List of Subheadings
Under s 22(1) 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)).
A court may also revoke or vary an order made under s 22(1) as it sees fit.1
A copy of an order made under s 22(1) or s 22(3) must be provided to the Secretary to the Department administering the Australian Passports Act 2005 (Cth).2
2. Application of s 22
Section 22 applies where a court makes a ‘relevant order’ or passes a ‘relevant sentence’.3 The relevant order or sentence must be in respect of a person charged with, or convicted of either a ‘serious drug offence’ or a ‘prescribed offence’, against a law of the Commonwealth or of a Territory.4
The procedures for the notification, surrender and return of the Australian passport (if relevant) are contained within ss 22(4)–(6) of the Crimes Act 1914 (Cth).
2.1 Timing of s 22 order
A s 22 order may be made by a court at the time that it makes a relevant order or passes a relevant sentence or at a later time.5 The order will have effect during such reasonable period as is specified by the court.6
2.2 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).
”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.
2.3 Definition of ‘serious drug offence’ and ‘prescribed offence’
A ‘serious drug offence’ is defined by s 22(7) of the Crimes Act 1914 (Cth):
“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.
‘Controlled substance’ is defined in s 3 of the Crimes Act 1914 (Cth).
”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.7
For paragraph 22(1)(b) of the [Crimes Act 1914 (Cth)], indictable offences against the Australian Passports Act 2005 and the Foreign Passports (Law Enforcement and Security) Act 2005 are prescribed.
3. Interaction with State Laws
Section 22A applies to State laws. The section was introduced in order to ‘pave the way for State legislation which may otherwise be considered beyond State legislative competence as it deals with the subject of passports’.8
Section 22A states:
(1) If, under a law of a State, a court makes an order requiring a person charged with, or convicted of:
(a) a serious drug offence against a law of that State; or
(b) such other serious offence against a law of that State as is specified in the first-mentioned law;
to surrender possession of any Australian travel document held by the person, the person must surrender the Australian travel document to the Registrar, or other appropriate officer, of the court to be dealt with in accordance with that law.
(2) In this section:
“serious drug offence ” has the same meaning as in section 22.
4. Executive Power to Refuse or Cancel Passports
Section 12 of the Australian Passports Act 2005 (Cth) complements the operation of ss 22 and 22A. Section 12 states:
(1) If a competent authority9 believes on reasonable grounds that:
(a) a person is the subject of an arrest warrant issued in Australia in respect of an indictable offence against a law of the Commonwealth, a State or Territory; or
(b) a person (including a person who is in prison) is prevented from travelling internationally by force of:
(i) an order of a court of the Commonwealth, a State or Territory; or
(ii) a condition of parole, or of a recognisance, surety, bail bond or licence for early release from prison, granted under a law of the Commonwealth, a State or Territory; or
(iii) a law of the Commonwealth, or an order or other direction (however described) under a law of the Commonwealth;
the competent authority may make a refusal/cancellation request in relation to the person.10
- Crimes Act 1914 (Cth) s 22(3).
- Crimes Act 1914 (Cth) s 22(4).
- Crimes Act 1914 (Cth) s 22(1).
- Crimes Act 1914 (Cth) s 22(1)(a), (b). See below for the law regarding State laws.
- Crimes Act 1914 (Cth) s 22(1).
- Crimes Act 1914 (Cth) s 22(2).
- See further: Part 9.1 of the Commonwealth Criminal Code.
- Explanatory Memorandum, Crimes Legislation Amendment Bill (No 2) 1991 (Cth) 13.
- ‘Competent authority’ is defined in the Australian Passports Act 2005 (Cth) s 12(3). See also the Australian Passports Determination 2015 (Cth) s 11(a)–(c)where the Attorney-General, the Secretary of the Attorney-General’s Department and SES employees in the Attorney-General’s Department are confirmed as ‘competent authorities’.
- Note: The Minister may cancel a passport on receipt of such a request provided certain conditions are met ss 18, 19, 22 of the Australian Passports Act 2005 (Cth). Cancellation requests may also be made where a competent authority suspects on reasonable grounds that the person would likely engage in conduct that might constitute an indictable offence under the Passports Act or a Commonwealth offence listed in the Minister’s Determination – see s 14(1)(a)(iv)–(v) of the Australian Passports Act 2005 (Cth).