Bills Digest no. 89 2008–09
Law and Justice Legislation Amendment (Identity Crimes
and Other Measures) Bill 2008
WARNING:
This Digest was prepared for debate. It reflects the legislation as
introduced and does not canvass subsequent amendments. This Digest
does not have any official legal status. Other sources should be
consulted to determine the subsequent official status of the
Bill.
CONTENTS
Passage history
Purpose
Background
Financial implications
Main provisions
Contact officer & copyright details
Passage history
Date
introduced: 3 December
2008
House: House of Representatives
Portfolio: Home Affairs
Commencement:
Schedules 1 - 5 and 7,
commence the day after Royal Assent. Schedule 6 and schedule 5,
Part 1 commence on a single day to be fixed by proclamation.
However, if any of the provisions do not commence within 6 months
from the date of Royal Assent, then they commence on the first day
after the end of that period.
Links: The
relevant links to the Bill, Explanatory Memorandum and second
reading speech can be accessed via BillsNet, which is at http://www.aph.gov.au/bills/.
When Bills have been passed they can be found at ComLaw, which is
at http://www.comlaw.gov.au/.
The Bill contains a range of
amendments. The key ones are:
- creation of three offences in the Criminal Code aimed at
dealing with the growing phenomenon of identity crime
- repeal of section 55D of the Judiciary Act 1903 which
contains an outdated provision dealing with the national practising
certificate regime for lawyers
- inclusion of the Office of Police Integrity of Victoria in the
definition of enforcement body in the Privacy Act
1988
- providing for the delegation of powers and functions to certain
persons, and legal immunity for the Director or member of staff
carrying out functions under the Director of Public
Prosecutions Act 1983
- improving the efficacy of processes for alcohol and drug
testing under the Australian Federal Police Act 1979
- enhancing the operation of the Anti-Money Laundering and
Counter-Terrorism Financing Act 2006, and providing for a more
consistent approach to the restrictions on disclosure of sensitive
AUSTRAC[1]
information, and
- reframing the administration of justice offences in Part III of
the Crimes Act 1914 to align them with the Criminal
Code Act 1995.
Identity theft (known as identity fraud in many other countries)
is not a new phenomenon. However, its prevalence, operative reach
and gravity of consequences have grown in modern society due to the
rapid advances in and capacities of new technologies.[2] With the exception of
Queensland and South Australia, which have laws specifically
tailored to target identity crime, other states in Australia rely
on a patchwork of laws contained in various State, Territory and
Commonwealth legislation. The shortcomings of the present state of
the law were recognised in the final report of the Model Criminal
Law Officers Committee (MCLOC) of the Standing Committee of
Attorneys-General on
Identity Crime.[3] The amendments contained in this Bill respond to gaps in
the law by creating three key offences relating to identity crime
recommended by MCLOC, and also enables victims of identity crimes
to apply for a certificate which may be used to restore their
personal or financial/business reputation.
The Bill also makes a variety of other amendments designed to
clarify and enhance the operation of justice legislation in the
Commonwealth.[4]
The Explanatory Memorandum states that there is no financial
impact.[5]
Proposed section 370.1 inserts three
definitions into new Part 9.5 of the Act which attach to the
creation of the following offences:
- dealing in identification information, where that person
intends to pass themselves off as another person for the purposes
of committing or facilitating the commission of a Commonwealth
indictable offence (proposed section 372.1),
- possessing identification information, where a person intends
to use that information to commit or facilitate the commission of
an indictable offence (proposed section 372.2), and
- possession of equipment to create identification documentation,
in certain circumstances, where the person or another person
intends to use the equipment to make identification documentation
for the purposes of engaging in conduct that constitutes an offence
under section 372.1 (proposed section 372.3).
The term deal , in the context of dealing with
identification information, includes make, supply or use any such
information.
The term identification documentation has been
defined so as to ensure the broadest inclusion of possible material
and things which may be used by an individual with the aim of
passing themselves off as another person.[6]
Similarly, the term identification information
has been defined to ensure the broadest inclusion and capture of
identification information. Identification
information means information relating to a person
(whether living, dead, real or fictitious) that is capable of being
used (whether alone or in conjunction with other informational
documents) to identify or purportedly identify the person,
including any of the following:
- a name or address,
- a date or place of birth, whether the person is married or has
a de facto partner, relatives identity or similar information;
- a driver s licence or driver s licence number;
- a passport or passport number;
- biometric data;
- a voice print;
- a credit or debit card, its number, or data stored or encrypted
on it;
- a financial account number, user name or password;
- a digital signature;
- a series of numbers or letters (or both) intended for use as a
means of personal identification;
- an ABN.
