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2022-2023
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF REPRESENTATIVES
CRIMES AND OTHER LEGISLATION AMENDMENT (OMNIBUS NO. 2) BILL
2023
EXPLANATORY MEMORANDUM
(Circulated by authority of the Attorney-General,
the Honourable Mark Dreyfus KC MP)
CRIMES AND OTHER LEGISLATION AMENDMENT (OMNIBUS NO.2)
BILL 2023
GENERAL OUTLINE
The Crimes and Other Legislation Amendment (Omnibus No. 2) Bill 2023
1. The Crimes and Other Legislation Amendment (Omnibus No. 2) Bill 2023 (the Bill)
will amend the Australian Crime Commission Act 2002 (the ACC Act), the
Crimes Act 1914 (Crimes Act) and the Criminal Code Act 1995 (Criminal Code), and
make consequential amendments to the Customs Act 1901 (Customs Act) and the
Defence Force Discipline Act 1982.
2. The specific measures in each Schedule to the Bill are described in further detail below.
Detailed notes on the clauses of the Bill are included at Attachment B.
Schedule 1 to the Bill - Release on parole
3. Schedule 1 to the Bill will amend Part 1B and Part 1D of the Crimes Act to clarify the
Attorney-General's duty in relation to consideration or reconsideration of making or
refusing to make a parole order after the non-parole period has ended, and related
consequential amendments. This will address circumstances where it is not possible for
a parole decision to be made by the Attorney-General prior to the end of a non-parole
period, such as where the non-parole period is reduced on appeal.
4. The amendments to the Crimes Act will:
• clarify the Attorney-General's duty to make or refuse to make a parole order, if a
decision to make or refuse to make a parole order has not been made before the
end of a non-parole period, and
• make additional minor amendments that are consequential to clarifying this
requirement.
Schedule 2 to the Bill - Border controlled drugs, plants and precursors
5. Schedule 2 to the Bill will amend the Criminal Code to ensure the relevant
regulation-making powers are capable of listing known and emerging substances in the
Criminal Code Regulations 2019 in a consistent manner. This will ensure that
substances can still be imported for legitimate use, while better enabling agencies to
disrupt the supply and manufacture of illicit drugs and precursors in Australia.
6. The amendments to the Criminal Code will enhance import controls by ensuring that
entities that are not registered with the Australian Industrial Chemicals Introduction
Scheme prior to import under the Industrial Chemicals Act 2019 are captured by the
relevant import offences for border controlled drugs, plants or precursors. This will
ensure that unregistered importers, including transnational, serious and organised crime
(TSOC) groups that exploit this vulnerability and use known and emerging substances
to manufacture illicit drugs, will be subject to appropriate criminal offences.
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7. In particular, Schedule 2 to the Bill will:
• amend the regulation-making powers for border controlled drugs, border
controlled plants and border controlled precursors in Part 9.1 of the Criminal
Code to enable substances to be listed by regulation in relation to offences against
Part 9.1 of the Criminal Code, or elements of those offences, rather than for
Part 9.1 as a whole;
• make consequential amendments where necessary to ensure the Acts continue to
operate as intended.
Schedule 3 to the Bill - Validations relating to the Australian Crime
Commission Act 2002
8. Schedule 3 to the Bill will retrospectively confirm the validity of all things done in
reliance on, or in relation to, an authorisation given, or a determination made by the
Australian Criminal Intelligence Commission (ACIC) Board on or after
4 September 2013 authorising a special ACIC operation or special ACIC investigation.
This will also have the effect of validating any further derivative uses of any
information or intelligence obtained by the ACIC in reliance on these authorisations and
determinations.
9. The ACC Act provides that the ACIC Board (the Board) may make determinations
authorising the ACIC to undertake special ACIC operations or special ACIC
investigations. Special ACIC operations focus on intelligence gathering in relation to
particular criminal activities, enabling informed decisions to be made about the extent
of the threat and the impact of the criminal activity on the Australian community and
national security. Special ACIC investigations collect intelligence but also help to
disrupt identified criminal gangs through collecting evidence of criminal activity that
may result in arrests and prosecutions, as well as seizures of the proceeds of crime and
illicit commodities.
10. Special ACIC operations and special ACIC investigations are critical to support the
work of Australian law enforcement and national security agencies, particularly in
combating transnational, serious and organised crime.
11. The Australian Crime Commission (Special Operation and Special Investigation) Act
2022 streamlined provisions in the ACC Act to provide greater certainty with respect to
the Board's powers to authorise special ACIC operations and special ACIC
investigations, simplify the determination drafting process and make the determinations
easier to understand.
12. The validations in this Bill will ensure that that things done in reliance on these
authorisations and determinations are and always have been valid, including the use and
derivative use of information or intelligence obtained pursuant to these authorisations
and determinations.
FINANCIAL IMPACT
13. This measure would have no financial impact on Government expenditure or revenue.
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STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS
14. A Statement of Compatibility with Human Rights has been completed in relation to the
Bill. It has been assessed that the amendments are compatible with Australia's human
rights obligations. A copy of the Statement of Compatibility with Human Rights is at
Attachment A.
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ATTACHMENT A
STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
Crimes and Other Legislation Amendment (Omnibus No. 2) Bill 2023
1. 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.
Overview of the Bill
2. The purpose of this Bill is to make amendments to crimes-related legislation that
update, improve and clarify the intended operation of key provisions administered by
the Attorney-General's portfolio.
3. The Crimes and Other Legislation Amendment (Omnibus No.2) Bill 2023 (the Bill)
will amend the Australian Crime Commission Act 2002 (ACC Act), the
Crimes Act 1914 (Crimes Act) and the Criminal Code Act 1995 (Criminal Code), and
will make consequential amendments to the Customs Act 1901 (Customs Act) and the
Defence Force Discipline Act 1982.
4. The human rights implications for each of the measures contained in the Bill are
discussed in further detail below.
Schedule 1 - Release on parole
5. Part IB of the Crimes Act provides for the sentencing, imprisonment and release of
federal offenders. Federal offenders are persons serving a federal sentence for one or
more Commonwealth crimes.
6. Subsection 19AL(1) of Subdivision A of Division 5 of Part 1B of the Crimes Act
imposes a mandatory duty on the Attorney-General to either make or refuse to make a
parole order before the end of a non-parole period fixed for one or more federal
sentences imposed on a person, unless one of the exceptions in subsection 19AL(5)
applies.
7. However, there are some circumstances where it is not possible for the
Attorney-General to make a decision about making or refusing to make an order in
respect of a person in accordance with the time period stipulated in subsection 19AL(1),
including, but not limited to, the following:
• when an offender is immediately eligible for parole because of time served
awaiting sentence, and
• when an offender's sentence or non-parole period is reduced on appeal.
8. Schedule 1 will address these circumstances by amending the Crimes Act to clarify that
the Attorney-General must make or refuse parole order decisions after a non-parole
period for a federal offender has expired, and make minor consequential amendments to
reflect this clarification elsewhere in the Crimes Act.
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9. Specifically, the Bill will:
• amend Part 1B of the Crimes Act to introduce new subsections 19AL(1A), (2A)
and (7) which are mandatory requirements in relation to making or refusing to
make a parole order after the non-parole period has ended
• make additional minor amendments to Part 1B that are consequential to the
introduction of new subsection 19AL(1A), and
• make a minor and consequential amendment to the definition of 'under sentence'
for the purposes of the terms 'prescribed offender' and 'serious offender', in
Part ID of the Crimes Act, which deals with forensic procedures.
