Bills Digest No. 84 2002-03
Crimes Legislation Amendment (People Smuggling, Firearms Trafficking
and Other Measures) Bill 2002
WARNING:
This Digest was prepared for debate. It reflects the legislation as introduced
and does not canvass subsequent amendments. This Digest does not have
any official legal status. Other sources should be consulted to determine
the subsequent official status of the Bill.
CONTENTS
Passage History
Purpose
Background
Main Provisions
Concluding Comments
Endnotes
Contact Officer & Copyright Details
Passage History
Crimes Legislation
Amendment (People Smuggling, Firearms Trafficking and Other Measures)
Bill 2002
Date Introduced:
4 December 2002
House:
House of Representatives
Portfolio:
Justice and Customs
Commencement:
Most of the substantive provisions commence
28 days after the date of Royal Assent. Further details can be found in
the Main Provisions section of this Digest.
Note: The
Bill was passed by Parliament on 12 December 2002 and received Royal Assent
on 19 December 2002 (Act No. 141, 2002).
Purpose
Among other things, to insert people
smuggling and cross-border firearms offences into the Criminal Code.
The Bill contains new people smuggling offences which
will be inserted into the Criminal Code. A number offences relating to
the carriage of non-citizens into Australia are found in the Migration
Act 1958. For instance, it is an offence:
- for the master, owner, agent, charterer and operator of a vessel to
bring a non-citizen into Australia, except in certain circumstances
(eg the non-citizen holds a valid visa). The maximum penalty is a fine
of $10,000.(1)
- for the master, owner, agent, charterer and operator of a vessel to
have a concealed non-citizen on the vessel when it enters the migration
zone, except in certain circumstances. The maximum penalty is a fine
of $10,000.(2)
- for a master, owner, agent and charterer of a vessel to carry a person
on that vessel who becomes an unlawful non-citizen on entry into Australia
because he or she does not hold a valid visa. The maximum penalty is
a fine of 100 penalty units.(3)
- for a person to take part in bringing a non-citizen into Australia
unlawfully, concealing a non-citizen with intent to enter Australia
unlawfully or preventing their discovery by an official. The maximum
penalty for this offence is imprisonment for 10 years or a fine of 1,000
penalty units, or both.(4)
In 1999, the Migration Act was amended(5)
to insert two additional offences:
- organising the entry into Australia of a group of 5 or more unlawful
non-citizens. The maximum penalty is imprisonment for 20 years or a
fine of 2,000 penalty units, or both.(6)
- using forged documents, making false statements or using documents
containing false information, in connection with the entry of a group
of 5 or more non-citizens into Australia or in connection with their
visa applications. The maximum penalty is imprisonment for 20 years
or a fine of 2,000 penalty units, or both.(7)
The Border Protection (Validation and Enforcement
Powers) Act 2001 is also relevant. Thus, in relation to the two offences
inserted in 1999, it provides that:
- where the charge is proved against a person, a court cannot dismiss
the charge, or discharge the person without recording a conviction,
unless the person was under 18 years of age at the time the offence
was committed. (This provision expressly overrides section 19B of the
Crimes Act 1914 which ordinarily allows a court a discretion
to use these options, after taking into account things like character,
health or extenuating circumstances.(8))
- in relation to an adult convicted of a people smuggling offence, mandatory
minimum penalties apply. For instance, a court must impose a penalty
of at least 8 years imprisonment for a repeat offence and set a non-parole
period of at least 5 years.(9)
The new offences proposed in the Bill apply to what might
be called ‘international offences’ ie to the smuggling of people into
a foreign country (whether or not via Australia), whereas existing offences
in the Migration Act apply to the smuggling of people into Australia.
The new offences are, in general, based on the Protocol against the Smuggling
of Migrants by Land, Sea and Air Supplementing the United Nations Convention
Against Transnational Organized Crime (Smuggling Protocol).
Australia signed the Smuggling Protocol in December 2001
but has not yet ratified it.
The Smuggling Protocol is not yet in force. It will come
into operation on the 90th day after the date of deposit of the 40th
instrument of ratification, acceptance, approval or accession, but not
before the entry into force of the UN Convention Against Transnational
Organized Crime.(10) Its purpose is to prevent and combat the
smuggling of migrants and facilitate international cooperation against
human trafficking, while protecting the rights of the victims of this
trade.(11) Some of the Protocol’s provisions are summarised
below.
