Brendan O'Connor (Gorton, Australian Labor Party, Minister for Home Affairs) Share this | Link to this | Hansard source

I present the explanatory memorandum and I move:

That this bill be now read a second time.

I am pleased to introduce the Law and Justice Legislation Amendment (Identity Crimes and Other Measures) Bill 2010 [2011]. The bill introduces new identity crime offences, increases penalties for offences relating to the administration of justice, and makes a number of amendments to improve the effective operation of the Australian Federal Police and the Commonwealth Director of Public Prosecutions.

The bill inserts three new identity crime offences recommended in the Model Criminal Law Officers’ Committee (MCLOC) final report on identity crime.

A person’s identity can be used falsely to obtain citizenship, Centrelink payments, medical services, or to gain professional qualifications. 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 use of malicious software.

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 five 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 three 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 three years imprisonment.

The offences can be implemented by the Commonwealth within its 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.

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

The identity crime provisions also 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.

Individual victims reportedly spend an average of two or more years attempting to restore their credit ratings.

That is 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 is intended to 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 created by identity theft.

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, better reflecting the seriousness of these offences and the importance of maintaining the integrity of the justice system.

These penalties are more closely aligned with the penalties for similar offences in other jurisdictions.

In addition, each administration of justice offence has been updated to bring it in line with settled principles about drafting Commonwealth criminal offences.

First, the physical elements of the offences have been separated, bringing them into line with chapter 2 of the Criminal Code.

Second, the amendments apply absolute liability to the jurisdictional elements of these offences. The jurisdictional element of an offence links the offence to the legislative power of the Commonwealth.

This amendment means that, for example, with respect to the section 46 offence of aiding a prisoner to escape, a defendant will not 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.

The bill also contains amendments to the Australian Federal Police Act 1979 to allow for alcohol screening tests to be used as a preliminary form of testing for random workplace testing and critical incident testing, in addition to the alcohol breath tests presently permitted. The amendments will also expand the range of conduct for which the AFP Commissioner may make awards for bravery.

The amendments to the Director of Public Prosecutions Act 1983 will put beyond doubt that the Commonwealth Director of Public Prosecutions can delegate to DPP staff 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. The amendments will ensure that the director is able to authorise his or her state and territory counterparts to institute proceedings for 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 of the CDPP) 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 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.

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

AUSTRAC holds information on suspicious matters collected under the Anti-Money Laundering and Terrorism Financing Act 2006 (AML/CTF Act) and information on suspect transactions collected under the Financial Transaction Reports Act 1988 (FTR Act). Information relating to suspect transaction reports is of a similar nature to information relating to suspicious matter reports.

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

These amendments will extend these restrictions to suspect transaction information collected under the FTR Act. This will ensure that restrictions are placed on the use of all sensitive AUSTRAC information to protect the integrity of the financial reporting regime.

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 the Office of Police Integrity with the same status as 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.

This bill introduces important new identity crimes that will provide greater protection to the community. The bill also contains measures designed to improve the administration of justice and the effective operation of the Australian Federal Police and the CDPP.

I commend the bill to the House.

Michael Keenan (Stirling, Liberal Party, Shadow Minister for Justice, Customs and Border Protection) Share this | Link to this | Hansard source

I also rise to talk on the Law and Justice Legislation Amendment (Identity Crimes and Other Measures) Bill 2010 [2011]. As the minister has just outlined, clearly identity fraud is a growing threat and the government and this legislature need to respond appropriately and provide the resources for law enforcement agencies to be able to do their jobs to combat this form of crime. This legislation goes some way towards equipping jurisdictions in combating identity fraud.

Identity crimes are very malicious types of crimes and they can affect people on a very personal basis. To have your identity stolen is not a light matter and can have some very serious consequences. Identity fraud is, sadly, Australia’s fastest growing crime, with hundreds of thousands of victims and an estimated cost of more than $1 billion per year. It is evident, with the rapid increase in technology, that the government needs to respond appropriately by giving law enforcement agencies the tools to be able to combat this emerging threat. Identity crimes are increasing due to advances in technology. They particularly affect the banking sector, and the rapid increase of financial transactions via the internet and the use of credit cards have provided criminals with new opportunities to facilitate this form of crime.

An Australian Bureau of Statistics report released late in 2009 found that in 2007 alone more than 800,000 people, or five per cent of the population aged 15 and older, fell victim to at least one instance of fraud. Identity fraud accounted for almost half a million victims, with 77 per cent of those reporting fraudulent transactions on their credit or bank cards. The remaining 23 per cent suffered identity theft involving unauthorised use of their personal details.