While the Criminal Code already contains a range of offences
that cover some forms of identity crime,[7] it was recognised by the final report
of the Model Criminal Law Officers Committee of the Standing
Committee of Attorneys-General on
Identity Crime, that there remained gaps in the coverage of
those offences. The creation and insertion of the following
offences is intended to address those gaps.
Section 372.2 - Proposed offence possessing in
identification information
Proposed section 372.2 establishes the preparatory offence of
possessing identification information where a person
intends to use that information to commit, or facilitate
the commission of a Commonwealth indictable offence under proposed
section 372.1. Absolute liability applies to the fact that the
conduct constitutes an offence against section 372.1, and the
offence in proposed section 372.1 attracts a penalty of 3 years
imprisonment.
Section 372.1 - Proposed offence of dealing in
identification information
Proposed section 372.1 adopts the term dealing (in
identification information) whose broad ambit as a preparatory
offence captures making , supplying and using identification
information, where a person intends to use that
identification information to pretend to be, or pass themselves off
as, another person, with the purpose of committing or facilitating
a Commonwealth indictable offence. Where the proposed offence is
made out, absolute liability applies with a penalty of 5 years
imprisonment.
Section 372.3 - Proposed offence of possessing equipment
to make identification documentation
Proposed section 372.3 creates the preparatory offence to
possessing equipment to make identification documentation, where
the person in possession of that equipment intends that
the equipment be used (by either that first person or any other
person) to engage in conduct that constitutes the offence of
dealing, or facilitates dealing, in identification information.
Absolute liability applies where this offence is made out and the
penalty for the offence is 3 years imprisonment.
The term equipment is not defined in the Bill. The Explanatory
Memorandum justifies the lack of definition of the term equipment
on the basis of a desire to avoid the fast-dating of the provision.
However, leaving the term undefined and thus potentially too broad
in its capture may invite unfair operational outcomes. As an
undefined term, equipment will be defined by a court according to
its plain and ordinary meaning, thereby including commonly and
widely possessed equipment such as photocopiers, scanners, and
computers, which arguably may be used to create false
identification information. Because of its potentially and
undesirably broad capture, it may be more appropriate to delimit
the current definition to the certain specific equipment (subject
to periodic updates on the basis technological advances) to items
such as credit card skimming machines, data storage mediums,
laminators, card printers, embossers, templates on computer
equipment and scanners.
Section 372.4 - Extended geographical jurisdiction
category A
In recognition of the serious transnational dimensions and
implications of identity crimes, this item extends the application
and operation of the three proposed identity crime offences to an
Australian citizen or body corporate outside Australia. Thus, an
Australian citizen or body corporate will not be able to argue that
because no local equivalent offence exists, their conduct is legal.
This jurisdiction is detailed in section 15.1 of the Criminal
Code.
Section 372.5 - Alternative verdict
Where a trier of fact in a prosecution (such as a magistrate or
judge) is not satisfied beyond reasonable doubt that a person is
guilty of the offence of dealing in identification
information, the accused may nonetheless, be found guilty of the
offence of possessing identification information, provided that the
defendant has been accorded procedural fairness in relation to that
finding of guilt. In this case, the need to re-think the need to
define the term equipment , seems to take on greater
importance.
Section 372.6 - Attempt not an offence
This section clarifies that it is not an offence to attempt to
commit offences against sections 372.1, 372.2 or 372.3. This is
probably because there is no harm or damage until a person uses the
identity information, not simply attempts to use it.
Section 375.1 Certificate may be issued by magistrate in
relation to victim of identity crime
A magistrate may, upon an application by a victim of identity
crime, issue a certificate to assist with any problems the identity
crime has caused in relation to the victim s personal or business
affairs. This, for example, may relate to the victim s reputation
and credit history.
The certificate may be issued if the magistrate is satisfied on
the balance of probabilities, that another person has dealt in
identification information, regardless of whether the dealer is
identifiable (proposed section 375.3), or intended
that any person would use the identification information to pass
themselves off as another person (whether living or dead), for the
purpose of committing or facilitating the commission of an offence
(proposed paragraph 375.1(1)(b)).
Section 375.2 Content of the certificate
This section proposes that the content of the certificate must
contain the identity of the victim and describe the dealing in
identification information. The certificate must not identify the
dealer.
Section 375.3 Relation to civil and criminal
proceedings
This section proposes that a certificate must not be issued
under proposed section 375.1 if doing so would prejudice any
proceedings. This postponement seems curious and potentially a
significant unnecessary inconvenience to the victim given that the
certificate must not identify the dealer.