Article 5 of the Smuggling Protocol provides that migrants
shall not become liable to criminal prosecution because they are the victims
of people smugglers.
Article 6 provides that each State Party is to criminalise
the following conduct, when that conduct is ‘committed intentionally and
in order to obtain, directly or indirectly, a financial or other material
benefit’:
- smuggling of migrants
- producing a fraudulent travel or identity document—for the purpose
of people smuggling
- procuring, providing or possessing a fraudulent travel or identity
document—for the purpose of people smuggling
- enabling a person who is not a national or permanent resident to remain
in the State concerned without complying with the requisite legal requirements.
The Protocol applies to the prevention, investigation
and prosecution of these offences where they are transnational in nature
and involve organised criminal groups.(12)
Article 6 of the Protocol also anticipates that State
Parties will adopt measures to establish:
- ancillary offences, such as attempts
- aggravated offences—for example, where conduct endangers lives or
safety or involves inhuman or degrading treatment.
Article 16 provides that in implementing the Protocol,
each State Party:
… shall take, consistent with its obligations under
international law, all appropriate measures, including legislation
if necessary, to preserve and protect the rights of persons who have
been the object of conduct set forth in article 6 … as accorded under
applicable international law, in particular the right to life and
the right not to be subjected to torture or other cruel, inhuman or
degrading treatment.
Article 16 also provides that State Parties are to take
appropriate measures that:
- protect smuggled migrants from violence
- provide appropriate assistance to migrants whose lives are endangered
by the activities of people smugglers
- take into account the special needs of women and children
- comply with consular obligations under the Vienna Convention on Consular
Relations, where a person who has been the victim of a people smuggler
is detained.
Article 18 requires State Parties to accept the return
of victims of people smuggling activity.
It appears that the Smuggling Protocol has not yet been
referred to the Joint Standing Committee on Treaties for examination.
It is generally the practice of the Government to refer international
instruments to the Committee before action is taken to bind Australia.(13)
However, the fact that Australia is not yet a party to
the Protocol should not create constitutional problems for the proposed
legislation. The external affairs power found in section 51(xxix) of the
Constitution enables the Commonwealth Parliament to legislate not only
to implement international treaties but in relation to matters physically
external to Australia and on matters of international concern.
The Bill also inserts cross-border firearms trafficking
offences into the Criminal Code.
Firearms laws are predominantly a State and Territory
matter. This does not mean, however, that the Commonwealth has not played
any role in shaping or making firearms laws.
Following the Port Arthur killings in April 1996, the
Commonwealth, the States and the Territories came to a Nationwide Agreement
on Firearms. The Agreement included a ban on self-loading rifles and self-loading
and pump-action shotguns, and the formulation of a licensing and registration
scheme for firearms in accordance with national standards. It also included
a 12 month firearms amnesty and compensation scheme for gun owners and
gun dealers. It was further agreed that the Commonwealth would meet the
costs of compensation and fund the States and mainland Territories for
establishing and administering the buyback scheme and implementing licensing
and registration systems.
In the period following the May 1996 Police Ministers
Meeting, the Commonwealth, the States and the Territories introduced legislation
responding to the firearms agreement. Commonwealth statutes included the
Medicare Levy Amendment Act 1996 and the National Firearms Program
Implementation Act 1996. The former increased the rate of the Medicare
levy for the 1996-97 financial year in order to fund the firearms buy-back
scheme. The latter appropriated money from Consolidated Revenue
and empowered the Attorney-General to authorise payments to the States
for the purpose of providing compensation to firearms owners and dealers
under schemes established to implement the national firearms program.
The National Firearms Program Implementation Act 1997
(Cwlth) extended compensation to certain automatic weapons not covered
by the May 1996 Police Ministers Agreement.(14) The National
Firearms Program Implementation Act 1998 (Cwlth) extended the scheme
to Norfolk Island, Cocos (Keeling) Islands and Christmas Island.
Historically, the Commonwealth has also used its overseas
trade and commerce power to make regulations about the importation of
firearms into Australia and to legislate for firearms importation offences.
