Senate

Explanatory Memorandum

(Circulated by authority of the Minister for Justice, the Honourable Brendan O'Connor MP)

Schedule 1 - Criminal Code Act 1995

Division 370 - preliminary

Insertion of definitions

This item inserts three definitions, specific to identity crime offences, into new Part 9.5 of the Criminal Code.

The term 'deal' in identification information was defined to simplify the wording of the offences. It encapsulates making, supplying or using any identification information.

'Identification documentation' has been defined in technology neutral terms, and to cover the broadest possible range of documents and things which can be used by a person for the purpose of pretending to be, or passing themselves off as, another person. It will cover documents, such as drivers' licences or passports, and 'things,' such as credit cards.

'Identification information' has been defined in technology neutral terms, and to cover the broadest possible range of identification information. The definition encompasses and extends beyond financial information to include biometric data, voice prints, a body corporate name and ABN, and a series of numbers or letters intended for use as a means of personal identification.

Division 372 - identity fraud offences

Insertion of an offence of dealing in identification information

This item makes it an offence to make, supply or use identification information with the intention that a person pass themselves off as another person for the purpose of committing, or facilitating the commission of, a Commonwealth indictable offence, punishable by up to five years imprisonment.

An example of this type of offence is: person A uses the identification information of a business, such as its trading name, ABN, address and financial account information to pass themselves off as the business or an authorised agent or employee of the business, with the intention of importing a tier 1 prohibited good, such as an anabolic steroid, under the Customs Act 1901 (the Customs Act). (See sections 233BAA(4))

To establish this offence, the prosecution will need to prove beyond reasonable doubt that:

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a person made, supplied or used identification information, and

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the person intended that they, or any other person, will use that identification information to pretend to be, or pass themselves off as, another person for the purpose of committing, or facilitating the commission of, a Commonwealth indictable offence.

The prosecution will not be required to prove that a person knew that the offence they were committing with the identification information is an indictable offence against a law of the Commonwealth. Absolute liability will apply to paragraph 372.1(1)(c). The effect of applying absolute liability to this element would mean that no fault element needs to be proved and the defence of mistake of fact is not available.

Absolute liability is appropriate and required for this element of the offence because the circumstance that the further offence being committed is a Commonwealth indictable offence is a jurisdictional element. A jurisdictional element of an offence is an element that does not relate to the substance of the offence, but marks a jurisdictional boundary between matters that fall within the legislative power of the Commonwealth, States or Territories. This is consistent with Commonwealth criminal law policy, as described in the Guide to Framing Commonwealth Offences, Civil Penalties and Enforcement Powers .

The dealing in identification information offence will apply even when it is impossible to commit the Commonwealth indictable offence at the time the offence is to be committed. In the example above, person A will still have committed the offence of dealing in identification information under 372.1, even if it became or becomes impossible to import the tier 1 prohibited good because, for example, the attempted importation was detected and stopped by the Australian Customs Service.

It would not be a defence that the 'person' to whom the information relates consented to the information being made, supplied or used. Person A could not avoid prosecution by claiming that the business consented to its identification information being used to purchase and import the prohibited goods.

A person would not, however, commit this offence by dealing in their own identification information. It would not be an identity crime offence if person A used their own identification information to purchase and import a tier 1 prohibited good, but it would be an offence under subsection 233BAA(4) of the Customs Act. There are, of course, other laws that make it an offence for a person to make their own identification documents, such as the forgery and related offences in Part 7.7 of the Criminal Code.

This offence is necessary because existing offences in the Criminal Code, such as theft, forgery, fraud and credit card skimming, do not adequately cover the many and emerging types of identity crime.

The dealing in identification information offence departs from the MCLOC model in two ways. Firstly, it requires that a person deal in identification information and intend that he or she, or another person, will pass themselves off as another person for the purpose of committing, or facilitating the commission of, a Commonwealth indictable offence. The MCLOC recommended offence merely required that a person deal in identification information with the intention of committing, or facilitating the commission of, an indictable offence.

