House of Representatives

Explanatory Memorandum

(Circulated by authority of the Attorney-General, The Honourable Nicola Roxon MP)

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

GENERAL OUTLINE

This Bill amends the Australian Federal Police Act 1979, Crimes Act 1914, Crimes (Superannuation Benefits) Act 1989, Criminal Code Act 1995, Customs Act 1901 , and Law Enforcement Integrity Commissioner Act 2006 .

The Bill contains a range of measures to improve Commonwealth criminal justice arrangements, including amendments to:

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ensure that the Commonwealth's serious drug offences framework can respond quickly to new and emerging substances

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expand the scope of existing identity crime offences, as well as enact new offences for the use of a carriage service in order to obtain and/or deal with identification information

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create new offences relating to air travel and the use of false identities

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improve the operation of the Law Enforcement Integrity Commissioner Act 2006

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clarify that superannuation orders can be made in relation to all periods of a person's employment as a Commonwealth employee, not only the period in which a corruption offence occurred, and

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increase the value of a penalty unit and introduce a requirement for the triennial review of the penalty unit.

PURPOSE

The purpose of Schedule 1 is to strengthen the Commonwealth's serious drug offences framework and ensure the Commonwealth's serious drug offences framework remains up to date and effective in combating the illicit drug trade.

Schedule 1 will move the lists of substances to which the Commonwealth's serious drug offences apply to regulations, improve emergency determination mechanisms and establish and refine criteria for listing substances. This will make the Commonwealth's serious drug framework more flexible and better able to respond to new and emerging substances.

The purpose of Schedule 2 is to broaden existing identity crime provisions in Part 9.5 of the Criminal Code Act 1995 and create new offences and powers relating to air travel and the use of false identities.

Part 1 of Schedule 2 will expand identity crime offences to include dealing in identity information with an intention to commit, or facilitate, the commission of a foreign indictable offence. It will also create a new offence of using a carriage service, such as the internet or a mobile phone, to obtain and/or deal in identification information where a person intends to commit, or facilitate the commission of, a Commonwealth, State, Territory or foreign indictable offence.

These expanded offences will help prevent identity crime by ensuring that the Commonwealth's laws account for the transnational and multi-jurisdictional nature of identity crime.

Part 2 of Schedule 2 will introduce new offences and police powers relating to the use of false identities for the purposes of travelling by air. The offences will capture people who take flights or identify themselves at airports using a false identity, subject to certain requirements, and will also capture people who use a false identity to book tickets using a carriage service such as the internet. It will also give police new powers to request identity information at airports.

The purpose of Schedule 3 is to make amendments relating to the functions of the Law Enforcement Integrity Commissioner, the value of penalty units and superannuation orders.

Part 1 of Schedule 3 will clarify the function of the Integrity Commissioner with respect to detection and prevention of corruption, widen the Integrity Commissioner's scope to consider ACLEI corruption issues and enable the Integrity Commissioner to delegate the power to conduct public inquiries to an Assistant Integrity Commissioner. This will strengthen the Commonwealth public sector integrity system by clarifying the functions of the Integrity Commissioner.

Part 2 of Schedule 3 will adjust the value of the penalty unit in the Crimes Act 1914 , which regulates value of monetary penalties for criminal offences in Commonwealth legislation and Territory ordinances. This adjustment will accommodate increases in the Consumer Price Index (CPI). Part 2 will also provide for the regular review of the value of the penalty unit in the future.

Part 3 of Schedule 3 will amend the Crimes (Superannuation Benefits) Act 1989 (the CSB Act) and the Australian Federal Police Act 1979 (the AFP Act) to make it clear that a superannuation order can be made in relation to employer benefits accrued during all periods of Commonwealth employment, not just the period of employment in which the corruption offence was committed. This will ensure that the legislation applies equally to all employees who have committed a corruption offence while an employee, regardless of whether an employee has one continuous period of employment or more than one separate periods of employment.

FINANCIAL IMPACT STATEMENT

Part 2 of Schedule 3 to the Bill will increase pecuniary penalties imposed for the commission of Commonwealth criminal offences. Other items will have little or no impact on Government revenue.