Thus, a number of Commonwealth regulations have been
made in response to the Nationwide Agreement on Firearms and because of
concerns about handguns in the Australian community. In 1996, Commonwealth
regulations were made to increase controls on the importation of rimfire
self-loading rifles and self-loading or pump action shotguns.(15)
Later that year, regulations were made establishing a new structure for
the control of firearms importation(16), tightening controls
on the importation of handguns with a fully automatic firing capacity,
and introducing controls on the importation of all parts, some firearm
accessories and all magazines and ammunition.(17)
The Customs Legislation Amendment (Criminal Sanctions
and Other Measures) Act 2000 (Cwlth) made it an offence to import
prohibited firearms into Australia and made an offender liable to a maximum
penalty of 10 years imprisonment or a fine of $250,000, or both.
In 2000 regulations designed to impose stricter controls
on the importation of handguns were introduced. For example, they attempted
to ensure that imported handguns would only be ‘released into the community
on an "as needs basis" and once a legitimate end user had been
established’ and they allowed only small numbers of handguns to be imported
‘for dealer stock for the purposes of testing and demonstration’, subject
to police permission.(18) These regulations also enabled firearms
dealers to hold a limited number of self-loading rifles and shotguns as
stock for testing and demonstration. In 2001 regulations were made extending
‘the provisions for importation of handguns by firearms dealers’ to ‘allow
dealers to hold a limited number of newly imported handguns for sale to
authorised end-users or certified firearms dealers.’(19) These
regulations enabled dealers to apply to the Australian Customs Service
for a certificate authorising them to hold ‘a specified number of handguns
as stock for a specified period.’(20)
The Nationwide Agreement on Firearms dealt primarily
with long arms. For some time there has been concern about the use of
handguns in criminal activity in Australia.(21) These concerns
were heightened following an incident on 21 October 2002 in which a man
used two pistols to kill two students and wound several others at Monash
University.(22)
On 28 November 2002, the Australasian Police Ministers’
Council (APMC) agreed on 28 resolutions designed to tighten controls on
handguns. These resolutions were endorsed by the Council of Australian
Governments (COAG) on 6 December 2002 so that there would be a ‘national
approach to restrict the availability and use of handguns, particularly
concealable weapons.’(23) COAG agreed that the legislative
and administrative measures required should be in place by 30 June 2003.
Among the matters agreed was that there would be a ban on handguns used
for sports shooting purposes if they exceed specified calibres and barrel
lengths and have a shot capacity of more than 10 rounds.(24)
The Customs (Prohibited Imports) Amendment Regulations 2002 (No. 4) 2002
(No. 331), which prohibits the import of such weapons, was the Commonwealth’s
response to this particular part of the agreement.(25)
The new firearms offences contained in the Bill are designed
to enable the Commonwealth to prosecute those involved in the illegal
interstate trade of firearms.(26)
Schedule 1 commences on the 28th day
after Royal Assent (clause 2).
New section 73.1 of the Criminal Code creates
an offence of people smuggling. This offence will be committed when a
person organises the illegal entry of another person into a foreign country
(‘whether or not via Australia’) for a ‘benefit.’(27) The maximum
penalty is 10 years imprisonment or 1,000 penalty units, or both.
With one exception, fault elements apply to all the physical
elements of this offence.(28) Absolute liability applies to
the physical element of circumstance in the offence, that the ‘other’
person is not a citizen or permanent resident of the country into which
he or she is being smuggled. Absolute liability means that the prosecution
does not have to show that the defendant put his or her mind to this matter.
Further, a defence of mistake of fact is not available to the defendant.
New section 73.2 is an aggravated offence of people
smuggling. An aggravated offence will be committed where a person commits
an offence of people smuggling which:
- involves an intention that the victim of the people smuggling operation
will be exploited after entry to the foreign country,
- subjects the victim to cruel, inhuman or degrading treatment, or
- results in a danger of death or serious harm to the victim.
The maximum penalty for this aggravated offence is 20
years imprisonment or a fine of 2,000 penalty units, or both.
Fault elements apply to all the physical elements in
the offence created by new section 73.2, either expressly or by
application of the default fault provisions in section 5.6 of the Criminal
Code.
New section 73.3 establishes an aggravated offence
of people smuggling where a person organises the illegal entry of at least
5 people into a foreign country (whether or not via Australia). Fault
elements apply to all but one of the physical elements of this offence.
The exception is the physical element of circumstance that the persons
are not citizens or permanent residents of the foreign country. The maximum
penalty is imprisonment for 20 years or a fine of 2,000 penalty units,
or both.
New section 73.4 is a jurisdictional provision.
