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

Crimes Legislation Amendment (Serious Drugs, Identity Crime and Other Measures) Act 2012 No. 167, 2012 An Act to amend various Acts relating to criminal law and law enforcement, and for other purposes Contents 1 Short title 2 Commencement 3 Schedule(s) Schedule 1—Serious drugs Part 1—Amendments Criminal Code Act 1995 Customs Act 1901 Part 2—Application and transitional Schedule 2—Identity crime and air travel Part 1—Identity crime Criminal Code Act 1995 Part 2—False identity and air travel Crimes Act 1914 Criminal Code Act 1995 Part 3—Application of amendments Schedule 3—Other measures Part 1—Integrity Commissioner functions Division 1—Amendments Law Enforcement Integrity Commissioner Act 2006 Division 2—Application Part 2—Penalty units Division 1—Amendments Crimes Act 1914 Division 2—Application Part 3—Superannuation orders Division 1—Amendments Australian Federal Police Act 1979 Crimes (Superannuation Benefits) Act 1989 Division 2—Application Crimes Legislation Amendment (Serious Drugs, Identity Crime and Other Measures) Act 2012 No. 167, 2012 An Act to amend various Acts relating to criminal law and law enforcement, and for other purposes [Assented to 28 November 2012] The Parliament of Australia enacts: 1 Short title This Act may be cited as the Crimes Legislation Amendment (Serious Drugs, Identity Crime and Other Measures) Act 2012. 2 Commencement (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. 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 this Act receives the Royal Assent. 28 November 2012 2. Schedule 1, Part 1 A single day to be fixed by Proclamation. 28 May 2013 However, if the provision(s) do not commence within the period of 6 months beginning on the day this Act receives the Royal Assent, they commence on the day after the end of that period. 3. Schedule 1, Part 2 The day after this Act receives the Royal Assent. 29 November 2012 4. Schedule 2 The day after this Act receives the Royal Assent. 29 November 2012 5. Schedule 3, Part 1 The day after this Act receives the Royal Assent. 29 November 2012 6. Schedule 3, Part 2 A single day to be fixed by Proclamation. 28 December 2012 However, if the provision(s) do not commence within the period of 1 month beginning on the day this Act receives the Royal Assent, they commence on the day after the end of that period. 7. Schedule 3, Part 3 The day after this Act receives the Royal Assent. 29 November 2012 Note: This table relates only to the provisions of this Act as originally enacted. It will not be amended to deal with any later amendments of this Act. (2) Any information in column 3 of the table is not part of this Act. Information may be inserted in this column, or information in it may be 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—Serious drugs Part 1—Amendments Criminal Code Act 1995 1 Subsection 300.1(1) of the Criminal Code After "20 December 1988", insert "(the TINDAPS Convention)". 2 Section 300.2 of the Criminal Code (definition of border controlled drug) Repeal the definition, substitute: border controlled drug has the meaning given by section 301.4. 3 Section 300.2 of the Criminal Code (definition of border controlled plant) Repeal the definition, substitute: border controlled plant has the meaning given by section 301.5. 4 Section 300.2 of the Criminal Code (definition of border controlled precursor) Repeal the definition, substitute: border controlled precursor has the meaning given by section 301.6. 5 Section 300.2 of the Criminal Code (definition of commercial quantity) Repeal the definition, substitute: commercial quantity of a serious drug, controlled precursor or border controlled precursor has the meaning given by section 301.10. 6 Section 300.2 of the Criminal Code (definition of controlled drug) Repeal the definition, substitute: controlled drug has the meaning given by section 301.1. 7 Section 300.2 of the Criminal Code (definition of controlled plant) Repeal the definition, substitute: controlled plant has the meaning given by section 301.2. 8 Section 300.2 of the Criminal Code (definition of controlled precursor) Repeal the definition, substitute: controlled precursor has the meaning given by section 301.3. 9 Section 300.2 of the Criminal Code Insert: determined, in relation to a serious drug, controlled precursor or border controlled precursor, means: (a) for a serious drug—determined by the Minister under section 301.13; or (b) for a precursor—determined by the Minister under section 301.14. 10 Section 300.2 of the Criminal Code Insert: drug analogue has the meaning given by section 301.9. 11 Section 300.2 of the Criminal Code Insert: listed, in relation to a serious drug, means: (a) for a controlled drug—listed by a regulation made for the purposes of paragraph 301.1(a); or (b) for a controlled plant—listed by a regulation made for the purposes of paragraph 301.2(a); or (c) for a border controlled drug—listed by a regulation made for the purposes of paragraph 301.4(a); or (d) for a border controlled plant—listed by a regulation made for the purposes of paragraph 301.5(a). 12 Section 300.2 of the Criminal Code (definition of marketable quantity) Repeal the definition, substitute: marketable quantity of a serious drug, controlled precursor or border controlled precursor has the meaning given by section 301.11. 