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Defence Legislation Amendment Bill 2007

Schedule 5 Offences and punishments

Part 1 Amendments of offences

Defence Force Discipline Act 1982

1  Paragraph 59(1)(b)

Omit “narcotic goods”, substitute “a prohibited drug”.

Note 1:    The heading to section 59 is altered by omitting “ narcotic goods ” and substituting “ prohibited drugs ”.

Note 2:    The following heading to subsection 59(1) is inserted “ Selling, dealing or trafficking in a prohibited drug—defence member or defence civilian outside Australia ”.

2  Paragraph 59(1)(c)

Omit “goods”, substitute “drug”.

3  Paragraph 59(3)(b)

Omit “narcotic goods”, substitute “a prohibited drug”.

Note:       The following heading to subsection 59(3) is inserted “ Possessing a prohibited drug—defence member or defence civilian outside Australia ”.

4  Paragraph 59(3)(c)

Omit “those goods and knows their”, substitute “that drug and knows its”.

5  Subsection 59(3) (penalty)

Repeal the penalty, substitute:

Maximum punishment:

                     (d)  if the offence is committed in relation to:

                              (i)  a prohibited drug other than cannabis; or

                             (ii)  a quantity of cannabis exceeding the prescribed quantity of that drug;

                            imprisonment for 2 years; or

                     (e)  if the offence is committed in relation to a quantity of cannabis not exceeding the prescribed quantity of that drug and the convicted person is a defence member:

                              (i)  for a first offence—a fine of the amount of the member’s pay for 14 days; or

                             (ii)  for a second or later offence—dismissal from the Defence Force; or

                      (f)  if the offence is committed in relation to a quantity of cannabis not exceeding the prescribed quantity of that drug and the convicted person is a defence civilian—a fine of $100.

6  Subsection 59(4)

Omit “narcotic goods”, substitute “prohibited drug”.

7  Paragraph 59(5)(b)

Repeal the paragraph, substitute:

                     (b)  administers, or causes or permits to be administered, to himself or herself, a prohibited drug.

Note:       The following heading to subsection 59(5) is inserted “ Administering a prohibited drug—defence member or defence civilian outside Australia ”.

8  Subsection 59(5) (penalty)

Repeal the penalty, substitute:

Maximum punishment:

                     (c)  if the offence is committed in relation to a prohibited drug other than cannabis—imprisonment for 2 years; or

                     (d)  if the offence is committed in relation to cannabis and the convicted person is a defence member:

                              (i)  for a first offence—a fine of the amount of the member’s pay for 14 days; or

                             (ii)  for a second or later offence—dismissal from the Defence Force; or

                     (e)  if the offence is committed in relation to cannabis and the convicted person is a defence civilian—a fine of $100.

9  Subsections 59(6) and (7)

Repeal the subsections, substitute:

Administering a prohibited drug—defence member or defence civilian in Australia

             (6)  A person who is a defence member or a defence civilian is guilty of an offence if the person:

                     (a)  is in Australia; and

                     (b)  administers, or causes or permits to be administered, to himself or herself a prohibited drug.

Maximum punishment:

                     (c)  if the offence is committed in relation to a prohibited drug other than cannabis and the convicted person is a defence member—imprisonment for 2 years; or

                     (d)  if the offence is committed in relation to cannabis and the convicted person is a defence member:

                              (i)  for a first offence—a fine of the amount of the member’s pay for 14 days; or

                             (ii)  for a second or later offence—dismissal from the Defence Force; or

                     (e)  if the convicted person is a defence civilian—a fine of $100.

Possessing non-trafficable quantity of a prohibited drug—defence member in Australia

             (7)  A defence member is guilty of an offence if the member:

                     (a)  is in Australia; and

                     (b)  is in possession of a quantity of a prohibited drug not exceeding the prescribed quantity of that drug; and

                     (c)  knows that he or she possesses that drug and knows its nature.

Maximum punishment:

                     (d)  if the offence is committed in relation to a prohibited drug other than cannabis—imprisonment for 2 years; or

                     (e)  if the offence is committed in relation to cannabis:

                              (i)  for a first offence—a fine of the amount of the member’s pay for 14 days; or

                             (ii)  for a second or later offence—dismissal from the Defence Force.