It provides that the people smuggling offences created by new sections
73.1-73.3 can only be committed if:
- the offender is an Australian citizen or resident and the proscribed
conduct occurs wholly outside Australia, or
- the proscribed conduct occurs partly or wholly in Australia but the
result of that conduct occurs, or is intended to occur, outside Australia.
The Attorney-General’s consent is required for the prosecution
of any of these people smuggling offences (new section 73.5).
New sections 73.6 and 73.7 define terms such as
‘identity document’, ‘travel document’ and ‘false travel or identity document.’
Document offences are created in the case of a person
who:
- makes, provides or possesses a false travel or identity document (new
section 73.8)
- provides or possesses a travel or identity document which is issued
or altered dishonestly or as a result of threats (new section 73.9)
- provides or possesses a travel or identity document for use by a person
who is not the rightful user of that document (new section 73.10)
In each case, the offender must have intended that the
document be used to facilitate unlawful entry into a foreign country and
the offender must have obtained a benefit or intended to obtain a benefit.
The maximum penalty for all these offences is 10 years imprisonment or
a fine of 1,000 penalty units, or both.
It will also be an offence to take or destroy another
person’s travel or identity document in order to conceal that person’s
identity, with the intention of organising their illegal entry into a
foreign country for a benefit or with the intention of receiving a benefit
(new section 73.11). Unlike the other document offences, this proposed
offence is not based on the Smuggling Protocol.
All the document offences require fault elements to be
proved for each physical element in the offences, either by the express
use of a fault element (such as intention) or as a result of the application
of the default fault provisions found in section 5.6 of the Criminal Code.
As a result of new section 73.12, the document
offences to apply to conduct that occurs wholly or partly in Australia,
to conduct occurring outside Australia if the result of the conduct occurs
wholly or partly inside Australia, and to conduct occurring wholly outside
Australia which is engaged in by an Australian citizen, resident or corporation.
Schedule 2 commences 28 days after Royal Assent
(clause 2).
Item 1 of Schedule 2 inserts a new chapter, ‘Dangers
to the community’, into the Criminal Code. The proposed cross-border trafficking
offences will be part of the new chapter.
New section 360.1 defines the words ‘disposes’
and ‘acquires’ for the purposes of the new firearms offences.
New section 360.2 creates an offence of disposing
or acquiring a firearm across Australian jurisdictional borders. To be
guilty of the offence, a person must engage in conduct that is an offence
against a prescribed State or Territory firearms law in the course of
trade or commerce among the States, among the Territories or between a
State and a Territory (ie the conduct must occur in the course of constitutional
trade or commerce within Australia). Further, the primary element of the
offence against a prescribed firearms law must involve the disposal or
acquisition of a firearm.
Absolute liability applies to the elements of the offence.
The Explanatory Memorandum states that ‘… the physical and fault elements
of the particular State or Territory offence will be imported into the
Commonwealth offence … Absolute liability has been applied … [to prevent
a situation in which the application of the default fault elements of
the Commonwealth Criminal Code would result in] a superfluous fault element
to be proved on top of those already existing in the State or Territory
offence.’(29) Absolute liability also applies to the jurisdictional
element of the offence ie the prosecution need not show that the accused
was aware that his or her conduct was occurring in the course of trade
or commerce among the States or Territories or between a State and a Territory.
Nor can the accused rely on a defence of mistake of fact.
A person will also commit an offence if he or she takes
or sends a firearm across borders in the course of certain trade or commerce
within Australia intending that the firearm will be disposed of and reckless
about whether this will constitute an offence against a prescribed State
or Territory firearms law (new section 360.3). Unlike the offence
in new section 360.2, absolute liability is not applied to the
jurisdictional element of the offence in new section 360.3 ie the
circumstance that it occurred ‘in the course of course of trade or commerce
among the States, between the Territories or between a Territory and a
State.’ The default fault provisions found in section 5.6 of the Criminal
Code will thus apply and the prosecution will need to show that the accused
was reckless about this element of the offence.
The maximum penalty for these new offences is imprisonment
for 10 years or a fine of $2,500, or both.
New section 360.4 preserves concurrent operation
State and Territory laws.
With the exception of item 23 (see below), Schedule
3 commences 28 days after Royal Assent (clause 2).
Amendments to the Crimes Act 1914
Commonwealth offenders are sentenced in State or Territory
courts and incarcerated in State or Territory prisons. However, the sentencing
powers exercised by judicial officers in respect of Commonwealth offenders
are found in the Crimes Act 1914 (Cwlth).
