Statutes Amendment (Identity Theft) Bill

Second Reading

Adjourned debate on second reading.

(Continued from 22 June 2021.)

The Hon. R.I. LUCAS (Treasurer) (17:11): I thank members for their contributions during the second reading stage. I would like to take this opportunity to make some comments in response to the second reading contributions of the shadow attorney-general and to correct misunderstanding of some aspects of the amendments.

The shadow attorney-general has proposed an amendment to clause 8 of the bill that would effectively undo the point of the proposed new section 144D(a) of the Criminal Law Consolidation Act 1935. That amendment will be opposed. I will explain why in more detail when we come to dealing with his proposed amendment to that clause.

I will, however, use this opportunity to answer some of the questions that the shadow attorney-general asked in relation to how proposed section 144D(a) would apply. The shadow attorney-general asked whether someone who was unaware that they had received personal identification information pertaining to another person would have a reasonable excuse. Contrary to what the honourable member suggested, this is not a strict liability offence. Knowledge is still required. If the surrounding circumstances support the person's contention that they were unaware they had the information, they would not have the requisite knowledge to commit the offence. They would, in any event, have a reasonable excuse.

In the case of someone who has been sent information and has not opened the file, it will depend on the circumstances. If there is evidence to show that they deliberately purchased stolen or fake identity information, the fact that they have not opened the file yet would not be a reasonable excuse. Alternatively, if the information was sent to them in error, they had no prior knowledge of it and they deleted or destroyed it upon discovering what it was, the offence will not be made out.

In terms of expired identification information, again it will depend on the facts and circumstances. If the expired information is nevertheless personal identification information of another person, it is likely to be covered by the proposed offence in section 144D(a). On the other hand, if the information is old and out of date or pertains to a person long deceased, it will not be covered. The police would obviously apply common sense in their approach to such issues on a case-by-case basis.

As to whether the other person's identity details need to be correct, this will very much depend on the circumstances of the case. If the false information was deliberately created and possessed by a person, that may well satisfy a court that the offence has been made out. If there is an error in the information but it still identifies a person, again that may be sufficient. If the error is so fundamental as to render the information useless, a court may not be satisfied that the offence has been made out.

For the most part, the identity information targeted by thieves, such as tax file, passport, driver's licence and Medicare numbers, does not contain incorrect information. The shadow attorney-general will also move an amendment that would remove clause 9 of the bill. This amendment will also be opposed and again I will explain in more detail why it will be opposed when we come to dealing with the clause.

Bill read a second time.

Committee Stage

In committee.

Clauses 1 to 3 passed.

Clause 4.

The Hon. K.J. MAHER: Clause 4 changes some of the definitions of what constitutes personal identification information. Can I ask the Treasurer, and this becomes important as we go further into the bill, what the definitions of information are, not just in relation to the changes to the definition of personal identification information but personal identification information as would be currently captured under the already existing section 144A of the Criminal Law Consolidation Act.

If certain things are captured as personal identification information then the increase in penalties, the change in the way offences can be charged and as it applies to minors, I think becomes important. This is one in particular where I would ask that the Treasurer be able to give an answer to the committee. I, for one, would not be comfortable with this being, 'We'll get back to you,' because it does influence how I think certainly myself and others in the chamber might look at further clauses.

Section 144A in part 5A, the identity theft part of the Criminal Law Consolidation Act, has a definition of personal identification information. Part A has eight separate subclauses for a natural person. Part B has three separate subclauses for a body corporate. Under the eight already in there for a natural person and the three already in there for a body corporate, as well as the extra three that are being proposed to be put in by amendment, does personal identification information include an IP address or a MAC address?

These are addresses which organisations like banks or social media platforms often use to identify people and to flag if they are logging in from an unexpected place or are sometimes used by law enforcement to track down people who are suspected of committing crimes online. In particular, I am wondering if, under the current section 144A, personal identification information, which in the case of a natural person is subclause (8): 'a series of numbers or letters (or a combination of both) intended for use as a means of personal identification'. Does an IP address and/or MAC address come under that definition?

The Hon. R.I. LUCAS: My advice is that it is hard to answer that question at this stage without the leader being more definitive about the extent to which the addresses he is talking about identifies individuals. If it identifies an individual person, then it is potentially covered, but the issue is whether it actually identifies an individual person as an individual, and that is really the basis of it. The leader will need to proffer his views as to whether or not an IP address does that.

The Hon. K.J. MAHER: With the greatest respect to the Treasurer, I do not think it is up to myself as shadow attorney-general to come up with an answer or to proffer my own views about it. It is a fundamental tenet of our criminal law that people who are subjected to the criminal law know the laws we are living by. I do not think it is up to a member of the opposition to decide whether this law applies in a particular set of circumstances. It is entirely reasonable that people whose behaviour we are seeking to regulate by the laws we make here have some certainty about what we are doing.