13 Section 300.2 of the Criminal Code Insert: serious drug means one of the following: (a) a controlled drug; (b) a controlled plant; (c) a border controlled drug; (d) a border controlled plant. 14 Section 300.2 of the Criminal Code Insert: TINDAPS Convention has the meaning given by section 300.1. 15 Section 300.2 of the Criminal Code (definition of trafficable quantity) Repeal the definition, substitute: trafficable quantity of a controlled drug, or a controlled plant, has the meaning given by section 301.12. 16 Division 301 of the Criminal Code Repeal the Division, substitute: Division 301—Serious drugs and precursors Subdivision A—Serious drugs and precursors: definitions 301.1 Meaning of controlled drug (1) For the purposes of this Part, a controlled drug is a substance, other than a growing plant, that is: (a) listed by a regulation as a controlled drug; or (b) a drug analogue of a listed controlled drug; or (c) determined by the Minister as a controlled drug under section 301.13 (which deals with emergency determinations of serious drugs). Note: Some conditions must be satisfied before: (a) a regulation can be made for paragraph (1)(a) (see section 301.7); or (b) a determination can be made for paragraph (1)(c) (see subsection 301.13(2)). (2) The purpose of subsection (1) is to permit certain substances that are covered by the TINDAPS Convention, or drug analogues of such substances, to be treated as controlled drugs for the purposes of this Part (see also section 300.1). Note: For the meaning of drug analogue, see section 301.9. 301.2 Meaning of controlled plant (1) For the purposes of this Part, a controlled plant is a growing plant that is: (a) listed by a regulation as a controlled plant; or (b) determined by the Minister as a controlled plant under section 301.13 (which deals with emergency determinations of serious drugs). Note: Some conditions must be satisfied before: (a) a regulation can be made for paragraph (1)(a) (see section 301.7); or (b) a determination can be made for paragraph (1)(b) (see subsection 301.13(2)). (2) The purpose of subsection (1) is to permit growing plants that are covered by the TINDAPS Convention to be treated as controlled plants for the purposes of this Part (see also section 300.1). 301.3 Meaning of controlled precursor (1) For the purposes of this Part, a controlled precursor is a substance (including a growing plant) that is: (a) listed by a regulation as a controlled precursor; or (b) a salt or ester of a controlled precursor that is so listed; or (c) determined by the Minister as a controlled precursor under section 301.14 (which deals with emergency determinations of serious drug precursors). Note: Some conditions must be satisfied before: (a) a regulation can be made for paragraph (a) (see section 301.8); or (b) a determination can be made for paragraph (c) (see subsection 301.14(2)). (2) The purpose of subsection (1) is to permit certain substances that are covered by the TINDAPS Convention, or salts or esters of such substances, to be treated as controlled precursors for the purposes of this Part (see also section 300.1). 301.4 Meaning of border controlled drug For the purposes of this Part, a border controlled drug is a substance, other than a growing plant, that is: (a) listed by a regulation as a border controlled drug; or (b) a drug analogue of a listed border controlled drug; or (c) determined by the Minister as a border controlled drug under section 301.13 (which deals with emergency determinations of serious drugs). Note 1: Some conditions must be satisfied before: (a) a regulation can be made for paragraph (a) (see section 301.7); or (b) a determination can be made for paragraph (c) (see subsection 301.8(2)). Note 2: For the meaning of drug analogue, see section 301.9. 301.5 Meaning of border controlled plant For the purposes of this Part, a border controlled plant is a growing plant: (a) listed by a regulation as a border controlled plant; or (b) determined by the Minister as a border controlled plant under section 301.13 (which deals with emergency determinations of serious drugs). Note: Some conditions must be satisfied before: (a) a regulation can be made for paragraph (a) (see section 301.7); or (b) a determination can be made for paragraph (b) (see subsection 301.13(2)). 301.6 Meaning of border controlled precursor (1) For the purposes of this Part, a border controlled precursor is a substance (including a growing plant) that is: (a) listed by a regulation as a border controlled precursor; or (b) a salt or ester of a precursor that is so listed; or (c) an immediate precursor of a precursor that is so listed; or (d) determined by the Minister as a border controlled precursor under section 301.14 (which deals with emergency determinations of serious drug precursors). Note: Some conditions must be satisfied before: (a) a regulation can be made for paragraph (a) (see section 301.8); or (b) a determination can be made for paragraph (d) (see subsection 301.14(2)). (2) In this section: immediate precursor of a precursor listed for the purposes of paragraph (1)(a) means a chemical or compound (other than another precursor that is so listed) that is an immediate precursor in the manufacture by a chemical process of the listed precursor. 