Mal Washer (Moore, Liberal Party) Share this | Hansard source

The Law and Justice Legislation Amendment (Identity Crimes and Other Measures) Bill 2008 implements recommendations made by the Model Criminal Law Officers Committee in relation to identity crimes. The bill inserts three new offences into the Criminal Code and will allow victims of identity crime to obtain a certificate which may assist in re-establishing their credit histories.

The Model Criminal Law Officers Committee was established by the Standing Committee of Attorneys-General for the development of a national Model Criminal Code for Australian jurisdictions. In April 2007 this committee released for public consultation a discussion paper on identity crime. Twenty-six submissions were received from a range of organisations including state police forces, government agencies and associations, with the final paper being published in March 2008. The offences recommended to be inserted by the committee include: the offence of dealing in identification information, the offence of possessing identification information and the offence of possessing equipment used to make identification documentation.

The item on dealing in identification information makes it an offence for a person to make, supply or use identification information with the intention of representing themselves as another person for the purpose of committing, or facilitating the commission, of a Commonwealth indictable offence. This offence will be punishable by up to five years imprisonment. An example of this kind of offence which is outlined in the explanatory memorandum is where a person uses identification information of a business—such as trading and financial information—to pass themselves off as that business with the intention of importing a prohibited good, such as an anabolic steroid, under the Customs Act 1901. It will not be necessary to prove that the person knew the offence they committed was a Commonwealth indictable offence—only that it was beyond reasonable doubt that the person made, supplied or used the information with the intention of pretending to be another person in order to facilitate the indictable offence. This item also applies even if it was impossible to commit the indictable Commonwealth offence at the time—for example, where the attempted importation of an anabolic steroid was detected and stopped before importation could actually occur. It is also not a defence if the person or business to which the identification related to consented to the use of their identification.

The second item to be inserted makes it an offence to possess identification information with the intention of using that information to engage in conduct that constitutes an offence under the item of dealing in identification information. This offence is punishable by up to three years imprisonment. The example given for this offence is where A possesses identification information about B, and A intends to use that information to represent themselves as B, with the intention of committing or facilitating a Commonwealth indictable offence. As this is a preparatory offence, the penalty is lower than the main offence of dealing in identification information. It is necessary to prove beyond reasonable doubt that the person possessed the information and that they intended the information to be used to engage in the prohibited conduct of dealing in identification information. Once again, absolute liability applies as it is not necessary to prove that the person knew that their conduct was prohibited and the defence of mistake of fact is not available.

The third item to be inserted is the offence of possessing equipment used to make identification documentation. It will be an offence to possess equipment to make identification documentation where the person intends to use, or allow another person to use, that equipment to make documentation for the purpose of engaging in the offence of dealing in identification information. The offence will be punishable by up to three years imprisonment.

Three factors must be shown beyond reasonable doubt: (1) that the person possessed the equipment; (2) that they intended that they or another use the equipment to make identification documentation; and (3) that they or another will use the documentation to engage in prohibited conduct under the main offence of dealing in identification documentation. Because this is a preparatory offence, it is not relevant whether the equipment is actually capable of making the identification documentation; only the intention to do so is relevant. Once again absolute liability applies, as the person need not know that the conduct they intended to engage in was an offence of dealing in identification information. Absolute liability is appropriate for this required element of each of these three new offences—that is, the intention to commit or facilitate a Commonwealth indictable offence—as it does not relate to the substance of the offence but refers to a jurisdictional boundary between Commonwealth, state and territory legislative powers. The bill also applies an extended geographical jurisdiction to the three identity crime offences being inserted. This means that the three offences extend to conduct by an Australian citizen or an Australian body corporate outside of Australia. It will not be a defence that there is no equivalent local offence where the crime took place.