Anyone can fall victim to identity theft. Indeed, there have been high-profile victims such as the media identity John Laws, who was recently targeted by identity thieves who forged his signature and raided his bank account. That particular group had been responsible for stealing millions of dollars from banks by manipulating people’s personal details. They do this through things such as bank statements that have been mailed to private homes. Victims can be not necessarily aware that they have been a victim. Indeed, in the case of Mr Laws, he only managed to identify that he had been a victim of this particular crime when a debt collection agency called him chasing unpaid bills. These examples show that anyone can fall victim to this form of crime. Even well-known identities can fall victim to identity fraud.

The bill implements changes to identity crime offences recommended by the Model Criminal Law Officers Committee’s final report on identity crime. It seeks to insert three new identity crime offences into new part 9.5 of the Criminal Code Act 1995. The minister has just outlined what those three would be. It is important to note that, with the exceptions of South Australia and Queensland, currently it is actually not an offence to assume or steal another person’s identity. So clearly the need for this type of legislation is very apparent.

Schedule 4 of the bill contains several amendments which will establish a more consistent approach to the restrictions placed upon the disclosure of sensitive AUSTRAC information and strengthen safeguards to protect against the disclosure of sensitive AUSTRAC information. The bill also contains several minor amendments correcting drafting errors for previous bills and it repeals a specific provision within a judiciary act which is deemed no longer necessary. The bill also contains key measures to resolve deficiencies in the current legislative framework that relate to identity crimes. It will help to improve the administration of justice and the effective operation of the AFP and the Commonwealth DPP.

This is the completion of processes that were started under the previous coalition government. Indeed, in April 2005 the government announced the National Identity Security Strategy to combat the misuse of stolen or assumed identities in the provision of government services. To support development of the strategy, the coalition allocated $5.9 million over two years from the 2005-06 budget including funding for a pilot documentation verification service. Under the former coalition government, the Model Criminal Law Officers Committee released a discussion paper on identity crime, and subsequently our final report was issued in March 2008.

This bill implements the law reform processes largely undertaken by the previous government and now brought to completion under the current government. It will go a long way to ensuring that organised criminals in this country and elsewhere understand that Australia is not a soft target for this type of crime and that Australia will amend and adjust its legislative framework to attack the criminals when they come up with new ways of committing criminal offences, and identity crime is clearly one of those issues. The coalition therefore supports the policy underlying the bill and supports the passage of the bill.

Chris Hayes (Fowler, Australian Labor Party) Share this | Link to this | Hansard source

I too rise today to support the passage of the Law and Justice Legislation Amendment (Identity Crimes and Other Measures) Bill 2010 [2011]. I believe it is appropriate that the government is using the recommendations of what has been referred to as the Model Criminal Law Officers Committee to, firstly, identify deficiencies and make corrections to current laws particularly as they relate to identity crime.

At present there is not the uniform coverage across the nation that you would expect in matters such as identity measures. With the exception of Queensland and South Australia, strangely, it is not currently an offence to assume an identity or steal another person’s identity except in limited prescribed circumstances. As we move closer to what hopefully might emerge as a model criminal code to be applied across the nation, we should be making sure that there are no windows of opportunity for criminal elements to exploit citizens, as currently happens in respect of identity crime.

As we step into a society which is ever-increasingly dependent on computer based technologies and computer based security systems, the issue of identity crime is certainly ever increasing. Unfortunately, fraud and phishing—and I had to ask my adviser what that meant—are becoming more prevalent. I understand that phishing is a more sophisticated way of scheming, Madam Deputy Speaker Bird, and it is something that is pretty common. It is certainly well known to Australian citizens and, as a matter of fact, the shadow minister made reference to John Laws only recently being a target of identity crime. I probably should not add, but I will: part of an Australian delegation of the Australian Crime Commission visited areas of America, London and parts of Europe looking at identity crime. I do not think there was one member of that committee that did not experience some fraud committed against them, as was obvious once we got back to this country and saw our bank statements. It shows how easy it is, frankly, despite the natural precautions we take. The sophistication of the criminal element and the ever-advancing technology they use means that unless we ensure that our legislation keeps pace we will be exposing citizens to the ever-increasing possibility of identity fraud.

It is not just getting back home and seeing what went out of a bank account: identity fraud can affect Centrelink; it can certainly affect citizenship issues and all those things which are, quite frankly, front and centre for many serious and organised criminals. We need to ensure that what we develop is contemporary and combats the technological advances being made by various elements in the criminal world.