301.7 Serious drugs—conditions for listing by regulation Before a regulation is made listing a substance or plant as a serious drug for the purposes of this Part, the Minister must be satisfied that: (a) the substance or plant is likely to be taken without appropriate medical supervision; and (b) one or more of the following conditions is met: (i) taking the substance or plant would create a risk of death or serious harm; (ii) taking the substance or plant would have a physical or mental effect substantially similar to that caused by taking a serious drug that is already listed; (iii) the substance or plant has the capacity to cause physiological dependence; (iv) possession or conduct in relation to the substance or plant is proscribed under a law of a State, a Territory or a foreign country that has purposes similar to those of this Part; (v) the substance or plant poses a substantial risk to the health or safety of the public. 301.8 Serious drug precursors—conditions for listing by regulation Before a regulation is made listing a substance as a controlled precursor or a border controlled precursor, the Minister must be satisfied that there is a risk that the substance will be used to unlawfully manufacture a controlled drug (other than a determined controlled drug). 301.9 Meaning of drug analogue (1) For the purposes of this Part, a substance is a drug analogue of a listed controlled drug, or a listed border controlled drug, if the substance is any of the following in relation to the listed drug (or in relation to a primary analogue of the listed drug), however the substance is obtained: (a) one of the following (a primary analogue): (i) a stereoisomer; (ii) a structural isomer having the same constituent groups; (iii) an alkaloid; (b) a structural modification obtained by the addition of one or more of the following groups: (i) alkoxy, cyclic diether, acyl, acyloxy, mono‑amino or dialkylamino groups with up to 6 carbon atoms in any alkyl residue; (ii) alkyl, alkenyl or alkynyl groups with up to 6 carbon atoms in the group, where the group is attached to oxygen (for example, an ester or an ether group), nitrogen, sulphur or carbon; (iii) halogen, hydroxy, nitro or amino groups; (c) a structural modification obtained in one or more of the following ways: (i) by the replacement of up to 2 carbocyclic or heterocyclic ring structures with different carbocyclic or heterocyclic ring structures; (ii) by the addition of hydrogen atoms to one or more unsaturated bonds; (iii) by the replacement of one or more of the groups specified in paragraph (b) with another such group or groups; (iv) by the conversion of a carboxyl or an ester group into an amide group; (d) any other homologue, analogue, chemical derivative or substance substantially similar in chemical structure. (2) However, a drug analogue does not include a substance that is itself a listed controlled drug or a listed border controlled drug. Subdivision B—Serious drugs and precursors: commercial, marketable and trafficable quantities 301.10 Meaning of commercial quantity For the purposes of this Part, a commercial quantity of a serious drug, controlled precursor or border controlled precursor is a quantity not less than that provided by the following table: Commercial quantities of serious drugs and precursors Item Serious drug or precursor Commercial quantity (minimum) 1 A serious drug (other than a drug analogue), controlled precursor or border controlled precursor Either: (a) the quantity listed as a commercial quantity of the drug or precursor in a regulation made for the purposes of this section; or (b) the quantity determined as a commercial quantity of the drug or precursor by the Minister under section 301.15 (which deals with emergency determinations of quantities). 2 A drug analogue of 1 or more listed controlled drugs Either: (a) for a drug analogue of a single listed controlled drug—the commercial quantity of the listed drug; or (b) for a drug analogue of 2 or more listed controlled drugs—the smallest commercial quantity of any of the listed drugs. 3 A drug analogue of 1 or more listed border controlled drugs Either: (a) for a drug analogue of a single listed border controlled drug—the commercial quantity of the listed drug; or (b) for a drug analogue of 2 or more listed border controlled drugs—the smallest commercial quantity of any of the listed drugs. Note: A drug analogue of a listed controlled drug, or a listed border controlled drug, is itself a controlled drug or border controlled drug (see paragraphs 301.1(b) and 301.4(b), and the definition of drug analogue in section 301.9). 301.11 Meaning of marketable quantity For the purposes of this Part, a marketable quantity of a serious drug, controlled precursor or border controlled precursor is a quantity not less than that provided by the following table: Marketable quantities of serious drugs and precursors Item Serious drug or precursor Marketable quantity (minimum) 1 A serious drug (other than a drug analogue), controlled precursor or border controlled precursor Either: (a) the quantity listed as a marketable quantity of the drug or precursor in a regulation made for the purposes of this section; or (b) the quantity determined as a marketable quantity of the drug or precursor by the Minister under section 301.15 (which deals with emergency determinations of quantities). 