Legislative Council: Tuesday, February 06, 2024


Statutes Amendment (Identity Theft) Bill

Second Reading

Adjourned debate on second reading.

(Continued from 15 June 2023.)

The Hon. J.M.A. LENSINK (16:37): I rise to indicate support for this piece of legislation, which has been in and around the parliament for a few years now. The bill in an almost identical form was introduced by the former Marshall Liberal government in May 2021. It passed the Legislative Council with an amendment and was received in the House of Assembly but lapsed at the end of the session.

This bill amends the Criminal Law Consolidation Act, Criminal Procedure Act, Sentencing Act and Youth Court Act. It does that with the purpose of ensuring that laws capture modern-day methods of perpetrating identity theft crimes and to provide greater protection to victims. This bill updates current identity theft provisions in line with technology and criminal behaviour, which has changed significantly since the original laws passed in 2003; that is, the reverse onus of proof and removal of intent to commit a serious criminal offence tends to make identity theft, often done remotely with little physical evidence and harder to track than other theft, easier to prosecute.

Currently, identity theft offences require the prosecution to prove that the assumption of a false identity or the misuse of personal identification information was done with intent to commit a serious criminal offence. This requirement has meant that the threshold for prosecution has been high and has failed to capture many modern identify theft schemes. This bill removes the serious threshold, with the objective that the police will be able to target a wider spectrum of offending. The bill also creates a new offence of natural persons possessing or using another person's identification information without reasonable excuse. This is a summary offence with a maximum penalty of two years' imprisonment.

Amendments regarding the identity theft certificate will enable victims to more easily obtain verification from a court that they have been a victim of identity theft to assist them in restoring their creditworthiness. Currently, many perpetrators are never found or charged, and if the perpetrator is found or charged it can take years for prosecutions to reach a conclusion.

The current framework requires both a conviction of an identity theft offender and that the victim apply to the convicting court to obtain an identity theft certificate. As a result, many victims have been unable to obtain an identity theft certificate, which means they continue to remain in financial detriment and emotional distress. Amendments enable the Magistrates Court or Youth Court to issue a certificate of identity theft where the court is satisfied, on the balance of probabilities, that a person is the victim of identity theft and no longer requires the conviction of a perpetrator.

When the council considered this bill in 2021, the Labor opposition supported amendments aimed at removing some of the reverse onus of proof provisions. Since coming to government and receiving advice from the commissioner that the reverse onus of proof is not uncommon in legislation and is utilised in a number of offence settings, Labor has changed its position and now proposes those provisions.

An additional exemption has been added to the bill beyond what was previously included, in that it does not contain an amendment to the 2021 bill providing a definition for an online gambling product or service. It includes additional exemption categories if the personal information related to only one person and was readily publicly available.

It removes an amendment from the 2021 bill which specifies that this legislation does apply to young people under the age of 18 who misrepresent their age to access an online gambling or 18+ publication, film or computer game. Minors can be dealt with in accordance with the Young Offenders Act 1993, which allows police to deal with this type of offending by giving informal or formal cautions, requiring a family conference, and imposing other sanctions for serious offences. With those comments, I indicate support for this bill.

The Hon. S.L. GAME (16:41): This bill has the purpose of obtaining provisions in the Criminal Law Consolidation Act 1935 to make it easier to prosecute perpetrators of identity theft and increase penalties in relation to the crime. It changes the law to better support victims by making it easier to acquire verification from a court that a person has been the victim of identity theft. This will support victims who may need to restore their credit record.

Section 3 of the current bill updates definitions in the Criminal Law Consolidation Act 1935 to reflect modern terminology, particularly around debit and credit card information. Sections 4 and 5 of the current bill respectively amend sections 144B and 144C of the act. These sections of the act establish criminal offences for acts where a person has used either a false identity or misused the personal information of another person to commit a serious criminal offence. The current bill deletes 'serious' from these sections, meaning that these offences will be in relation to any criminal offence, not just serious ones. The current bill also increases the maximum penalties for both offences from three years to five years' imprisonment.

Section144D of the act establishes an offence for producing or possessing prohibited material with the intent to use that material to commit a criminal offence. Section 6 of the current bill increases the maximum penalty again from three years to five years' imprisonment for this offence. This section of the current bill also establishes a new section 144DA of the act. This new section prescribes a new offence of possessing another person's personal identification information without reasonable excuse. A person charged with this offence would bear the onus of proving that they had a reasonable excuse for possessing the material. There are a number of exemptions to this set out in the current bill. These exemptions include:

(a) that the possession forms part of the person's ordinary course of lawful occupation;

(b) that the defendant and the victim are close relatives;

(c) that the defendant is either the victim's guardian or administrator or that they hold a power of attorney for the victim; and

(d) that the personal identification information related to only one person and the information was readily publicly available.

Section 8 of the current bill inserts a new provision into the Criminal Procedure Act 1921 and this provision grants the Magistrates Court the authority, on application by a person, to issue a certificate if the court is satisfied on the balance of probabilities that the person is a victim of identity theft. The detail included on the certificate is at the discretion of the court but will include the details of how the victim's personal identification information was used to commit an offence, regardless of whether any person has been charged with or found guilty of a related offence.