I am just reading here—I forgot about this one: criminal records can be created leading to a very stressful period of how to go about changing that. When the minister spoke, he reported that one of the problems with detecting identity fraud and seeing what has happened to your own records or in the case of a criminal record being created in your name is that it could take an average of two years to rectify. This is not just the effect of the fraud; it is the time, effort and stress that an individual has to go through to restore their good name. These are matters which are being addressed. One way to ensure expunging of a record is by approaching a magistrate and seeking a certificate of proof that you are a person that has been the subject of identity fraud. Nevertheless, while you are going through that process, the burden of proof is effectively on you and that seems to be one of the issues that we are trying to address.

The bill inserts three new identity crime offences into part 9.5 of the Criminal Code Act 1995. The three offences are: (1) dealing in identity information with the intention of committing, facilitating or commissioning a Commonwealth indictable offence punishable by up to five years of imprisonment; (2) possessing of identification information with the intent of committing, facilitating or commissioning conduct which would constitute a dealing offence punishable by three years; and (3) possessing equipment to create identification documents with the intention of committing, facilitating or commissioning conduct that would constitute a dealing offence punishable up to three years.

By framing the bill in this way and using general and what has been referred to as technological, neutral language, the intention is to ensure that offences will remain applicable, despite emerging developments in new forms of identity crime whether it be technological or otherwise and that, as far as possible, what is being put forward in this legislation stays contemporary in combating the ever-increasing issue of identity theft and crime itself.

I also note the bill contains amendments to the Criminal Code Act 1995, the Crimes Act 1914, the Privacy Act 1988, the Australian Federal Police Act 1979 and the Director of Public Prosecutions Act 1983, the Judiciary Act 1903 and the Anti-Money Laundering and Counter-Terrorism Financing Act 2006.

The government’s position is and always has been that we are going to be tough on crime. The government wants to protect people. One of the basic tasks of any government is to protect its people and ensure that their communities are as safe as possible. Therefore the amendments reflect the government’s desire to clarify and improve the operation of the administration of justice to the extent that we can through our sphere of influence in the Commonwealth.

The position in respect of delegations, for instance, which is referred to in the amendments, deals with the delegated authority of the Director of Public Prosecutions, which flows from the Director of Public Prosecutions Act 1983. As I understand it, there has been some conjecture as to the extent of the functions and powers that are delegated. This bill puts that delegation absolutely beyond doubt and to that extent I support what is proposed in the bill.

I also support the significant amendments made to the Anti-Money Laundering and Counter-Terrorism and Financing Act. As was previously referred to, AUSTRAC, Australia’s financial intelligence unit, under its reporting provisions, processes and analyses information relating to various suspicious dealings or suspicious transactions and passes that intelligence and information on to the respective law enforcement agencies for their operational activities. Having visited the organisation, I can see that it is very professional and reasonably well resourced, and it certainly does a fantastic job. It effectively tracks transactions—say, over $10,000—and sees where money passes through and designs patterns of investigations which go off to the various law enforcement and police agencies.

It is quite apparent that the information that goes through places like AUSTRAC is very sensitive. We need to ensure that we protect that information and ensure that it is only used for the purposes described under the act—that is, to address issues of fraud and criminal activity. Schedule 4 of the bill establishes a more consistent approach to the restrictions placed on the disclosure of sensitive information held by AUSTRAC and also strengthens safeguards to protect against the disclosure of any information. Clearly that is information that may flow from AUSTRAC, its staff et cetera. As a parliament, we cannot vest organisations such as AUSTRAC with such authority without ensuring that the information that is being collected is treated with the absolute intention for which we commissioned it to do so and that it goes no further. So these amendments go some distance to doing that.

While I am talking about enhancing our abilities to combat serious and organised crime, on a local note I would like to acknowledge the crime fighting that has taken place in my local area command and particularly identify the commander, Superintendent Ray King. I would like to recognise the bravery of and the outstanding work done by him and those who serve under him. His commitment to policing has delivered to the community of Cabramatta significant advances in public safety. He has a record which has earned him great respect not only in Cabramatta but throughout the New South Wales Police. I only learnt last week, with some regret, that Superintendent King has been transferred to a new post, to the position of Commander of Liverpool Local Area Command. I wish him well in his new position. Fortunately for me, Liverpool Local Area Command is also in my electorate, so I will continue my dealings with him. I do acknowledge the commitment that he has put in over a long period of time and what he has delivered to our community.

