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Human Services (Enhanced Service Delivery) Bill 2007

Part 4 Offences

Division 1 What this Part is about etc.

43   What this Part is about

This Part sets out the offences against this Act. (See also the Criminal Code , which sets out general principles of criminal responsibility.)

Division 2 has offences that apply if a person requires you to produce your access card or someone else’s access card.

Division 3 has offences for doing particular things to an access card, like selling it. Subdivision A has the offences committed by others in relation to your access card or someone else’s access card. Subdivision B has the offences that apply to you and your access card.

Division 4 has other access card offences, such as dishonestly obtaining an access card.

Division 5 has offences that apply to applications for registration or for an access card.

Division 6 has offences committed by Commonwealth officers or authorised persons.

Division 7 has miscellaneous offences.

44   Geographical jurisdiction

                   Section 15.4 of the Criminal Code (extended geographical jurisdiction—category D) applies to offences against this Act.



 

Division 2 Offences for requiring production of an access card

45   Requiring production of an access card for identification

             (1)  A person commits an offence if:

                     (a)  the person requires you to produce your access card or someone else’s access card; and

                     (b)  the person does so for the purposes of identifying you or someone else; and

                     (c)  if the person is a * delegate or an * authorised person—the requirement is not made for the purposes of this Act; and

                     (d)  if the person is not a delegate or an authorised person—the requirement is not made to establish that:

                              (i)  you hold, or someone else holds, a * benefit card; or

                             (ii)  you have, or someone else has, a * medicare number.

Penalty:  Imprisonment for 5 years or 500 penalty units, or both.

             (2)  A person commits an offence if:

                     (a)  the person makes a statement (whether orally, in writing or any other way) to you that you could reasonably understand to mean that you are required to produce your access card or someone else’s access card; and

                     (b)  the person does so for the purposes of identifying you or someone else; and

                     (c)  if the person is a * delegate or an * authorised person—the requirement is not made for the purposes of this Act; and

                     (d)  if the person is not a delegate or an authorised person—the requirement is not made to establish that:

                              (i)  you hold, or someone else holds, a * benefit card; or

                             (ii)  you have, or someone else has, a * medicare number.

Penalty:  Imprisonment for 2 years or 120 penalty units, or both.

46   Requiring production of an access card for supply of goods and services etc.

             (1)  A person commits an offence if:

                     (a)  the person requires you to produce your access card or someone else’s access card; and

                     (b)  the person does so in connection with a matter referred to in subsection (3); and

                     (c)  if the person is a * delegate or an * authorised person—the requirement is not made for the purposes of this Act; and

                     (d)  if the person is not a delegate or an authorised person—the requirement is not made to establish that:

                              (i)  you hold, or someone else holds, a * benefit card; or

                             (ii)  you have, or someone else has, a * medicare number.

Penalty:  Imprisonment for 5 years or 500 penalty units, or both.

             (2)  A person commits an offence if:

                     (a)  the person makes a statement (whether orally, in writing or any other way) to you that you could reasonably understand to mean that you are required to produce your access card or someone else’s access card; and

                     (b)  the person does so in connection with a matter referred to in subsection (3); and

                     (c)  if the person is a * delegate or an * authorised person—the requirement is not made for the purposes of this Act; and

                     (d)  if the person is not a delegate or an authorised person—the requirement is not made to establish that:

                              (i)  you hold, or someone else holds, a * benefit card; or

                             (ii)  you have, or someone else has, a * medicare number.

Penalty:  Imprisonment for 2 years or 120 penalty units, or both.