10  Subsection 59(8)

Omit “cannabis”, substitute “prohibited drug”.

11  Subsection 59(9)

Repeal the subsection, substitute:

Definitions

             (9)  In this section:

cannabis means:

                     (a)  a living cannabis plant; or

                     (b)  cannabis resin; or

                     (c)  any other form of cannabis (including flowering or fruiting tops, leaves, seeds or stalks, but not including cannabis fibre).

prescribed quantity , in relation to a prohibited drug, means:

                     (a)  for a narcotic substance in relation to which a trafficable quantity is specified under the Criminal Code —the trafficable quantity so specified for that substance; or

                     (b)  for any other prohibited drug—50 grams.

prohibited drug means:

                     (a)  a narcotic substance (as defined by subsection 4(1) of the Customs Act 1901 ); or

                     (b)  an anabolic steroid (within the meaning of Part 5 of the Poisons and Drugs Act 1978 of the Australian Capital Territory).

12  Subsection 60(1)

Omit “engages in conduct”, substitute “does an act”.

13  After subsection 60(1)

Insert:

          (1A)  A defence member is guilty of an offence if:

                     (a)  the member omits to perform an act; and

                     (b)  the omission is likely to prejudice the discipline of, or bring discredit on, the Defence Force.

Maximum punishment:     Imprisonment for 3 months.

14  Subsection 60(2)

Omit “under this section”, substitute “against subsection (1) or (1A)”.

15  Subsection 60(3)

After “defence”, insert “to a charge under subsection (1)”.

16  Subsection 60(3)

Omit “conduct”, substitute “act”.

17  At the end of section 60

Add:

             (4)  It is a defence to a charge under subsection (1A) if the member proves that he or she had a reasonable excuse for omitting to perform the relevant act.

Note:          The defendant bears a legal burden in relation to the matter in subsection (4). See section 13.4 of the Criminal Code .

18  After item 20 of Schedule 6

Insert:

20A

Offence against section 36A

Offence against section 36B

20B

Offence against section 36B

Offence against section 36A



 

Part 2 Amendments of punishments

Defence Force Discipline Act 1982

19  Paragraph 74(2)(b)

Before “suspended”, insert “wholly”.

20  Paragraph 74(2)(c)

After “suspended”, insert “in whole or in part”.

21  Paragraph 74(4)(b)

Before “suspended”, insert “wholly”.

22  Paragraph 74(4)(c)

After “is suspended”, insert “in whole or in part”.

23  Paragraph 74(4A)(a)

After “suspended”, insert “in whole or in part”.

24  Paragraph 74(4B)(a)

After “suspended”, insert “in whole or in part”.

25  Subsection 78(1)

After “suspending”, insert “the whole or a part of”.

26  Subsection 78(2)

After “suspending” (wherever occurring), insert “the whole or a part of”.

27  Subsection 78(3)

After “suspending”, insert “the whole or a part of”.

28  Subsection 78(3)

After “the punishment”, insert “, or such part of the punishment as is suspended,”.

29  Subsection 80(1)

After “is suspended”, insert “(whether in whole or in part)”.

30  Subsection 80(1)

After “the punishment”, insert “, or such part of the punishment,”.

31  Subsection 80(2)

After “suspension of”, insert “the whole or a part of”.

32  Subsection 80(4)

After “suspension of”, insert “the whole or a part of”.

33  Subsection 80(4)

After “the punishment”, insert “, or such part of the punishment,”.

34  Paragraph 81(1)(a)

After “suspended”, insert “in whole or in part”.

35  Subsection 81(2)

After “suspended”, insert “in whole or in part”.

36  Subsection 81(2)

After “that punishment” (first occurring), insert “, or such part of that punishment as has been suspended,”.

37  Subsection 81(2)

After “that punishment” (second occurring), insert “or that part of that punishment”.

38  Section 82

After “that punishment” (first occurring), insert “, or a part of that punishment,”.