Amendments made by items 1-3 of Schedule 3 relate
to remissions. Remissions of a person’s custodial sentence are designed
to encourage good behaviour in custody.(30) However, since
the late 1980s the idea of ‘truth in sentencing’ has resulted in the abolition
of remissions in most States and Territories.
At present, the Crimes Act preserves the remission of
a Commonwealth offender’s head sentence(31) in a number of
ways. It provides that where a Commonwealth offender is sentenced for
a Commonwealth offence in a jurisdiction where remissions of custodial
sentences are allowed, then the Commonwealth offender’s head sentence
can also be remitted (section 19AA). It also provides that if a federal
sentence is to be served in a jurisdiction where sentences are not subject
to remission, then the court imposing the sentence must take that into
account and adjust (ie reduce) the sentence accordingly (section 16G).
Section 16G was inserted into the Crimes Act by the Crimes
Legislation Amendment Act (No.2) 1989. The 1989 Act was designed to
promote ‘interstate parity of treatment for Federal offenders’ in view
of increasing divergences in and changes to State and Territory laws.(32)
At the time the 1989 Act was passed remissions had been abolished in NSW
but remained in all other jurisdictions. The situation has now changed
so that remissions only exist in Western Australia and Tasmania. According
to the Explanatory Memorandum, laws abolishing remissions in Western Australia
will commence during 2003(33) and Tasmania has also indicated
it will abolish remissions.(34) As the authors of the Explanatory
Memorandum and other commentators have remarked, section 16G has been
the subject of much criticism. According to the standard Victorian text
on sentencing:
Judicial reaction to this provision has been unfavourable.
First, it has been noted that, if uniformity in sentencing of federal
offenders was the aim of this provision, it would fail because there
were variations in lengths of sentences imposed on federal offenders
between states. Second, it was argued that if courts sentencing federal
offenders were required to take into account the abolition of remissions,
but courts sentencing state offenders were not, the disparity between
the two would, if anything, be exacerbated.(35)
Section 19AG of the Crimes Act deals with remissions
of non-parole periods. Its effect is that a court sentencing a Commonwealth
offender will have to reduce the non-parole it imposes because, as a result
of section 19AA, remissions of non-parole periods are not permitted and
the court must take this into account.
Items 1 and 2 of Schedule 3 repeal sections
16G and 19AG. Item 3 makes a consequential amendment. Sentences
imposed before the commencement of these amendments are not affected (clause
4).
Amendments to the Crimes (Traffic in
Narcotic Drugs and Psychotropic Substances) Act 1990
The Crimes (Traffic in Narcotic Drugs and Psychotropic
Substances) Act gives effect to the United Nations Convention Against
Traffic in Narcotic Drugs and Psychotropic Substances and creates offences
of dealing in drugs on board Australian ships, Australian aircraft or
outside Australia. Other offences created by the Act include intentionally
acquiring property obtained from the commission of a serious State drug
offence.
The narcotic drugs and psychotropic substances to which
the Act applies are scheduled to it, together with the quantities that
apply to relevant trafficking offences. Item 4 adds the drug gamma-hydroxybutyric
acid (GHB) to the list of psychotropic substances scheduled to the Act
and provides that 2 grams is the minimum trafficable quantity and that
1 kilogram is the minimum commercial quantity.
GHB, also known as Liquid Ecstasy, Fantasy, Scoop, Easy
Lay, Georgia Home Boy, Grievous Bodily Harm, Liquid X, and Goop is usually
consumed orally, often with alcohol.(36) It was originally
used as an anaesthetic and can cause euphoria, dizziness, relaxation,
and adverse consequences such as vomiting and coma.(37) It
is sometimes used in sexual assaults.(38) In 2000-2001 the
Australian Customs Service intercepted three shipments of GHB coming into
the country.(39)
Amendments to the Criminal Code Act
1995
Section 131.1 of the Criminal Code creates an offence
of theft. Theft may occur in a number of circumstances. For instance,
as a result of section 131.7, a person:
- who obtains property as a result of another person’s fundamental mistake,
and
- who is under a legal obligation to restore the property or its proceeds
will commit the offence of theft if he or she does not
restore it to the other person.