I would also like to take the opportunity to congratulate Detective Senior Constable Jason Brooks, who just before Christmas 2010 was named New South Wales Rotary Police Officer of the Year. His leadership and driven personality have seen his team achieve outstanding results, such as doubling the drug arrests within that command. This young person has not only shown leadership but has been committed to task while also staying very personally committed to his oath of office to protect the community that he serves. So, on behalf of a very grateful community, I extend my well wishes to Superintendent Ray King and Detective Senior Constable Jason Brooks and thank them for what they do.

Whilst we create and amend the laws and try to improve the tools that police and other law enforcement agencies use, it is important to realise that at the end of the day it is often left to the professionalism and integrity of those men and women who take that oath of office and take on a role in the community that thankfully most of us will never have to see, and that is putting themselves in danger in order to protect life and persons out there. Whenever I get the opportunity, I will always pay regard to our police. They do a fantastic job. I know they often attract a lot of criticism, but they man that thin blue line which is so vital for our community.

In closing, I indicate that all the provisions of this bill have been agreed to. I support the work in developing a Model Criminal Code. I think we need to do more to ensure that there are not loopholes. If we view organised crime as nothing more than a business—a nefarious business perhaps, but still a business—like any business it will exploit loopholes where profits can be made. I think this is our task. I commend the bill to the House.

Steven Ciobo (Moncrieff, Liberal Party) Share this | Link to this | Hansard source

I am pleased to rise to speak on the Law and Justice Legislation Amendment (Identity Crimes and Other Measures) Bill 2010 [2011]. It is an important bill in the community because it goes to one of the fastest-growing crimes that is prevalent in the community today. When I move around my electorate and speak with constituents, when I consider the emails that I receive and the letters that are written in, it is clear that there is a growing level of angst in the community over identity crime. In particular, I highlight that it is spread across different aspects of the community unevenly. There are some demographics in the community that are comfortable with the various scams and tricks involved in stealing someone’s identity, and there are those for whom identity crime is a very real threat because of their, for lack of a better term, ignorance with respect to the methods that are employed by those who seek to engage in identity crime.

We know that there are hundreds of thousands of victims, at an estimated cost of more than $1 billion a year, as a result of identity crime. Methods that are employed include, for example, what is referred to as phishing. In addition to that, there are attempts, especially through the use of technology, to attract people to enter their personal particulars into bogus websites. As a member of parliament, using my parliamentary email address, I receive spam emails from concocted addresses purporting to be, for example, from banks and indeed from the Australian Taxation Office. These are false emails that link to false websites that ask people to input their details or to verify their details with the full intent of the perpetrators of that email using the information that you input for nefarious purposes. So identity crime is a very real cost to the community and it is a very real concern to the community. At $1 billion a year, some might scratch their heads and ask why it is only in 2011 that we are actually updating the Criminal Code to ensure that it incorporates the elements that make it a specific offence to engage in identity crime and solicit someone’s information for the purposes of engaging in identity crime.

The bill itself implements changes to the identity crime offences that were outlined by the Model Criminal Law Officers Committee final report on identity crime and it inserts three new identity crime offences into the new part 9.5 of the Criminal Code Act 1995. In particular, it includes dealing in identification information with the intention of committing or facilitating the commission of a Commonwealth indictable offence. That offence, if you are found guilty, is punishable by up to five years imprisonment. In addition, the dealing offence, possession of identification information with the intention of committing or facilitating the commission of conduct that constitutes the dealing offence, is punishable by up to three years imprisonment; and, finally, possession of equipment to create identification documentation with the intention of committing or facilitating the commission of conduct constitutes the dealing offence and is punishable by up to three years imprisonment.

These are all important new additions to proposed part 9.5 of the Criminal Code Act because they send a clear message from this parliament. As representatives of the will of the Australian people we need to tackle this nefarious crime. We need to deal with this crime and make it clear that we will not tolerate those who seek to take advantage of others in the community who are unfamiliar with the use of technology and with the concerns, especially among the older demographic in the community, about identity crime.

We know that if people do not have confidence in, for example, online retailing, if people do not have confidence in the various technologies that are employed and part of the modern era, they will not use that technology. So not only is there a cost in terms of billions of dollars of actual fraudulent activities undertaken as a result of identity crime; there is also an unmeasurable cost, which is the cost associated as a direct erosion of confidence in the technology itself from those who will choose not to utilise technology and, thereby, potentially cripple to some extent opportunities for information technology-specific new forms of retailing, for example.

