Framing Preparatory Inchoate Offences in the Criminal Code: The Identity Crime Debacle

Abstract:     
The Commonwealth Parliament recently enacted three new identity crimes, which lend their name to the omnibus Law and Justice Legislation Amendment (Identity Crimes and Other Measures) Act 2010 (Cth). The Act makes it an offence to engage in conduct preliminary to the adoption of an assumed identity with the intention that the assumed identity will facilitate the commission of an indictable offence against the Commonwealth law. The identity crimes are instances of increasing legislative resort to inchoate crimes of mere preparation that supplement and extend the traditional categories of attempt, conspiracy and incitement in Ch 2 of the Criminal Code. This article compares the identity crimes with conspiracy, drawing on recent High Court decisions on federal conspiracy law. It is argued that the new crimes are vitiated by serious errors in their formulation that appear to have resulted from failure to realise their essential kinship with the inchoate offences of Ch 2. Various amendments are suggested.

Number of Pages in PDF File: 19

Keywords: Identity crime, Law and Justice legislation Amendment (Identity Crimes and Other Measures) Act 2010, inchoate offences

JEL Classification: K14

Accepted Paper Series