Part III of the Crimes Act 1914 (hereafter the Crimes
Act) deals with administration of justice offences. The integrity
of the Australian courts and prisons is fundamental to the
legitimate robust functioning the Australian legal system. Securing
and maintaining this integrity requires laws aimed at deterring and
punishing any conduct which may undermine the integrity of
Australian courts and system.
Reframing administration of justice offences in
alignment with Chapter 2, Criminal Code
The amendments in this Schedule reframe the administration of
justice offences so as to align and make them consistent with
Chapter 2 of the Criminal Code. Chapter 2 of the Criminal Code
provides the general principles used for interpreting and applying
criminal offence provisions in Commonwealth legislation.
The application of absolute liability[8] to jurisdictional
elements of offences, consistent with Commonwealth criminal law
policy
There are also amendments which apply absolute liability to the
jurisdictional elements of the administration of justice offences.
A jurisdictional element of an offence relates to whether an
offence falls within the legislative power of the Commonwealth,
States or Territories. The Explanatory Memorandum provides the
example of administration of justice offences containing
jurisdictional elements that confine the offences to matters
arising in connection with:
- federal judicial proceedings
- lawful Commonwealth criminal detention, and
- offences against the law of the Commonwealth or a
Territory.[9]
The effect of this amendment is that the prosecution no longer
needs to prove that the defendant knew that a judicial
proceeding was a federal one, or that they knew that
criminal detention or an offence was related to the Commonwealth or
a Territory s legislative power. This means that they cannot, for
example, destroy evidence and claim that they did not know that it
was required in federal judicial proceedings.
The use of absolute liability in the jurisdictional elements of
administration of justice offences is rather uncontroversial as it
has long been part of Commonwealth criminal law policy.[10]
Item 9 Judge or magistrate acting oppressively or when
interested
It is proposed that current section 34 be reframed and thus
aligned with Chapter 2 of the Criminal Code.
Proposed section 34 creates two offences that
may be committed by judges or magistrates acting oppressively or
when they have a personal stake in the matter. Proposed
subsection 34(1) makes it an offence for a judge to
require excessive and unreasonable bail, where the requirement
represents an abuse of their office. Absolute liability will apply
to this offence. The prescribed penalty is 2 years imprisonment.
The defence of reasonable excuse is available and where it is made
out, then the prosecution must refute the defence beyond reasonable
doubt.
Proposed subsection 34(4) makes it an offence
for a judge or magistrate to require excessive and unreasonable
bail, where the judge has a personal interest in the matter which
falls under federal jurisdiction. Absolute liability will apply to
this offence and the prescribed penalty is 2 years
imprisonment.
Item 11 offences relating to witnesses and
evidence
It is proposed that current section 35 be reframed and thus
aligned with Chapter 2 of the Criminal Code.
A new offence is created by proposed section
35. It is an offence for a person to give false testimony
about a matter that is material in a judicial proceeding that is
either on foot or intended to be commenced, and the judicial
proceeding is a federal judicial proceeding. The prescribed penalty
is 5 years imprisonment. Absolute liability will apply to the
requirement that the judicial proceeding is a federal judicial
proceeding, and strict liability applies to the requirement (or
element) that the matter is material in the judicial
proceeding.[11]
Furthermore, proposed subsection 35(4) provides
that the following factors are not relevant to the
offence:
- whether the testimony is given, on oath, or not on oath, orally
or in writing
- whether the court or judicial tribunal to which the testimony
is given is properly constituted or held in the proper place
- whether the person who gave the testimony is a competent
witness, and
- whether the testimony is admissible.
It would seem perhaps to be incongruous that a testimony may be
inadmissible, or that the witness may not be competent and yet
their testimony can be considered to be material in the
judicial proceeding. However, it depends on the individual
case.[12]
It is proposed that current sections 36, 36A and 37 be reframed
in order to align them with Chapter 2 of the Criminal Code.
The proposed sections create offences for fabricating evidence,
intimidation and corruption of witnesses respectively. The offences
are strict liability offences where the judicial proceeding in
question is a federal judicial proceeding and they each carry a
penalty of 5 years imprisonment.
It is proposed that current section 38 be reframed and thus
aligned with Chapter 2 of the Criminal Code.
Proposed section 38 makes it an offence for a
person to deceive an actual or prospective witness by means of any
fraud, deceit, false statement, representation, token or writing,
with the intention of affecting the testimony of the witness, in a
federal judicial proceeding. Absolute liability applies to the fact
that the judicial proceeding is a federal judicial proceeding and
the offence carries a penalty of 2 years imprisonment.