It was not clear from the proposed MCLOC offence that a person needed use the identification information to pretend to be another person and commit an identity crime offence. The requirement in the Commonwealth dealing offence that a person must intend to use the information to pass themselves off as another person makes it clear that the relevant offence is one of identity crime, and not simply using identification information in connection with any indictable offence.

The second difference is that the jurisdictional element in paragraph 372.1(1)(c) will be one of absolute liability. The MCLOC recommended offence did not require that absolute liability would apply to the fact that a person intended to commit an indictable offence with the identification information.

The Commonwealth decided that while the prosecution must prove that the identity crime offender intended to commit, or facilitate the commission of, a Commonwealth indict able offence, it should not be required to prove that a person knew that the offence they were committing with the identification information is an indictable offence against a law of the Commonwealth.

Insertion of the offence of possessing identification information

This item makes it an offence to possess identification information with the intention of using that information to engage in conduct that constitutes an offence under section 372.1 - dealing in identification information. This offence will be punishable by up to three years imprisonment.

This offence will require more than mere possession of another's identification information. There are many situations in which a person could innocently be in possession of another person's identification information - for example, looking after a spouse's, partner's or friend's wallet while that person is playing sport. This offence will not capture innocent behaviour. A person would not commit an offence by possessing their own identification information.

An example of conduct that would be captured by this offence is:

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person A possesses identification information about person B [a business], such as its trading name, ABN and financial account number

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person A intends that he or she, or another person, will use the identification information to engage in conduct, and

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the conduct is that person A will pass themselves off as person B for the purpose of committing, or facilitating the commission of, a Commonwealth indictable offence.

To establish this offence, the prosecution will need to prove beyond reasonable doubt that:

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a person possessed identification information, and

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the person intended that they, or any other person, will use the identification information to engage in conduct prohibited under section 372.1.

The prosecution will not need to prove that a person knew that the conduct he or she proposed to engage in with the identification information is the offence of dealing in identification information under section 372.1. Absolute liability will apply to paragraph 372.2(1)(c). The effect of applying absolute liability to this element would mean that no fault element needs to be proved and the defence of mistake of fact is not available.

Absolute liability is appropriate and required for this element of the offence because the circumstance that the conduct being engaged in constitutes an offence under section 372.1 is a jurisdictional element. A jurisdictional element of an offence is an element that does not relate to the substance of the offence, but marks a jurisdictional boundary between matters that fall within the legislative power of the Commonwealth, States or Territories. This is consistent with Commonwealth criminal law policy, as described in the Guide to Framing Commonwealth Offences, Civil Penalties and Enforcement Powers .

The offence of possessing identification information carries a maximum penalty of 3 years imprisonment. The offence of possessing identification information is a preparatory offence, which requires an intention to commit, or to facilitate the commission of, an offence under s 372.1. Accordingly, a penalty that is lower than the penalty for the main offence of dealing in identification information is appropriate.

The offence differs slightly from the model offence recommended by MCLOC in two ways. The first is that MCLOC envisaged that the offence of possessing identification information would be contingent on the commission, or the facilitation of the commission of, an indictable offence.

The Commonwealth has, instead, made the offence of possessing identification information contingent on conduct that constitutes an offence under section 372.1 - the dealing in identification information offence.

The reason for this change was that it appeared incongruous that a person could receive up to 3 years imprisonment for a preparatory offence of possessing identification information, yet the indictable offence intended to be committed with the identification information might only carry a penalty of 12 months imprisonment.

For this reason, the preparatory offence of possessing identification information requires an intention to commit the main identity crime offence, dealing in identification information, which carries a penalty of 5 years imprisonment.

The second difference is that the jurisdictional element in paragraph 372.2(1)(c) will be one of absolute liability. The MCLOC recommended offence did not require that absolute liability would apply to the fact that a person intended to commit an indictable offence with the identification information.

