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Wednesday, 9 February 2011
Page: 294

Mr BRENDAN O’CONNOR (Minister for Home Affairs, Minister for Justice and Minister for Privacy and Freedom of Information) (11:01 AM) —I present the explanatory memorandum and I move:

That this bill be now read a second time.

I am pleased to introduce the Law and Justice Legislation Amendment (Identity Crimes and Other Measures) Bill 2010 [2011]. The bill introduces new identity crime offences, increases penalties for offences relating to the administration of justice, and makes a number of amendments to improve the effective operation of the Australian Federal Police and the Commonwealth Director of Public Prosecutions.

The bill inserts three new identity crime offences recommended in the Model Criminal Law Officers’ Committee (MCLOC) final report on identity crime.

A person’s identity can be used falsely to obtain citizenship, Centrelink payments, medical services, or to gain professional qualifications. Existing offences in the Criminal Code, such as theft, forgery, fraud and credit card skimming do not adequately cover the varied and evolving types of identity crime such as phishing and use of malicious software.

The proposed offences are framed in general and technology neutral language to ensure that, as new forms of identity crime emerge, the offences will remain applicable.

The offences include:

  • dealing in identification information with the intention of committing, or facilitating the commission of, a Commonwealth indictable offence, punishable by up to five years imprisonment;
  • possession of identification information with the intention of committing, or facilitating the commission of, conduct that constitutes the dealing offence, punishable by up to three years imprisonment; and
  • possession of equipment to create identification documentation with the intention of committing, or facilitating the commission of, conduct that constitutes the dealing offence, punishable by up to three years imprisonment.

The offences can be implemented by the Commonwealth within its constitutional powers by linking them with an intention to commit a Commonwealth indictable offence, and by confining the ‘victims’ provision to victims of Commonwealth identity crime offences.

Some departures from the MCLOC model have been necessary because of constitutional limits on the Commonwealth’s power. The spirit and intention of the MCLOC offences are maintained, however, in this bill.

The identity crime provisions also assist victims of identity crime. Identity crime can cause damage to a person’s credit rating, create a criminal record in the person’s name and result in tremendous expenditure of time and effort restoring records of transactions or credit history.

Individual victims reportedly spend an average of two or more years attempting to restore their credit ratings.

That is why the amendments will also allow a person, who has been the victim of identity crime, to approach a magistrate for a certificate to show they have had their identity information misused. The certificate is intended to assist victims of identity crime in negotiating with financial institutions to re-establish their credit ratings and other organisations such as Australia Post to clear up residual problems created by identity theft.

The bill also increases the penalties for the offences of perverting the course of justice and conspiracy to pervert the course of justice from five years to 10 years imprisonment, better reflecting the seriousness of these offences and the importance of maintaining the integrity of the justice system.

These penalties are more closely aligned with the penalties for similar offences in other jurisdictions.

In addition, each administration of justice offence has been updated to bring it in line with settled principles about drafting Commonwealth criminal offences.

First, the physical elements of the offences have been separated, bringing them into line with chapter 2 of the Criminal Code.

Second, the amendments apply absolute liability to the jurisdictional elements of these offences. The jurisdictional element of an offence links the offence to the legislative power of the Commonwealth.

This amendment means that, for example, with respect to the section 46 offence of aiding a prisoner to escape, a defendant will not be able to avoid conviction because he or she did not know that the prisoner they assisted was in custody for an offence against Commonwealth or territory law.

The bill also contains amendments to the Australian Federal Police Act 1979 to allow for alcohol screening tests to be used as a preliminary form of testing for random workplace testing and critical incident testing, in addition to the alcohol breath tests presently permitted. The amendments will also expand the range of conduct for which the AFP Commissioner may make awards for bravery.

The amendments to the Director of Public Prosecutions Act 1983 will put beyond doubt that the Commonwealth Director of Public Prosecutions can delegate to DPP staff both functions and powers under the act. This position was previously unclear on the face of the legislation.

Second, the amendments ensure that the director can delegate functions and powers relevant to the conduct of joint trials with his or her state and territory counterparts.

While the DPP Act allows the director to authorise a person to sign indictments on his or her behalf, this authorisation is very limited in its scope. The amendments will ensure that the director is able to authorise his or her state and territory counterparts to institute proceedings for summary offences, committal proceedings or appeals.

Finally, the amendments provide immunity from civil proceedings to individuals (such as the director, or a member of the staff of the office of the CDPP) and to the Australian Government Solicitor, carrying out (or supporting) functions, duties or powers under the act.

The immunity will only apply if the acts or omissions were in good faith and in the performance or exercise of the person’s functions, powers or duties under, or in relation to, the act.

As well as providing certainty to the CDPP in carrying out its functions and duties under the DPP Act, the immunity provision will give legislative protection to state and territory prosecutors who conduct Commonwealth matters (for example, under joint trial arrangements).

This amendment will bring the DPP Act into line with most state and territory offices of public prosecution.

AUSTRAC, as Australia’s financial intelligence unit, processes and analyses information obtained under suspicious matter or suspect transaction reporting provisions and passes on intelligence information to investigative and law enforcement agencies to assist their operational activities.

AUSTRAC holds information on suspicious matters collected under the Anti-Money Laundering and Terrorism Financing Act 2006 (AML/CTF Act) and information on suspect transactions collected under the Financial Transaction Reports Act 1988 (FTR Act). Information relating to suspect transaction reports is of a similar nature to information relating to suspicious matter reports.

As information held by AUSTRAC relating to suspicious matters and suspect transactions is sensitive, the AML/CTF Act prescribes who can access this information and imposes a number of stringent restrictions as to what they can do with the information once accessed. A person who breaches these requirements commits an offence.

These amendments will extend these restrictions to suspect transaction information collected under the FTR Act. This will ensure that restrictions are placed on the use of all sensitive AUSTRAC information to protect the integrity of the financial reporting regime.

Finally, the bill amends the definition of ‘enforcement body’ in subsection 6(1) of the Privacy Act 1988 to include the Office of Police Integrity (OPI) in Victoria.

This provides the Office of Police Integrity with the same status as similar law enforcement bodies have under the Privacy Act, such as the Police Integrity Commission of New South Wales and the Crime and Misconduct Commission of Queensland.

The bill also contains several minor amendments to:

  • correct a drafting error in the Criminal Code Act 1995, and
  • repeal a provision in the Judiciary Act 1903 which is no longer necessary.

This bill introduces important new identity crimes that will provide greater protection to the community. The bill also contains measures designed to improve the administration of justice and the effective operation of the Australian Federal Police and the CDPP.

I commend the bill to the House.