It is proposed that current section 39 be reframed and thus
aligned with Chapter 2 of the Criminal Code.
Proposed section 39 makes it an offence for a
person to destroy evidence that is or may be required in a federal
judicial proceeding, with the intention of preventing that evidence
from being used in such a proceeding. Absolute liability applies to
the fact that the judicial proceeding is a federal judicial
proceeding, and the offence carries a penalty of 5 years
imprisonment.
It is proposed that current section 40 be reframed and thus
aligned with Chapter 2 of the Criminal Code.
Proposed section 40 makes it an offence for a
person to prevent another person subpoenaed or summoned to attend
as a witness, or from producing anything in evidence, pursuant to
the subpoena or summons, in a federal judicial proceeding. Absolute
liability applies to the fact that the proceeding is a federal
judicial proceeding, and the offence carries a penalty of 1 year s
imprisonment.
Items 13 16: The following subsections are
repealed and reframed so as to align them with Chapter 2 of the
Criminal Code.
- subsection 41(1) conspiring to charge or cause any person to be
falsely charged with an offence against the law of the Commonwealth
or a Territory
- subsections 42(1) and 42(2) conspiring to obstruct, prevent,
pervert or to defeat the course of justice in relation to the
judicial power of the Commonwealth
- subsections 43(1) and 43(2) attempting to conspire, obstruct,
prevent, pervert or to defeat the course of justice in relation to
the judicial power of the Commonwealth.
Absolute liability applies to the fact the judicial power is the
judicial power of the Commonwealth, or the original offence is an
indictable offence against a Commonwealth or Territory law. Each of
the proposed offences carries a penalty of 10 years
imprisonment.
Item 16 Compounding offences and unauthorised or false
advertisements
Sections 44 and 45 of the Crimes Act of are reframed so as to
align them with Chapter 2 of the Criminal Code.
Proposed section 44 makes it an offence for a
person to:
- ask for, receive, or obtain any property or benefit for
themselves or another person, or
- agree to receive or obtain any property or benefit for
themselves or another person.
where the person agrees or understands that in doing so, they
are:
- compounding or concealing an offence
- abstaining from, discontinuing or delaying a prosecution for an
offence, or
- withholding evidence of an offence.
The offence carries a penalty of 3 years imprisonment.
Proposed section 45 makes it an offence to
insert an unauthorised advertisement purporting to be published
under the authority of a court, knowing that the advertisement is
false.
Absolute liability applies to the fact the advertisement
purports to be published under the authority of a relevant court.
The offence carries a penalty of 2 years imprisonment.
Item 17 of Schedule 2 provides definitions of
criminal detention and federal criminal detention .
Item 18 repeals current sections 46-48 of the
Crimes Act. These sections have been reframed and inserted by the
Bill so that they are aligned with Chapter 2 of the Criminal Code.
The sections relate to the offences listed below and are consistent
with criminal law policy as described in the Guide to Framing
Commonwealth Offences, Civil Penalties and Enforcement Powers.
A similar amendment has been done by item 20
(proposed section 49), containing the offence of
removing property under seizure.
The amendments in proposed Division 5 of Part
III of the Crimes Act deal with the following issues:
- aiding a prisoner to escape or attempt to escape from criminal
detention (section 46)
- conveying a thing into a prison or other place of criminal
detention with the intention of aiding a prisoner to escape from
that detention (section 46A)
- escaping from criminal detention (section 47)
- rescuing a prisoner from criminal detention (section 47A)
- person lawfully in criminal detention being unlawfully at large
(section 47B)
- permitting escape (section 47C)
- harbouring etc. an escapee (section 48).
The Director of Public Prosecutions Act 1983 (DPP Act)
establishes the Office of the Commonwealth Director of Public
Prosecutions (CDPP) and sets out the powers and functions of the
Office.
Items 1 and 2 amend subsection 31(1) of the DPP
Act to clarify that the Director may delegate any or all of his or
her functions under the Act, though retaining the current
exceptions in relation to powers under subsections 6(2D),[13] 9(2)[14] and 9(6D)[15]. Item 4 inserts a
new subsection 31(1B) to also provide for a delegation of certain
functions and powers to certain persons or classes or persons, as
necessary for the conduct of a joint trial.[16]
Item 8 amends subsection 31(3) to clarify that
Director is not prevented from performing a function delegated
under section 31.
Item 9 inserts a new provision 32A so as to
provide immunity from civil proceedings to certain individuals
arising out of their performing or exercising functions, powers,
duties or services in good faith under the DPP Act.