So it is very important that we support this bill, and as members of the coalition we support the government’s efforts in this respect. I highlight that it was actually the previous coalition government that started the ball rolling on this in April 2005, when the coalition announced the National Identity Security Strategy to combat the misuse of stolen or assumed identities in the provision of government services. There was a specific coalition initiative that allocated some $5.9 million over two years in the 2005-06 budget, which included funding for a pilot document verification service. Under the former coalition government, the Model Criminal Law Officers Committee released a discussion paper and, subsequently, a final report in March 2008. This bill is effectively the zenith of all the work undertaken, supported by the Labor Party and the coalition. This is a good initiative that is bipartisan in nature.

What I am mindful of when I speak to this bill is the older people especially in the community and in my seat of Moncrieff, on the Gold Coast, who are concerned about whether they can have confidence in the use of online technologies. These are the same people who, unfortunately, more often than not are the subject of phishing scams through emails and the people who are most vulnerable. So, to the extent that this bill will help to provide some disincentive to those who would engage in this kind of conduct, I commend it. I certainly hope that, as a direct result of actions as a consequence of this bill, we will see a reduction in this kind of activity in the future so that identity crime is not as prevalent as people think it is but, in addition to that, that there is also a reduction in the concern and community angst about identity crime. For those reasons, I support the bill.

Laura Smyth (La Trobe, Australian Labor Party) Share this | Link to this | Hansard source

I am very pleased to speak in favour of the Law and Justice Legislation Amendment (Identity Crimes and Other Measures) Bill 2010 [2011]. I am certainly pleased to have heard the contributions from other members and to recognise that there has been continuity in the regulatory approach taken throughout various parliaments and, it seems, from all sides of the chamber. We certainly know that identity crimes cause not only monetary losses but also very considerable consequential non-monetary damage. Damage to credit ratings, loss of reputation, considerable distress, disruption and inconvenience are all very familiar by-products of these kinds of reprehensible offences. We know that identity crime offenders are often quite difficult to apprehend. We know that they are therefore fairly difficult to prosecute, particularly in cases where they have engaged only in preparatory activities to the ultimate offence, and so it is very timely that the provisions of this bill are implemented in relation to identity crime and the range of other matters that it seeks to address. It is certainly timely that we reflect the deliberations of the Model Criminal Law Officers Committee in its final report on identity crime.

We know that the impacts of identity offences include the erosion of a person’s name, with or without direct financial consequences. They include widespread scams against consumers and businesses which have direct financial consequences. They have the capacity for the illegal receipt of welfare and other benefits, the procurement of qualifications in fraudulent circumstances and the evasion of law enforcement and surveillance, amongst a variety of other very significant and detrimental effects on individuals, enterprises and whole communities, both in terms of their practical monetary effects and the erosion of confidence. As we increasingly rely on technologies and as we are increasingly reliant on internet communications and internet transactions, we hope to ensure that members of our community, particularly those who are only becoming familiar with those new technologies, have sufficient confidence in them to be able to utilise them and are not deterred from using them and utilising their convenience by situations where they face identity crime activities.

I am very pleased to see that the bill particularly provides for remedies to some degree for victims of crime. The amendments that are proposed under the bill will allow a person who has been the victim of identity crime to approach a magistrate for a certificate to show that they have had their identity information misused. This will go a long way to alleviating the frustration and distress faced by people, often in circumstances which might extend for some years, when they are forced to attempt to restore their credit ratings, their damaged reputation and their standing with financial institutions. The certificate which is proposed to be available under this bill may assist victims of identity crime in negotiating with financial institutions in order to re-establish their credit ratings and with other organisations such as Australia Post in order to clear up any remaining problems from identity theft.

In addition to presenting very practical measures by which these sorts of frauds and ills are able to be combated, the bill before us sends a very clear message to our community that identity fraud will not be tolerated and will be prosecuted vigorously. It is certainly a timely message. We see significant effects from identity fraud not only for individuals but also, ultimately, for the Australian taxpayer and the community as a whole, so I am particularly pleased to see those provisions of this bill that deal with preparatory acts to identity fraud in such a timely manner.

Other speakers in this debate have addressed the variety of provisions in the bill which are very significant across a range of law reform measures. I would like to touch on the range of amendments which deal with the Anti-Money Laundering and Counter-Terrorism Financing Act. These are obviously very significant in the overall fight against terrorism, both in our community and across the globe. The bill contains particular amendments which will establish a much more consistent approach to the restrictions which are placed on the disclosure of sensitive AUSTRAC information and strengthen safeguards to protect against the disclosure of that information. I think that anything that goes to strengthening the role of AUSTRAC in our community and facilitating its more efficient and more rigorous prosecution of its objectives is very laudable indeed, so I am very pleased to be able to speak in favour of those measures in the bill before us.