Schedule 2 - Border controlled drugs, plants and precursors
Overview
10. Schedule 2 amends the Criminal Code to enhance import controls on substances that are
commonly used as illicit drugs and precursors but which also have legitimate uses in
industry. These are often referred to as 'dual-use substances'.
11. Currently, dual-use substances, for example, 1,4 Butanediol (1,4-BD), can be legally
imported into Australia for legitimate industrial use by importers that are registered
with the Australian Industrial Chemicals Introduction Scheme (AICIS). However,
unregistered entities that import these substances into Australia only face maximum
penalties of up to 500 penalty units; and the Australian Border Force is not empowered
to seize these substances from unregistered importers.
12. Existing import controls therefore have proven insufficient to deter and prevent
criminal groups from importing substances that contribute to Australia's illicit drug
market. Law enforcement reports escalating harms from dual-use substances,
particularly 1,4-BD, which is increasingly linked to overdoses and used to facilitate
sexual assault.
13. The amendments will enhance import controls by ensuring the relevant regulation-
making powers under Part 9.1 of the Criminal Code are capable of listing known and
emerging dual-use substances consistently across border controlled drugs, plants and
precursors.
14. Substances that are then listed in the Criminal Code Regulations 2019 (the Regulations)
will be subject to the appropriate penalties in the Criminal Code where substances are
imported by unregistered entities, and be subject to seizure powers under the Customs
Act.
15. This will future-proof the Regulations by allowing known and emerging dual-use
substances to be listed in a consistent manner, better enabling agencies to address the
threat of serious and organised crime by disrupting the supply and manufacture of illicit
drugs and precursors in Australia.
16. This Bill also proposes consequential amendments to the Customs Act and Defence
Force Discipline Act 1982 to ensure the Acts continue to operate as intended.
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Amendments in relation to regulation-making powers
17. Part 9.1 of the Criminal Code provides the following definitions and regulation-making
powers:
• Border controlled drug has the meaning given by section 301.4 of the Criminal
Code, that a border controlled drug is a substance that is listed by a regulation as a
border controlled drug.
• Border controlled plant has the meaning given by section 301.5 of the Criminal
Code, that a border controlled plant is a growing plant that is listed by a regulation
as a border controlled plant.
• Border controlled precursor has the meaning given by section 301.6 of the
Criminal Code, that a border controlled precursor is a substance (including a
growing plant) that is listed by a regulation as a border controlled precursor.
18. Part 9.1 of the Criminal Code also provides discretion for the Minister administering the
Australian Federal Police Act 1979 (AFP Minister) to make an emergency
determination in relation to border controlled drugs (paragraph 301.13(1)(a)), border
controlled plants (paragraph 301.13(1)(b)), or border controlled precursors
(subsection 301.14(1)).
19. Border controlled drugs and border controlled plants are defined as serious drugs for
Part 9.1 of the Criminal Code (section 300.2). To list a serious drug (including a border
controlled drug or a border controlled plant) by regulation, the AFP Minister must be
satisfied of the conditions in paragraphs 301.7(a) and (b) of the Criminal Code.
20. Before a regulation is made listing a substance as a border controlled precursor, the
AFP 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).
21. This Bill amends the relevant definitions of border controlled drug, border controlled
plant and border controlled precursor in section 300.2, as well as sections 301.4, 301.5,
301.6, 301.9, 301.10, 301.11, 301.13 and 301.14 of the Criminal Code to ensure the
relevant regulation-making powers are capable of listing substances in a consistent
manner.
22. The effect of these amendments is to ensure that substances can be listed only in
relation to particular offences against Part 9.1, or particular elements of those offences,
rather than for Part 9.1 as a whole. The conditions for listing substances by a regulation
will still need to be satisfied before a regulation can be made. The Bill does not change
the conditions for listing.
23. It is intended that entities registered with the Australian Industrial Chemicals
Introduction Scheme (AICIS) who undertake import activities licenced under the
Industrial Chemicals Act 2019 (the IC Act) will have lawful authority to do so under
section 10.5 of the Criminal Code, where a substance imported is listed in relation to
particular offences against Part 9.1, or particular elements of those offences.
24. The amendments will ensure that entities registered with the AICIS under the IC Act
can continue importing substances for legitimate industry uses, even where a substance
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imported is listed in relation to particular offences against Part 9.1, or particular
elements of those offences.
25. The amendments will also ensure that entities that are not registered with AICIS and
import substances listed by a regulation in relation to offences against Part 9.1, or
elements of those offences, will be subject to appropriate criminal penalties, including
the import offences applying to border controlled drugs and border controlled
precursors, and can have their import seized by the Australian Border Force.
26. It is intended that entities not registered with AICIS, which import substances listed by
a regulation in relation to offences against Part 9.1, or elements of those offences, will
not be able to rely on the lawful authority defence in section 10.5 of the Criminal Code.
This is because the unregistered entity would not have complied with the requirement
for registration in section 13 of the IC Act and are therefore not covered by the
regulatory framework of the AICIS.
Amendments in relation to Customs Act 1901
27. Schedule 2 amends the Customs Act to ensure the Act continues to operate as intended.
Amendments in relation to Defence Force Discipline Act 1982
28. Schedule 2 also amends the Defence Force Discipline Act 1982 to ensure the Act
continues to operate as intended.
Schedule 3 - Validations relating to the Australian Crime Commission Act 2002
29. Schedule 3 contains validations relating to the ACC Act to ensure the validity of things
done in reliance on, or in relation to, a determination made by the Australian Criminal
Intelligence Commission (ACIC) Board authorising a special ACIC operation or special
ACIC investigation. This will also have the effect of validating any further derivative
uses of information or intelligence obtained by the ACIC in reliance on these
authorisations and determinations.
30. Special ACIC operations and special ACIC investigations are powerful tools which
enable the ACIC to obtain information that would not otherwise be available, including
through the use of coercive powers in appropriate circumstances. These powers have
been vested in the ACIC to enable it to collect, assess and disseminate intelligence
about serious and organised crime to inform the national threat picture and contribute to
community safety. They are central to the ACIC's role in supporting a strategic and
coordinated response to serious and organised crime and the highest risk criminal
offending impacting Australia.
31. The Bill does not amend or otherwise alter any of the existing legislative safeguards
that apply to the ACIC Board's power to make a determination, including the
requirement for the Board to be satisfied that a determination to authorise a special
ACIC investigation or special ACIC operation is in the public interest, as informed by
the board members' collective experience; and the requirement for the Board to set out
within the determination the purpose of the ACIC special operation or ACIC special
investigation. Similarly, the Bill does not diminish any of the oversight or scrutiny
mechanisms that apply to the ACIC.
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Human rights implications
32. The Bill engages, directly or indirectly, with the following human rights:
• The right to security of the person and freedom from arbitrary detention in
article 9 of the International Covenant on Civil and Political Rights (ICCPR).
• The right to liberty of movement in Article 12 of the ICCPR.
• The right to privacy in Article 17 of the ICCPR.
The right to liberty and freedom of movement
33. Article 9 of the ICCPR provides that everyone has the right to liberty and security of
person. It requires that persons not be subject to arrest and detention except as provided
for by law, and that neither the arrest nor the detention is arbitrary. The right applies to
all forms of detention where people are deprived of their liberty.