             (3)  For the purposes of paragraphs (1)(b) and (2)(b), the matters are as follows:

                     (a)  supplying goods or services to you or someone else;

                     (b)  conferring any right, title or advantage on you or someone else;

                     (c)  admitting you or someone else to a status;

                     (d)  modifying or cancelling a status in relation to you or someone else;

                     (e)  admitting you or someone else to membership of an association or body (whether incorporated or not);

                      (f)  renewing or continuing your membership, or someone else’s membership, of an association or body (whether incorporated or not);

                     (g)  accepting an application from you or someone else for appointment to an office;

                     (h)  making an agreement with you or someone else;

                      (i)  making facilities available to you or someone else;

                      (j)  allowing you or someone else access to, or use of, any premises;

                     (k)  making an offer of employment to you or someone else.



 

Division 3 Offences for doing things to access cards

Subdivision A Offences committed by others

47   Defacing or damaging someone else’s access card

                   A person commits an offence if the person:

                     (a)  defaces or damages an access card; and

                     (b)  is not the owner of the access card.

Penalty:  Imprisonment for 5 years or 500 penalty units, or both.

48   Changing information in the Commonwealth’s area of the chip in someone else’s access card

                   A person commits an offence if:

                     (a)  the person changes any * information in the Commonwealth’s area of the * chip in an access card; and

                     (b)  the person is not the owner of the access card; and

                     (c)  either:

                              (i)  the person is not a * delegate or an * authorised person; or

                             (ii)  the person is a delegate or an authorised person but the person does not make the change for the purposes of this Act.

Penalty:  Imprisonment for 5 years or 500 penalty units, or both.

49   Selling etc. someone else’s access card

                   A person commits an offence if the person:

                     (a)  sells an access card, or otherwise transfers any part of the ownership of it; and

                     (b)  is not the owner of the access card.

Penalty:  Imprisonment for 10 years or 1,000 penalty units, or both.

Subdivision B Offences committed by you in relation to your access card

50   Defacing or damaging your access card: dishonest intent

             (1)  You commit an offence if:

                     (a)  you deface or damage your access card; and

                     (b)  you do so with the intention of * dishonestly obtaining an advantage (whether financial or otherwise) for yourself or any other person.

Penalty:  Imprisonment for 5 years or 500 penalty units, or both.

             (2)  In a prosecution for an offence against subsection (1), the determination of * dishonesty is a matter for the trier of fact.

51   Changing information in the Commonwealth’s area of the chip in your access card: dishonest intent

             (1)  You commit an offence if:

                     (a)  you change any * information in the Commonwealth’s area of the * chip in your access card; and

                     (b)  you do so with the intention of * dishonestly obtaining an advantage (whether financial or otherwise) for yourself or any other person.

Penalty:  Imprisonment for 5 years or 500 penalty units, or both.

             (2)  In a prosecution for an offence against subsection (1), the determination of * dishonesty is a matter for the trier of fact.

52   Changing information in the Commonwealth’s area of the chip in your access card

                   You commit an offence if you change any * information in the Commonwealth’s area of the * chip in your access card.

Penalty:  Imprisonment for 2 years or 120 penalty units, or both.

53   Selling etc. your access card

                   You commit an offence if you sell your access card, or otherwise transfer any part of your ownership of it.

Penalty:  Imprisonment for 10 years or 1,000 penalty units, or both.



 

Division 4 Other access card offences

54   Unlawful access cards

             (1)  The Secretary may require a person to give an access card to the Secretary if:

                     (a)  the access card has been obtained, or the Secretary suspects on reasonable grounds has been obtained, by means of a false or misleading statement, false or misleading information or a false or misleading * document; or

                     (b)  the access card has been used, or the Secretary suspects on reasonable grounds has been used, in the commission of an offence against a law of the Commonwealth, a State or a Territory.

             (2)  The Secretary may require a person to give to the Secretary a * false access card that is in the person’s possession or control.

             (3)  A person commits an offence if:

                     (a)  the Secretary, under subsection (1) or (2), requires the person to give an access card or a * false access card to the Secretary; and

                     (b)  the Secretary informs the person that the Secretary is authorised to require the person to give the card to the Secretary; and

                     (c)  the Secretary informs the person that it may be an offence not to comply with the requirement; and

                     (d)  the person has possession or control of the card; and

                     (e)  the person fails to give the card to the Secretary immediately.