ACRONYMS AND ABBREVIATIONS

STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS

This Bill is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 .

An overview of measures in the Bill and their human rights implications is below.

Serious drugs

Overview

Schedule 1 to the Bill makes a number of amendments to Part 9.1 of the Criminal Code Act 1995 (Cth) to strengthen the Commonwealth's serious drug offences framework.

The amendments will ensure the Commonwealth's serious drug offences framework remains up to date and effective in combating the illicit drug trade. Amendments to Part 9.1 include; the transfer of the lists of substances from the Criminal Code to the Criminal Code Regulations 2002 (Cth), the proposal of conditions and criteria for listing controlled and border controlled substances in regulations, and improving the emergency determination mechanism by expanding the listing period and refining the criteria that must be satisfied before a determination can be made. These improvements to the Commonwealth serious drug offences framework will assist the Commonwealth to better respond to the emergence of new and emerging substances.

Division 301 of the Criminal Code contains the mechanisms for listing additional drugs, plants and precursors temporarily through interim regulations (for a period of up to 12 months) and/or urgently through emergency determinations (for a period of up to 56 days) for the purposes of the serious drug offences in Part 9.1. The amendments will repeal the interim regulations mechanism and emergency determination mechanism and provide for a single emergency determination mechanism which will initially cover a 12 month period with the possibility for extension to 18 months. This will provide the Minister with the capacity to respond rapidly to emerging unknown substances. The conditions for listing via this new mechanism are based largely on the current conditions in the Criminal Code for listing substances by interim regulation and the emergency mechanism.

It is also proposed that a substance or plant can be included in the regulations in the first instance, without having to list substances initially through an emergency determination. This would be appropriate in circumstances where enough is known about a substance to warrant its indefinite listing from the outset. The amendments clearly outline what the Minister will have regard to before a regulation to list a new substance may be made.

These criteria are largely based on the detrimental effect the substance has on the individual and the risk to the community, reflecting what is currently found in the Criminal Code and what is in place in other jurisdictions for the listing of illicit substances.

Human rights implications

Schedule 1 does not engage any of the applicable rights or freedoms.

Conclusion

The serious drugs measures in Schedule 1 to the Bill are compatible with the human rights and freedoms recognised or declared in the international instruments listed in the definition of human rights in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 .

Identity crime

Overview

Part 1 of Schedule 2 of the Bill makes a number of amendments to identity crime offences in Part 9.5 of the Criminal Code Act 1995 (Cth).

The current offence of dealing in identification information under Division 372 will be amended to include foreign indictable offences in addition to Commonwealth indictable offences. A definition for foreign indictable offences will also be included.

The Bill will introduce the offence of using a carriage service in order to deal in identification information. An offence will have been committed where a person uses a carriage service, such as an internet or telecommunications service, in order to make, supply or use identification information for the purpose of passing themselves, or someone else, off as the person identified in the information with the intention of committing, or facilitating, the commission of a Commonwealth, State, Territory or foreign offence.

The new offence will apply absolute liability to the element of using a carriage service along with a presumption that the person used a carriage service where the prosecution is able to prove, beyond reasonable doubt, that the person dealt in identification information and the person is unable to prove to the contrary.

An identical offence has also been introduced for dealing in identification information obtained using a carriage service.

The penalty for these offences will be 5 years imprisonment.

A number of consequential amendments are made to provisions dealing with possession of identification information and possession of equipment used to make identification information.

Human rights implications

Presumption of innocence

The presumption of innocence is contained in article 14(2) of the International Covenant on Civil and Political Rights (ICCPR) and is one of the guarantees in relation to legal proceedings contained in article 14.

The presumption of innocence imposes on the prosecution the burden of proving the charge and guarantees that no guilt can be presumed until the charge has been proved beyond reasonable doubt. Generally, consistency with the presumption of innocence requires the prosecution to prove each element of a criminal offence beyond reasonable doubt.

The offences interact with this presumption by applying absolute liability to elements of the offences. The application of absolute liability engages the presumption of innocence because it allows for a physical element of an offence to be proven without the need to prove fault.