As a government we are certainly concerned with protecting those who are most vulnerable in our community. In circumstances where those most vulnerable in our community may be exposed to identity fraud and to the inconvenience, the distress and the frustration that it causes, it is particularly pleasing for me to be able to speak in favour of this bill today. I commend the bill.

Alex Hawke (Mitchell, Liberal Party) Share this | Link to this | Hansard source

I rise today to support the Law and Justice Legislation Amendment (Identity Crimes and Other Measures) Bill 2010 [2011]. I am happy to report to the House also in my capacity as Deputy Chair of the Joint Select Committee on Cyber-Safety. In that committee we have been hearing from witnesses about the problem of identity theft and identity fraud across a wide spectrum of businesses, individuals, families and, in particular, children—which is the focus of our inquiry at the moment.

Having heard witness after witness speak about the problem of identity crime in Australia, it does make a very compelling case for legislation of this nature to ensure that we have a modern and relevant framework of laws in place to deal with the emergence of new technologies and crimes using the medium of those new technologies. I do commend the government for good legislation which sets up a legal framework to deal with the challenges of a new era. In this place we should support the use of law, especially criminal law, to set a benchmark for what we regard as right and wrong in our society and to ensure that law enforcement agencies have the tools they need to go after criminals, to prevent crime and to deal with the consequences of online crime. Hearing from different Federal Police authorities and representatives from other agencies about the nature of the problems they face, I think it is the case that the law is not adequate at the moment to meet these challenges, and the improvements that have been well covered by many previous speakers are very much needed.

Identity crime is a serious crime. We have heard many different statistics. I think it is telling that we heard that the AFP reports that $4 billion a year is lost in identity fraud and identity crime. We have heard from members and senators of their own experiences and anecdotes in relation identity fraud. The Australian Bureau of Statistics reports that, in 2007 alone, 800,000 people, or five per cent of the population aged 15 and over, fell victim to at least one instance of fraud. Of course, I would assume that is only set to grow.

I do not intend to speak for long today, except to say a few things. In my own electorate I have been approached by constituents, especially parents of younger constituents, who have been victims of identity theft and crime. As I said, children are the particular focus of our inquiry in the joint committee on cybersafety. This is a growing area of concern where we face children having their identity stolen, whether it be by so-called friends or acquaintances or whether it be by people unknown to them, and then the perpetrators either embarrass those children or engage in cyberbullying, cyberstalking or other abusive forms of behaviour online.

I find that all the attempts by government and other agencies to deal with these problems tend to be a little inelegant. Whether it be internet filtering or other proposals which tend to be reactive, they do not tend to address the problem at its cause—and we have heard much evidence that this is a behavioural and educational problem rather than a technological or legal one. What is very important to understand about the nature of this crime is that the law is not in place at the moment to help us to adequately address crimes against children online. So this bill in particular, which improves the ability of our enforcement agencies to deal with identity crime, is very important in making progress on this issue. I have had dealings with all the major social networkers and the big internet providers, both through the committee and also as a representative of my electorate, and they often have very good enforcement regimes in place but they go only to a certain point. While they tend to deal with an immediate problem inside their own network or space, they do not then take the further step of adequately dealing with the perpetrator of a crime—and stealing a person’s identity and using it for whatever purpose is a serious offence. We have had laws in the Criminal Code for some time which deal with fraud, and I think it is very important that we keep pace with the technologies that we see today and continue to legislate in this area to ensure that the criminal law is adequate for our agencies.

I do think it is important to record that the varying nature of criminal activity and organised crime is moving very swiftly. They do keep up with technology. We have seen in the past week reports of criminal agencies using BlackBerries with their secure networks to engage in crime in this country. That is why I think it is important to support good legislation in this place, and I think the government ought to be commended for continuing the previous government’s push to ensure that our legislation is sufficient. I support the bill.

Gai Brodtmann (Canberra, Australian Labor Party) Share this | Link to this | Hansard source

The Law and Justice Legislation Amendment (Identity Crimes and Other Measures) Bill 2010 [2011] is a significant piece of legislation that contains amendments to a raft of measures relating to the administration of justice in Australia. The bill inserts new offences into the Criminal Code on identity crime, it corrects a drafting error in the Criminal Code, it includes the Victorian Office of Police Integrity in the definition of an enforcement body in the Privacy Act, it allows for the delegation of powers and duties to certain persons and provides legal immunity for the director and staff to carry out the functions under the DPP Act, it streamlines the process of alcohol and drug testing under the AFP Act, it expands the range of conduct for which the AFP commissioner may make awards, it improves the operation of the Anti-Money Laundering and Counter-Terrorism Financing Act, it establishes a more consistent approach to the restrictions placed on the disclosure of sensitive AUSTRAC information and it reframes the administration of justice offences in part III of the Crimes Act to bring them in line with the Criminal Code. It is quite an in-depth bill, as that probably outlines, and it covers a vast array of areas.