34. Article 12(1) of the ICCPR similarly provides that everyone lawfully within the
territory of a State shall, within that territory, have the right to liberty of movement and
freedom to choose his residence.' While Article 12 is not an unfettered freedom, it may
be restricted to protect public order, provided the restriction is necessary and
proportionate and the least intrusive method of achieving the desired outcome.
35. The amendments in Schedule 1 engage the human rights in Article 9 and Article 12. A
decision to grant or not grant parole will apply to federal offenders who have been
convicted of a criminal offence, and any restriction on their freedom of movement is a
consequence of their criminal conviction and sentence. Parole decisions therefore
protect public order by ensuring that persons convicted of criminal offences are
punished for their offences and that the community is protected from them. Moreover,
the restrictions on freedom of movement and on liberty associated with a decision to not
grant parole are demonstrably necessary, proportionate and the least intrusive method of
achieving the desired outcome, as assessed by the original sentencing court that
determined the term of imprisonment and non-parole period.
36. Schedule 2 does not engage any of the applicable rights or freedoms.
37. The validations in Schedule 3 engage human rights such as the right to protection from
unlawful or arbitrary interference with a person's privacy, but only within the
legislative framework already considered by the Parliament in legislating the Board's
power to make determinations to authorise special ACIC operations and special ACIC
investigations to occur.
38. The Bill does not expand the Board's determination power. The Bill does not amend or
otherwise alter any of the existing legislative safeguards that apply to the ACIC Board's
power to make a determination, including the requirement for the Board to be satisfied
that a determination to authorise a special ACIC investigation or special ACIC
operation is in the public interest, as informed by the board members' collective
experience; and the requirement for the Board to set out within the determination the
purpose of the ACIC special operation or ACIC special investigation. Similarly, the Bill
does not diminish any of the oversight or scrutiny mechanisms that apply to the ACIC.
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Conclusion with respect to the measures included in this Bill
39. This Bill is compatible with human rights as the measures in Schedule 2 do not raise
any human rights issues, and to the extent that measures in Schedules 1 and 3 may limit
human rights, those limitations are reasonable, necessary and proportionate, as
described above.
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ATTACHMENT B
Crimes and Other Legislation Amendment (Omnibus No. 2) Bill 2023
NOTES ON CLAUSES
Section 1 Short title
1. Section 1 of the Bill provides that the short title of the Act is the Crimes and Other
Legislation Amendment (Omnibus No. 2) Act 2023.
Section 2 Commencement
2. Section 2 of the Bill sets out the times at which the Act commences once passed by the
Parliament.
3. Subsection (1) provides that each provision of the Bill 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.
4. The whole of the Act commences the day after it receives the Royal Assent.
5. Subsection (2) provides that any information in column 3 of the table is not part of this
Bill. Information may be inserted in this column, or information in it may be edited, in
any published version of this bill.
Section 3 Schedules
6. Section 3 of the Bill provides that legislation that is specified in a Schedule of the Bill 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. The three
Schedules to the Bill relate to the following Acts:
a) Schedule 1 to the Bill will make amendments to the Crimes Act 1914 (Crimes Act);
b) Schedule 2 to the Bill will make amendments to the Criminal Code Act 1995
(Criminal Code), and consequential amendments to the Customs Act 1901 (Customs
Act) and the Defence Force Discipline Act 1982;
c) Schedule 3 to the Bill will make validations relating to the Australian Crime
Commission Act 2002 (ACC Act) .
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Schedule 1 - Release on parole
Crimes Act 1914
Overview
7. Schedule 1 makes amendments to Part IB of the Crimes Act, which deals with the
sentencing, imprisonment and release of federal offenders. Federal offenders are
persons serving a federal sentence for one or more Commonwealth crimes.
8. Subdivision A of Division 5 of Part 1B of the Crimes Act in particular deals with
matters relating to the release of federal offenders on parole.
9. Schedule 1 makes amendments to Part 1B to introduce new subsections 19AL(1A),
(2A) and (7) in relation to making or refusing to make a parole order after the
non-parole period has ended and makes additional minor amendments that are
consequential to the introduction of those new subsections. Schedule 1 also makes a
minor and consequential amendment to a definition in Part ID of the Crimes Act, which
deals with forensic procedures.
10. Schedule 1 does not change the existing review mechanisms for parole decisions. The
decision by the Attorney-General to release or not release a federal offender on parole is
subject to judicial review under the Administrative Decisions (Judicial
Review) Act 1977 and section 39B of the Judiciary Act 1903.
Clause 1 Subsection 16(1) (definition of parole order)
11. Clause 1 amends the definition of 'parole order' in subsection 16(1) of Division 1 of
Part 1B of the Crimes Act to include a reference to new subsection 19AL(1A)
introduced by clause 2 below, existing paragraph 19AL(2)(b), new
subsection 19AL(2A) introduced by clause 4 below, existing subsection 19AL(6), and
new subsection 19AL(7) introduced by clause 7 below.
12. The effect of this amendment is that, for Part 1B of the Crimes Act, the definition in
subsection 16(1) provides that the term 'parole order' means an order made under
subsections 19AL(1) or (1A), paragraph 19AL(2)(b) or subsections 19AL(2A),
19AL(6) and (7) directing that a person be released from prison on parole.
13. The purpose of this amendment is to make clear that the definition of the term 'parole
order' also applies in relation to new and amended subsections and paragraphs in
section 19AL. This amendment is consequential to the amendments made by clauses 2,
4 and 7.
Clause 2 After subsection 19AL(1)
14. Clause 2 inserts new subsection 19AL(1A) which clarifies the Attorney-General's duty
to make or refuse to make a parole order.
15. Currently, subsection 19AL(1) imposes a mandatory duty on the Attorney-General to
either make or refuse to make a parole order before the end of a non-parole period fixed
for one or more federal sentences imposed on a person, unless one of the exceptions in
subsection 19AL(5) applies. Subsection 19AL(5) applies if the person is also subject to
a state or territory sentence.
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16. However, there are some circumstances that may act to prevent or preclude the
Attorney-General from making or refusing to make an order in respect of a person in
accordance with the time period stipulated in subsection 19AL(1), including but not
limited to, the following:
• when an offender is immediately eligible for parole because of time served
awaiting sentence, and
• when an offender's non-parole period is reduced on appeal.
17. The terms of subsection 19AL(1) are reasonably capable of sustaining a purposive
interpretation that it provides power to the Attorney-General to consider making or
refusing to make a parole order at a later juncture. New subsection 19AL(1A) will put
beyond doubt that the effect of the Attorney-General's duty in subsection 19AL(1) to
make a parole order decision remains, even after the end of the non-parole period.
18. New subsection 19AL(1A) requires the Attorney-General to make or refuse to make a
parole order 'as soon as practicable' if a decision has not been made in accordance with
subsection 19AL(1).
'as soon as practicable'
19. The use of the phrase 'as soon as practicable' in new subsection 19AL(1A) means as
soon as both possible and practical, taking into account all of the facts and
circumstances of the individual case.
20. The purpose of this amendment is to put beyond doubt that even in circumstances
where the Attorney-General does not make, or refuse to make, a parole order for a
person before the end of the non-parole period referred to in subsection 19AL(1), the
Attorney-General is still required to make, or refuse to make, a parole order for the
person. This amendment will ensure that the Attorney-General has unambiguous
authority to make a parole order decision even if the non-parole period has expired.