This bill is a timely and practical modernisation of the criminal law as it relates to identity theft. It will give SAPOL the tools they need to effectively investigate and prosecute these offences and I am pleased to support the bill.

The Hon. R.A. SIMMS (16:44): I rise to speak on the Statutes Amendment (Identity Theft) Bill and indicate that the Greens will also be supporting the bill, but we will be moving an amendment. This bill previously passed this place back in 2021, but lapsed in the other place when parliament was prorogued for the 2022 state election. At that time, the Greens supported the passage of the bill with two amendments that were moved by then Leader of the Opposition the Hon. Kyam Maher. At that time, we were supportive of the broad intentions of the bill and recognised that it deals with the increasingly complex issues of identity theft.

Since the bill was first introduced, we have seen hacking increase across Australia and there have been a number of high-profile cases, such as the 2022 Optus data breach, which affected over nine million people nationwide. In December 2021, a data breach of the identity information of 80,000 public sector workers in South Australia was leaked in a major cyber attack. We know that identity theft is a serious issue that can ruin lives and for that reason we are, again, supportive of this legislative reform.

When this matter was introduced into the previous parliament, we agreed with the then Leader of the Opposition in this place about the potential implications that flowed from the inclusion of people under the age of 18. At that time, the Greens joined with the opposition in voicing our concerns that that bill had the potential to criminalise young people. I do want to recognise that the Labor government have remove that part of the bill and we certainly welcome that.

We are concerned, however, that clause 7 of the bill remains. In highlighting my concerns, I want to read from the now Attorney-General's (at that time Leader of the Opposition in this place) second reading speech because he quite clearly articulated some of the concerns with that clause. During the debate, back in 2021, the then Leader of the Opposition moved an amendment to the clause that would have changed the onus of proof. In his second reading speech he stated, and I quote:

I note that the reverse onus of proof does not apply, according to this bill, in situations where the defendant is in the ordinary course of a lawful occupation or activity, or the defendant has personal information generally of people or a class of people.

It…does not apply if the defendant and the victim are close relatives, which is limited to spouse or domestic partner, grandparent, grandchild, parent, child or sibling. It is a total defence to the new offence if all of the personal identification information is public information. Public information is defined in the bill as the person's name, address or other contact details, date or place of birth, marital status and relatives.

What this could potentially mean is that if a person has a list of names and contact details for some people but somehow a piece of personal identification information outside of that 'public' definition—for example, according to the bill, I think a signature could fall into that category—they would then have to prove that they have a reasonable excuse for having that information. [That] is, we think, possibly a very weak [explanation] and one that seems to have been added—it is unclear, but I am sure the government, in their second reading summing up, will provide some clarity [around this]…

This is what the Hon. Kyam Maher said. He continues:

In terms of creating an offence for the possession of personal identification information, we are having trouble locating other Australian jurisdictions, or indeed any other similar jurisdiction from another country, that [has] a similar offence that does not also have a requirement of the intent or equivalent to commit an offence.

I shared the concerns of the Hon. Kyam Maher at that time and, indeed, the then Attorney-General, Vickie Chapman, did argue quite strongly for the Greens to oppose those Labor amendments but we did not, we voted with the Labor opposition to support those amendments. It is disappointing that now that the Labor Party are in government they have chosen to turn away from what was quite a sensible approach, in our view. It is for that reason the Greens have taken up the Labor amendments and I have advanced them under my name.

In 2021, the Greens supported that amendment to change the onus of proof to ensure the prosecution is responsible for proving that the defendant had possession of the relevant material without reasonable excuse. It is a fundamental principle of our legal system that it is on the prosecution to prove the case against a defendant. This is a very important legal principle and one that is being undermined by this bill.

The SA Bar Association and the Law Society have stated their concerns about the onus of proof being reversed in this way. I will quote from the Bar Association's letter to the Attorney-General, where they state:

[The South Australian Bar Association] expresses its concern that the reverse onus aspect of the proposed offence will have unintended consequences.

Part 5A of the Criminal Law Consolidation Act of 1935 already contains offences where a person has possession of personal identification information for a criminal purpose. Whilst it is understandable that Parliament wishes to make it easier to prosecute identity theft and thus remove the requirement to establish 'a criminal purpose' the onus should, with respect, be on prosecution authorities to establish an absence of reasonable excuse.

Of course the Greens agree with that. When previously debating this bill, I was persuaded by the passionate advocacy of the Hon. Kyam Maher in relation to that matter, and our position has not changed despite the about-face of the Attorney-General on this matter.

As we have said, we are supportive of this reform in that it does protect people's data, but in doing so we should not trash a centuries-old legal tradition. It is for that reason that the Greens will be moving the Labor amendment, circa 2021, in our name.

Debate adjourned on motion of Hon. I.K. Hunter.

At 16:52 the council adjourned until Wednesday 7 February 2024 at 14:15.