An internet protocol or IP address is used by a network to identify a device on the network. It is also used to identify a location on the internet. The title location usually changes every time you check into the internet. However, you usually have to pay a fee for a static IP address, if the owner of an account lives in Adelaide and uses the account in Adelaide for an IP-based address. In terms of a media access control address (or a MAC address), they are unique identifying numbers used by a network to identify unique network devices. It is important as we go through. We are significantly increasing criminal penalties—we are talking about criminal penalties of up to five years. It is reasonable that people have an understanding, particularly body corporates, of what behaviour, what information is captured by this.

The Hon. R.I. LUCAS: On the basis of that explanation the honourable member has indicated, if the IP address he says will identify a device, my advice is that that would not be covered because it has to identify an individual. The member would be aware that, if it identifies a device, anyone could be operating a particular device. On the explanation the member has just given, if it does not identify an individual but just identifies a device—the honourable member's device might be used by him on occasions, it might be used by a member of his family, it might be used by a friend or a colleague. The clarification he has now indicated is that, if that is not identifying an individual, then these provisions, I am advised, are not going to apply.

The Hon. K.J. MAHER: Again, to be clear, if a set of numbers or letters identifies an individual device, and that device is owned by a particular person, the Treasurer is saying—and this will be important for the courts to interpret this—that is not necessarily identifying the person, because of the extra link you have to make. If there is an extra link you have to make, it is not identifying a person?

The Hon. R.I. LUCAS: That is the advice I have received, and that is that a device could be used by a range of individuals. I can only repeat what I just said before; that is, if the Hon. Mr Maher has a device, he might be using it, but a member of his family might also be entitled to use it with his agreement. He might also agree that a member of his staff on occasions might be able to use his device if he is using that device in his office. That issue, as described by the Hon. Mr Maher, provides some greater clarity in relation to the issue.

The Hon. K.J. MAHER: Again, for the sake of clarity, for the sake of the police who will have to enforce this and for the courts that will decide on prosecutions, can the minister state clearly that internet protocol addresses and media access control addresses will not be considered personal identification information for the purposes of this act and these amendments?

The Hon. R.I. LUCAS: I can add nothing further. It is the same question the member has put to me. I cannot add any further information than what I have already conveyed, based on the advice that I have received.

Clause passed.

Clauses 5 to 7 passed.

Clause 8.

The Hon. K.J. MAHER: Before moving my amendment, I will ask some questions on the clause. Can I check with the Treasurer, just so the committee understands this correctly, in effect, what this amendment seeks to do is to make possession of personal identification information a criminal offence. So you do not have to be doing anything with it, you do not have to have an intention to commit any crime, but merely possessing it then becomes a criminal offence whether or not you are going to do anything nefarious with it.

The Hon. R.I. LUCAS: I can only refer the honourable member to the second reading reply which I gave. I outlined in some detail there that that blunt description of what the member thinks this clause provides is not an accurate description. On behalf of the Attorney-General, I outlined why the Attorney-General and the government believes that your understanding of this particular provision is inaccurate and I outlined the reasons on behalf of the Attorney-General as to why the Attorney-General and the government do not believe your interpretation is accurate.

The Hon. K.J. MAHER: Can I check, is it the Treasurer's contention that it is not the mere possession, you have to have some sort of intent to do wrongdoing with it; is that what the Treasurer is saying?

The Hon. R.I. LUCAS: What I am saying is what I have read on behalf of the Attorney-General in the reply to the second reading. When the member moves his amendment, I have a very long three-page explanation which will provide in graphic detail the reasons why the government believes the member's interpretation is incorrect. When he moves the amendment, I can place on the record and he can listen to the response from the government and the Attorney-General in relation to the amendment. That might assist some of these issues. He can then return to questions in relation to the issue.

The Hon. K.J. MAHER: I thank the Treasurer but this is a pretty fundamental threshold question. Under what the government is proposing, does someone have to have some sort of intent to use the information they have for any sort of wrongdoing?

The Hon. R.I. LUCAS: I am told the answer to that is, in short, yes, it is a reverse onus offence, not a strict liability offence. I am sure that makes sense to you.

The Hon. K.J. MAHER: I thank the Treasurer, but I am not sure it goes near to answering the question. Can the Treasurer point out whereabouts in clause 8 it says that you have to not just be in possession of it but be intending for some sort of wrongdoing? If the Treasurer can point me to anywhere in here that says that, I would be most grateful.

The Hon. R.I. LUCAS: I will now put on the government's response, which does include a response to that and indeed many other areas. Whilst he has not formally moved his amendment, the government is going to oppose the amendment, if and when it is moved, and for these reasons it will answer some of the questions the member is putting to me.

The amendment would remove the reverse evidentiary burden in the proposed new offence in section 144DA of possessing another person's personal identification information without reasonable excuse. It would mean that the prosecution would have to prove an absence of reasonable excuse beyond reasonable doubt.

There are, no doubt, many reasons why a person may be in possession of another person's identity information. For the most part, those reasons will be entirely proper and reasonable. However, in an increasing number of cases, criminals, or would-be criminals, are obtaining other people's identity information for nefarious purposes. Stolen identity materials can be used to open fake accounts, take out loans, purchase goods or services, or in some cases be traded as a commodity in their own right on the dark web to be used by others for criminal purposes.

