraph 40LA(4)(a)

Omit "blood", substitute "breath".

3 Subsection 40M(1)

After "her", insert "to do one or more of the following".

Note:

The heading to section 40M is replaced by the heading "Prescribed persons may

require AFP employees or special members to undergo alcohol screening tests,

alcohol breath tests or prohibited drug tests etc.".

4 Before paragraph 40M(1)(a)

Insert:

(aa) undergo an alcohol screening test;

5 Paragraph 40M(1)(a)

Omit "to".

6 Paragraph 40M(1)(a)

Omit "or".

7 Paragraph 40M(1)(b)

Omit "to".

8 Before paragraphs 40N(1)(c) and (2)(c)

Insert:

(ba) to undergo an alcohol screening test; or

Schedule 5 Australian Federal Po lice Act 1979

Part 1 A mend ments commencing on a day to be fixed by Proclamation

36 Law and Justice Legislation Amendment (Identity Crimes and Other Measures) Bill

2008 No. , 2008

Note:

The heading to section 40N is altered by omitting "Alcohol breath tests" and

substituting "Alcohol screening tests, alcohol breath tests".

9 Subsection 61(1)

Omit "a Deputy Commissioner, an AFP employee, a special member or

a special protective service officer", substitute "an AFP appointee".

10 Subsection 61(1)

After "conspicuous conduct", insert "or by his or her diligent service".

11 After subsection 61(1)

Insert:

(1A) If the Commissioner is satisfied that a person (other than an AFP

appointee) has, by his or her bravery, or other conspicuous

conduct, in assisting the Australian Federal Police, merited a

prescribed award, the Commissioner may confer the award on that

person.

12 Application

The amendment made by item 10 applies in relation to service

occurring before, on or after the commencement of this item.

Australian Federal Police Act 1979 Schedule 5

Amend ments commencing on the day after Royal Assent Part 2

Law and Justice Legislation Amendment (Identity Crimes and Other Measures) Bill 2008 No.

, 2008 37

Part 2

Amendments commencing on the day after

Royal Assent

13 Section 40RO

Before "The Commissioner", insert "(1)".

14 Subparagraph 40RO(a)(ii)

Omit "and", substitute "or".

15 Subparagraph 40RO(b)(ii)

Omit "Act; and", substitute "Act.".

16 Paragraph 40RO(c)

Repeal the paragraph.

17 At the end of section 40RO

Add:

(2) The Commissioner and the Ombudsman must also be satisfied that

the conduct does not warrant being treated as category 3 conduct

for the purposes of this Act.

18 Subsection 40TN(1)

Before "section 40TO", insert "subsection (3) and".

19 Subsection 40TN(1)

Omit "a person who is a member or special member", substitute "one or

more law enforcement officers (within the meaning of the Crimes Act

1914)".

20 Subsection 64A(2)

Omit "worn on, or attached to, the front of his or her uniform",

substitute "clearly visible on his or her uniform".

Schedule 6 Judiciary Act 1903

38 Law and Justice Legislation Amendment (Identity Crimes and Other Measures) Bill

2008 No. , 2008

Schedule 6

Judiciary Act 1903

1 Section 55D

Repeal the section.

2 Subsection 55E(1) (paragraph (a) of the definition of

Attorney-

General's lawyer

)

Repeal the paragraph, substitute:

(a) whose name is on:

(i) the roll of barristers and solicitors of the High Court

kept under the Rules of Court; or

(ii) the roll of barristers, solicitors, barristers and solicitors

or legal practitioners of the Supreme Court of a State or

Territory; and

3 Section 55I (paragraph (b) of the definition of AGS lawyer)

Repeal the paragraph, substitute:

(b) an employee of the AGS whose name is on:

(i) the roll of barristers and solicitors of the High Court

kept under the Rules of Court; or

(ii) the roll of barristers, solicitors, barristers and solicitors

or legal practitioners of the Supreme Court of a State or

Territory.

4 Subsection 55T(2)

Repeal the subsection, substitute:

(2) The CEO must be a person whose name is on:

(a) the roll of barristers and solicitors of the High Court kept

under the Rules of Court; or

(b) the roll of barristers, solicitors, barristers and solicitors or

legal practitioners of the Supreme Court of a State or

Territory.

Miscellaneous amendments Schedule 7

Law and Justice Legislation Amendment (Identity Crimes and Other Measures) Bill 2008 No.

, 2008 39

Schedule 7

Miscellaneous amendments

Australian Federal Police Act 1979

1 Subparagraphs 4AA(1)(d)(i) and (ii)

Omit "a matter relating to a relevant criminal activity that relates to".

Crimes Act 1914

2 Subparagraphs 3AA(1)(d)(i) and (ii)

Omit "a matter relating to a relevant criminal activity that relates to".

Criminal Code Act 1995

3 Subsection 477.1(5) of the Criminal Code

Omit "(3)", substitute "(4)".

Privacy Act 1988

4 Subsection 6(1) (after paragraph (k) of the definition of

enforcement body)

Insert:

(ka) the Office of Police Integrity of Victoria; or

Commonwealth of Australia Bills

LAW AND JUSTICE LEGISLATION AMENDMENT (IDENTITY CRIMES AND OTHER MEASURES) BILL 2008