Measures to Combat Serious and Organised Crime Act 2001 (136 of 2001)

Schedule 2 Assumed identities

Crimes Act 1914

1 After Part 1AB

Insert:

Part IAC - Assumed identities

Division 1 - Definitions etc.

15XA Definitions etc.

(1) In this Part:

approved officer means an officer or foreign officer referred to in an authorisation under paragraph 15XI(2)(c).

approved person means a person referred to in an authorisation under subparagraph 15XI(2)(d)(i).

authorisation means an authorisation that is in force under section 15XG or 15XH.

authorisation conditions means conditions to which an authorisation is subject under paragraph 15XI(2)(j).

authorising person means:

(a) the head of a participating agency; or

(b) a person in a participating agency, included in a prescribed class of persons, who is authorised in writing by the head of the agency.

Commonwealth agency means:

(a) the Commonwealth; or

(b) an authority of the Commonwealth.

Commonwealth participating agency means one of the following agencies:

(a) the Australian Federal Police;

(b) the Australian Customs Service;

(d) the Australian Security Intelligence Organisation;

(e) the Australian Secret Intelligence Service;

(h) the Australian Taxation Office;

(i) any other Commonwealth agency specified in the regulations.

foreign officer means an officer, however described, of an agency that has responsibility for:

(a) law enforcement in a foreign country; or

(b) intelligence gathering for a foreign country; or

issuing agency means:

(a) a Commonwealth agency; or

(b) a non-government body;

that is referred to in an authorisation under paragraph 15XI(2)(f).

issuing evidence of an assumed identity includes making an entry in a record of information in respect of the assumed identity.

non-government body means a body that is not managed or controlled by or on behalf of the Commonwealth or the Government of a State or Territory.

participating agency means either a Commonwealth participating agency or a State or Territory participating agency.

State or Territory participating agency means:

(a) the police force of a State or Territory; or

(b) one of the following bodies:

(i) the Independent Commission Against Corruption established under the Independent Commission Against Corruption Act 1988 of New South Wales;

(ii) the Queensland Criminal Justice Commission established by the Criminal Justice Act 1989 of Queensland;

(iii) the Western Australian Anti-Corruption Commission established by the Anti-Corruption Act 1988 of Western Australia;

(iv) a similar body established under a law of a State or Territory; or

(i) the New South Wales Crime Commission established under the New South Wales Crime Commission Act 1985 of New South Wales;

(ii) the Queensland Crime Commission established by the Crime Commission Act 1997 of Queensland;

(iii) a similar body established under a law of a State or Territory; or

(ca) the Police Integrity Commission established by the Police Integrity Commission Act 1996 of New South Wales; or

(d) any other body or agency of a State or Territory specified in the regulations.

supervising officer means the officer referred to in an authorisation under subparagraph 15XI(2)(d)(ii).

(2) A reference in this Part to an approved officer or an approved person using an assumed identity includes a reference to:

(a) the officer or person representing the identity covered by his or her authorisation to be his or her real identity when it is not (whether that representation is express or implied, and whether it is by words, conduct or omission); or

(b) such an officer or person acting in a way that is consistent with such an identity, rather than the person's real identity.

(3) A reference in this Part to an approved officer or approved person acquiring evidence of an assumed identity includes a reference to the officer or person obtaining, or taking any steps towards obtaining, a document or other thing that purports to evidence the identity covered by his or her authorisation, when it is not the real identity of the person.

(4) A reference in this Part to a person engaging in conduct includes a reference to the person omitting to do an act.

Division 2 - Effect of an assumed identity

15XB Assumed identities may be acquired and used

(1) An approved officer may acquire evidence of, and use, an assumed identity if the acquisition or use:

(a) is in the course of duty; and

(b) is in accordance with the authorisation conditions (if any).

(2) An approved person may acquire evidence of, and use, an assumed identity if the acquisition or use is in accordance with:

(a) directions given by the supervising officer mentioned in the person's authorisation; and

(b) the authorisation conditions (if any).

Note: The acquisition of evidence, and use, of an assumed identity is authorised by the authorising person of a participating agency under Division 3.