For example, in the course of a recent drug bust in the western suburbs of Adelaide, police arrested four offenders allegedly in possession of approximately 119 identity cards, including credit and debit bank cards, Medicare cards and driver's licences. When a person has someone else's identity information, it is a matter particularly within their knowledge as to why they do so. The onus on them to provide a reasonable excuse will be easily displaced if they have one. It is not placing an unreasonable burden on them to ask them why they have the information and to expect them to provide an explanation.

The police will then exercise their discretion, as they currently do in thousands of other instances every day, in deciding whether the excuse is reasonable in the circumstances, whether further investigation is needed or whether the offence should be charged. Where a charge is laid, it will ultimately be a matter for a court to decide whether the offence has been made out. This is clearly an area where the law is struggling to keep up with criminals who are finding it much easier to engage in crimes that can be committed online utilising fake or stolen identity information.

Statistics show that, although the rates of property theft are dropping, the rate of fraud, deception and related offences is increasing. For example, SAPOL's crime statistics from May 2021 record a significant drop in total offences against property of 20 per cent, while there was a 9 per cent increase in fraud, deception and related offences. This has been mirrored around Australia and around the world.

South Australia was the first jurisdiction in Australia to introduce specific provisions in its criminal law regarding identity theft. Other jurisdictions subsequently enacted offences similar to ours. Although the other jurisdictions have not yet enacted a reverse onus offence such as this, as they grapple with this increasing problem in their own jurisdiction they may well follow our lead again.

The Commissioner of Police specifically asked for this provision to be included, noting that identity theft is often a precursor to more serious offending involving the use of credit cards, loans or other identification in the name of the victim. He noted that it can be difficult to prove the intent of a person in possession of another person's identity information, and that a reverse evidentiary burden would be beneficial in terms of enabling police to nip in the bud more serious offending involving stolen identity information.

If proposed section 144DA was amended as the honourable member proposes, it would effectively duplicate the existing section 144D insofar as that section already makes it an offence to possess prohibited material, namely, material that enables a person to assume a false identity or to claim ownership of another's funds, credit and so forth. It is not correct to describe proposed section 144DA as a strict liability offence. Rather, it is a reverse onus offence, where the onus is placed on a defendant to show a reasonable excuse on the balance of probabilities. That onus will be easily displaced if there is a legitimate reason.

There are a range of other offences in our criminal statues in similar terms. For example, section 33LA of the Controlled Substances Act 1984 provides that a person who, without reasonable excuse (proof of which lies on the person), has possession of any prescribed equipment is guilty of an offence. The two-year maximum penalty for a basic offence equates to the penalty proposed in section 144DA.

The regulations under the Controlled Substances Act prescribe equipment such as certain types of light bulbs, lighting equipment, air filters and so forth. Ordinary people who are in possession of such equipment may be called upon to explain why they need such equipment and, upon provision of a reasonable excuse or explanation, that would be the end of the matter.

The government bill proposes a reverse onus provision in section 144DA similar to these existing provisions. It places the onus for providing an explanation on the individual found with someone else's identity information. Where there is a good explanation, that will be the end of the matter. Those who will be caught by this provision are the criminals who purchase or steal other people's identity information for illicit purposes and who will not be able to provide a reasonable excuse for possessing it.

I encourage honourable members to oppose the amendment when it is moved by the shadow attorney-general and preserve the integrity of proposed section 144DA.

The Hon. K.J. MAHER: I thank the Treasurer. Once again, it has not addressed the question I asked, which I think the Treasurer thought it might address. I might ask very simply again: under the current act that the Treasurer referred to, for an offence of having personal identification information, it has to be made out that you are using it for a criminal purpose or to commit a serious criminal offence. These are the two different ways that the current legislation are characterised. Under what is being proposed here, does the prosecution in any way have to show that you have any criminal intent at all with the information that you have?

The Hon. R.I. LUCAS: Again, I refer to the answer that I provided in relation to the second reading reply. Contrary to what the honourable member suggests, this is not a strict liability offence; knowledge is still required.

The Hon. K.J. MAHER: I think the Treasurer is misunderstanding the question. I understand and accept that. That certainly was not necessarily in line with the briefing that we had, but I accept that. The Treasurer has explained that and it is useful, so that when these things come to be interpreted later on it is an offence that does not just require the act. It is mens rea; knowledge is required. But that is not my question, with respect, Treasurer. My question is: is there any requirement anywhere in this offence for someone to have an intention to do something with information with criminal purpose or criminal intent, or is it just the mere possession of it that gives rise to the offence?

The Hon. R.I. LUCAS: I am advised that the answer to that question is that it is the mere possession. You have to know that you have it and you do not have a reasonable excuse for it.