Penalty:  Imprisonment for 2 years or 120 penalty units, or both.

55   Dishonestly obtaining an access card

             (1)  A person commits an offence if:

                     (a)  the person obtains an access card; and

                     (b)  the person does so:

                              (i)  * dishonestly; or

                             (ii)  by threats.

Penalty:  Imprisonment for 10 years or 1,000 penalty units, or both.

             (2)  In a prosecution for an offence against this section, the determination of * dishonesty is a matter for the trier of fact.

             (3)  In this section:

obtain includes:

                     (a)  obtain for another person; and

                     (b)  induce a third person to do something that results in another person obtaining.

threat includes a threat that is:

                     (a)  express or implied; or

                     (b)  conditional or unconditional.

56   Possessing a false access card

             (1)  A person commits an offence if:

                     (a)  the person has possession or control of a * document; and

                     (b)  the person knows that the document is a * false access card.

Penalty:  Imprisonment for 10 years or 1,000 penalty units, or both.

             (2)  Subsection (1) does not apply if the person has a reasonable excuse.

Note:          The defendant bears an evidential burden in relation to the matter in subsection (2): see subsection 13.3(3) of the Criminal Code .

57   Unauthorised copying etc. of access card number, photograph or signature

             (1)  A person commits an offence if:

                     (a)  the person does any of the following acts in relation to the access card number, photograph or signature on the surface of an access card:

                              (i)  copies or records it;

                             (ii)  keeps a copy or maintains a record of it;

                            (iii)  uses it in a manner connecting it with the identity of the owner of the access card;

                            (iv)  divulges or communicates it to a third person; and

                     (b)  the person is not the owner of the access card; and

                     (c)  either:

                              (i)  the person is not a * delegate or an * authorised person; or

                             (ii)  the person is a delegate or an authorised person but the person does not do the act for the purposes of this Act.

Penalty:  Imprisonment for 2 years or 120 penalty units, or both.

             (2)  Subsection (1) does not apply if the owner of the access card consents in writing to the doing of the act.

Note:          The defendant bears an evidential burden in relation to the matter in subsection (2): see subsection 13.3(3) of the Criminal Code .



 

Division 5 Offences in relation to applications for registration or access cards

58   Making false or misleading statements in relation to an application for registration or access card

             (1)  A person commits an offence if:

                     (a)  the person makes a statement (whether orally, in writing or any other way) to another person; and

                     (b)  the statement:

                              (i)  is false or misleading; or

                             (ii)  omits any matter or thing without which the statement is misleading; and

                     (c)  the statement is made in, or in connection with:

                              (i)  an application to be registered on the * Register; or

                             (ii)  an application for an access card.

Penalty:  Imprisonment for 10 years or 1,000 penalty units, or both.

             (2)  Subsection (1) does not apply:

                     (a)  as a result of subparagraph (1)(b)(i)—if the statement is not false or misleading in a material particular; or

                     (b)  as a result of subparagraph (1)(b)(ii)—if the statement did not omit any matter or thing without which the statement is misleading in a material particular.

Note:          The defendant bears an evidential burden in relation to the matters in subsection (2): see subsection 13.3(3) of the Criminal Code .

59   Giving false or misleading information in relation to an application for registration or access card

             (1)  A person commits an offence if:

                     (a)  the person gives information to another person; and

                     (b)  the information:

                              (i)  is false or misleading; or

                             (ii)  omits any matter or thing without which the information is misleading; and

                     (c)  the information is given in, or in connection with:

                              (i)  an application to be registered on the * Register; or

                             (ii)  an application for an access card.

Penalty:  Imprisonment for 10 years or 1,000 penalty units, or both.

             (2)  Subsection (1) does not apply:

                     (a)  as a result of subparagraph (1)(b)(i)—if the information is not false or misleading in a material particular; or

                     (b)  as a result of subparagraph (1)(b)(ii)—if the information did not omit any matter or thing without which the statement is misleading in a material particular.