New subsections 372.1A(2) and (4) apply absolute liability to the elements of using a carriage service and the element of showing that the offence was a Commonwealth, State, Territory or foreign indictable offence.

Absolute liability is appropriate and required for these elements of the offences because they are jurisdictional elements that go towards the Commonwealth's power to legislate and do not relate to the substance of the offence or the culpability of the defendant. This is consistent with Commonwealth criminal law practice, as described in the Guide to Framing Commonwealth Offences, Civil Penalties and Enforcement Powers .

Subsection 372.1A(5) will insert a new presumption relating to the requirement in paragraphs 372.1A(1)(b) and 372.1A(3)(b) that the relevant criminal conduct was engaged in using a carriage service. The presumption will provide that, in relation to the element of the offence that a carriage service was used, if the prosecution proves beyond a reasonable doubt that the person engaged in the relevant criminal conduct, then it is presumed that, unless the person proves to the contrary, that the person used a carriage service to engage in that conduct. As the presumption will only apply to the element of using a carriage service, the prosecution will still have the burden of proving, beyond reasonable doubt, that the person obtained and/or dealt in identification information with the intention to pass themselves, or someone else, off as the person identified in the documentation for the purpose of committing a Commonwealth, State, Territory or foreign indictable offence. The person will have a legal burden of rebutting the presumption, requiring the person to prove, on the balance of probabilities, that a carriage service was not used.

This engages the presumption of innocence by placing a burden of proof on the defendant. Under international human rights law, a reverse onus provision will not violate the presumption of innocence if the law is reasonable in the circumstances and maintains the rights of the accused. Such a provision may be justified if the nature of the offence makes it very difficult for the prosecution to prove each element, or if it is clearly more practical for the accused to prove a fact than for the prosecution to disprove it.

The purpose of this subsection is to address problems encountered by law enforcement agencies in proving beyond reasonable doubt that a carriage service was used to engage in the criminal conduct. In the context of identity crime, often the evidence that a carriage service was used to engage in the conduct is entirely circumstantial, consisting of evidence that the defendant's computer had identification information of another person on the hard drive, that the computer was connected to the internet and that records show that the computer accessed particular websites with names suggesting an association with identity crime. Although an inference may be drawn from this type of evidence, it can be extremely difficult for the prosecution to show that it was the defendant who physically accessed the particular websites to obtain the information found on the computer.

A presumption in also appropriate in this instance given it is not an element that goes to the substance of the offence, or to the person's culpability, but is a jurisdictional element that provides the relevant connection to the Commonwealth's constitutional power. That is, it is an element marking a boundary between matters that fall within the legislative power of the Commonwealth and those that do not.

It is appropriate for a defendant to bear a legal burden to rebut this presumption as it is more practical for the defendant to prove a carriage service was not used than for the prosecution to prove that it was used. Such a presumption already exists in subsection 475.1B(1) of the Criminal Code in relation to telecommunications offences in Division 474 of the Criminal Code.

Conclusion

The identity crime measures in Part 1 of Schedule 2 to the Bill are compatible with the human rights and freedoms recognised or declared in the international instruments listed in the definition of human rights in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 . To the extent that these measures may limit those rights and freedoms, such limitations are reasonable, necessary and proportionate in achieving the intended outcome of Part 1 of Schedule 2.

False identity and air travel

Overview

Part 2 of Schedule 2 to the Bill will amend the Criminal Code to include provisions that would make it an offence for a person to:

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at a constitutional airport, use false identification information to identify themselves for the purposes of travelling on a flight

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obtain a ticket, using a carriage service, for a flight using identification information that is false in relation to the individual who takes, or intends to take, the flight

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take a flight using a ticket, obtained by using a carriage service, using identification information that is false in relation to the person

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obtain a ticket for a constitutional flight using identification information that is false in relation to the individual who takes, or intends to take, the flight, and

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take a constitutional flight using a ticket obtained using identification information that is false in relation to person.

The maximum penalty for the offences will be 12 months imprisonment.