The Hon. K.J. MAHER: I thank the Treasurer. Fifteen minutes ago an answer like that could have got us to where we are now, but I thank him for it now. The Treasurer mentioned that other states do not have a mere possession offence as is being proposed here. I think he is right that other states around Australia require not just that you have something in your possession but that you intend to do something with it that is wrong and which our legislation already provides for. The Treasurer is right: there is not another jurisdiction in Australia that has mere possession of personal identity information as an offence. Is there any place else in world that criminalises, as the Treasurer has conceded, mere possession?

The Hon. R.I. LUCAS: I am advised that our research has not involved research around the world.

The Hon. K.J. MAHER: Can the Treasurer confirm that there is nowhere else in Australia that criminalises possession? Is that what he said earlier?

The Hon. R.I. LUCAS: My advice is that that is what the situation was when it was considered when this briefing was done a month or so ago.

The Hon. K.J. MAHER: I thank the Treasurer. Can the Treasurer confirm that, if someone was arrested and interviewed in relation to this potential new offence and they declined to answer questions, by declining to answer questions about why they had personal identification information would it be that they are not offering up a reasonable excuse and that declining to answer questions could find them convicted. Is that correct?

The Hon. R.I. LUCAS: I am advised that, clearly, if you do not answer the question you have not provided a reasonable excuse. In the end, this is a judgement call the police would have to make, as outlined in the reply I gave on behalf of the Attorney-General. There are other issues they have to address, but, on the surface of it, if the requirement is that you have to provide a reasonable excuse as to why you might have 119 separate ID cards sitting in your top drawer at home, or something, and you cannot provide a reasonable excuse for that and you refuse to answer questions, then it is probably indicative that the police might be inclined to think you are up to no good.

The Hon. K.J. MAHER: I think that is part of the problem here; I think the Treasurer has nailed it by saying 'it is probably the case that you might be'. This is not one where it being probably the case means you are not going to be convicted. You will be convicted in the example the Treasurer has given.

I note the Treasurer gave the example of 119 IDs. This does not say you need over 100, over 20 or even over two. Treasurer, could you potentially be convicted due to having one piece of personal identification information—to make out this offence?

The Hon. R.I. LUCAS: My advice is it is identity theft if you have stolen somebody's identity—one, two, whatever: 119, whatever. If you have stolen somebody else's identity, then you are potentially open to provisions of the legislation.

The Hon. K.J. MAHER: I think it is astonishing from the party that represents individual freedoms and restraint from the tyranny of government. Maybe it is that the Attorney-General, as apparently she often does, did not inform the party room of the exact nature and effect of this legislation.

As the Treasurer said, if you have one single piece of personal identification information—it may be a driver's licence number written down somewhere that you have taken for some reason—and you elect not to provide answers to the police, as is almost always your right when you are charged with a criminal offence, then potentially you can be charged and convicted, as the Treasurer has outlined, under this offence being proposed by the Liberal Party.

Can the Treasurer outline: can the person who is potentially being charged with having one single driver's licence written down on a piece of paper in their top drawer have to know who the information belongs to—that is, whose driver's licence the one single bit of information they have is?

The Hon. R.I. LUCAS: Sorry, can you repeat that question?

The Hon. K.J. MAHER: I was gathering that maybe the question would need to be repeated. That person who has one single piece of personal identification information—a driver's licence written down, for example, in their top drawer, and as the Treasurer had said it could be 119 in their top drawer, or it could be one—does that person who has that information and who is capable of being charged under this amendment need to know who the information belongs to, that is, whose driver's licence number that is? Alternatively, if it is just a random driver's licence number, are they capable of being charged under this offence?

The Hon. R.I. LUCAS: If you are a criminal, you do not need to know the person that you have stolen the identity card from. They do not have to prove that they knew the person or did not know the person. If you are a criminal and you are stealing identity information—credit cards or drivers' licences—you might not know who the person is when you stole the information. I know the honourable member is trying vainly to drum up support for his amendment, but you do not have to know the name of the person you have stolen the identity card from. It is just a question where, if you are a criminal, if you are stealing someone's identity and you have a capacity to be able to access credit cards or engage in a variety of other fraudulent activity, you can cause great harm to the individual even if you do not know them.

The Hon. K.J. MAHER: Again, I will rephrase the question to be abundantly clear for the Treasurer. I am not suggesting that the person who might be charged with the offence would have to actually know that person. If, however, they have got a driver's licence number, for example, do they have to know who that relates to—not that they know that person personally, but if you have one driver's licence number, you do not need to know the name of the person to whom that driver's licence in your top drawer relates?

The Hon. R.I. LUCAS: Again, if you are stealing identities, you do not have to know the name or who it identifies with or who it happens to be. If you have stolen it, you cannot actually explain a reasonable question as to why you have somebody else's driver's licence or credit card when it is clearly not yours. That is what these provisions are designed to try to have a closer look at. As I outlined in the response on behalf of the Attorney-General, the police commissioner has said that these are distressing crimes. They are growing, they are difficult to prosecute and the police commissioner has sought additional powers to which the government has agreed.

The CHAIR: We are getting fairly close to when the leader might move his amendment.