Money laundering is a significant
problem with estimates placing the amount of money laundered in
Australia at around $4.5 billion annually.[17] Part 4 of the Anti-Money
Laundering and Counter-Terrorism Financing Act (AML/CTF
Act)[18] imposes
reporting obligations on persons involved in certain cross-border
transfers of physical currency and international funds
transfers.
Items 1, 2 and 3 of Schedule 4 contain
amendments which basically provide for greater flexibility for
arrangements relating to communicating to travellers, notice about
their reporting obligations in relation to cross-border movement of
physical currency or bearer negotiable instruments.
Item 5 amends subsections 128(4) and (9) of the
AML/CTF Act (which limits when AUSTRAC information may be passed on
by an official of a designated agency), to make reports of suspect
transactions obtained under section 16 of the Financial
Transaction Reports Act 1988 (FTR Act) subject to the same
prohibition on disclosure as suspicious matters reports under
section 41 of the AML/CTF Act. Thus, an official of a designated
agency is not authorised to disclose AUSTRAC information obtained
under section 16 of the FTR Act, where the disclosure is for the
purpose of court or tribunal proceedings or obtaining legal
advice.
Items 6 and 7 amend sections 130 and 131 of the
AML/CTF Act in order to guard against disclosure of sensitive
AUSTRAC information relating to suspicious matters and suspect
transaction reports, by an official from a non-designated
Commonwealth agency.
Recognising the professional
standards and competency expected of AFP employees, Division 8 of
Part IV of the AFP Act provides the statutory basis for drug and
alcohol testing for all AFP appointees. The amendments to Division
8 will allow the AFP to make use of alcohol screening tests as a
preliminary form of testing pursuant to sections 40M (random
workplace testing) and 40N (critical incident testing), which is
currently not permitted. Currently, only an alcohol breath test
using an approved breath analysis instrument (which requires a
specialist operator and is not very portable) can be used. The
change will enable a portable and user friendly device to be used,
thus permitting more timely testing.
Item 1 repeals
section 55D of the Judiciary Act 1903, which is outdated
and problematic in terms of its potential practical operation.
Section 55D of the Act was enacted when there was no ACT (and
Norfolk Island) law dealing with admission to legal practice. Over
time, this section has ceased to have operational effect in all
jurisdictions (except the ACT and Norfolk Island) because these
jurisdictions enacted their own legislation to regulate the legal
profession, which included a requirement that legal practitioners
hold a practising certificate. The effect of this provision is that
it is theoretically possible for a person whose name appears on a
Supreme Court or the High Court s roll of lawyers to practise in a
federal court (including the High Court of Australia) without
holding a practising certificate. This provision is no longer
relevant and should be repealed.
Item 4 amends the definition of enforcement
body in the Privacy Act 1988 to include the Office of
Police Integrity of Victoria (OPI), thus giving it the same status
as comparable law enforcement bodies under the Act. In operational
terms, this means that a private sector entity which is subject to
the Act will be able to use or disclose personal information where
it reasonably believes that it is necessary for one of the
functions or activities listed in the National
Privacy Principles 2.1(h),[19] where these are carried out on or behalf of the
OPI.
Members, Senators and Parliamentary staff can obtain further
information from the Parliamentary Library on (02) 6277
2404.
[3]. Model Criminal
Law Officers Committee of the Standing Committee of
Attorneys-General, Final Report: Identity Crime, 2008,
at:
http://www.ag.gov.au/www/agd/rwpattach.nsf/VAP/(CFD7369FCAE9B8F32F341DBE097801FF)~6Final+Report+Identity+Crime+March+2008.PDF/$file/6Final+Report+Identity+Crime+March+2008.PDF,
accessed on 3 February 2009.
[11]. A strict liability offence is one
for which the prosecution does not have to prove any fault element
in relation to the relevant physical relevant physical element,
although the defence of reasonable mistake is available. If strict
liability applies to one or more physical elements of an offence,
the evidentiary burden on the prosecution is significant less,
making it easier to gain a conviction.
[13]. The power Where the Director institutes a prosecution
on indictment for an offence against a law of the Commonwealth, the
indictment shall be signed:
(a) by the Director; or
[14]. Where the Director institutes a prosecution on
indictment for an offence against a law of the Commonwealth, the
indictment shall be signed:
(a) by the Director; or
[15]. The Director may, if the Director considers it
appropriate to do so, give to a person an undertaking that the
person will not be prosecuted (whether on indictment or
summarily):
(a) for a specified offence against a law of
the Commonwealth; or
Juli Tomaras
4 February 2009
Bills Digest Service
Parliamentary Library
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