Clause 3 Subsection 19AL(2)
21. Clause 3 amends subsection 19AL(2) to include a reference to new
subsections 19AL(1A), (2A) and (7).
22. Currently, subsection 19AL(2) sets out the requirement for the Attorney-General to
notify an offender of their refusal and reconsider their release in 12 months' time where
the Attorney-General refuses to make a parole order for a person under
subsection 19AL(1) or paragraph 19AL(2)(b).
23. The effect of this amendment is that these requirements are extended to cover
subsection 19AL(1A) and paragraphs 19AL(2A) and (7). This amendment is
consequential to the amendment made by clauses 2, 4 and 7.
24. This clause also amends subsection 19AL(2) to include a reference to subsection (6)
which was missing due to a previous drafting error.
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Clause 4 After subsection 19AL(2)
25. Clause 4 inserts new subsection 19AL(2A), which clarifies the Attorney-General's duty
to make or refuse to make a parole order.
26. Currently, subsection 19AL(2) imposes a mandatory duty on the Attorney-General to
reconsider the making of a parole order within 12 months of refusing to make a parole
order under subsection 19AL(1).
27. While the terms of existing subsection 19AL(2) are reasonably capable of sustaining a
purposive interpretation that provide power to the Attorney-General to consider making
or refusing to make a parole order at a later juncture, new subsection 19AL(2A) puts
beyond doubt that the effect of the duty in subsection 19AL(2) to reconsider the making
of a parole order, even after the 12 months have lapsed, for all parole decisions.
28. New subsection 19AL(2A) requires the Attorney-General to make or refuse to make a
parole order 'as soon as practicable' if a decision has not been made in accordance with
subsection 19AL(2).
'as soon as practicable'
29. The use of the phrase 'as soon as practicable' in new subsection 19AL(2A) means as
soon as both possible and practical, taking into account all of the facts and
circumstances of the individual case.
30. The purpose of this amendment is to put beyond doubt that even in circumstances
where the Attorney-General does not reconsider the making of a parole order within 12
months of refusing to make a parole order as referred to in subsection 19AL(2)(b), the
Attorney-General is still required to either make, or refuse to make, a parole order for
the person. This amendment will ensure that the Attorney-General has unambiguous
authority to make a parole order decision even after the time period has lapsed.
31. Clause 4 will also insert a new heading before existing subsection 19AL(3).
Clause 5 Subsections 19AL(4)
32. Clause 5 amends subsections 19AL(4) to omit "and (6)" and substitute "to (7)". This
amendment is consequential to the amendment made by clause 7.
Clause 6 Subsection 19AL(5)
33. Clause 6 amends subsections 19AL(5) to include a reference to new
subsections 19AL(1A) and (2A). This amendment is consequential to the amendment
made by clauses 2 and 4.
Clause 7 After subsection 19AL(6) (before the note)
34. Clause 7 inserts a new subsection 19AL(7).
35. Currently, subsection 19AL(6) imposes a mandatory duty on the Attorney-General to
make or refuse to make a parole order before the end of the period referred to in
paragraph 19AL(6)(a), or the date of the expected release referred to in
paragraph 19AL(6)(b).
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36. Paragraphs 19AL(6)(a) and (b) are clarifying provisions for subsection 19AL(5). These
paragraphs provide that, despite the stipulation that the Attorney-General is not required
to make a subsection 19AL(1) or paragraph 19AL(2)(b) parole order in the particular
circumstances set out in subsection 19AL(5), the Attorney-General must either make, or
refuse to make, a parole order before the end of the person's state/territory non-parole
period ends, or before the person's release on their state/territory sentence.
37. However, there are some circumstances that may prevent or preclude the
Attorney-General from making or refusing to make an order in respect of a person in
accordance with the time period stipulated in subsection 19AL(6), including but not
limited to the following:
• when an offender is immediately eligible for state/territory parole because of time
served awaiting sentence, and
• when an offender's state/territory non-parole period is reduced on appeal.
38. While, the terms of subsection 19AL(6) are reasonably capable of sustaining a
purposive interpretation that provide power to the Attorney-General to consider making
or refusing to make a parole order at a later juncture, new subsection 19AL(7) puts
beyond doubt that the effect of the duty in subsection 19AL(6) to make a parole order
decision remains, even after the end of state or territory non-parole period or sentence.
39. New subsection 19AL(7) requires the Attorney-General to make or refuse to make a
parole order 'as soon as practicable' if a decision has not been made in accordance with
subsection 19AL(6).
'as soon as practicable'
40. The use of the phrase 'as soon as practicable' in new subsection 19AL(7) means as
soon as both possible and practical, taking into account all of the facts and
circumstances of the individual case.
41. The purpose of this amendment is to put beyond doubt that, even in circumstances
where the Attorney-General does not make, or refuse to make, a parole order for a
person before the end of periods referred to in subsection 19AL(6), the
Attorney-General is still required to make, or refuse to make, a parole order for the
person. This amendment will ensure that the Attorney-General has unambiguous
authority to make a parole order decision even if the non-parole period has expired.
Clause 8 Subsection 19AL(6) (note)
42. Clause 8 amends the provision to omit "(6)" and substitute "(7)". This is a
consequential amendment to include a reference to new subsection 19AL(7) introduced
by clause 7.
Clause 9 Paragraph 23WA(8)(c)
43. Clause 9 amends paragraph 23WA(8)(c) to omit "subsection 19AL(1) or (2)", and
substitute "subsection 19AL(1) or (1A), paragraph 19AL(2)(b), or
subsection 19AL(2A), (6) or (7)".
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44. Existing paragraph 23WA(8)(c) provides that for the purposes of the terms 'prescribed
offender' and 'serious offender', defined for Part 1D, a person is 'under sentence' in
relation to a prescribed offence or a serious offence if the person is released under a
parole order made under subsection 19AL(1) or (2).
45. This is a consequential amendment to include a reference to new subsection 19AL(1A)
introduced by clause 2, existing paragraph 19AL(2)(b), new subsection 19AL(2A)
introduced by clause 4, existing subsection (6) and new subsection (7), introduced by
clause 7.
46. The purpose of this amendment is to make clear that, for the relevant terms defined in
Part 1D, a person is 'under sentence' in relation to a prescribed offence or a serious
offence if the person is released under a parole order made under subsections 19AL(1),
(1A), paragraph (2)(b), or subsections (2A), (6) or (7).
Clause 10 Application provision
47. Clause 10 provides that the amendments made by Schedule 1 apply in relation to a non-
parole period fixed before, on or after the commencement of this Schedule, whether or
not that non-parole period ended before that commencement.
48. The purpose of this amendment is to make clear that the authority established by new
subsections 19AL(1A), (2A) and (7), and by existing subsection 19AL(1),
subparagraph (2)(b) and subsection (6), to make, or refuse to make, a parole order
decision in relation to a person after the end of the non-parole period, applies to any
non-parole period that ended before, on or after the day Schedule 1 comes into effect.
16
Schedule 2 - Border controlled drugs, plants and precursors
Criminal Code Act 1995
Overview
49. This measure will enhance import controls on substances that are commonly used as
illicit drugs and precursors but which also have legitimate uses in industry (dual-use
substances).
50. Currently, dual-use substances, for example, 1,4 Butanediol (1,4-BD), can be legally
imported into Australia for legitimate industrial use by importers that are registered
with the Australian Industrial Chemicals Introduction Scheme (AICIS). However,
unregistered entities that import these substances into Australia only face maximum
penalties of up to 500 penalty units; and the Australian Border Force is not empowered
to seize these substances from unregistered importers.