Item 5 amends section 131.7 so that such a person
will also commit the offence of theft if he or is under a legal obligation
to restore the value of the property but does not do so. The Explanatory
Memorandum remarks that this amendment is necessary because:
… currently the section does not apply where the
person is only under a legal obligation to make restoration of the
value of the property. As property may not always be tangible… this
gap is problematic.(40)
Items 6-10 of Schedule 3 amend offences
relating to obtaining a financial advantage, making false or misleading
statements, and producing false or misleading documents. The amendments
remove some existing requirements for proof of fault elements in those
offences. For instance, existing subsection 135.2(1) of the Criminal Code
reads:
A person is guilty of an offence if the person obtains
a financial advantage for himself or herself from a Commonwealth entity
knowing or believing that he or she is not eligible to receive that
financial advantage.
The principles of criminal responsibility applied to
Commonwealth offences by Chapter 2 of the Criminal Code mean that fault
(mental) elements are applied to each of the physical elements of this
offence. Item 6 re-structures subsection 135.2(1) so that absolute
liability applies to the circumstance that the advantage was obtained
from a ‘Commonwealth entity.’ Absolute liability means that the prosecution
does not have to show that the accused person put his or her mind to this
element of the offence. Further, the defence of mistake of fact will not
be not available to the defendant. A requirement to prove a fault element
in relation to this physical element would make the offence very difficult
to prove and does not go to the offender’s culpability.
Item 11 corrects a drafting error in subparagraph
145.2(3)(a)(i) of the Criminal Code.
Item 12 enables a person charged with causing
harm to a Commonwealth judicial or law enforcement officer to be tried
summarily. At present, such a person can only be tried on indictment.
Items 13-20 amend offences in the Criminal Code
dealing the impersonation of Commonwealth public officials. As presently
worded those offences require the prosecution to establish that:
- the accused falsely represented himself or herself as acting in another
person’s capacity as a Commonwealth public official, and
- that the accused falsely represented that he or she was another person.
The amendments mean that a person need only falsely represent
themselves as being a Commonwealth public official acting in a particular
capacity. It will not be necessary, for the purposes of the offence, that
they also falsely represent themselves as another person.
Amendments to the Financial Transaction
Reports Act 1988
The Financial Transaction Reports Act (FTR Act) provides
a legislative framework for the detection of major tax evasion, money
laundering, drug trafficking, terrorist activity and other serious crime
by AUSTRAC (the Australian Transaction Reports and Analysis Centre).
The FTR Act requires ‘cash dealers’ to report certain
cash transfers, suspect transactions and International Funds Transfer
Instructions to AUSTRAC and to verify the identity of new account holders.
‘Cash dealers’ are defined to include financial institutions, insurers,
securities dealers, bookmakers and persons operating gambling houses or
casinos.
Items 21 and 22 amend the definition of ‘cash
dealer’ in the Act. The Explanatory Memorandum states that the object
of the amendments is to ensure that the definition of ‘cash dealer’ includes
‘a person who carries on a business of transmission of money or value
including through informal money or value transfer systems or networks.’(41)
Section 17 of the FTR Act protects cash dealers who communicate
information under the statutory obligations imposed by the Act from being
caught by money laundering offences found in the Proceeds of Crime
Act 1987. In doing so, it refers to sections 81 and 82 of the Proceeds
of Crime Act. These sections have been repealed and replaced by Division
400 of the Commonwealth Criminal Code. As a result, item 23 replaces
references in section 17 of the FTR Act to sections 81 and 82 and refers
instead to Division 400 of the Criminal Code. Item 23 will commence
on 1 January 2003, the commencement date of Division 400 of the Criminal
Code.
Amendments to the International Transfer
of Prisoners Act 1997
The International Transfer of Prisoners Act 1997
(ITP Act) establishes a framework for the exchange of prisoners between
Australia and other countries.(42) The purpose of the scheme
is to enable prisoners sentenced in one country to serve the balance of
their sentence in their home country or another country where have they
personal ties.(43) Prisoner transfers can occur between Australia
and 50 other countries who are parties to the Council of Europe Convention
on the Transfer of Sentenced Persons.(44) It is expected that
transfers will be able to commence shortly under a bilateral treaty concluded
between Australia and Thailand.
Section 13 of the ITP Act deals with the transfer of
prisoners to Australia from foreign countries. As presently worded, the
section provides that a prisoner is eligible for transfer back to Australia
if he or she is an Australian citizen or if he or she ‘is permitted to
travel to, enter and remain in Australia indefinitely pursuant to the
Migration Act 1958 and has community ties with a State or a Territory.’