2 A drug analogue of 1 or more listed controlled drugs Either: (a) for a drug analogue of a single listed controlled drug—the marketable quantity of the listed drug; or (b) for a drug analogue of 2 or more listed controlled drugs—the smallest marketable quantity of any of the listed drugs. 3 A drug analogue of 1 or more listed border controlled drugs Either: (a) for a drug analogue of a single listed border controlled drug—the commercial quantity of the listed drug; or (b) for a drug analogue of 2 or more listed border controlled drugs—the smallest commercial quantity of any of the listed drugs. Note: A drug analogue of a listed controlled drug, or a listed border controlled drug, is itself a controlled drug or border controlled drug (see paragraphs 301.1(b) and 301.4(b), and the definition of drug analogue in section 301.9). 301.12 Meaning of trafficable quantity For the purposes of this Part, a trafficable quantity of a controlled drug or a controlled plant is a quantity not less than that provided by the following table: Trafficable quantities of controlled drugs and plants Item Controlled drug or plant Trafficable quantity (minimum) 1 A controlled drug (other than a drug analogue) or a controlled plant Either: (a) the quantity listed as a trafficable quantity of the drug or plant in a regulation made for the purposes of this section; or (b) the quantity determined as a trafficable quantity of the drug or plant by the Minister under section 301.15 (which deals with emergency determinations of quantities). 2 A drug analogue of 1 or more listed controlled drugs Either: (a) for a drug analogue of a single listed controlled drug—the trafficable quantity of the listed drug; or (b) for a drug analogue of 2 or more listed controlled drugs—the smallest trafficable quantity of any of the listed drugs. Note: A drug analogue of a listed controlled drug is itself a controlled drug (see paragraph 301.1(b) and the definition of drug analogue in section 301.9). Subdivision C—Serious drugs and precursors: emergency determinations 301.13 Emergency determinations—serious drugs (1) The Minister may, by legislative instrument, determine that: (a) a substance, other than a growing plant, is a controlled drug or a border controlled drug; or (b) a growing plant is a controlled plant or a border controlled plant. (2) The Minister must not make a determination under subsection (1) unless he or she is satisfied: (a) that there is an imminent and substantial risk that the substance or plant will be taken without appropriate medical supervision; and (b) one or more of the following conditions is met: (i) taking the substance or plant may create a risk of death or serious harm; (ii) taking the substance or plant may have a physical or mental effect substantially similar to that caused by taking a listed serious drug; (iii) there is limited or no known lawful use of the substance or plant in Australia, and the substance or plant has been found by a public official in the course of the performance of the official's duties; (iv) the substance or plant may pose a substantial risk to the health or safety of the public. (3) The Minister must not make more than one determination under this section in relation to a particular substance or plant. 301.14 Emergency determinations—serious drug precursors (1) The Minister may, by legislative instrument, determine that a substance (including a growing plant) is a controlled precursor or a border controlled precursor. (2) The Minister must not make a determination under subsection (1) unless he or she is satisfied that there is an imminent and substantial risk that the substance will be used to unlawfully manufacture a controlled drug. (3) The Minister must not make more than one determination under this section in relation to a particular substance or plant. 301.15 Emergency determinations—commercial, marketable and trafficable quantities (1) The Minister may, by legislative instrument, determine: (a) a quantity of a serious drug as a commercial or marketable quantity of the drug; or (b) a quantity of a controlled drug or a controlled plant as a trafficable quantity of the drug or plant; or (c) a quantity of a controlled precursor or a border controlled precursor as a commercial or marketable quantity of the precursor. (2) However, the Minister may only make a determination of a commercial, marketable or trafficable quantity of a serious drug, controlled precursor or border controlled precursor under subsection (1) if there is no regulation currently in force listing such a quantity of the drug or precursor. Note: The definitions of commercial quantity, marketable quantity and trafficable quantity in Subdivision B allow for regulations to list such quantities of serious drugs and precursors. 