51. Existing import controls therefore have proven insufficient to deter and prevent
criminal groups from importing substances that contribute to Australia's illicit drug
market. Law enforcement reports escalating harms from dual-use substances,
particularly 1,4-BD, which is increasingly linked to overdoses and used to facilitate
sexual assault
52. The amendments will enhance import controls by ensuring the relevant regulation-
making powers under Part 9.1 of the Criminal Code are capable of listing known and
emerging dual-use substances consistently across border controlled drugs, plants and
precursors.
53. Substances that are then listed in the Criminal Code Regulations 2019 (the Regulations)
will be subject to the appropriate penalties in the Criminal Code where substances are
imported by unregistered entities, and be subject to seizure powers under the Customs
Act.
54. This will future-proof the Regulations by allowing known and emerging dual-use
substances to be listed in a consistent manner, better enabling agencies to address the
threat of serious and organised crime by disrupting the supply and manufacture of illicit
drugs in Australia.
55. In particular, Schedule 2 to the Bill will:
• amend the regulation-making powers for border controlled drugs, border
controlled plants, and border controlled precursors in Part 9.1 of the Criminal
Code to enable substances to be listed by regulation in relation to offences against
Part 9.1 of the Criminal Code, or elements of those offences, rather than just for
Part 9.1 as a whole; and
• make consequential amendments where necessary to ensure Acts continue to
operate as intended.
56. The amendments are necessary to better prevent criminal groups, including
transnational, serious and organised crime, from exploiting this vulnerability in import
controls to bring substances into Australia to be diverted to supply and manufacture
illicit drugs in Australia.
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57. Entities registered with the Australian Industrial Chemicals Introduction
Scheme (AICIS) will continue to be allowed to import chemicals for legitimate industry
uses.
58. It is intended that entities registered with AICIS who undertake import activities
licenced under the Industrial Chemicals Act 2019 (the IC Act) have lawful authority for
the purposes of section 10.5 of the Criminal Code where a substance imported is listed
in relation to particular offences against Part 9.1, or particular elements of those
offences.
59. Entities that fail to register with AICIS under the IC Act prior to import will be subject
to appropriate criminal penalties in the relevant import offences under Part 9.1 of the
Criminal Code, and can have their imported chemicals seized by the Australian Border
Force (ABF).
60. It is intended that entities that are not registered with AICIS prior to import would not
be able to rely on the lawful authority defence in section 10.5 of the Criminal Code,
where they import substances listed by a regulation in relation to offences against
Part 9.1, or elements of those offences. This is because the unregistered entity would
not have complied with the requirement for registration in section 13 of the IC Act and
therefore would not be covered by the regulatory framework of AICIS. Currently,
unregistered entities that import chemicals into Australia only face maximum penalties
of up to 500 penalty units and the ABF is not empowered to seize the chemicals from
unregistered importers.
Part 9.1 of the Criminal Code
61. Part 9.1 of the Criminal Code provides the following definitions and regulation-making
powers:
• Border controlled drug has the meaning given by section 301.4 of the Criminal
Code, that a border controlled drug is a substance that is listed by a regulation as a
border controlled drug.
• Border controlled plant has the meaning given by section 301.5 of the Criminal
Code, that a border controlled plant is a growing plant, that is listed by a
regulation as a border controlled plant.
• Border controlled precursor has the meaning given by section 301.6 of the
Criminal Code, that a border controlled precursor is a substance (including a
growing plant) that is listed by a regulation as a border controlled precursor.
62. Part 9.1 of the Criminal Code also provides a Ministerial emergency determination
mechanism to Minister administering the Australian Federal Police Act 1979 (AFP
Minister):
• Section 301.13(1) of the Criminal Code provides an emergency determination
mechanism for the AFP Minister to determine that a substance, other than a
growing plant, is a border controlled drug, or a growing plant is a border
controlled plant.
• Section 301.14(1) of the Criminal Code provides an emergency determination
mechanism for the AFP Minister to determine that a substance (including a
growing plant) is a border controlled precursor.
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63. Border controlled drugs and border controlled plants are defined as serious drugs for the
purpose of Part 9.1 of the Criminal Code (section 300.2). To list a serious drug
(including a border controlled drug or a border controlled plant) by regulation, the AFP
Minister must be satisfied of the conditions in paragraphs 301.7(a) and (b) of the
Criminal Code.
64. Before a regulation is made listing a substance as a border controlled precursor, the
AFP 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)
(section 301.8 of the Criminal Code).
65. This Bill amends the relevant definitions of border controlled drug, border controlled
plant and border controlled precursor as listed in section 300.2, as well as
sections 301.4, 301.5, 301.6, 301.9, 301.10, 301.11, 301.13 and 301.14 of the Criminal
Code to ensure the relevant regulation-making powers are capable of listing substances
in a consistent manner.
66. The effect of the amendments is that substances can be listed in relation to particular
offences against Part 9.1, or particular elements of those offences, rather than for
Part 9.1 as a whole. This amendment is important to align the criminal penalty under
the IC Act for unregistered entities that import chemicals into Australia with the
relevant import offences in Part 9.1 of the Criminal Code.
67. The conditions for listing substances by a regulation will still need to be satisfied before
a regulation can be made. The Bill does not change the conditions for listing substances.
Clause 1 Section 300.2 of the Criminal Code (definition of border controlled drug)
68. This clause repeals the definition of border controlled drug and substitutes a new
definition.
69. The new definition of border controlled drug refers to the regulation-making powers in
subsections 301.4(1), 301.4(2), 301(3) and to the emergency determination mechanism
for serious drugs in section 301.13(1A) of the Criminal Code.
70. This is a consequential amendment required to reflect amendments to section 301.4 in
clause 8, below.
71. The new definition ensures that references across the statute book to 'border controlled
drug within the meaning of Part 9.1' of the Criminal Code will include all border
controlled drugs listed in the regulations, whether or not they are listed for all, or only
certain offences or elements of those offences against Part 9.1.
Clause 2 Section 300.2 of the Criminal Code (definition of border controlled plant)
72. This clause repeals the definition of border controlled plant and substitutes a new
definition.
73. The new definition of border controlled plant refers to the regulation-making powers in
subsections 301.5(1) and 301.5(2) and to the emergency determination mechanism for
serious drugs in section 301.13(1A) of the Criminal Code.
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74. This is a consequential amendment required to reflect amendments to section 301.5 in
clauses 9 and 10, below.
75. The new definition ensures that references across the statute book to 'border controlled
plant within the meaning of Part 9.1' of the Criminal Code will include all border
controlled plants listed in the regulations, whether or not they are listed for all, or only
certain offences or elements of those offences against Part 9.1.
76. The new definition ensures that Acts that incorporate this definition will continue to
operate as intended.
Clause 3 Section 300.2 of the Criminal Code (definition of border controlled
precursor)
77. This clause repeals the definition of border controlled precursor and substitutes a new
definition.
78. The new definition of border controlled precursor refers to the regulation-making
powers in subsections 301.6(1), 301.6(1A), 301.6(1B) and to the emergency
determination mechanism for serious drug precursors in section 301.14(1A) of the
Criminal Code.
79. This is a consequential amendment required to reflect amendments to section 301.6 in
clauses 11 and 12, below.
