Statutes Amendment (Identity Theft) Bill

Second Reading

The Hon. S.E. CLOSE (Port Adelaide—Deputy Premier, Minister for Industry, Innovation and Science, Minister for Defence and Space Industries, Minister for Climate, Environment and Water, Minister for Workforce and Population Strategy) (17:34): I move:

That the time allotted for all remaining stages of the bill be one hour.

The house divided on the motion:

Ayes 23

Noes 11

Majority 12

AYES

NOES

PAIRS

Motion thus carried.

The Hon. S.E. CLOSE: I move:

That this bill be now read a second time.

In doing so, I acknowledge, as did the Attorney-General in the other place, that a version of this bill was introduced by the former government in 2021 and I acknowledge the work of the former Attorney-General in the development of the earlier bill.

This bill updates the laws that apply to identity theft by making amendments to the Criminal Law Consolidation Act 1935, the Criminal Procedure Act 1921, the Sentencing Act 2017 and the Youth Court Act 1993. South Australia was the first jurisdiction to introduce identity theft provisions back in 2003. Since that time, the world we live in has changed almost beyond recognition in terms of technological advancements and the role that the internet plays in all our lives. The first iPhone was announced by Apple in 2007 and the first Android smartphone in 2008. Online shopping is now a way of life and the use of smartphones and tablets in our everyday lives is ubiquitous.

Unfortunately, as technology has improved, the criminals have also taken advantage of it. We have all seen the recent large-scale cyber attacks where millions of Australians have had their data stolen and put up for sale on the dark web for the use of other criminals who then use it to commit identity theft and other crimes.

Amendments are needed to our criminal laws to ensure that the laws keep pace with society and enable our law enforcement agencies to effectively respond to identity theft crimes. This bill updates the provisions in part 5A of the Criminal Law Consolidation Act to make it easier to prosecute identity theft and increases penalties associated with the crime. Changes will also support victims by making it easier to quickly obtain verification from a court that they have been a victim of identity theft which will assist victims to restore their creditworthiness.

The bill inserts a new offence into the Criminal Law Consolidation Act for possessing or using another person's identification information without reasonable excuse. The new offence in section 144DA places the onus of proof on the defendant to show that they have a reasonable excuse for possessing another person's personal identification information (PII). This offence is a summary level offence carrying a maximum penalty of two years' imprisonment. The reverse onus nature of this offence aims to address the fact that identity theft offences are becoming increasingly prevalent, are generally committed remotely from the victim, leave little physical evidence and are far harder to track than other property theft offences.

Varying the burden of proof in this way recognises that the reasonable excuse for possessing another person's identity information relates to facts which, if they exist, are readily provable by the accused as matters within his or her own knowledge or to which they have ready access. The new offence is limited to the possession of the personal identification information of natural persons rather than bodies corporate. The new offence does not include the possession of public identification information. This is defined to include name, address or other contact details, date or place of birth, marital status and relatives. These details are readily available publicly and possession of them does not constitute an offence.

When the bill was considered by parliament in 2021, the Attorney-General—at the time Leader of the Opposition in the other place—supported amendments aimed at removing the reverse onus of proof provisions in this clause. Upon coming to government, I am advised that the Attorney-General consulted with the police commissioner on this question and whether the bill could be effective without the reverse onus. The commissioner's response noted his support for the inclusion of the reverse onus for this offence. He noted that it was not uncommon in legislation and is utilised in a number of offence settings, including the summary offences of unlawful possession and carrying an offensive weapon.

Given the feedback from the commissioner, the government has formed the view that this element of the bill should be maintained. However, an additional exemption has been added to the bill beyond what was included in the previous government's bill.

There are a number of exemptions to the reverse onus aspect of the offence, including for use in the ordinary course of a lawful occupation or activity, where the defendant is a close relative of the victim, where the defendant holds a power of attorney for the victim, where the defendant is a guardian or administrator for the victim, or where the PII consisted of a single set of PII that was readily publicly available. Where the defendant falls into one of the abovementioned categories, the onus is then on the prosecution to prove beyond reasonable doubt that the defendant had possession of the relevant material without reasonable excuse.

The existing identity theft offences are very narrow. Currently, sections 144B and 144C require the prosecution to prove that the assumption of a false identity or the misuse of personal identification information was done with the intent to commit a serious criminal offence. A serious criminal offence is defined in section 144A as an indictable offence or one prescribed by regulation. This requirement has meant the threshold for prosecution has been unreasonably high and failed to capture many modern identity theft schemes. For instance, card-not-present fraud, skimming, payWave and other high-volume and low-value offences are not usually captured.

It is proposed within the bill to remove the requirement for intent to commit a serious criminal offence and simply refer to 'a criminal offence.' With this amendment, police will be able to target a wider spectrum of offending. The bill also increases the penalty for the existing offence of producing or possessing prohibited material in section 144D from three years to five years' imprisonment to provide a greater deterrent for this type of offence.

Finally, the bill modifies the existing provisions regarding the issuing of identity theft certificates. An identity theft certificate is a document which can be provided by a court to verify that the victim is a victim of identity theft. Victims then use the certificate to provide to relevant authorities that their identity has been compromised.

Under the current framework, many victims are not able to obtain an identity theft certificate. Currently, section 125 of the Sentencing Act requires, first, the conviction of the offender, and, second, an application by the victim to the court that arrived at the finding of guilt for a certificate to be issued. This process presents difficulties for victims. Many perpetrators are never found or charged as it is common for them to be located outside Australia and, even if the perpetrator is found and charged, it can take years for prosecutions to be completed. There is also a low rate of successful prosecution.