The Hon. K.J. MAHER: Just a couple more things. The government has chosen to put in clause 8 the concept of reasonable excuse in relation to having personal identification information. The Treasurer has outlined that if you have just one piece of information you can be charged, and if you elect not to answer at an interview that means that you are not proffering a reasonable excuse and can be charged. When the government chose to put reasonable excuse in this clause, what were some of the reasonable excuses the government had in their mind that might be able to be offered?

The Hon. R.I. LUCAS: I am constantly advised by my adviser that there is always a charging discretion on behalf of the police in relation to these issues. As I instanced, a similar provision was incorporated in the controlled substances legislation. I do not know but I think there is probably a good chance it might have been introduced by a government of your persuasion, given that we had been out of office for so long.

As I outlined in that particular explanation, with a common product where someone could give a reasonable excuse as to why they might want an air filter or a whole variety of other things, if they can give that reasonable excuse, the police do not proceed with charging. That is an existing provision in the legislation. But having got the answers, if there are 25 of them—or whatever the quantities are that are required for it to be illegal activity—the police, under the existing provisions of similar provisions in the controlled substances legislation, make a decision as to whether it is a reasonable excuse or not. It is impossible to quantify all the reasonable excuses that might be there.

I would imagine, for example, if I am somewhere and have my daughter's driver's licence sitting in my top drawer, and you ask me why I have it and I say my daughter has gone overseas and has left it with me, that is a reasonable excuse. I am not going to go through and quantify every potential reasonable excuse there might be—that is just impossible. I am told the similar provisions that the member is concerned about were incorporated by his government in 2011 in the Controlled Substances Act, so these provisions mirror provisions his party has already supported and endorsed in the Controlled Substances Act for precisely the same reasons.

The Hon. K.J. MAHER: I think this is the final area I want to traverse before moving the amendment. As I understand it, the offence is in relation to personal identification information. If a person has in their possession a mix of personal identification information and public identification information, if they have some elements in their position that are personal, can they be charged on all elements they have, including the public elements of that, or can they not be used as part of the charge or particularised in what they are being charged with?

The Hon. R.I. LUCAS: My advice is, if you are going to be charged, it is going to be stuff that is not public. It is a bit hard to contemplate how you could charge someone with having publicly available information. I am not sure what sort of circumstances the honourable member's fertile mind is turning to. If it is publicly available information, it is a bit hard to contemplate how someone would have offended by accessing publicly available information. This is designed for private information that is not meant to be shared publicly.

The Hon. K.J. MAHER: That is understood. If someone has in their possession both publicly available information, which is an amendment to the bill that I think was made at the suggestion of the Law Society to the government's original bill, and it is a combination of public and private—a spreadsheet that includes things that are largely private identification information but includes some public identification information—under what the government is proposing, could that be used as part of the evidence in a charge against this, those small elements of what is otherwise personal information being the public part?

The Hon. R.I. LUCAS: It is the same question that the member put to me 30 seconds ago and I cannot give him any different response to the one that I am advised I gave him to the similarly worded question 30 seconds ago.

The Hon. K.J. MAHER: Having got to that point, sir, I will move the amendment standing in my name:

Amendment No 1 [Maher–1]—

Page 4, lines 16 to 29 [clause 8, inserted section 144DA(3)]—Delete subsection (3) and substitute:

(3) Despite section 5B, in proceedings for an offence against subsection (1) the prosecution will be required to prove that the defendant had possession of the relevant material without reasonable excuse.

If I may speak to it briefly, the Treasurer has outlined objections to the amendment which I think has been helpful in the way that we have gone through this committee stage. I think the Treasurer characterised it correctly: we are seeking to not be as draconian as what is being proposed by this, as the Treasurer admits today. It took some time because I can understand his reluctance to actually spell it out to the committee. It took five or 10 minutes for the Treasurer to outline, yes, this is a mere possession offence.

You can have this information without any intention whatsoever to do anything wrong with it, to commit any criminal intent, any wrongdoing whatsoever. It is that strict liability, mere possession of having, as the Treasurer said, one piece of information potentially written down in your top drawer, one driver's licence detail with no intention to do anything wrong with it, but if you choose to exercise your right not to answer questions and not provide reasonable excuse, then you are committing an offence with a maximum penalty of two years in prison.

The Treasurer has further outlined that there is no other jurisdiction in Australia that criminalises the possession of one piece of identification, personal identification information, and we have had a look and we cannot find anywhere else in the world that does this. The Treasurer said that they are not aware of it—they may not have conducted as an exhaustive search, but they are not aware of any jurisdiction around the globe that does this either. On that basis, we cannot support the amendment in this form and I recommend the amendment that we have put in, a very slight amendment in its place, to the chamber.

The Hon. R.I. LUCAS: I will not prolong the debate but I just again highlight the fact that a provision of very similar nature was incorporated by the honourable member's government in the 2011 Controlled Substances Act, so that inoffensive equipment such as light bulbs, lighting equipment, air filters and the like—if someone possesses those and if they cannot give a reasonable excuse—if they give a reasonable excuse then they are okay as to why they have light bulbs, lighting equipment and air filters; if they cannot give a reasonable excuse then they can be prosecuted, if they cannot give a reasonable excuse that they are just using it for household purposes.