80. The new definition ensures that references across the statute book to 'border controlled
precursor within the meaning of Part 9.1' of the Criminal Code will include all border
controlled precursors listed in the regulations, whether or not they are listed for all, or
only certain offences or elements of those offences against Part 9.1.
81. The new definition ensures that Acts that incorporate this definition will continue to
operate as intended.
Clause 4 Section 300.2 of the Criminal Code (paragraph (c) of the definition of
listed)
82. This clause omits "301.4(a)" and substitutes "301.4(1)(a)".
83. This is a technical and consequential amendment required to provide for additional
subsections included as part of the amendments in clauses 6, 7 and 8, below.
Clause 5 Section 300.2 of the Criminal Code (paragraph (d) of the definition of
listed)
84. This clause omits "301.5(a)" and substitutes "301.5(1)(a)".
85. This is a technical and consequential amendment required to provide for additional
subsections included as part of the amendments in clauses 9 and 10, below.
Clause 6 Section 301.4 of the Criminal Code
86. This clause omits "For the purposes of this Part, a" and substitutes "(1) A".
20
87. This amendment clarifies that border controlled drugs listed in the regulations apply for
the purposes of other Acts as well.
88. This is a technical and consequential amendment required to provide for additional
subsection included as part of the amendments in clause 8, below.
Clause 7 Section 301.4 of the Criminal Code (paragraph (b) of note 1)
89. This clause omits "301.8(2)" and substitutes "301.13(2)" in paragraph (b) of note 1.
90. This is a technical amendment required to refer to the emergency determination
mechanism in subsection 301.13(2) of the Criminal Code.
Clause 8 At the end of section 301.4 of the Criminal Code
91. This clause inserts new subsections 301.4(2) and 301.4(3) at the end of
subsection 301.4(1) of the Criminal Code.
92. The amendments made by this clause have the effect of providing that the regulation-
making power in section 301.4 for listing a border controlled drug can be used to list
substances in relation to particular offences against Part 9.1, or particular elements of
those offences, rather than for Part 9.1 as a whole.
Subsection 301.4(2)
93. New paragraph 301.4(2)(a) clarifies that the regulations may provide that a listed border
controlled drug is taken, for the purposes of Part 9.1, to be a border controlled drug in
relation to particular offences against Part 9.1, or particular elements of those offences.
94. New paragraph 301.4(2)(b) clarifies if the regulations provide this, then the listed
border controlled drug is taken, for the purposes of this Part, to be a border controlled
drug in relation to those offences or elements.
Subsection 301.4(3)
95. New subsection 301.4(3) puts beyond doubt that if a listed border controlled drug is
only a border controlled drug in relation to particular offences against Part 9.1, or
particular elements of those offences, then a drug analogue of the listed border
controlled drug is only a border controlled drug in relation to those offences or
elements.
96. This clarification is necessary because existing paragraph 301.4(b) of the Criminal
Code provides that for the purposes of Part 9.1, a border controlled drug is a substance,
other than a growing plant, that is a drug analogue of a listed border controlled drug.
This makes it clear how the amendments to the regulation-making power in new
subsection 301.4(2) affect drug analogues.
Clause 9 Section 301.5 of the Criminal Code
97. This clause omits "For the purposes of this Part, a" and substitutes "(1) A".
98. This amendment clarifies that border controlled plants listed in the regulations apply for
the purposes of other Acts as well.
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99. This is a technical and consequential amendment required to provide for additional
subsections to be included as part of the amendments in clause 10, below.
Clause 10 At the end of section 301.5 of the Criminal Code
100. This clause inserts new subsection 301.5(2) at the end of subsection 301.5(1) of the
Criminal Code.
101. The effect of these amendments is to clarify that the regulation-making power in
section 301.5 for listing a border controlled drug can be used to list substances in
relation to particular offences against Part 9.1, or particular elements of those offences,
rather than for Part 9.1 as a whole.
Subsection 301.5(2)
102. New paragraph 301.5(2)(a) clarifies that the regulations may provide that a listed border
controlled plant is taken, for the purposes of Part 9.1, to be a border controlled plant in
relation to particular offences against Part 9.1, or particular elements of those offences.
103. New paragraph 301.4(2)(b) clarifies if the regulations provide this, then the listed
border controlled plant is taken, for the purposes of this Part, to be a border controlled
plant in relation to those offences or elements.
Clause 11 Subsection 301.6(1) of the Criminal Code
104. This clause omits "For the purposes of this Part, a" and substitutes "A".
105. This amendment clarifies that border controlled precursors listed in the regulations
apply for the purposes of other Acts as well.
106. This is a technical and consequential amendment required to provide for additional
subsections to be included as part of the amendments in clause 12, below.
Clause 12 After subsection 301.6(1) of the Criminal Code
107. This clause inserts new subsections 301.6(1A) and 301.6(1B) at the end of
subsection 301.6(1) of the Criminal Code.
108. The amendments made by this clause have the effect of providing that the regulation-
making power in subsection 301.6(1) for listing a border controlled precursor can be
used to list substances in relation to particular offences against Part 9.1, or particular
elements of those offences, rather than for Part 9.1 as a whole.
Subsection 301.6(1A)
109. New paragraph 301.6(1A)(a) clarifies that the regulations may provide that a listed
border controlled precursor is taken, for the purposes of Part 9.1, to be a border
controlled precursor in relation to particular offences against Part 9.1, or particular
elements of those offences.
110. New paragraph 301.6(1A)(b) clarifies if the regulations provide this, then the listed
border controlled precursor is taken, for the purposes of this Part, to be a border
controlled precursor in relation to those offences or elements.
22
Subsection 301.6(1B)
111. New subsection 301.6(1B) puts beyond doubt that if a listed border controlled precursor
is only a border controlled precursor in relation to particular offences against Part 9.1,
or particular elements of those offences, then a salt, ester or immediate precursor of the
listed border controlled precursor is only a border controlled precursor in relation to
those offences or elements.
112. For salts and esters, this clarification is necessary because existing
paragraph 301.6(1)(b) of the Criminal Code provides that a salt or ester of a listed
border controlled precursor is also a border controlled precursor. This makes it clear
how the amendments to the regulation-making power in new subsection 301.6(1A)
affect salts or esters.
113. For immediate precursors, this clarification is necessary because existing
subparagraph 301.6(1)(c) of the Criminal Code provides that an immediate precursor of
a precursor listed as a border controlled precursor is also a border controlled precursor.
This makes it clear how the amendments to the regulation-making power in new
subsection 301.6(1A) affect immediate precursors.
114. This clause also inserts a new subheading for existing subsection 301.6(2), "Definition
of immediate precursor".
Clause 13 Subsection 301.9(1) of the Criminal Code
115. This clause omits "For the purposes of this Part, a" and substitutes "A".
116. This amendment clarifies that the definition of drug analogue in existing section 301.9
of the Criminal Code applies for the purposes of other Acts as well. This makes it clear
how the amendments to the regulation-making power in new subsections 301.4(2) and
301.4(3) affect drug analogues.
Clause 14 At the end of subsection 301.9(1) of the Criminal Code
117. This clause inserts a note at the end of subsection 301.9(1) of the Criminal Code to
clarify that some substances are taken, for the purposes of this Part, to be drug
analogues in relation to particular offences against this Part, or particular elements of
those offences.
118. This amendment also refers to new subsection 301.4(3) of the Criminal Code to assist
referencing.