15XC Protection from criminal liability

(1) An approved officer, who engages in conduct that, apart from this subsection, would constitute an offence against a law of the Commonwealth, a State or Territory, is not criminally responsible for that offence if:

(a) the officer engages in the conduct in the course of acquiring evidence of, or using, an assumed identity; and

(b) the officer engages in the conduct in the course of duty; and

(d) the conduct would not constitute that offence if the assumed identity were the officer's real identity.

Example: This subsection could apply if an approved officer, when using an assumed identity, makes the false representation that he or she is unemployed (but that representation would be true if the assumed identity were real).

(2) An approved person who engages in conduct that, apart from this subsection, would constitute an offence against a law of the Commonwealth, a State or Territory, is not criminally responsible for that offence if:

(a) the person engages in the conduct in the course of acquiring evidence of, or using, an assumed identity; and

(b) the conduct is in accordance with:

(i) directions given by the supervising officer; and

(ii) the authorisation conditions (if any); and

Note: Division 5 has offences relating to the misuse etc. of assumed identities.

15XD Indemnification of approved officers and persons

(1) A Commonwealth participating agency whose authorising person issues an authorisation must indemnify an approved officer against any liability (including reasonable costs) that the officer incurs because of conduct the officer engages in if:

(a) the officer is covered by the authorisation; and

(b) the officer engages in the conduct in acquiring evidence of, or using, an assumed identity in the course of duty; and

(d) the requirements (if any) specified in the regulations have been met.

(2) A Commonwealth participating agency whose authorising person issues an authorisation must indemnify an approved person against any liability (including reasonable costs) that the person incurs because of conduct the person engages in if:

(a) the person is covered by an authorisation; and

(b) the person engages in conduct in acquiring evidence of, or using, an assumed identity; and

(i) any directions given by the supervising officer; and

(ii) the authorisation conditions (if any); and

(d) the requirements (if any) specified in the regulations have been met.

15XE Effect of being unaware of variation or revocation of authorisation

(1) If an approved officer's or approved person's authorisation has been varied in a way that limits its scope, this Division continues to apply to the officer or person, as if the authorisation had not been varied in that way, for so long as he or she:

(a) is unaware of the variation; and

(b) is not reckless with respect to the existence of the variation.

(2) If an approved officer's or approved person's authorisation is revoked, this Division continues to apply to the officer or person, as if the authorisation had not been revoked, for so long as he or she:

(a) is unaware of the revocation; and

(b) is not reckless with respect to the existence of the revocation.

(3) For the purposes of this section, a person is reckless with respect to the variation or revocation of an authorisation if:

(a) he or she is aware of a substantial risk that the variation or revocation occurred; and

(b) having regard to the circumstances known to him or her, it is unjustifiable to take the risk.

15XF Documents authorising use of skill or qualification

Sections 15XC and 15XD do not apply to an approved officer or approved person engaging in conduct if:

(a) a particular skill or qualification is needed to engage in that conduct; and

(b) the person does not have that skill or qualification;

whether or not the officer or person has acquired, as evidence of an assumed identity, a document that establishes that he or she has that skill or qualification.

Example: An officer who cannot fly a plane is not authorised to fly even though he or she has acquired a pilot's licence under an assumed identity.

Division 3 - Authorising the acquisition or use of assumed identities

15XG Commonwealth authorisations of the acquisition or use of assumed identities

(1) An authorising person of a Commonwealth participating agency may, if satisfied that it is appropriate to do so, authorise a person to do either or both of the following:

(a) acquire evidence of an assumed identity from:

(i) any Commonwealth agency; or

(ii) any non-government body;

(b) use the assumed identity.

(2) However, the authorising person may only authorise the use of the assumed identity in a foreign country if he or she is satisfied that it is reasonably necessary to do so.

(3) An authorising person of a Commonwealth participating agency may, if satisfied that it is reasonably necessary to do so, authorise a foreign officer to do either or both of the following:

(a) acquire evidence of an assumed identity from:

(i) any Commonwealth agency; or

(ii) any non-government body;

(b) use an assumed identity.

15XH State or Territory authorisations of the acquisition or use of assumed identities

(1) An authorising person of a State or Territory participating agency may, if satisfied that it is appropriate to do so, authorise a person (other than a foreign officer) to do either or both of the following:

(a) acquire evidence of an assumed identity from any Commonwealth agency;

(b) use the assumed identity.