301.16 Emergency determinations—effectiveness (1) A determination under this Subdivision in relation to a substance (including a growing plant) or a quantity of such a substance has effect: (a) from the time the determination is registered (within the meaning of the Legislative Instruments Act 2003); and (b) for the period of 12 months from that registration, or such shorter period as is specified in the determination, as extended (if at all) under subsection (2). (2) If exceptional circumstances prevent the listing (by regulation) of the substance or quantity, to the same effect, the Minister may, by legislative instrument, extend the period during which the determination is in force by a further period or periods. (3) The Minister must not extend the period under subsection (2) with the effect that the determination would stay in force for longer than 18 months after the time the determination is registered (within the meaning of the Legislative Instruments Act 2003). (4) A determination made under this Subdivision has no effect to the extent that it is inconsistent with a regulation made for the purposes of Subdivision A. 301.17 Emergency determinations—publication (1) The Minister must, on or before the day on which a determination under this Subdivision is registered (within the meaning of the Legislative Instruments Act 2003): (a) make a public announcement of the determination; and (b) cause a copy of the announcement to be published: (i) on the internet; and (ii) in a newspaper circulating in each State, the Australian Capital Territory and the Northern Territory. (2) An announcement made under subsection (1) is not a legislative instrument. 17 At the end of paragraphs 307.4(1)(b), 307.7(1)(c) and 307.10(1)(c) of the Criminal Code Add ", other than a determined border controlled drug or a determined border controlled plant". 18 At the end of paragraph 308.1(1)(b) of the Criminal Code Add ", other than a determined controlled drug". 19 Division 314 of the Criminal Code Repeal the Division. Customs Act 1901 20 Subsection 51A(1) Omit "301.8 or 301.9 of the Criminal Code", substitute "Subdivision C of Division 301 of the Criminal Code (which deals with emergency Ministerial determinations of serious drugs and precursors)". 21 Subsection 112A(1) Omit "301.8 of the Criminal Code", substitute "section 301.13 of the Criminal Code (which deals with emergency Ministerial determinations of serious drugs)". 22 Subsection 112A(3) Omit "301.9 of the Criminal Code", substitute "section 301.14 of the Criminal Code (which deals with emergency Ministerial determinations of serious drug precursors)". Part 2—Application and transitional 23 Application—offences committed after commencement The amendments made by this Schedule apply in relation to offences against Part 9.1 of the Criminal Code that are committed on or after the commencement of Part 1 of this Schedule. Note: For the commencement of Part 1 of this Schedule, see section 2 of this Act. 24 Transitional—listing of existing serious drugs and precursors by regulation (1) This item applies in relation to a substance or plant that, immediately before the commencement of this item, was listed under Division 314 of the Criminal Code as belonging to any of the following classes of substances or plants (the substance's or plant's Criminal Code class): (a) a controlled drug; (b) a controlled plant; (c) a controlled precursor; (d) a border controlled drug; (e) a border controlled plant; (f) a border controlled precursor. (2) Sections 301.7 and 301.8 of the Criminal Code, as amended by Part 1 of this Schedule, do not apply in relation to a regulation made for the purposes of Subdivision A of Division 301 of the Criminal Code (as so amended) listing the substance or plant as belonging to the same Criminal Code class as that to which it belonged immediately before the commencement of this item. Note 1: Sections 301.7 and 301.8 of the Criminal Code, as so amended, provide that some conditions must be satisfied before new regulations can be made listing a substance or plant as belonging to a Criminal Code class. Note 2: For the commencement of this item, see section 2 of this Act. Schedule 2—Identity crime and air travel Part 1—Identity crime Criminal Code Act 1995 1 At the end of Division 370 of Part 9.5 of the Criminal Code Add: 370.2 Definition of foreign indictable offence In Division 372: foreign indictable offence means 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, would constitute an indictable offence against a law of the Commonwealth. 370.3 Concurrent operation intended (1) This Part is not intended to exclude or limit the concurrent operation of any law of a State or Territory. (2) Without limiting subsection (1), this Part is not intended to exclude or limit the concurrent operation of a law of a State or Territory that makes: (a) an act or omission that is an offence against a provision of this Part; or (b) a similar act or omission; an offence against the law of the State or Territory. (3) Subsection (2) applies even if the law of the State or Territory does any one or more of the following: (a) provides for a penalty for the offence that differs from the penalty provided for in this Part; (b) provides for a fault element in relation to the offence that differs from the fault elements applicable to the offence under this Part; (c) provides for a defence in relation to the offence that differs from the defences applicable to the offence under this Part. 2 Paragraph 372.1(1)(c) of the Criminal Code Repeal the paragraph, substitute: (c) the offence referred to in paragraph (b) is: (i) an indictable offence against a law of the Commonwealth; or (ii) a foreign indictable offence. 3 After section 372.1 of the Criminal Code Insert