To support these offences, the Bill will empower a constable at an airport to request that a person provide identification information, such as a person's name and address or evidence of identity, subject to a threshold test. At constitutional airports, the constable must reasonably suspect that the person has committed, is committing or intends to commit a Commonwealth, State or Territory offence punishable by imprisonment of 12 months or more. At airports that are not constitutional airports, the reasonable suspicion must relate to a Commonwealth offence punishable by imprisonment of 12 months or more.

Part 2 makes it an offence to fail to comply with such a request, punishable by 20 penalty units.

Human rights implications

Presumption of innocence

The presumption of innocence is contained in article 14(2) of the International Covenant on Civil and Political Rights (ICCPR) and is one of the guarantees in relation to legal proceedings contained in article 14.

The presumption of innocence imposes on the prosecution the burden of proving the charge and guarantees that no guilt can be presumed until the charge has been proved beyond reasonable doubt. Generally, consistency with the presumption of innocence requires the prosecution to prove each element of a criminal offence beyond reasonable doubt.

The offences interact with this presumption by applying absolute liability to elements of the offences. The application of absolute liability engages the presumption of innocence because it allows for a physical element of an offence to be proven without the need to prove fault.

The absolute liability elements for each of the offences are set out below.

Absolute liability is appropriate and required for these elements of the offences because they are jurisdictional elements that go towards the Commonwealth's power to legislate and do not relate to the substance of the offence or the culpability of the defendant. This is consistent with Commonwealth criminal law practice, as described in the Guide to Framing Commonwealth Offences, Civil Penalties and Enforcement Powers.

Strict liability attaches to two elements of the offence of not providing identity information to a constable when requested to do so. These elements are that the request was made in accordance with the requirements of the legislation and that the constable complied with his or her obligations. Strict liability means that a physical element of the offence can be proved without the need to prove fault. However, unlike absolute liability, the defence of honest and reasonable mistake of fact is available to the defendant.

Applying strict liability is appropriate in these circumstances as the defendant's knowledge of those issues is not relevant to their culpability. However, the general defence of mistake of fact will be available to the defendant.

Subsection 376.3(3) will insert a new presumption relating to the requirement in subsections 376.3(2) and 376.3(2) that the relevant criminal conduct was engaged in using a carriage service. The presumption will provide that, in relation to the element of the offence that a carriage service was used, if the prosecution proves beyond a reasonable doubt that the person engaged in the relevant criminal conduct, then it is presumed that, unless the person proves to the contrary, that the person used a carriage service to engage in that conduct.

As the presumption will only apply to the element of using a carriage service, the prosecution will still have the burden of proving, beyond reasonable doubt, that the person obtained and/or dealt in identification information with the intention to pass themselves, or someone else, off as the person identified in the documentation for the purpose of committing a Commonwealth, State, Territory or foreign indictable offence. The person will have a legal burden of rebutting the presumption, requiring the person to prove, on the balance of probabilities, that a carriage service was not used.

This engages the presumption of innocence by placing a burden of proof on the defendant. Under international human rights law, a reverse onus provision will not violate the presumption of innocence if the law is reasonable in the circumstances and maintains the rights of the accused. Such a provision may be justified if the nature of the offence makes it very difficult for the prosecution to prove each element, or if it is clearly more practical for the accused to prove a fact than for the prosecution to disprove it.

A presumption in this instance is appropriate given it is not an element that goes to the substance of the offence, or to the person's culpability, but is a jurisdictional element that provides the relevant connection to the Commonwealth's constitutional power. That is, it is an element marking a boundary between matters that fall within the legislative power of the Commonwealth and those that do not.

A legal burden for this proof is appropriate as it is more practical for the defendant to prove a carriage service was not used than for the prosecution to prove that it was used. Such a presumption already exists in subsection 475.1B(1) of the Criminal Code in relation to telecommunications offences under Division 474 of the Criminal Code

Right to protection against arbitrary and unlawful interferences with privacy

The requirement to provide identification information to a constable engages the right to privacy.

