Chris Hayes (Werriwa, Australian Labor Party) Share this | Hansard source

I rise today to speak on the Law and Justice Legislation Amendment (Identity Crimes and Other Measures) Bill 2008, which implements the identity crime offence as recommended in the Model Criminal Law Officers Committee’s final report on identity crime. The report was released in March 2008 by the Standing Committee of Attorneys-General. This is significant legislation and I want to go into some of its various components. The issue of identity crime is certainly of increasing prevalence in our community. I do not think there would be a member in this House who has not had people come to their electorate offices complaining about some aspect of identity fraud that has affected their way of life—fraud emanating from the proof or otherwise of their identities, or the replication of those identities in other circumstances.

The bill introduces three new identity crime offences to part 9.5 of the Criminal Code Act 1995. With the exception of South Australia and Queensland, it is not an offence in Australia at present to assume or steal another person’s identity, except in limited circumstances. Existing offences in the Criminal Code such as theft, forgery, fraud or credit card skimming do not adequately cover the many and varied aspects of identity crime and certainly have not kept up to date with the emergence of new technologies that help facilitate those intent on perpetrating identity crime. Technology is available now to scan somebody’s fingerprints. Various laptop computers on offer these days have these sorts of scanning technologies, if you have the suitable program. Even some PDAs or handheld devices do similar things. Scanning and capturing someone’s fingerprints is not all that hard to do.

We hear a lot these days about the various devices that can be deployed to capture people’s identity around ATMs. Apart from some villains in New South Wales at the moment who are blowing up ATMs, there are some very high-tech criminals who have made a career out of capturing other people’s identities so they can in their own time raid people’s bank accounts. These things are occurring and the problem will escalate simply because of the emergence of technology that can be adapted to help facilitate that.

The bill proposes that offences be framed in general, almost technologically neutral, terms to ensure that the new forms of identity crime as they emerge will still be captured. I think this is a very positive aspect of this legislation given the emergence of technology. The definitions include: firstly, dealing in identification information with the intention of committing, facilitating or commissioning a Commonwealth indictable offence, punishable by up to five years imprisonment; secondly, possession of identification information with the intention of committing, facilitating or commissioning, or conduct that constitutes, a dealing offence, punishable by three years imprisonment; and, thirdly, the possession of equipment to create identification documentation with the intention of committing, facilitating or commissioning, or conduct that constitutes, a dealing offence, punishable by up to three years imprisonment.

These measures are needed. This is not simply a Commonwealth innovation; this is supported not only by the Commonwealth but by the attorneys-general throughout this country. There is no barrier to crime. It is no secret that criminals do not observe the constitutional or geographic boundaries of states and territories. Therefore, matters of law enforcement that this legislation deals with must be handled in a way that provides a similarity of operation right across the nation.

With identity crimes there are always going to be victims. As I said, people come to my office complaining about how they think they have been affected by a fraudulent credit card or mobile phone transaction—something appears on their bill that they are not aware of. These are all elements of identity crime. There are provisions in this bill that will assist victims of identity crime. I think it is quite appropriate that they be included. There is no doubt that identity crime can cause damage to a person’s credit rating. It can create a criminal record in some cases. The victims can incur tremendous expenditure not only in terms of time and effort but also in terms of the cost of trying to restore their records or their credit rating—in other words, getting back to the position they were in prior to the identity fraud happening to them.

A person’s identity can be used for citizenship material, Centrelink payments and medical services and to gain professional qualifications. It was not all that long ago that a Qantas engineer falsified information that had this fellow working on jet aircraft. So it can be used not just for personal gain in terms of cash but also for movement, transactions and personal things such as inappropriately applying for positions of employment. So it is important that victims can have some redress other than simply going off and notifying the police, which they should do. They also have to be able to speed up what they can do to remedy the position they now find themselves in personally. I understand that individual victims can spend up to two years trying to restore their credit rating. It is not an easy task to go through all that. You do not just go and ring up the credit agencies and it just occurs; you actually have to go and prove these things. That is why this amendment is particularly important to the victims of identity crime, because it allows for a person to approach a magistrate for a certificate to be issued that shows that the person who appears before the magistrate has been the subject of identity crime and which indicates that the person’s personal information has been misused. That certificate is not the be-all and end-all; it does not rectify a person’s problems. It is designed to assist victims of identity crime in negotiating with their financial institutions to re-establish their credit ratings with other organisations, including places such as Australia Post, telephone companies et cetera, to clear up as quickly as possible those residual problems that they face resulting from identity theft.