If they are using it for a whole variety of unlawful or illegal purposes there is a charging discretion for the police to lodge a charge. It is exactly the same principle the Labor government incorporated in 2011 into the controlled substances legislation. The honourable member was not railing against that particular piece of legislation. The same principles are being used here to try to protect people who, frankly, are having their personal identity stolen, causing great distress to them and great financial loss. The police commissioner is saying that we are struggling to keep up with trying to prosecute these people. This is a genuine endeavour to try to prosecute.

The Hon. R.A. SIMMS: The Greens do not want to get involved in a law and order bidding war between the two major parties. I will let the Hon. Mr Lucas and the Hon. Kyam Maher duke that one out. However, we will be supporting the amendment moved by the Labor Party.

I am very concerned to hear about this potential for South Australia to be used as some kind of test lab for an approach to the law that has not happened in our own country or, indeed, anywhere around the world. South Australia should not be used as a guinea pig to pilot some new approach to this matter where we see a reverse onus offence being implemented with respect to identity theft. I think the Hon. Kyam Maher has identified some issues through his questioning that need to be taken into consideration. I do not find the government's response to be satisfactory in that regard and so we will be supporting the Labor Party's amendment.

Ayes 12

Noes 7

Majority 5

Clause 9.

The Hon. K.J. MAHER: I oppose this clause. I will ask a question of the Treasurer, which is an important one to start with. The Treasurer outlined, for the last clause that we debated, the genesis of why we were debating that, namely, that it was something that was requested by the police commissioner. Can the Treasurer outline whether the clause we are currently debating, clause 9, was a request of the police or the police commissioner, or was it something that came from the Attorney-General or her office rather than the police commissioner?

The Hon. R.I. LUCAS: My advice is that this was not originally suggested by the police, although it has been supported by the police.

The Hon. K.J. MAHER: I thank the Treasurer. From where was this developed? If the other elements of the bill we have talked about were at the request of the police, at whose request was this?

The Hon. R.I. LUCAS: The legislation was the responsibility of the Attorney-General and officers who advise the Attorney-General. The government does not only bring forward legislative reforms suggested by the police commissioner. We have an Attorney-General, who is the senior law officer in the state. We have senior legal people who advise her. So it did not come through the police route but came through the legal and Attorney-General route, and that is entirely proper.

The Hon. K.J. MAHER: I think it is telling that this was not a suggestion of the police, because in effect this criminalises children for behaviour that was not previously a criminal offence. We have seen this before with things that have been the genesis of the Attorney-General's mind, when early on in this term of parliament there was the massive and draconian increase in penalties for possession of cannabis where the Attorney-General proposed, rather than the possibility of an expiation fee—and I cannot remember whether it was two, three or five years that the Attorney-General was proposing under that legislation a couple of years ago—that kids making a dumb mistake of possessing cannabis could potentially be thrown into jail for a number of years.

This chamber, except for the government, rejected that. It was draconian. I have to say the public support on talk-back radio and other mediums after that was against the government. It was a bridge too far and out of line with community expectations. This proposal to criminalise dumb mistakes of kids I think falls into that category again.

For someone using their older brother or sister's ID to gain access to an R18 computer game or publication—the Treasurer will correct me if I am wrong—the penalties are increasing under these amendments from three to five years potentially. To put a kid in gaol for a dumb mistake, as it was last time when it was the Attorney-General's great idea—as the Treasurer said, this did not come through the police like the other parts of the bill. This was the Attorney-General's brainchild, her great idea to potentially throw children in gaol by criminalising something that a young person should not be doing. But to suggest that using an older sibling's identification to try to buy a computer game is now worthy of gaol time I think is a bridge way too far.

The Hon. R.I. LUCAS: Let me just respond to that. I will read the full explanation as to why the government supports clause 9 and opposes the opposition's position, in response to that suggestion from the Leader of the Opposition. The discussions with senior police suggested a youth with no prior offending who accessed online gambling or R18+ products with a fake ID would most likely be dealt with under the minor offence provisions of the Young Offenders Act and receive an informal caution.

Police anticipate the bill will assist them in nipping in the bud bad behaviour before the youth escalates to more serious crime. Removing this clause from the bill, as proposed by the opposition, will eliminate the ability for police to address youth offending for identity theft. So the notion that a young person is going to be thrown in gaol, as suggested by the Leader of the Opposition, is disputed by police.

In terms of why the government will oppose the opposition's position, which is to oppose the clause, is as follows: the amendment would remove the proposed changes to the existing section 144F of the Criminal Law Consolidation Act. The act currently provides, in effect, that the other identity theft provisions in part 5A of the Criminal Law Consolidation Act do not apply to a misrepresentation by a minor for the purpose of obtaining alcohol, tobacco or any other product or service not lawfully available to a person under the age of 18.

Since these provisions were enacted in 2003—so nearly 18 years ago—many things that were only available if you physically attended at a place to purchase them are now available online. This includes online gambling services and video games, films and other publications that have been classified as only suitable for persons over the age of 18 due to their extreme violence content or explicit sexual content.

