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Part IB of the Crimes Act 1914 (Cth)

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Aknowledgements

 Disclaimer		 Imposing Restrictions on Offenders

Last Updated: 6 May 2009

List of subheadings:

Crimes Act 1914 (Cth)
Scope of s 22
Definition of 'relevant order' and 'relevant sentence'
Definition of 'serious drug offence' and 'prescribed offence'
States

 

Commentary on Imposing Restrictions on Offenders under the Crimes Act 1914 (Cth)

Under s 22 of the Crimes Act 1914 (Cth) a court may make an order for a person to do all or any of the following things:

  • remain in Australia (s 22(1)(c));
  • refrain from applying for, or obtaining, an Australian passport (s 22(1)(d));
  • surrender possession of any Australian passport held by the person (s 22(1)(e)).
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Scope of s22

The orders under s 22 apply where a court makes a 'relevant order' or passes a 'relevant sentence': Crimes Act 1914 (Cth) s 22(1).

The relevant order or sentence must be in respect of a person charged with, or convicted of a:

  • 'serious drug offence' or,
  • 'prescribed offence'

against a law of the Commonwealth or of a Territory: Crimes Act 1914 (Cth) s 22(1)(a), (b).

Note: See below for the law regarding the States.

A court may make a s 22 order at the same time that it makes a relevant order or passes a relevant sentence or at a later time: Crimes Act 1914 (Cth) s 22(1).

The s 22 order will have effect during such reasonable period as is specified by the court in the order: Crimes Act 1914 (Cth) s 22(2).

Section 22(3) of the Crimes Act 1914 (Cth) allows for the court, by order, to revoke or vary an order made under subsection (1) as it sees fit.

Section 22(4) – (6) of the Crimes Act 1914 (Cth) provides the procedures for notification, surrender and return of the Australian passport. A copy of an order made under s 22(1) and (3) must be provided to the Secretary to the Department administering the Australian Passports Act 2005: Crimes Act 1914 (Cth) s 22(4).

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Definition of 'relevant order' and 'relevant sentence'

The terms 'relevant order' and 'relevant sentence' are defined by s 22(7) of the Crimes Act 1914 (Cth).

SECTION 22(7):

" relevant order " means an order:

(a) remanding a person, whether on bail or in custody; or
(b) suspending the sentence passed on a person upon his or her entering into a recognizance; or
(c) releasing the person on conditions under subsection 20(1).

" relevant sentence " means:

(a) a sentence of imprisonment other than a suspended sentence; or
(b) a sentence under section 20AB.

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Definition of 'serious drug offence' and 'prescribed offence'

A 'serious drug offence' is defined by s 22(7) of the Crimes Act 1914 (Cth). The definition was amended in 2005 to introduce uniformity in the use of terms for drugs.

SECTION 22(7):

"serious drug offence" means an offence:

(a) involving, or relating to, controlled substances; and
(b) punishable by a maximum penalty of imprisonment for 2 years or more.

The above definition requires a further definition of 'controlled substance'.

'Controlled substance' is defined in s 3 of the Crimes Act 1914 (Cth).

SECTION 3:

" controlled substance " means:

(a) a controlled drug or border controlled drug within the meaning of Part 9.1 of the Criminal Code; or
(b) a controlled plant or border controlled plant within the meaning of Part 9.1 of the Criminal Code; or
(c) a controlled precursor or border controlled precursor within the meaning of Part 9.1 of the Criminal Code.

Relevant links: Part 9.1 of the Criminal Code Act 1995 (Cth) and the Drug Tables from Division 314 of the Criminal Code Act 1995 (Cth).

'Prescribed offence' in not defined in Part IB of the Crimes Act 1914 (Cth) nor is it defined in the general interpretation section (s 3 of the Crimes Act 1914 (Cth)). The Crimes Regulations 1990 (Cth) lists offences that are prescribed for the purposes of s 22 of the Crimes Act 1914 (Cth).

Regulation 6AA of the Crimes Regulations 1990 (Cth) provides:

REGULATION 6AA:

For paragraph 22 (1) (b) of the Act [Crimes Act 1914 (Cth)], indictable offences against the Australian Passports Act 2005 and the Foreign Passports (Law Enforcement and Security) Act 2005 are prescribed.

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STATES

If a court makes an order, under the law of a State, for the surrender of an Australian passport the person must surrender the passport and be dealt with in accordance with that law: see further Crimes Act 1914 (Cth) s 22A.

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