Note: Only a Commonwealth participating agency can authorise a foreign officer to acquire evidence of, or use, an assumed identity: see subsection 15XG(3).

(2) However, the authorising person may only authorise the use of the assumed identity in a foreign country if he or she is satisfied that it is reasonably necessary to do so.

15XI Contents of an authorisation for an assumed identity

(1) An authorisation to acquire evidence of, and use, an assumed identity must be in writing and signed by the authorising person.

(2) The authorisation must specify:

(a) the authorising person's name; and

(b) the date on which the authorisation is given; and

(c) if the person who is authorised to acquire or use the assumed identity is an officer in the authorising person's participating agency or a foreign officer - that officer's name; and

(d) if the person who is authorised to acquire or use the assumed identity is not such an officer:

(i) the name of the person who is authorised to acquire or use the assumed identity; and

(ii) the name of the officer in the authorising person's participating agency who will supervise that acquisition or use; and

(e) details of the assumed identity which the authorisation covers; and

(f) all Commonwealth agencies or non-government bodies who are to be requested to issue evidence of the assumed identity; and

(g) details of each such request; and

(h) the reasons for the need to use the assumed identity; and

(i) whether the assumed identity can be used in a foreign country and the reasons for the need for this use; and

(j) any conditions to which the authorisation is subject, including in relation to use in a foreign country.

(3) An authorisation can cover more than one assumed identity.

15XJ When an authorisation is in force

An authorisation is in force until it is revoked.

15XK Variation and revocation of authorisations

(1) An authorising person who issues an authorisation, or any other authorising person in the same participating agency, may vary or revoke the authorisation at any time.

(2) The approved officer or approved person covered by the authorisation must be given a written notice of the variation or revocation.

(3) The notice must state:

(a) the date from which the variation or revocation takes effect; and

(b) the nature of the variation (if any); and

Division 4 - Issuing and cancelling evidence of assumed identities

15XL Authorising person may request agencies and bodies to issue evidence of assumed identities etc.

An authorising person who issues an authorisation may request an issuing agency that is specified in the authorisation under paragraph 15XI(2)(f) to issue evidence of an assumed identity covered by the authorisation to the approved officer or approved person.

15XM Requesting Commonwealth agencies to issue evidence of assumed identities etc.

(1) An issuing agency of the Commonwealth that receives a request under section 15XL from an authorising person in a Commonwealth participating agency must comply with the request.

(2) An issuing agency of the Commonwealth that receives such a request from an authorising person in a State or Territory participating agency may comply with the request, but does not have to do so.

15XN Requesting non-government bodies to issue evidence of assumed identities etc.

An issuing agency that is a non-government body that receives a request under section 15XL may comply with the request, but does not have to do so.

Note: Only Commonwealth participating agencies can request non-government bodies to issue evidence of an assumed identity.

15XO Cancelling evidence of assumed identities etc.

An issuing agency that has issued evidence of an assumed identity because of a request under section 15XL, must cancel the evidence (including by deleting or altering an entry in a record of information) on the written request of:

(a) the authorising person who made the request; or

(b) any other authorising person in the same participating agency.

15XP Protection from criminal liability

An employee in an issuing agency, who engages in conduct that, apart from this section, would constitute an offence against a law of the Commonwealth, a State or Territory, is not criminally responsible for the offence if the employee engages in the conduct in responding to the request in the course of duty.

15XQ Indemnification of issuing agencies etc.

A Commonwealth participating agency whose authorising person makes a request under section 15XL must indemnify:

(a) an employee of an issuing agency; and

(b) an issuing agency;

against any liability (including reasonable costs) incurred by that employee or agency because of conduct engaged in by the employee if:

(d) the requirements (if any) specified in the regulations have been met.

Division 5 - Offences relating to assumed identities

15XR Misuse of assumed identities

(1) A person commits an offence if:

(a) the person is an approved officer; and

(b) the person acquires evidence of, or uses, an assumed identity covered by the person's authorisation; and

Penalty: 12 months imprisonment.