In the meantime, victims can spend significant amounts of time and effort convincing government departments, agencies, utilities, and credit-reporting agencies that their identities have been compromised before it is possible for them to obtain credit or services. In cases where there is a prosecution, the long wait for a court outcome exacerbates the final detriment and emotional stress experienced by victims.

The bill inserts a new section 84 in the Criminal Procedure Act 1921, enabling the Magistrates Court or, in the case of minors, the Youth Court, to issue a certificate to a victim of identity theft where the court is satisfied on the balance of probabilities that they are the victim of identity theft. As the ability to obtain a certificate is no longer contingent on a conviction of the perpetrator, the certificate provision has been removed from the Sentencing Act to the Criminal Procedure Act. The bill also makes consequential amendments to the Youth Court Act to allow the Youth Court to also issue identity theft certificates where the victim is a minor.

Finally, I note that the former Liberal government's bill included further provisions which rolled back the current exclusion of persons under 18 from the identity theft provisions in the Criminal Law Consolidation Act. Labor in opposition opposed these provisions at the time and we have removed them from the bill I introduced today.

The reintroduced bill presents a timely and sensible modernisation of the criminal law of identity theft aimed at giving the police the tools that they need to successfully investigate and prosecute these offences. I commend the bill to the chamber and seek leave to insert the explanation of clauses in Hansard without my reading it.

Leave granted.

Explanation of Clauses

Part 1—Preliminary

1—Short title

2—Commencement

These clauses are formal.

Part 2—Amendment of Criminal Law Consolidation Act 1935

3—Amendment of section 144A—Interpretation

This clause inserts, amends and deletes definitions for the purposes of the measure.

4—Amendment of section 144B—False identity etc

This clause amends section 144B(3) so that it will be an offence to make a false pretence to which the section applies intending, by doing so, to commit, or facilitate the commission of, any criminal offence (where now the section refers to a serious criminal offence).

5—Amendment of section 144C—Misuse of personal identification information

This clause amends section 144C(1) so that it will be an offence to make use of another person's personal identification information intending, by doing so, to commit, or facilitate the commission of, any criminal offence (where now the section refers to a serious criminal offence).

6—Amendment of section 144D—Prohibited material

This clause increases the penalty for an offence against the section from 3 years to 5 years imprisonment.

7—Insertion of section 144DA

This clause inserts a new provision as follows:

144DA—Possession of personal identification information

This provision makes it an offence to have possession of personal identification information of another person without reasonable excuse. Subsection (2) specifies circumstances in which the offence will not apply and subsection (3) specifies circumstances in which the prosecution will be required to prove that the defendant had possession of the relevant material without reasonable excuse (rather than the burden of establishing reasonable excuse resting with the defendant as is normally the case pursuant to section 5B of the Criminal Law Consolidation Act 1935).

Part 3—Amendment of Criminal Procedure Act 1921

8—Insertion of Part 4 Division 6

This clause inserts a new Division as follows:

Division 6—Identity theft certificates

84—Certificate for identity theft victims

The Magistrates Court may, on application by a person, issue them with a certificate under the proposed provision if satisfied, on the balance of probabilities, that the person is an identity theft victim.

Part 4—Amendment of Sentencing Act 2017

9—Amendment of section 125—Certificate for identity theft victims

This is consequential to clause 8.

Part 5—Amendment of Youth Court Act 1993

10—Amendment of section 7—Jurisdiction

This amendment gives the Youth Court the same jurisdiction as the Magistrates Court to issue an identity theft certificate under Part 4 Division 6 of the Criminal Procedure Act 1921 if the applicant for the certificate is a child or youth.

Mr TEAGUE (Heysen) (17:48): I rise to indicate what is well known, that the opposition supports the bill. I am the lead speaker and, unsurprisingly, the opposition supports the bill as it is a Marshall Liberal government bill in most respects. It was introduced in the present parliament by the Attorney in another place not quite a year ago—in fact, a few months longer than a year ago, on 15 June 2023.

Other than it being a complete mystery as to why it has taken this long for the bill to be progressed in this place, I would just confine my remarks to making the further observation that, when the other place considered this bill in the last parliament back in 2021, the Labor opposition supported amendments that were aimed at removing some of the reverse onus of proof provisions. Since coming to government and having the benefit of receipt of advice from the commissioner that the reverse onus of proof is not all that uncommon in legislation of this kind, utilised in a number of offence settings, including summary offences of unlawful possession and carrying an offensive weapon, Labor in government has changed its position and now proposes those provisions—the benefits of advice in government.

With those short further contributions, I again thank the Attorney for bringing this bill back to the house of the current parliament and for the assistance of the Attorney's office and advisers in the course of navigating the progress of the debate. I commend the bill to the house.

The Hon. S.E. CLOSE (Port Adelaide—Deputy Premier, Minister for Industry, Innovation and Science, Minister for Climate, Environment and Water, Minister for Workforce and Population Strategy) (17:51): I commend the bill to the house.

Bill read a second time.

Third Reading

The Hon. S.E. CLOSE (Port Adelaide—Deputy Premier, Minister for Industry, Innovation and Science, Minister for Climate, Environment and Water, Minister for Workforce and Population Strategy) (17:51): I move:

That this bill be now read a third time.

Bill read a third time and passed.