The Commonwealth decided that while the prosecution must prove that the identity crime offender intended to engage in conduct that constitutes an offence under section 372.1 (the dealing in identification information offence), it should not be required to prove that the person knew that the conduct they proposed to engage in is an offence under section 372.1. Absolute liability is appropriate and required for this element of the offence because the circumstance that the conduct being engaged in constitutes an offence under section 372.1 is a jurisdictional element. This is consistent with Commonwealth criminal law policy, as described in the Guide to Framing Commonwealth Offences, Civil Penalties and Enforcement Powers .

Insertion of the offence of possessing equipment used to make identification documentation

This item will make it an offence to possess equipment to make identification documentation where the person intends to use, or allows another person to use, that equipment to make identification documentation for the purpose of engaging in conduct that constitutes an offence under section 372.1 - dealing in identification information. This offence will be punishable by up to 3 years imprisonment.

A person who possesses equipment to make identification documentation may use that equipment themselves to engage in conduct that constitutes the offence of dealing in identification information. Alternatively, he or she may intend that another person will engage in conduct that constitutes the dealing offence, and facilitate the commission of that offence by allowing the other person to use the equipment. This offence will capture both types of behaviour.

An example of conduct that would be captured by this offence is person A possessing equipment and intending either that he or she, or person B, will make false credit cards. Person A must also intend that he or she, or another person, will use that identification documentation to engage in conduct that is an offence under section 372.1 - the dealing offence.

The term 'equipment' has deliberately not been defined. This is to avoid the problem of the definition becoming outdated with advances in technology. Common items of equipment can be used to make identification documentation, such as computers, laminators, embossers, scanners and printers. There are no specific machines used to make false identification documentation that are not widely available to the public to be used for legitimate purposes.

People who possess these common items will not commit an offence by simply possessing the equipment. A person must intend that he or she, or another person, will use the identification documentation made with the equipment to engage in conduct that constitutes the dealing offence under section 372.1. Provided there is no intention to deal in identification information, a person may possess these types of equipment without fear of committing an identity crime offence.

To establish this offence, the prosecution will need to prove beyond reasonable doubt that:

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a person possesses equipment,

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the [first] person intended that they, or any other person, will use the equipment to make identification documentation, and

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the [first] person intends that they, or any other person, will use the identification documentation to engage in conduct prohibited under section 372.1.

The prosecution will not need to prove that a person knew that the conduct they proposed to engage in with the identification documentation is the offence of dealing in identification information under section 372.1. Absolute liability will apply to paragraph 372.3(1)(d). The effect of applying absolute liability to this element would mean that no fault element needs to be proved and the defence of mistake of fact is not available.

Absolute liability is appropriate and required for this element of the offence because the circumstance that the conduct being engaged in constitutes the dealing offence is a jurisdictional element. A jurisdictional element of an offence is an element that does not relate to the substance of the offence, but marks a jurisdictional boundary between matters that fall within the legislative power of the Commonwealth, States or Territories. This is consistent with Commonwealth criminal law policy, as described in the Guide to Framing Commonwealth Offences, Civil Penalties and Enforcement Powers .

The offence of possessing equipment used to make identification documentation carries a maximum penalty of 3 years imprisonment. The offence of possessing equipment used to make identification documentation is a preparatory offence, which requires an intention to commit, or to facilitate the commission of, an offence under section 372.1. Accordingly, a penalty that is lower than the penalty for the main offence of dealing in identification information is appropriate.

The offence differs slightly from the model offence recommended by MCLOC in three ways. The first is that MCLOC envisaged that the offence of possessing equipment to make identification documentation would be contingent on the commission, or the facilitation of the commission of, an indictable offence.

The Commonwealth has, instead, made the offence of possessing equipment to make identification documentation contingent on conduct that constitutes an offence under section 372.1 - the dealing in identification information offence.

The reason for this change was that it appeared incongruous that a person could receive up to 3 years imprisonment for a preparatory offence of possessing equipment to make identification documentation, yet the indictable offence intended to be committed with the identification documentation might only carry a penalty of 12 months imprisonment.