Clause 15 Sections 301.10 and 301.11 of the Criminal Code (note)
119. This clause omits "301.4(b)" and substitutes "301.4(1)(b)" in the notes following
sections 301.10 and 301.11 of the Criminal Code.
120. These are technical and consequential amendments required to provide for the
additional subsections included as part of the amendments in clause 6, above.
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Clause 16 After subsection 301.13(1) of the Criminal Code
121. This clause inserts subsection 301.13(1A) at the end of subsection 301.13(1) of the
Criminal Code, which deals with the discretion of the AFP Minister to make emergency
determinations in relation to serious drugs.
122. Subsection 301.13(1) of the Criminal Code provides the AFP Minister with discretion
to determine, by legislative instrument, that:
• a substance, other than a growing plant, is a border controlled drug
(paragraph 301.13(1)(a)), or
• a growing plant is a border controlled plant (paragraph 301.13(1)(b)).
Subsection 301.13(1A)
123. New paragraph 301.13(1A)(a) states that a determination made under
subsection 301.13(1) may provide that:
• a determined border controlled drug is taken, for the purposes of Part 9.1, to be a
border controlled drug (subparagraph 301.13(1A)(a)(i)); or
• a determined border controlled plant is taken, for the purposes of Part 9.1, to be a
border controlled plant (subparagraph 301.13(1A)(a)(ii));
in relation to particular offences against Part 9.1, or particular elements of those
offences.
124. New paragraph 301.13(1A)(b) provides that if a determination provides this, then:
• the determined border controlled drug is taken, for the purposes of Part 9.1, to be
a border controlled drug (subparagraph 301.13(1A)(b)(i)); or
• the determined border controlled plant is taken, for the purposes of Part 9.1, to be
a border controlled plant (subparagraph 301.13(1A)(b)(ii);
in relation to those offences or particular elements of those offences.
125. This amendment clarifies that the AFP Minister may exercise discretion to determine
substances as border controlled drugs and border controlled plants in relation to
particular offences against Part 9.1, or elements of those offences, rather than for
Part 9.1 as a whole.
126. This amendment also makes it clear how the amendments to the regulation-making
powers in new subsections 301.4(2) and 301.5(2) in clauses 8 and 10, above, interacts
with the emergency determination mechanism.
127. This ensures that the regulation-making powers and the emergency determination
mechanisms in Part 9.1 of the Criminal Code operate consistently with each other.
128. This clause also inserts a new subheading for subsection 301.13(2), "Conditions on
making a determination".
24
Clause 17 After subsection 301.14(1) of the Criminal Code
129. This clause inserts subsection 301.14(1A) at the end of subsection 301.14(1) of the
Criminal Code, which deals with the discretion of the AFP Minister to make emergency
determinations in relation to serious drug precursors.
130. Subsection 301.14(1) of the Criminal Code provides the AFP Minister with the
discretion to determine, by legislative instrument, that a substance (including a growing
plant) is a controlled precursor or a border controlled precursor.
Subsection 301.14(1A)
131. New paragraph 301.14(1A)(a) provides that a determination made under subsection
301.14(1) of the Criminal Code may provide that a determined border controlled
precursor, is taken, for the purposes of Part 9.1, to be a border controlled precursor in
relation to particular offences against Part 9.1, or particular elements of those offences.
132. New paragraph 301.14(1A)(b) provides that if a determination provides this, then the
determined border controlled precursor is taken, for the purposes of Part 9.1, to be a
border controlled precursor in relation to particular offences against Part 9.1, or
particular elements of those offences.
133. This amendment clarifies that the AFP Minister may exercise discretion to determine
substances as border controlled precursors in relation to particular offences against
Part 9.1, or particular elements of those offences, rather than for Part 9.1 as a whole.
134. This amendment also makes it clear how the amendments to the regulation-making
powers in new subsections 301.6(1A) and 301.6(1B) in clause 12, above, interacts with
the emergency determination mechanism.
135. This clarification ensures the regulation-making powers and the emergency
determination mechanisms in Part 9.1 of the Criminal Code operate consistently with
each other.
136. This clause also inserts a new subheading for subsection 301.14(2), "Conditions on
making a determination".
Customs Act 1901
Overview
137. This Bill makes minor and technical amendments to the Customs Act to ensure the Act
can continue to operate as intended.
Clause 18 Subsection 51A(1)
138. This clause repeals the existing subsection 51A(1) in the Customs Act and substitutes it
with a new paragraph that includes a note clarifying when certain controlled substances
are taken to be prohibited imports, with reference to the emergency Ministerial
determination mechanisms in the Criminal Code.
139. The purpose of the new subsection is to highlight that section 51A applies if a substance
or plant is a border controlled drug, a border controlled plant or a border controlled
25
precursor because of a determination made by the AFP Minister under Subdivision C of
Division 301 of the Criminal Code.
Note
140. The note to new subsection 51A(1) has the effect of linking section 51A of the Customs
Act to the definitions of border controlled drug, border controlled plant, and border
controlled precursor in Part 9.1 of the Criminal Code, which includes plants or
substances (whichever applies) as determined by the AFP Minister under Subdivision C
of Division 301 of the Criminal Code.
141. The note clarifies that subsection 51A continues to operate with reference to the
emergency Ministerial determination mechanisms and the definitions for border
controlled drug, border controlled plant, and border controlled precursor in Part 9.1 of
the Criminal Code.
142. In Part 9.1 of the Criminal Code, the terms border controlled drug, border controlled
plant, and border controlled precursor include substances or plants that are, under
Subdivision C of Division 301 of the Criminal Code, taken, for the purposes of the Part,
to be border controlled drug, border controlled plant, or border controlled precursor in
relation to particular offences against the Part, or particular elements of those offences.
Clause 19 Subsection 112A(1)
143. This clause repeals the existing subsection 112A(1) in the Customs Act and substitutes
it with a new paragraph that includes a note clarifying when certain controlled
substances are taken to be prohibited exports, with reference to the emergency
Ministerial determination mechanism for border controlled drugs and border controlled
plants in the Criminal Code.
144. The purpose of the new subsection is to highlight that section 112A(2) applies if a
substance or plant is a border controlled drug or a border controlled plant because of a
determination made by the AFP Minister under subsection 301.13 of the Criminal
Code.
Note
145. The note to the new subsection has the effect of linking subsection 112A(1) of the
Customs Act to the definition of border controlled drug and border controlled plant in
Part 9.1 of the Criminal Code, to include plants or substances as determined by the
AFP Minister under section 301.13 of the Criminal Code.
146. The note clarifies that subsection 112A(1) continues to operate with reference to the
emergency Ministerial determination mechanism in section 301.13 and the broader
definitions for border controlled drug and border controlled plant in Part 9.1 of the
Criminal Code.
147. In Part 9.1 of the Criminal Code, the terms border controlled drug and border controlled
plant include substances or plants that are, under section 301.13 of the Criminal Code,
taken, for the purposes of the Part, to be border controlled drugs or border controlled
26
plants in relation to particular offences against the Part, or particular elements of those
offences.
Clause 20 Subsection 112A(3)
148. This clause repeals the existing subsection 112A(3) and substitutes it with a new
paragraph that includes a note clarifying when certain controlled substances are taken to
be prohibited exports, with reference to the emergency Ministerial determination
mechanism for border controlled precursors in the Criminal Code.