The intent of the amendment to section 144F is to roll back the breadth of the exemption in relation to products or services accessed by minors using another person's identity information. It would mean that minors who utilised another person's identity information to access online gambling products or R18+ games, films or publications, would not be totally excluded from the operation of these provisions.

There were a number of suggestions made by the shadow attorney-general during his second reading speech that I wish to correct. Young offenders are dealt with as minors, not as adults, in accordance with the Young Offenders Act 1993. I will speak briefly regarding the operation of the Young Offenders Act to assist members. The Young Offenders Act applies to young people aged 10 to 17 who transgress the criminal law.

The act sets out a special regime for young offenders and is designed to allow the police and Youth Court significant discretion in dealing with different types of offending and to take into account the youth's situation. The emphasis is against detention wherever possible, and only for the most serious or repeat offending. Under the act, a youth cannot be sentenced to detention for a period longer than three years' detention for any crime unless they are tried as an adult.

Specifically, in relation to the bill, discussions with senior police suggest a youth with no prior offending who accessed online gambling or R18+ products with a fake ID would be most likely to be dealt with under the minor offence provisions of the Young Offenders Act and receive an informal caution. Of course, the action taken by police will completely depend on the circumstances of the case. Repeat offending, or offending coupled with other very serious offences, may result in a formal caution, a family conference or be brought before a Youth Court magistrate or judge.

The bill's proposed changes to section 144F of the Criminal Law Consolidation Act enable police and, if necessary, courts, to use their discretion to identify an identity theft issue at an early stage and in an age appropriate way. Police anticipate the bill will assist them in nipping in the bud bad behaviour before the youth escalates to more serious crime.

Removing this clause from the bill, as proposed by the opposition, will eliminate the ability for police to address youth offending for identity theft. The Attorney hopes this further explanation will assist members and more clearly explains the reasons for an intent behind the bill. The Attorney encourages people to oppose the amendment being moved by the Leader of the Opposition.

The Hon. K.J. MAHER: I might just run through that quickly. I have six or seven pages of questions to go through, in what others might find excruciating detail, in relation to tobacco, liquor, licensed premises, computer games, exhibition of films, film sales, publications, online gaming, betting and in-person gaming and how they apply and how that works, because I am not sure the government has thought that out. But I do not think I will do that.

The explanation we have been given was very similar to one to a couple of years ago, where we were assured, 'Yes, we are putting in the potential for long times in detention or gaol for children, but don’t worry about it; the police probably won’t charge most kids with these sorts of offences and, even if they do, they won't be thrown into detention for more than three years, unless they’re tried as an adult.' That gives absolutely no comfort whatsoever about criminalising this behaviour.

Rather than go through another hour-and-a-half of questions, I am going to not move an amendment but take the action of opposing this clause entirely. Having a kid face three years in detention for a stupid mistake I think is completely unreasonable and completely out of step with what the community expects. As the Treasurer said, this is a creation of the Attorney’s doing, not the police’s doing, and I think it is overreach in the extreme.

The Hon. R.A. SIMMS: I rise to indicate that the Greens will also be opposing this provision. I thank the Hon. Kyam Maher for exposing this. We share the concerns that have been expressed by the Labor Party and others in this place in relation to the impact that this provision could potentially have. I do not think that it is acceptable to simply say, as the honourable Treasurer has, 'Well, these are the provisions in place, but police say they’re not likely to use them.' There are lots of examples in our criminal justice system where the police certainly use the provisions that are available to them to their full extent. I do not agree with the idea of giving them, in effect, a blank cheque with respect to how this kind of conduct is dealt with.

It is worth pointing out that whilst of course the Greens do not want to see people who are under-age accessing R18+ films or R18 video games, I am sure that that conduct is commonplace in the community. It would not be unusual to think of a situation where a young person might try to access those videos or games online, using a credit card of dad or an older sibling, or whatever.

The idea that the way that conduct is managed is through such serious criminal sanction is, I think, very alarming. I think that is something that would alarm many people in our community who share the concerns of the government around not wanting to see young people accessing this material. We know that that is not the way to manage this sort of behaviour. Rather than nipping this in the bud, as the government contends, what we know is that when you criminalise behaviour of young people in this way you actually set them on a path where they continue to interact with the criminal justice system, and young offenders can grow up to become adult offenders.

Our focus here in this place should be doing everything we can to prevent young people from falling into our justice system. I am concerned that what the government is proposing is draconian and out of step with community values, and so the Greens will not be supporting it.

The Hon. F. PANGALLO: We will be supporting the opposition on this one. Again, I would echo the words of the Hon. Kyam Maher and also the Hon. Robert Simms. I distinctly remember the debate we had—I think it may have been last year—about the draconian aspects of making children liable to such severe penalties. I do not think that is the type of society we want, particularly if kids have made a simple error.