For this reason, the preparatory offence of possessing equipment to make identification documentation requires an intention to engage in conduct that constitutes the dealing in identification information offence, which carries a penalty of 5 years imprisonment.

The second difference is that the jurisdictional element in paragraph 372.2(1)(c) will be one of absolute liability. The MCLOC recommended offence did not include that absolute liability would apply to the fact that a person intended to commit an indictable offence with the identification information.

The Commonwealth decided that while the prosecution must prove that the identity crime offender intended to engage in conduct that constitutes an offence under section 372.1 (the dealing in identification information offence), it should not be required to prove that the person knew that the conduct proposed to be engaged in with the identification information is an offence under section 372.1. Absolute liability is appropriate and required for this element of the offence because the circumstance that the conduct proposed to be engaged in constitutes an offence under section 372.1 is a jurisdictional element. This is consistent with Commonwealth criminal law policy, as described in the Guide to Framing Commonwealth Offences, Civil Penalties and Enforcement Powers .

Thirdly, the Commonwealth has broadened the scope of the MCLOC recommendation which required that the equipment possessed by the person must be capable of making identification documentation.

Because the offence is a preparatory offence, it is not relevant whether the equipment is actually capable of making the identification documentation. What is relevant is the person's intention to use the equipment to make identification documentation. A person should not escape prosecution for this offence where they intended to make false identification documentation and possessed all the necessary equipment to do so believing that it was capable of making the identification documentation but, for whatever reason, the equipment could not make the identification documentation.

Extended geographical jurisdiction - category A

This item applies extended geographical jurisdiction - category A to offences created by sections 372.1, 372.2 or 372.3. This means that the three identity crime offences will extend to conduct by an Australian citizen or an Australian body corporate outside Australia. It will not be open for an Australian citizen or body corporate overseas to raise a defence that there is no equivalent local offence.

Identity crime is often trans-national and it is important that Australia can prosecute Australian citizens and bodies corporate who engage in identity crime outside the geographical boundary of Australia. An Australian citizen or body corporate should not escape prosecution for an identity crime offence committed outside Australia on the basis that the country in which the offence occurs does not have identity crime laws.

Alternative verdict

This item will allow a trier of fact, in a prosecution for an offence under section 372.1, to find a person guilty of the offence under section 372.2 instead, provided that the person was accorded procedural fairness in relation to that finding of guilt. The trier of fact must be satisfied beyond reasonable doubt that the person is guilty of the section 372.2 offence.

The offence of possessing identification information is preparatory to the offence of dealing in identification information. As a matter of logic, a person must 'possess' identification information to make, supply or use it in the dealing offence. The point at which the possession offence becomes the dealing offence is when the person passes themselves off as another person to commit, or facilitate the commission of, a Commonwealth indictable offence.

If a trier of fact is satisfied that a person possessed identification information with the intention of engaging in conduct that would be an offence under section 372.1, but not that the person committed the more serious dealing offence, the person should not escape prosecution for the preparatory offence, subject to the safeguard of procedural fairness.

In its Report, MCLOC noted that an alternative verdict provision under section 372.2 for persons charged with an offence against section 372.1 was a matter for each jurisdiction. For the reasons outlined above, the Commonwealth has decided to include the alternative verdict.

Attempt

It will not be an offence to attempt to commit any of the offences in sections 372.1, 372.2 or 372.3. Each of the identity crime offences ultimately requires the intention to commit, or facilitate of the commission of, a Commonwealth indictable offence.

Division 375 - victims' certificates

Certificate may be issued by Magistrate in relation to victim of identity crime

This item will allow a person who has been the victim of identity crime to approach a Magistrate for a certificate that states the manner in which identification information was used.