(2) A person commits an offence if:

(a) the person is an approved person; and

(b) the person acquires evidence of, or uses, an assumed identity covered by the person's authorisation; and

Penalty: 12 months imprisonment.

(3) A person commits an offence if:

(a) the person is an approved officer or an approved person; and

(b) the person acquires evidence of, or uses, an assumed identity covered by the person's authorisation; and

Penalty: 12 months imprisonment.

15XS Disclosing information relating to assumed identities

(1) A person commits an offence if:

(a) the person discloses information; and

(b) the disclosure reveals, or is likely to reveal, that an assumed identity acquired or used by another person is not that other person's real identity; and

(i) endangers, or is likely to endanger, the health or safety of any person; or

(ii) prejudices, or is likely to prejudice, the effective conduct of an operation carried out by any participating agency; and

(d) the assumed identity is or was covered by an authorisation.

Penalty: 10 years imprisonment.

(2) A person commits an offence if:

(a) the person discloses information; and

(b) the disclosure reveals, or is likely to reveal, that an assumed identity acquired or used by another person is not that other person's real identity; and

Penalty: 2 years imprisonment.

Division 6 - Miscellaneous

15XT Disclosing real identities during court proceedings etc.

(1) If the real identity of an approved officer or approved person who is or was covered by an authorisation, might be disclosed in proceedings before a court, tribunal or a Royal Commission or other commission of inquiry, then the court, tribunal or commission must:

(a) ensure that the parts of the proceedings that relate to the real identity of the officer or person are held in private; and

(b) make such orders relating to the suppression of the publication of evidence given by the court, tribunal or commission as will, in its opinion, ensure that the real identity of the officer or person is not disclosed.

(2) However, this section does not apply to the extent that the court, tribunal or commission considers that the interests of justice require otherwise.

15XU Keeping and auditing records of assumed identities

(1) The head of a Commonwealth participating agency must:

(a) cause appropriate records to be kept:

(i) while an authorisation is in force; and

(ii) for at least 12 months after an authorisation has been revoked; and

(b) cause those records to be audited:

(i) at least once every 6 months while the authorisation is in force; and

(ii) at least once in the 6 month period after the revocation of the authorisation.

(1A) An audit of these records must not be conducted by:

(a) an authorising person who has issued, varied or revoked an authorisation to which one or more of the records relate; or

(b) an approved officer or approved person who is covered by an authorisation to which one or more of the records relate.

(2) In this section:

appropriate records means records relating to the operation of this Part as it affects the participating agency, including any authorisations and any variations or revocations of those authorisations under section 15XK.

15XUA Matters to be reported

Commonwealth participating agencies must report annually

(1) Each of the following Commonwealth participating agencies:

(a) the Australian Security Intelligence Organisation;

(b) the Australian Secret Intelligence Service;

must, as soon as practicable after 30 June in each year, prepare and give to the Inspector-General of Intelligence and Security a report for the year ending on that 30 June.

(2) Each other Commonwealth participating agency must, within 3 months after 30 June in each year, prepare and give to the Minister responsible for the agency a report for the year ending on that 30 June.

(3) The Minister receiving a report under subsection (2) must table a copy of the report before each House of the Parliament within 15 sitting days of that House after the day on which the Minister receives the report.

What reports must include

(4) An agency's report must include the following information:

(a) the number of authorisations issued by an authorising person from the agency during the year covered by the report;

(b) a general description of the activities undertaken by approved officers and approved persons when using their assumed identities during the year covered by the report;

(c) a statement whether or not any fraud or other unlawful activity was identified by an audit under paragraph 15XU(1)(b) during the year covered by the report.

(5) Before the report is tabled in the Parliament, the Minister must, on the advice of the relevant agency head, remove information from the report if the Minister is of the view that its inclusion may:

(a) endanger a person's safety; or

(b) prejudice an investigation or prosecution; or

15XV Concurrent operation of State and Territory laws

It is the Parliament's intention that a law of a State or Territory should be able to operate concurrently with this Part unless the law is directly inconsistent with this Part.

15XW Regulations

The Governor-General may make regulations prescribing matters:

(a) required or permitted by this Part to be prescribed; or

(b) necessary or convenient to be prescribed for carrying out or giving effect to this Part.