FACT SHEET:

 Section 376(1) & Section 376(2) Criminal Code Act 1995 (Cth):

Division   376 — False identity and air travel

376.1   Definitions for Division   376

In this Division:

“air passenger ticket” , for a flight, means a ticket, or electronic record, on the basis of which a person is treated as being entitled to travel as a passenger on:

(a)  the flight; or

(b)  a journey that includes the flight.

“false” : identification information relating to a person is false if it is false in a material particular that affects the capacity of the information to be used (whether alone or in conjunction with other information or documents) to identify the person.

Note:  For the meaning of identification information , see section   370.1.

376.2   False identification information–at constitutional airports

(1)  A person (the defendant ) commits an offence if:

(a)  the defendant uses information at a place; and

(b)  the defendant does so reckless as to whether the information is used to identify the defendant as a passenger on a flight; and

(c)  the information is identification information; and

(d)  the information is false in relation to the defendant; and

(e)  the place is a constitutional airport.

Penalty:  Imprisonment for 12 months.

(2)  Absolute liability applies to paragraph   (1)(e).

Note:  For absolute liability, see section   6.2.

(3)  In this section:

“constitutional airport” means:

(a)  a Commonwealth aerodrome within the meaning of the Crimes (Aviation) Act 1991 (see section   3 of that Act); or

(b)  another airport, if the airport is in a Territory.

Commentary:

Using false identification information at constitutional airports is an offence under section 376.2 of the Criminal Code Act 1995 (Cth), which carries a maximum penalty of 12 months in prison.

What Prosecution Must Prove:

To establish the offence, it must proved beyond reasonable doubt that:

  1. You used information at a place (Section 376.2(1)(a)) and
  2. You were reckless as to whether the information was used to identify you as a passenger on a flight (Section 376.2(1)(b)) and
  3. The information was identification information  (Section 376.2(1)(c)) and
  4. The information was false in relation to you, and (Section 376.2(1)(d))
  5. The place was a constitutional airport (Section 376.2(1)(e))

A ‘constitutional airport’ is:

  1. A Commonwealth aerodrome within the meaning of the Crimes (Aviation) Act 1991, (Section 376.2(3)(a)) or
  2. An airport in an Australian territory (Section 376.2(3)(b))

‘Identification information’ is that which relates to a person, whether dead or alive, real or fictitious, that is capable of being used to identify the person, whether by itself or in conjunction with other information.

It includes:

  1. Your name, address, date or place of birth, marital status, relative’s identity
  2. Your driver’s licence or driver’s licence number
  3. Your passport or passport number
  4. Your voice print or biometric data
  5. Your credit or debit card, its number or data stored or encrypted on it
  6. A financial account number, username or password
  7. A digital signature
  8. Any series of numbers and/or letters intended for use as personal information, or
  9. An ABN

Identification information is false, if it is false or untrue, in a material particular that affects the capacity of the information to be used, whether by itself or with other information or documents to identify you.

You were ‘reckless’ if you knew or were aware there was a substantial risk, that the identification information would be used to identify you as a passenger on a flight, and it was unjustifiable to take that risk in the circumstances, but you went ahead with your actions regardless.

Duress and necessity are defences to the charge.  Consent may also be available if the party whose name the flight credit or ticket was issued gave consent to you to use it.

Eugenia Matthews
Solicitor