A person who consented to the use of their identification information by another person can still be a victim of identity crime and obtain a victims' certificate. For example, a parent who allows their teenage child to use their credit card to book concert tickets on the internet does not intend for the child to pass themselves off as the parent for the purpose of committing a Commonwealth indictable offence. If the child uses the credit card to pass themselves off as the parent with the intention of committing a Commonwealth indictable offence, the parent will have been the victim of identity crime and may apply for a certificate.

Identity crime can cause significant damage to a person's financial records and credit rating. A certificate issued by a Magistrate may assist the victim in negotiating with financial institutions to re-establish their credit rating or remove fraudulent transactions.

The Commonwealth has included a broader concept of 'victim of identity crime' than MCLOC. MCLOC defined a victim as a person whose identification information is the subject of an offence ie, their identification information was misused.

It is possible, however, that a broader class of persons can be conceived of as victims of identity crime and those persons should be able to apply for a victims' certificate to assist them.

This could occur, for example, where person A deals in person B's identification information and passes themselves off as person B for the purpose of impersonating a Commonwealth public official, which is a Commonwealth indictable offence. As a part of impersonating the Commonwealth public official, person A convinces person C to part with a large sum of money.

Person C's information has not been dealt with and he or she would not be a victim of identity crime in the sense envisaged by MCLOC. But person C has suffered harm as a result of the identity crime committed by person B. In such a situation, it might also be useful for people in person C's situation to be able to apply for a victims' certificate.

A broader definition of 'victim' in the Bill will assist as many people as possible who may have been adversely affected by identity crime.

State and Territory Magistrates will have the power to issue victims' certificates. A person seeking a certificate must present sufficient information to the Magistrate so that the Magistrate is satisfied, on the balance of probabilities, that the facts of paragraphs 372.1(1)(a) - (c) have been established. It will be left to the discretion of Magistrates as to how the information is presented to them. One way in which this might occur is for the victim of identity crime to complete a statutory declaration, setting out what occurred. A Magistrate might be satisfied by the information in the statutory declaration that the facts of paragraphs 372.1(1)(a) - (c) have been established, or might wish to question the person further if insufficient information was provided.

Section 375.1 also differs from the MCLOC model. The Commonwealth provision requires that a person make an application to a Magistrate for the victims' certificate, whereas the MCLOC model proposed that a Magistrate would be able to issue a certificate on his or her own motion. This could happen where, for example, a Magistrate heard a prosecution for an identity crime offence and, at the end of the trial, being satisfied that an identity crime offence had been committed against the victim, would issue the victims' certificate without the victim needing to make an application for the certificate.

However, such an approach is not appropriate for Commonwealth implementation. A State or Territory Magistrate is highly unlikely to hear the prosecution of a Commonwealth indictable offence. Such an offence will be tried in the Supreme Court of a State or Territory.

There are exceptionally few, if any other, circumstances in which a Magistrate could initiate a victims' certificate at the Commonwealth level. While a Magistrate would hear a committal proceeding for an identity crime offence and could initiate a victims' certificate at the end of the committal proceedings, the trial in the Supreme Court would preclude the certificate from being issued, to avoid any contempt of the criminal proceedings.

Another way in which a Magistrate may issue a victims' certificate on own motion would be if a person were committed by a Magistrate to stand trial in the Supreme Court, the person elected to plead guilty at that time and to being sentenced in the Magistrates court. After that point, a Magistrate could issue a victims' certificate on his or her own motion.

Because the circumstances in which a Magistrate might have cause to initiate a victims' certificate on his or her own motion at the Commonwealth level are so limited, the Commonwealth has departed from the MCLOC recommendation that Magistrates be able to issue certificates on their own motion.

The Commonwealth victims' certificates further differ from the MCLOC model because Magistrates under the Commonwealth model will be asked to find that the facts required to establish the offence under s 372.1 exist, rather than that an offence has been committed on the balance of probabilities.

The change is based on a distinction between being satisfied that certain facts are likely to exist, and a finding that an offence has occurred by applying law to the facts and drawing certain conclusions.

