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Wednesday, 29 September 2010
Page: 255

Senator LUDWIG (Minister for Agriculture, Fisheries and Forestry) (3:36 PM) —I move:

That this bill be now read a second time.

I seek leave to have the second reading speech incorporated in Hansard.

Leave granted.

The speech read as follows—

I am pleased to introduce the Law and Justice Legislation Amendment (Identity Crimes and Other Measures) Bill. The bill implements the identity crime offences recommended in the Model Criminal Law Officers’ Committee Final Report on Identity Crime. The report was released by the Standing Committee of Attorneys-General in March 2008.

The bill inserts three new identity crime offences into new Part 9.5 of the Criminal Code Act 1995. With the exception of South Australia and Queensland, it is not currently an offence in Australia to assume or steal another person’s identity, except in limited circumstances.

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 malicious software.

The offences can be implemented by the Commonwealth within the Commonwealth’s 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.

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 5 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 3 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 3 years imprisonment.

The identity crime provisions also contain measures to 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.

A person’s identity can be falsely used for citizenship, Centrelink payments and medical services and to gain professional qualifications.

It’s been reported that individual victims spend an average of two or more years attempting to restore their credit ratings.

That’s 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 may 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 with identity theft.

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

I look forward to my State and Territory counterparts, with the exception of Queensland and South Australia who already have such offences, implementing identity crime laws so that we have uniform national coverage.

The bill also contains amendments to the Australian Federal Police Act 1979 to streamline the processes for alcohol and other drug testing under the Act, and expand the range of conduct for which the Commissioner may make awards.

The amendments to the Director of Public Prosecutions Act 1983 will put beyond doubt that the Director of Public Prosecutions can delegate 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. For example, the authorisation does not extend to 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) 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 done 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, as well as section 222 of the Law Enforcement Integrity Commissioner Act 2006, and section 59B of the Australian Crime Commission Act 2002.

The next significant amendments concern the Anti-Money Laundering and Counter-Terrorism Financing Act. This Act establishes a robust regime for detecting and deterring money laundering and terrorism financing.

Schedule 4 to the bill contains several amendments which will:

  • establish a more consistent approach to the restrictions placed on the disclosure of sensitive AUSTRAC information, and
  • strengthen safeguards to protect against the disclosure of sensitive AUSTRAC information.

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

As information held by AUSTRAC relating to suspicious matters and suspect transactions is sensitive, the 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.

The amendments ensure these requirements are now stipulated under both the AML/CTF Act and the Financial Transaction Reporting Act.

The bill also increases the penalties for the offences of perverting the course of justice and conspiracy to pervert the course of justice from 5 years to 10 years imprisonment.

This reflects the Government’s view that defendants who seek to obstruct or pervert the course of justice should be subject to strong criminal sanction. The amendment will also bring these penalties into closer alignment with the penalties for similar offences in other jurisdictions.

In addition, each administration of justice offence contained in Part III of the Crimes Act 1914 has been updated to bring it in line with settled principles about framing Commonwealth criminal offences.

First, the offences have been reframed to bring them into line with Chapter 2 of the Criminal Code, which requires the physical elements of an offence to be separated. This promotes consistency between the drafting of Commonwealth offences.

Second, the amendments apply absolute liability to the jurisdictional elements of each administration of justice offence. A jurisdictional element of an offence is an element that links the offence to the legislative power of the Commonwealth.

The amendments overcome uncertainty about the operation of the existing offences. For example, because absolute liability does not apply to the jurisdictional element of the section 46 offence of aiding a prisoner to escape, a defendant may 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.

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 OPI with the same status that 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.

In summary, this bill contains important measures to rectify deficiencies in current legislation relating to identity crime offences. The bill also contains measures designed to improve the administration of justice and the effective operation of the AFP and CDPP.

I commend the bill to the Senate.