The Anti-Money Laundering and Counter-Terrorism Financing Act 2006 establishes a pretty robust regime for detecting and deterring money-laundering activity and financing of terrorism. This is another crucial aspect of this bill. Section 4 of the bill contains several amendments which will establish a more consistent approach to the restrictions placed on the disclosure of sensitive AUSTRAC information and, secondly, will strengthen safeguards and protect against disclosure of this sensitive information as collected by AUSTRAC. As Australia’s financial-intelligence-gathering unit, AUSTRAC possesses and analyses information on suspicious transactions that occur in accounts, money movements et cetera. It is not a law enforcement organisation per se; it is an intelligence-gathering agency which operates and supplies information on a restricted basis to people such as the Australian Federal Police, the Australian Crime Commission, the Taxation Office and others. It is a very significant intelligence-gathering organisation and one which is central to modern law enforcement techniques throughout this country.

I had the opportunity to visit AUSTRAC only last year. What I understood from my meeting with them is that in 2007-08 they searched through more than 15,000 operational matters at the request of various agencies who are permitted to subscribe to AUSTRAC. In terms of tax revenue alone, I think last year something like $76 million of direct tax revenue resulted from their activities. For the last 10 years that figure comes in at $685 million. That is just the tax aspect and has nothing to do with areas of law enforcement and operations conducted by the Australian Crime Commission, the Australian Federal Police or other agencies. It is very much a high-powered financial-intelligence-gathering operation. It would qualify to be referred to as robust in terms of its approach. Its information is obviously very valuable.

This bill strengthens the safeguards and protections in regard to that information. Whilst as a country we should be proud of organisations such as AUSTRAC, we must make every effort possible to ensure that the information that is collected is only used for the purposes specifically required and that we have significant restrictions on how that information can be used not only with respect to other organisations but with respect to citizens themselves. It was a very valuable excursion to go and visit that organisation. AUSTRAC is staffed by very professional people, a number of whom have been drawn from other areas of intelligence-gathering operations, particularly the Australian Federal Police and also state and territory police organisations. The chief executive officer, Neil Jensen, runs a very good ship. It is very impressive to see not only what they do on a day-to-day basis but the capability that organisation has. I for one am very proud that we have that sort of facility, but it also indicates that we should be very careful in how that information is not only gathered but used. It has to be used only for the intended purposes. The amendments to this act go very much to strengthening that.

The amendments also deal with matters relating to the administration of justice—in particular, in respect of both the Anti-Money Laundering and Counter-Terrorism Financing Act and the Financial Transaction Reports 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 five years to 10 years imprisonment. This change reflects the government’s view that defendants who seek to obstruct or pervert the course of justice should be subject to strong criminal sanctions. The amendments will bring these penalties into closer alignment with the penalties for similar offences in other state and territory jurisdictions. As I said, law enforcement is very difficult if we have dissimilar arrangements that apply in different parts of the Commonwealth. It is important that, where possible, we have such similarity—not necessarily under one national code but certainly so that laws do not operate in such a way as to provide significant differences between the states and the Commonwealth in the application of laws on law enforcement and policing. All that would do is to create legal loopholes for people who do not need to benefit from those loopholes. I think we need to have consistency in our judicial regime in that respect to ensure that our law enforcement officers are not all put through different hoops in how they go about enforcing the law on similar offences or the same offences as they apply across the various jurisdictions.

The amendments also deal with aspects of the Privacy Act. The bill amends the definition of ‘enforcement body’ in section 6(1) of the Privacy Act 1988 to include the Office of Police Integrity, the OPI, in Victoria. This is a technical amendment that provides the OPI with the same status that similar law enforcement bodies have under the act—bodies, for instance, such as the Police Integrity Commission in New South Wales and the Crime and Misconduct Commission in Queensland. It allows the OPI to go about its investigations with the same degree of freedom but with the restrictions that are imposed under the act in respect of the privacy of persons et cetera. Whilst it is simply admitting the OPI into that aspect of it, I think that is a very important aspect to ensure that the integrity regimes that apply in all of our jurisdictions are consistent. There is no point having greater professionalism introduced into our law enforcement areas if we have varying regimes of different standards in not only ensuring the efficiency of those areas but ensuring that they are all operating with appropriate integrity as required. Ensuring that the OPI is also brought under the Privacy Act amendments is certainly a major contribution, particularly in the state of Victoria.

There are a few other minor things that occur to me—probably not minor in that respect. This bill also contains amendments in respect of the Australian Federal Police Act 1979 to streamline the processes for alcohol and drug testing. This, again, goes to the issue of integrity. As I understand it, this is something that has been discussed and agreed to by the Australian Federal Police Association. This brings that in line with those agreements that have been made. There are further amendments that are made to streamline the position of the Director of Public Prosecutions Act 1983, but given the time I think I will let some other speaker deal with that. (Time expired)

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