It may not be appropriate for a Magistrate to determine whether an offence has been committed, albeit on the balance of probabilities, without a proper prosecution having occurred and a defendant been afforded the right to put contrary evidence.

It is possible that the facts required to establish an offence are proved, but that an offence has not been committed because the defendant was, for example, under duress. A Magistrate asked to issue a victims' certificate is unlikely to have that type of information available to him or her and it is undesirable that they be required to find an offence was committed.

Content of certificate

This item prescribes the content of a victim's certificate. In the certificate, the Magistrate must record the identity of the victim and describe the manner in which identification information was used. For example, the magistrate might record that:

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the victim's credit card was used by another person

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person B intended either that they, or any other person, would pass themselves off as the victim for the purpose of committing an offence (ie, person B or the other person used the victim's credit card and passed themselves off as the victim)

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the offence is a Commonwealth indictable offence, such as importing a prohibited tier 1 good, and

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the institution that provided the victim's credit card cancelled it because of the purchase by person B.

The perpetrator or alleged perpetrator of the identity crime offence must not be identified in the certificate.

Relation to proceedings

This item provides that a Magistrate need not be satisfied as to the identity of an alleged perpetrator of identity crime, so long as he or she is satisfied, on the balance of probabilities, that the facts of paragraphs 372.1(1)(a) - (c) have been established. The fact that a victim of identity crime cannot show who the alleged perpetrator was will not prevent the victim from obtaining the certificate (subject to the other requirements being met).

It will not be necessary for criminal proceedings against an alleged perpetrator of identity crime to have occurred for a victim to obtain a certificate. Subject to the requirement that a certificate must not be issued if doing so would prejudice any criminal proceedings, a victims' certificate may be issued without an offender having been identified or convicted.

A Magistrate must not issue a certificate if doing so would prejudice any criminal or civil proceedings. This means that a Magistrate cannot issue a certificate where the identity crime alleged to have been committed against the victim is the subject of contemporaneous criminal or civil proceedings.

The rights of a defendant will be protected under the proposed victims' certificate provisions. Certificates will not be admissible in any criminal or civil proceedings.

The Commonwealth provision about the relation of the victims' certificate to civil and criminal proceedings is slightly different form that recommended by MCLOC. The Commonwealth has limited the use of victims' certificates so that they are not admissible in any contemporaneous civil or criminal proceedings for any purpose. Under the MCLOC model, the certificates would not have been admissible in any criminal proceedings in relation to the offence for which it was issued, but would have been admissible in criminal proceedings more generally, subject to the applicable rules of evidence.

Power conferred on Magistrate personally

This item provides that the power to issue victims' certificates is conferred on Magistrates in their personal capacities, and not as a court or a member of a court. The function of issuing victims' certificates is administrative in nature. Accordingly, it is appropriate for the Commonwealth to bestow non-judicial functions or powers on Magistrates in their personal capacities, rather than as a court, or a member of a court.

A Magistrate may refuse to exercise the power conferred on them. This provision is the same as subsection 4AAA(3) of the Crimes Act 1914 , which allows persons, upon whom a Commonwealth non-judicial function is conferred, to refuse to exercise the function or power.

A Magistrate who elects to use the power receives the same protections and immunities as if he or she were exercising that power as, or as a member of, the court of which the Magistrate is a member. This provision will protect a Magistrate who, in good faith, issues, or considers issuing, a victims' certificate.

Because of constitutional restraints, the Commonwealth was unable to implement the MCLOC recommendation that the power to issue victims' certificates be conferred on Local or Magistrates courts. The power to issue victims' certificates is administrative or non-judicial in nature and the Commonwealth cannot vest a State Local or Magistrates court with a non-judicial power. To overcome this problem, the power to issue victims' certificates has been vested in State and Territory Magistrates in their personal capacities.

Insertion of definitions into the dictionary

These items insert definitions of 'ABN', 'deal', 'identification documentation', 'identification information' and 'de facto partner' into the Dictionary of the Criminal Code.