The other important aspect of this bill is the item allowing a person who has been a victim of identity crime to approach a magistrate for a certificate that states the manner in which the identification information was used. This certificate may assist victims in negotiating with financial institutions to re-establish their credit rating or remove fraudulent transactions. The definition of who is perceived to be a victim in this item is broader than the definition of those whose identification information is the subject of the offence. The example given in the explanatory memorandum is where A uses another’s identification information to impersonate a Commonwealth public official—which is a Commonwealth indictable offence—to convince C to part with a large sum of money. Although C’s identity information has not been dealt with, they have suffered harm as a result of the identity crime committed by A and would be able to apply for a victims certificate. In order for a certificate to be issued, a person must present sufficient information so that the magistrate is satisfied beyond reasonable doubt that the facts of the offence of dealing in information have been established. The magistrate does not need to be satisfied as to the identity of the perpetrator of the identity crime, nor is it necessary for criminal proceedings to have taken place against an alleged perpetrator.

The bill also contains a range of other amendments to clarify and improve the operation of justice legislation in the Commonwealth. The Australasian Centre for Policing Research defines identity crime as a generic term to describe activities in which a perpetrator uses a fabricated identity, a manipulated identity or a stolen or assumed identity to facilitate the commission of a crime. The use of false identities for committing crimes is not a recent phenomenon. The English Forgery Act was passed in 1870 to deal with fake stock certificates. Identity is how you are identified as being you—for example: physical or biometric identifiers such as photographs, fingerprints, voice prints and iris scans; written identifiers such as passports and licences; and financial identifiers, including bank and employment information. The impacts of identity crime are various. There can be direct and indirect financial impacts, such as loss of savings or damage to one’s credit rating; psychological impacts from the invasion of a person’s privacy, which can result in trauma, stress and reduced participation in society; national security impacts, such as the fictitious social security numbers, false identities and fraudulent documents used by the 9-11 hijackers; and other intangible impacts, such as access to citizenship and social services or falsely acquiring a professional qualification or affiliation.

The cost of identity crime in Australia is difficult to measure and there are few statistics available on its impact. The 2003 report Identity fraud in Australia: an evaluation of its nature, cost and extent by the Securities Industry Research Centre of Asia-Pacific claimed that identity fraud cost Australian large business $1.1 billion in 2001-02. The Australian Bureau of Statistics estimates that in 2007 there were 499,500 victims of identity fraud—383,300 of these were victims of credit card fraud and 124,000 were victims of identity theft. Based on these figures it is thought that security tokens such as bank cards and passwords are easier to forge than biometric traits, which are far more difficult to forge, replicate, misplace, share or guess. Mobile phones and laptops which recognise fingerprints are now commercially available.

Biometrics is not a new concept. In 1879, the French police inspector Alphonse Bertillon came up with a system of body measurements, such as arm and foot length, to identify repeat offenders. Britain had established the fingerprint classification system in 1896, and Scotland Yard began collecting fingerprints thereafter. Australia was close behind with the first fingerprint bureau being established at the Darlinghurst Gaol in New South Wales in 1902. Biometrics requires traits that are unique and do not significantly change over time. Currently fingerprints, face and iris are the most popular traits. Biometric recognition has formed the basis of automated border control systems in many countries, such as fingerprinting with the US-VISIT program in the US and our facial recognition based Australian Customs SmartGate system. Facial images and fingerprints are also taken from those detained in immigration detention and have helped identify illegal fishers who have re-entered under false identities. Facial recognition is also used to accurately identify those sitting the citizenship test. The technology involved in biometric systems is evolving all the time to prevent false readings from doctored or faked traits. For example, systems have been developed to detect fakes, such as plastic fingers, with sensors that can detect heat and other signs of life.

The potential for biometric systems is infinite. The Office of Payroll Administration in New York City is installing biometric timekeeping systems. To clock on and off, employees simply place their hands to be read. It is thought that this system will save around US$60 million annually in record-keeping expenses and help prevent identity fraud. However, the development of these types of systems needs to be balanced with the community’s consensus on privacy based on their evolving needs and views.

Identity crime is a major concern to government agencies, law enforcement, private organisations, financial sectors and individuals. This bill addresses the current deficiencies in our laws governing these crimes and I commend the bill to this House.

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