Today, I want to focus on the identity theft provisions of this legislation because it seeks to implement the identity crime offences recommended by the Model Criminal Law Officers Committee. This committee identified deficiencies in the current approach to identity crime, and this is what this bill aims to address. It seeks to create three new offences and provide some relief to the victims of identity crime through the creation of victim certificates.

Identity crime and identity theft are not new. The assumption of an identity, real or fictitious, to gain financial or other criminal benefit has been around for centuries, if not thousands of years. In fact, the earliest legislation on identity crime was in England, dates back to 1870 and dealt with the creation of fake stock certificates. I found that information from just a quick search and I am sure there is legislation or some form of governance on this issue dating back hundreds and hundreds of years.

However, with the rise in modern communications and technology and with the expanded use of electronic and online databases, identity crime is a real and growing concern. One of the increasing types of criminal activity is called phishing. Phishing occurs when a criminal sends a fake email purporting to be from a trusted organisation, mostly a bank. These emails entice the receiver to a well-designed fake website and ask them to verify their details, at which point their information is captured and funds are withdrawn.

I was a victim of this some time ago when I was applying for a visa. I was told by my travel agent that I had to get a visa to go to the States. I was surprised that I had to because I thought we had agreements that, for short stays, we did not have to obtain visas. I got on the site, applied for the visa, paid my $60 and got what looked like an ID code which gave me something I could show to the customs officials. Lo and behold, when I got to the US there was no need for the visa, so it was a completely spurious thing. The US Embassy got in touch with me and the girlfriend I went with and we are in the process of trying to track down the money, but I am not confident.

Last year, my father-in-law was also a victim of phishing. What really made it worse was the fact that it occurred in the wake of the death of my mother-in-law in August. My father-in-law is an intelligent man and very computer savvy for someone who is in his mid-80s. But at that time, just after Mary’s death, he was in the midst of reconciling and closing down bank accounts, he was advising government agencies and community organisations of her death and, at the same time, trying to come to terms with the loss of the woman he had loved for more than 50 years. In his grief, he thought the request for bank information was just one of the many administrative processes he had to go through at the time. There was a pile of paperwork and it was just another thing he had to do. He only discovered too late that he had become a victim of identity crime.

Since being elected last year I have had a number of calls and letters from people in my electorate who have been targeted for this sort of crime in addition to the stock market scam and the Nigerian letter scam that seems to have been going on for about 20 years. What has alarmed me most is that most of these people have been over 70 years of age. In an attempt to help them I am using my website as a one-stop shop for information on a range of government and non-government services. As part of that I will be including an issues page where I will cover some of these matters to help people out. It will be like a virtual online office. One of the issues I will cover is scams. I will be linking to the Australian Competition and Consumer Commission’s SCAMwatch website. The site covers everything from phishing and card skimming to lottery and sweepstakes scams to small business directory schemes. It provides a wealth of information as well as stories of the victims of crime and identity crime and how to report a scam in your state or territory. I commend the site to my colleagues here today.

Identity crime also occurs through key-logging devices and the theft of information from computer databases. But probably one of the areas of most concern is social networking sites, as others have mentioned today, which are increasingly being used as a means to steal identities. Seventy per cent of users of these services divulge some sort of personal information. Quite often it can just be your mother’s maiden name. That is cross-fertilised, and then all sorts of things can happen, sometimes to an extent that allows the theft of identity. The AFP, in its submission on this issue to the committee, said that ‘identity crime is the fastest growing criminal type, possibly running close to 30 percent growth.’ One 2003 study estimated the cost to the Australian economy at $1.1 billion, with $420 million being directly lost and $626 million spent on resources that respond to identity crime. That equates to about $4 billion in 2010.

What we need to remember is that this figure is only an estimate of the cost of fraud-based identity crime. It does not cover the full implications of other types of identity crime. It is equally important to remember that identity crime is committed not just for the purposes of defrauding people of money. It is also used to facilitate people-smuggling, drug trafficking, money laundering, paedophilia, murder and terrorism. A 2005 French Senate report noted that terrorist networks had systematically used false identity documents to obtain employment, fund their activities and avoid detection. The September 11 bombers used false US Social Security numbers to facilitate their crime.