Article 17 of the International Covenant on Civil and Political Rights (ICCPR) accords everyone the right to protection against arbitrary or unlawful interference with their privacy, family, home or correspondence. Accordingly, interferences with the right to privacy will be permitted provided they are not arbitrary and are authorised by law. In order for an interference with the right to privacy not to be 'arbitrary', the interference must be for a reason consistent with the ICCPR and be reasonable in the particular circumstances. Reasonableness in this context incorporates notions of proportionality, appropriateness and necessity. In essence, this will require that:

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limitations serve a legitimate objective,

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limitations adopt a means that is rationally connected to that objective, and

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the means adopted are not more restrictive than they need to be to achieve that objective.

The introduction of the offences related to travelling under a false identity is in response to recommendations made by the Parliamentary Joint Committee on Law Enforcement Inquiry into the Adequacy of Aviation and Maritime Security Measures to Combat Serious and Organised Crime (the PJCLE report). The PJCLE recommendation was made to address concerns that members of criminal organisations travel under false identities to facilitate their illegal activities and avoid law enforcement.

The ability to request identification information is a necessary corollary of introducing these offences. Without a means of checking an individual's identity, law enforcement officers will be limited in their ability to investigate the commission of these offences.

In addition to serving this legitimate objective, there are a number of safeguards that ensure the power is connected to the objective and not more restrictive than necessary.

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The interference with a person's privacy is minimal. It merely requires the disclosure of evidence of identity (as defined in the Crimes Act 1914 ) or name and address. This protects people who may not be carrying government issued photographic identification from committing an offence and ensures the provision is not a de-facto requirement to carry identification.

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The power is not arbitrary. It requires a threshold to be met before it can be exercised. A constable may only require a person to produce evidence of their identity where the person is at an airport and the constable reasonably suspects that the person has committed, is committing or intends to commit an offence punishable by imprisonment for 12 months or more.

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The person will be informed of the consequences of not complying with the request. The constable is required to inform the suspect that it may be an offence not to comply with the request, or to provide false or misleading information.

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People will be aware of the constable's authority - if the constable is not in uniform, they are required to show the person evidence that he/she is a constable and, if asked, any further details set out in new subsection 3UKB(6).

A defence of reasonable excuse, as in section 3V (the requirement to furnish names etc) of the Crimes Act, has not been included. This is consistent with the Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers (the Guide). The Guide notes that such a defence is open-ended and difficult to rely upon because it is unclear what needs to be established. In addition, it is difficult to see what reasonable excuse could be claimed for not providing name and address. The defence of mistake of fact will still be able to be relied upon.

The threshold of 'reasonably suspects' is also different to the 'believes on reasonable grounds' threshold in section 3V of the Crimes Act. The higher threshold of 'believes on reasonable grounds' is the general threshold required in order for police to make an arrest.

The lower threshold of 'reasonably suspects' is therefore necessary to allow police to investigate an offence and obtain information in order to come to a belief about whether an offence has been committed.

Conclusion

The false identity and air travel measures in Part 2 of Schedule 2 to the Bill are compatible with the human rights and freedoms recognised or declared in the international instruments listed in the definition of human rights in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 . To the extent that these measures may limit those rights and freedoms, such limitations are reasonable, necessary and proportionate in achieving the intended outcomes of Part 2 of Schedule 2.

Integrity Commissioner functions

Overview

Part 1 of Schedule 3 to the Bill amends the Law Enforcement Integrity Commissioner Act 2006 (LEIC Act) to clarify the functions of the Integrity Commissioner with respect to detection and prevention of corruption. It widens the Integrity Commissioner's scope to consider ACLEI corruption issues and enables the Integrity Commissioner to delegate the power to conduct public inquiries to an Assistant Integrity Commissioner.

The LEIC Act sets out the powers and functions of the Integrity Commissioner and establishes the Australian Commission for Law Enforcement Integrity (ACLEI) as a supporting statutory agency. The main objectives of the Integrity Commissioner and ACLEI are the maintenance and strengthening of the integrity of law enforcement at the Commonwealth level.