Note:          The defendant bears an evidential burden in relation to the matters in subsection (2): see subsection 13.3(3) of the Criminal Code .

60   Producing false or misleading documents in relation to an application for registration or access card

             (1)  A person commits an offence if:

                     (a)  the person produces a * document to another person; and

                     (b)  the document is false or misleading; and

                     (c)  the document is produced in, or in connection with:

                              (i)  an application to be registered on the Register; or

                             (ii)  an application for an access card.

Penalty:  Imprisonment for 10 years or 1,000 penalty units, or both.

             (2)  Subsection (1) does not apply if the * document is not false or misleading in a material particular.

Note:          The defendant bears an evidential burden in relation to the matter in subsection (2): see subsection 13.3(3) of the Criminal Code .

             (3)  Subsection (1) does not apply to a person if the * document is accompanied by a written statement signed by the person:

                     (a)  stating that the document is, to the person’s knowledge, false or misleading in a material particular; and

                     (b)  setting out, or referring to, the material particular in which the document is, to the person’s knowledge, false or misleading.

Note:          The defendant bears an evidential burden in relation to the matter in subsection (3): see subsection 13.3(3) of the Criminal Code .



 

Division 6 Offences by Commonwealth officers

61   Issuing an access card contrary to this Act

                   An individual commits an offence if:

                     (a)  the individual is a * delegate; and

                     (b)  the individual issues an access card; and

                     (c)  the individual knows that the issue of the access card is contrary to a provision of this Act.

Penalty:  Imprisonment for 10 years, or 1,000 penalty units, or both.

62   Abuse of public office

             (1)  An individual commits an offence if:

                     (a)  the individual is a * delegate or an * authorised person; and

                     (b)  the individual:

                              (i)  exercises any influence that the individual has in the individual’s capacity as a delegate or an authorised person; or

                             (ii)  engages in any conduct in the exercise of the individual’s duties as a delegate or an authorised person; and

                     (c)  the individual does so with the intention of:

                              (i)  * dishonestly obtaining an advantage (whether financial or otherwise) for himself or herself or any other person; or

                             (ii)  dishonestly causing a detriment to another person.

Penalty:  Imprisonment for 10 years or 1,000 penalty units, or both.

             (2)  In a prosecution for an offence against subsection (1), the determination of * dishonesty is a matter for the trier of fact.

             (3)  In this section:

detriment includes any disadvantage and is not limited to personal injury or to loss of, or damage to, property.

obtain includes:

                     (a)  obtain for another person; and

                     (b)  induce a third person to do something that results in another person obtaining.



 

Division 7 Other offences

63   Protection of access card name and symbol

             (1)  A person commits an offence if the person, without the Minister’s consent, does any of the following with a protected name or protected symbol:

                     (a)  uses it in relation to a business, trade, profession or occupation; or

                     (b)  uses it as the name, or as part of the name, of any firm, body corporate, institution, premises, vehicle, ship or craft (including aircraft); or

                     (c)  applies it, as a trade mark or otherwise, to goods imported, manufactured, produced, sold, offered for sale or let on hire; or

                     (d)  uses it as part of a domain name; or

                     (e)  uses it in relation to:

                              (i)  goods or services; or

                             (ii)  the promotion, by any means, of the supply or use of goods or services.

Penalty:  30 penalty units.

             (2)  In this section:

protected name means any of the following names:

                     (a)  “Health and Social Services Access Card”;

                     (b)  a name determined under section 27 (whether or not the determination remains in force);

                     (c)  a name so closely resembling a name in paragraph (a) or (b) as to be likely to be mistaken for it.

protected symbol means:

                     (a)  a symbol determined under section 27 (whether or not the determination remains in force); or

                     (b)  a symbol so closely resembling the symbol in paragraph (a) as to be likely to be mistaken for it.