The effects of identity crime and theft on victims can be traumatic. Aside from the direct financial impact, which is often substantial, victims also suffer indirect consequences, including loss of reputation, damage to their credit rating and everyone’s worst nightmare—the creation of criminal records. Dealing with the effects of identity crime requires the victim to expend time and effort to correct the records and restore their good name. This is often made more difficult because the victim is not aware for some time of the fact that their identity has been taken. Identity crime strikes at the very core of self. It attacks our individuality, it attacks our reputation, it attacks who we are. Finding out that someone has been masquerading as you or a loved one can have a deep emotional and psychological impact, and there is often no easy fix. This is especially the case for those families who have had the identities of their dead children stolen, which is just appalling.

Identity crime is something about which the Australian public is becoming increasingly concerned, and I am really grateful for that. I met with some officials from the Attorney-General’s Department recently to talk to them about what they are doing on cybersecurity, particularly in the civilian area. I was really heartened by the range of activities they are involved in there. A 2007 Newspoll survey found that 62 per cent of Australians are very or extremely concerned about the unauthorised use of their personal information, which is why they must protect their personal and network computers against viruses and hackers. This is the key message I got from the Attorney-General’s Department when I spoke to them, and it is something I would like to reinforce today. People must be aware of the scams out there. It is a case of buyer beware—or person beware—of scammers. It is frightening, and people need to have their computers protected and also be alert to what could actually happen. In another survey, nine per cent of Australians claimed to be victims of identity crime, which is an extraordinary figure.

Given the rapid nature of the crime and the technology used to commit it, the legislative process has not always been quick enough to respond, to keep up. As Microsoft said in its submission to the Model Criminal Law Officers Committee:

Identity theft effectively creates a new class of victim that has not been adequately catered for within Australasian legislative and policing mechanisms to date.

This legislation seeks to address those concerns. It will create three new offences.

First, this bill will make it illegal for a person to make, supply or use identification information with the intention of passing themselves off as someone else for the purposes of committing or facilitating an indictable offence. This offence is important because current elements of the Criminal Code such as fraud, theft and forgery do not adequately cover the rapidly emerging types of identity crimes. This offence will be punishable by up to five years in prison.

Secondly, this bill will make it an offence to possess identification information with the intention of using that information to engage in conduct that would constitute an offence under the conditions I have already mentioned. It is important to note that the prosecution must prove not only that a person held someone’s ID information but also that they intended to use it to facilitate crime. This is to protect innocent parties from the many innocuous reasons why someone would have another person’s ID, such as holding their wallet while they were having a swim at the beach. This offence will carry a penalty of up to three years.

Finally, this bill will make it an offence to possess equipment needed for the creation of ID documentation where the person intends to use or allows the equipment to be used to engage in illegal conduct. The definition of ‘equipment’ has been kept deliberately broad to avoid the provision becoming outdated by the advances in new technology which are happening every day, as has also been mentioned today.

This bill also—and this is a really important development—creates a victims’ certificate, to provide some remedy to the victims of ID crime. This is an important and welcome initiative, and I congratulate the minister for that. This new provision will allow a person to approach a magistrate for a certificate that will state the matter in which the ID information was used. The certificate will help the victims of ID crime in negotiating with financial institutions when it comes to re-establishing their credit rating or getting a new credit card—really important and really helpful.

This bill is a timely, relevant and responsible response to the ever-increasing problem of ID crime, and these new provisions have broad support from Australia’s law enforcement, banking and IT sectors. I commend the bill to the Committee.

Brendan O'Connor (Gorton, Australian Labor Party, Minister for Home Affairs) Share this | Link to this | Hansard source

I thank the honourable members who contributed to this debate on the Law and Justice Legislation Amendment (Identity Crimes and Other Measures) Bill 2010 [2011]. The member for Canberra, who has just spoken, has outlined that there are, indeed, three new identity crime offences enclosed in this bill. I also thank the members for Stirling, Fowler, Moncrieff, Mitchell and La Trobe for their contributions.

This is an important bill. It is a response by the government in order to improve the way in which law enforcement agencies can deal with these serious crimes. The bill, as I have said earlier, contains three new identity crime offences and other amendments that will improve the operation of a range of Commonwealth agencies. This bill is part of Australia’s response in combating identity crime. It will enhance the ability of Commonwealth agencies to perform their functions. For that reason I commend the bill to the House.

Question agreed to.

Bill read a second time.

Ordered that the bill be reported to the House without amendment.