Part 1 of Schedule 3 clarifies the function of the Integrity Commissioner with respect to detection and prevention of corruption by making specific reference to these functions in section 15 of the LEIC Act. It also widens the Integrity Commissioner's scope to consider ACLEI corruption issues by giving the Minister responsible for ACLEI the discretion to refer an ACLEI corruption issue to the Integrity Commissioner, unless it involves the Integrity Commissioner or an Assistant Integrity Commissioner.

Part 1 of Schedule 3 will also remove restrictions that prevent the Integrity Commissioner from delegating his power to conduct a public hearing to an Assistant Integrity Commissioner.

Human rights implications

Part 1 of Schedule 3 does not engage any of the applicable rights or freedoms.

Conclusion

The Integrity Commissioner function measures in Part 1 of Schedule 3 to the Bill are compatible with the human rights and freedoms recognised or declared in the international instruments listed in the definition of human rights in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 .

Penalty units

Overview

Part 2 of Schedule 3 to the Bill amends the Crimes Act 1914 to increase the value of the penalty unit for Commonwealth criminal offences from $110 to $170. This amendment accommodates changes in the Consumer Price Index since the value of the penalty unit was last adjusted in 1997. It also provides for the value of the penalty unit to be reviewed every three years.

Human rights implications

Part 2 of Schedule 3 does not engage any of the applicable rights or freedoms.

Conclusion

The penalty unit measures in Part 2 of Schedule 3 to the Bill are compatible with the human rights and freedoms recognised or declared in the international instruments listed in the definition of human rights in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 .

Superannuation orders

Overview

The Crimes (Superannuation Benefits) Act 1989 (the CSB Act) and the Australian Federal Police Act 1979 (the AFP Act) provide for the forfeiture and recovery of employer funded superannuation benefits that are payable, or have been paid, to Commonwealth employees who have been convicted of corruption offences by a court and sentenced to more than 12 months' imprisonment. For the purposes of these two Acts, 'employees' includes public servants, members of the Australian Defence Force and Australian Federal Police, parliamentarians and judges.

The forfeiture and recovery provisions only apply to employees who commit serious corruption offences. A 'corruption offence' is narrowly defined as an offence by a person who was an employee, at the time the offence was committed, being an offence that involved an abuse of office, corruption or perverting or attempting to pervert the course of justice. Further, the forfeiture and recovery of employer funded superannuation benefits only apply to persons sentenced to more than 12 months' imprisonment for the corruption offence(s), and do not apply if the sentence is wholly suspended or is an alternative sentencing option, such as a community service order.

The purpose of the legislative scheme, which has been in place since 1989, is to clearly implement the public policy objective of ensuring that superannuation benefits are not paid from public monies to Commonwealth employees convicted of corruption offences committed in the course of their employment.

Part 3 of Schedule 3 to the Bill amends both Acts to clarify that a superannuation order can be made in relation to employer funded contributions and benefits accrued during all periods of Commonwealth employment, regardless of whether an employee had a continuous period of employment or several separate periods of employment. The scheme was not intended to operate so that the forfeiture and recovery of employer funded contributions and benefits is restricted to the particular period of employment in which an employee committed a corruption offence.

These amendments will ensure that the legislation applies equally to all employees who have committed a corruption offence while an employee, regardless of whether they have one continuous period of employment or several separate periods of employment.

The amendments will apply to offences that were committed before or after commencement of the provisions, but only if an application for a superannuation order is made in relation to those offences on or after the commencement date. Until recently, it was thought that the existing scheme applied equally to employees who have one continuous period of employment as well as to those who have had several separate periods of employment. Therefore, Commonwealth employees convicted of a 'corruption offence' and sentenced to more than 12 months' imprisonment would have had an expectation that they would lose all their employer funded superannuation contributions under the existing scheme.

Human rights implications

Rights in work

Providing for the forfeiture and recovery of superannuation benefits will engage Article 7 of the International Covenant on Economic, Social and Cultural Rights (ICESCR). Article 7(a) provides for the right of everyone to the enjoyment of just and favourable conditions of work, including remuneration which provides all workers with fair wages and a decent living for themselves and their families. Superannuation benefits are not mentioned explicitly in the treaty. However, payment of superannuation benefits is a form of remuneration for Commonwealth employees.