149. The purpose of the new subsection 112A(3) is to highlight that subsection 112A(4)
applies if a substance is a border controlled precursor because of a determination made
by the AFP Minister under subsection 301.14 of the Criminal Code.
Note
150. The note to the new subsection has the effect of linking subsection 112A(3) of the
Customs Act to the definition of 'border controlled precursor' in Part 9.1 of the
Criminal Code.
Defence Force Discipline Act 1982
Overview
151. This Bill also makes minor and technical amendments to the Defence Force Discipline
Act 1982 to ensure the Act can continue to operate as intended.
152. The definition of prohibited drug in section 3 of the Defence Force Discipline Act 1982
refers to the definitions of border controlled drug and border controlled plant within the
meaning of sections 301.4 and 301.5 of the Criminal Code.
Clause 21 Subsection 3(1) (paragraph (a) of the definition of prohibited drug)
153. This clause omits "section 301.4" and substitutes "Part 9.1".
154. This amendment clarifies that the reference to border controlled drug within the
definition of prohibited drug should take into account Part 9.1 of the Criminal Code,
rather than only section 301.4 of the Criminal Code.
155. This is a technical and consequential amendment required to reflect the amendments to
Part 9.1 of the Criminal Code in clauses 2 to 17, above.
Clause 22 Subsection 3(1) (paragraph (b) of the definition of prohibited drug)
156. This clause omits "section 301.5" and substitutes "Part 9.1".
157. This amendment clarifies that the reference to border controlled plant within the
definition of prohibited drug should take into account Part 9.1 of the Criminal Code,
rather than only section 301.5 of the Criminal Code. This is a technical and
consequential amendment required to reflect the amendments to Part 9.1 of the
Criminal Code in clauses 2 to 17, above.
27
Clause 23 Application provision
158. This clause provides that amendments of the Customs Act made by this Schedule apply
in relation to determinations under Subdivision C of Division 301 of the Criminal Code
made before, on or after the commencement of this Schedule.
28
Schedule 3 - Validations relating to the Australian Crime Commission Act 2002
Australian Crime Commission Act 2002
Clause 1 Validations relating to the Australian Crime Commission Act 2002
159. Subclause (1) is an application provision, which provides that the validations contained
in this clause apply to any thing done by a person in reliance upon, or otherwise in
relation to:
• an authorisation (the relevant authorisation) given by the Australian Criminal
Intelligence Commission (ACIC) Board (the Board) under paragraph 7C(1)(c) of
the ACC Act on or after 4 September 2013, and before 10 December 2019; or
• a determination (the relevant determination) made by the Board under
subsection 7C(2) or (3) of the ACC Act on or after 4 September 2013, and before
10 December 2022.
160. Subclause (1) also provides, at subparagraphs (b), (c), and (d) that the clause applies:
• where that thing was done before the commencement of this clause; and
• where that thing related to federally relevant criminal activity within the meaning
of the ACC Act as in force at the time when the relevant authorisation was given
or the relevant determination was made; and
• to the extent that the doing of that thing would, apart from this clause, be invalid
or ineffective because the relevant authorisation or relevant determination was
invalid or ineffective.
161. Subparagraph (1)(d) also clarifies that the relevant authorisation or relevant
determination may be considered to have been invalid or ineffective at the time the
thing was done for a reason including because at that time the relevant authorisation
was given or the relevant determination was made, the authorisation or determination
failed to specify or identify federally relevant criminal activity within the meaning of
the ACC Act as in force at that time. In this context, the words "including because" are
expansive, not restrictive.
162. Subclause (2) clarifies that a relevant determination within the meaning of
subparagraph 1(1)(a)(ii) may also be:
• for a determination made on or after 4 September 2013 and before
10 December 2019 - a determination made by the Board in performance of its
functions under paragraph 7C(1)(d) of the ACC Act; or
• for a determination made on or after 10 December 2019 and before
10 December 2022 - a determination made by the Board in the performance of its
functions under paragraph 7C(1)(c) or (d) of the ACC Act.
163. Subclause (2) is drafted in such a way to address how determinations have been made
by the Board over time under the ACC Act. This accounts for the fact that during the
period 2013-2019, the Board was asked to authorise an operation or investigation and
subsequently determine that the operation or investigation was 'special'. This two-step
process was amended by the Australian Crime Commission Amendment (Special
Operations and Special Investigations) Act 2019. From 2019 the Board was able to
make determinations authorising special ACIC operations or special ACIC
investigations in a single step.
29
164. Subclause (3) provides that the thing done is as valid and effective, and is taken for all
purposes always to have been as valid and effective, as it would have been if the
relevant authorisation or relevant determination were not invalid or ineffective. This
will also ensure that any further derivative uses of any information or intelligence
obtained by the ACIC in reliance on these authorisations and determinations are as
valid and effective as they would have been if the relevant authorisation or relevant
determination were not invalid or ineffective. This includes the use and derivative use
by the ACIC of the information or intelligence or any person lawfully in possession of
it.
165. Further clarification at subclause (4) also provides that without limiting subclause (3),
that subclause has effect for the purposes of legal proceedings.
166. Subclause (5) provides that, if the operation of this clause would result in the
acquisition of property (within the meaning of paragraph 51(xxxi) of the Constitution)
from a person other than on just terms, the Commonwealth is liable to pay a reasonable
amount of compensation to the person.
167. Subclause (6) provides that, if an amount of compensation cannot be agreed between
the Commonwealth and the person, the person may institute proceedings in the Federal
Court of Australia for recovery of a reasonable amount of compensation from the
Commonwealth, as determined by the Federal Court.
168. For the purposes of this clause, authorisation includes a purported authorisation and
determination includes a purported determination.
169. For the purposes of this clause, particularly subclause (4), legal proceedings includes
any proceedings before a court or tribunal, and includes proceedings that are pending or
concluded.
170. For the purposes of this clause, relevant authorisation has the meaning given by
subparagraph (1)(a)(i) and relevant determination has the meaning given by
subparagraph (1)(a)(ii).
171. For the purposes of this clause, thing includes:
• issuing, or purporting to issue, a summons or notice under the ACC Act, and
• requiring, or purporting to require, a person to answer a question or produce a
document under the ACC Act, and
• taking steps in or in relation to legal proceedings, or in or in relation to matters
arising in, or as a result of, legal proceedings, and
• the exercise, or purported exercise, of any other power, whether or not under the
ACC Act, and
• the performance, or purported performance, of any other function, whether or not
under the ACC Act.
172. This clause has the effect of validating things done in reliance on, or in relation to, the
relevant authorisations or determinations made on or after 4 September 2013, with the
purpose of validating the use, including derivative use, of any information or
intelligence obtained by the ACIC in reliance on information or intelligence obtained
from things done in reliance on these authorisations and determinations. This provision
does not validate the relevant authorisations or determinations themselves.
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173. The Australian Crime Commission Amendment (Special Operations and Special
Investigations) Act 2022 streamlined provisions in the ACC Act to provide greater
certainty with respect to the Board's powers to authorise special ACIC operations and
special ACIC investigations, simplify the determination drafting process and make the
determinations easier to understand.
174. This validation puts beyond doubt that things done in reliance on, or otherwise in
relation to, a Board determination authorising special ACIC operations or special ACIC
investigations have always been valid. In doing so, it also ensures that any further
derivative uses of information or intelligence obtained by the ACIC in reliance on these
authorisations and determinations have always been valid.
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