The amendment proposed by item 25 will mean that
that the Attorney-General will be able to consult with the Immigration
Minister to see if the Immigration Minister proposes to revoke the citizenship
or visa of a person who would otherwise be eligible for a transfer to
Australia to serve the balance of their sentence.
- Section 229, Migration Act.
- Section 230, Migration Act.
- Section 232, Migration Act. A penalty unit is $110 (section 4AA, Crimes
Act 1914).
- Section 233, Migration Act.
- By the Migration Legislation Amendment Act (No. 1) 1999.
- Section 232A, Migration Act.
- Subsection 233A(1), Migration Act.
- Section 233B, Migration Act.
- Section 233C, Migration Act.
- Article 22.
- Article 2.
- Article 4.
- Department of Foreign Affairs and Trade, Australia
and International Treaty Making Kit, July 2000.
- These weapons included sub-machine guns and heavy machine guns. The
buyback scheme had revealed the existence of such weapons in the community.
- Customs (Prohibited Imports) Regulations (Amendment) 1996 (No. 59).
- This structure was later amended by the Customs (Prohibited Imports)
Regulations (Amendment) 1998 (No. 228).
- Customs (Prohibited Imports) Regulations (Amendment) 1996 (No. 91)
and Explanatory Statement.
- Customs (Prohibited Imports) Amendment Regulations 2000 (No. 7) 2000
(No. 234) and Explanatory Statement.
- Explanatory Statement, Customs (Prohibited Imports) Amendment Regulations
2001 (No. 1) 2001 (No. 60).
- ibid.
- See, for example, Jenny Mouzos, ‘The licensing and registration status
of firearms used in homicide’, Trends & Issues in Crime and Criminal
Justice, No. 151, May 2000.
- See, for example, ‘Man held over uni killings’, The Age, 22
October 2002; ‘Students die in campus shooting spree’, The Australian,
22 October 2002.
- Council of Australian Governments’ Meeting, Communique,
6 December 2002.
- COAG decided that handguns permitted to be imported for sports shooting
purposes would be limited to a maximum of .38" calibre, except for specially
accredited sporting events where handguns up to .45" would be permitted.
- There will also be a compensation scheme for licensees required to
surrender their handguns and an amnesty period for the surrender of
illegal handguns. Funds for the compensation scheme will come from moneys
left over from the original firearms buyback and, once these funds are
exhausted, the costs will be shared on a two-thirds:one-third basis
between the Commonwealth and the States and Territories. Council of
Australian Governments’ Meeting, 6 December 2002, Communique.
- Second Reading Speech, House of Representatives, Hansard, 4
December 2002, p. 9536.
- The word, ‘benefit’, is defined in Criminal Code to include any advantage
and is not limited to property.
- Fault elements in the offence are either express or apply via the
operation of section 5.6 of the Criminal Code.
- Explanatory Memorandum, p. 16.
- Richard Fox & Arie Freiberg, Sentencing. State and Federal
Law in Victoria, 2nd ed, Oxford University Press, 1999.
- The total sentence including the minimum term and the parole period.
Butterworths Encyclopaedic Legal Dictionary.
- Crimes Legislation Amendment Bill (No. 2) 1989, Second Reading Speech,
House of Representatives, Hansard, 5 October 1989, p. 1602.
- Note that the Sentencing Legislation Amendment and Repeal Bill 2002
is still before the WA Parliament, having been referred to the Standing
Committee on Legislation on 19 December 2002.
- Explanatory Memorandum, p. 17.
- Fox & Freiberg, op.cit., p. 794.
- Australian Bureau of Criminal Intelligence, Australian Illicit
Drug Report 2000-01; see also US Drug Enforcement Administration,
‘GHB’ (accessed 16
January 2003); European Monitoring Centre for Drugs and Drug Addiction,
Report
on the Risk Assessment of GHB in the Framework of the Joint Action on
New Synthetic Drugs, September 2000 (accessed 16 January 2003).
- ABCI, op.cit.
- ibid.
- ibid.
- Explanatory Memorandum, p. 19.
- Explanatory Memorandum, p. 27.
- More information about the scheme is available from Attorney-General’s
Department, Australia’s
International Transfer of Prisoners Scheme. Frequently Asked Questions
(accessed 16 January 2003).
- ibid.
- Australia is a party to the Convention, which entered into force for
Australia on 1 January 2003.
Jennifer Norberry
20 January 2003
Bills Digest Service
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