Article 4 of the ICESCR specifies that economic and cultural rights may be limited by measures determined by law insofar as may be compatible with the nature of these rights and solely for the purpose of promoting the general welfare in a democratic society. The restrictive measures must be proportional and the least restrictive alternative and, where permitted, should be of limited duration and subject to review.

The Bill will limit the rights of Commonwealth employees, who are convicted of corruption offences and sentenced to more than 12 months' imprisonment, to access certain remuneration by requiring the forfeiture and recovery of employer funded superannuation benefits. Employees convicted of corruption offences have committed serious offences in the course of their employment. As a result, they have failed to fulfil a condition of their employment and this should result in the forfeiture employer funded superannuation benefits. Minor offences are effectively outside the scope of the scheme, which only operates where a sentence of more than 12 months' imprisonment is imposed. The purpose of the existing scheme is to provide a strong financial disincentive to ensure that the consequences of serious criminal activity, such as official corruption, are less attractive.

The Bill is intended to clarify the operation of a long-standing legislative scheme to ensure that all employees who are convicted of corruption offences and sentenced to more than 12 months' imprisonment will be subject to the forfeiture and recovery of their employer funded superannuation.

If the legislation is not amended, it may be the case that the legislation applies less favourably to those employees who have one continuous period of employment as opposed to those who have had several separate periods of employment. For example, upon committing a corruption offence, a person with one long and continuous period of employment may have a superannuation order made against all their employer funded superannuation benefits. In contrast, a person with separate periods of employment may have a superannuation order made only in respect of the employer funded superannuation benefits that accrued during the period in which they committed the corruption offence.

The amendments will ensure that the scheme applies equally to all employees who have committed a corruption offence while an employee, regardless of whether they have one continuous period of employment or more than one separate period of employment.

The employee's own superannuation contributions (and interest on that sum) cannot be subject to forfeiture or recovery. Orders for the forfeiture or recovery of employer funded superannuation benefits can only be made by a court, and are subject to the usual avenues of appeal available from that court, ensuring access to a fair trial provided by Article 14 of the International Covenant on Civil and Political Rights. Further, such orders are automatically revoked if the person's conviction is later quashed, or the person's sentence is reduced or otherwise changed so that it no longer meets the condition precedent of 12 months' imprisonment.

Conclusion

This superannuation order measures in Part 3 of Schedule 3 to the Bill are compatible with the human rights and freedoms recognised or declared in the international instruments listed in the definition of human rights in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 . To the extent that these measures may limit those rights and freedoms, such limitations are reasonable, necessary and proportionate in achieving the intended outcomes of Part 3 of Schedule 3.

NOTES ON CLAUSES

Clause 1: Short title

This clause provides that, when enacted, the Bill may be cited as the Crimes Legislation Amendment (Serious Drugs, Identity Crime and Other Measures) Act 2012 .

Clause 2: Commencement

This clause sets out when the various parts of the Act are to commence.

Sections 1 to 3 will commence on the day the Act receives Royal Assent.

Schedule 1, Part 1 will commence on a day to be fixed by Proclamation. If the provisions do not commence within 6 months of the day the Act receives Royal Assent, they will commence on the day after that 6 month period finishes. This is to allow sufficient time for regulations to be made to provide updated lists of substances.

Schedule 1, Part 2 will commence on the day after the Act receives Royal Assent.

Schedule 2 will commence on the day after the Act receives Royal Assent.

Schedule 3, Part 1 will commence on the day after the Act receives Royal Assent.

Schedule 3, Part 2 will commence on a day to be fixed by Proclamation. If the provisions do not commence within 1 month of the day the Act receives Royal Assent, they will commence on the day after that 1 month period finishes. This commencement provision has been included to provide agencies that administer Commonwealth criminal offences with sufficient time to amend their business systems to reflect the new penalty unit value.

Schedule 3, Part 3 will commence on the day after the Act receives Royal Assent.

Clause 3: Schedule(s)

This is a formal clause that enables the Schedules to amend Acts by including amendments under the title of the relevant Act.