Many of us have known, and I know, of instances where kids have been silly enough to take an adult’s credit card, or whatever, to go to order an item. It may not necessarily have been an item that was banned, but they do that and they do it innocently, and then the consequences here would be far more severe. Also, I am just not convinced by what the government says, that they may get a warning or may get off with just a slap on the wrist. I am not convinced by that at all, so we will be opposing it.

The Hon. J.A. DARLEY: I believe this provision is extreme, and I will be opposing it.

The Hon. R.I. LUCAS: The government is disappointed to hear that and will be dividing on this particular provision. The notion that the majority of members in this chamber are, in essence, not allowing law enforcement to crack down on young people accessing sexually explicit R18+ material, which the government has made it quite clear that this is designed to try to crack down on, and the fact that a majority of members in this chamber are going to oppose a provision which the police are supporting to crack down on young people accessing sexually explicit R18+ video and gaming material, is abhorrent to the government. It is the reason the government has introduced this particular provision or one of the reasons why the government has introduced the provisions in the bill.

Whilst we acknowledge that the opposition and the crossbenchers are all united to oppose the government's intentions in this, this is an issue that the government is prepared to fight for, and we will divide on this particular amendment and take the battle up in the court of public opinion.

The Hon. T.A. FRANKS: I ask the government, given their statement to this place: is it their proposal that a young person buying a copy or reading a copy of American Psycho should be somehow criminalised?

The Hon. R.I. LUCAS: I have already outlined what the government has indicated. Contrary to what the Hon. Mr Simms indicated—he was suggesting the government had said, 'Well, we're not going to use these provisions'—the provisions are outlined and the potential use of them is outlined in the response I gave on behalf of the Attorney-General. These will be issues that police will have to make judgement calls about and, as they say—I will repeat it again here: discussion suggests that youth with no prior offending who have accessed online gambling or R18+ products with a fake ID would be most likely dealt with under the minor offence provisions of the Young Offenders Act and receive an informal caution.

So it is not that the provisions are not going to be used. It will be utilised in that particular way. So I do not think it was fair of Hon. Mr Simms to characterise my responses as saying that the government was saying, 'Here's a new proposal, and we're not going to use it.' It is going to be used, but it will be utilised in a certain way is the police's response.

I understand the position the opposition and the crossbenchers are adopting. It is just not one that the Attorney-General and the government agrees with. As I said, the notion that young people might not be open to the use of this scheme to try to prevent them or discourage them from accessing sexually explicit R18+ material which adults have access to is something that we do not believe should be supported, and we are surprised that a majority of members in this chamber would be supporting a provision along those lines.

The Hon. T.A. FRANKS: Just following up on my question, I note in terms of the ratings of popular movies at the moment, The Suicide Squad, produced in 2021, is on Amazon Prime rated as R18+. I have taken my daughter to see this twice in the last month. Should she access the same movie via Amazon Prime that we went to Hoyts to watch, will she be criminalised?

The Hon. R.I. LUCAS: The honourable member does not understand the provisions of the bill. It is the theft of identity that is potentially criminalised or is an offence—

The Hon. T.A. Franks interjecting:

The Hon. R.I. LUCAS: I understand completely the question. I am just saying the honourable member does not understand the provision of the bill. It is a question of whether or not someone steals someone else's identity to access products or services, and in this case we are talking about stealing someone else's identity and accessing sexually explicit R18+ material.

Now, I am not going to enter into the debate about what any adult takes their child to in terms of particular movies or whatever it is. That is a decision for the adults and the families. All I am seeking to do is explain the rationale behind the government's amendment and the Attorney-General's explanation for the reasons why the amendment ought to have been supported.

The Hon. T.A. FRANKS: This is the last instalment on this particular line of questioning. I would like to clarify that perhaps the honourable minister does not understand teenagers and their ability to access your credit card to download a movie. If it is on Amazon Prime, with perhaps an American 18+ rating rather than an Australian one—because you can legally take a teenager to see this movie at Hoyts right now but online it has a different rating—should that teenager take a credit card, as they do, to stream some movies, as they do, they will in fact be committing a criminal offence according to the desire of this Marshall Liberal government.

The Hon. R.I. LUCAS: I acknowledge the numbers; we might as well get on with the vote. All I can say to the Hon. Ms Franks is I have actually had four teenage children, slightly more than she has.

The Hon. K.J. MAHER: I think it is important to point out that this is eerily similar to the possession of cannabis debate we had when the Attorney-General came out with draconian laws to punish children, out of her own mind. Under the Classification (Publications, Films and Computer Games) Act there are already fines, expiation notices, of $750 for things like computer games and films, so it is not like these are being introduced now because there is nothing there to do it at the moment—there is. Just as with the cannabis debate, it is the Attorney who wants to have the threat of gaol time that is the difference here, as it was before.

Ayes 7

Noes 12

Majority 5

Remaining clauses (10 to12) and title passed.

Bill reported with amendment.

Third Reading

The Hon. R.I. LUCAS (Treasurer) (18:26): I move:

That this bill be now read a third time.

Bill read a third time and passed.

At 18:27 the council adjourned until Wednesday 25 August 2021 at 14:15.