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Legislative Council - Fifty-Fourth Parliament, Second Session (54-2)
2021-05-06 Daily Xml
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Bills

Statutes Amendment (Identity Theft) Bill

Introduction and First Reading

The Hon. R.I. LUCAS (Treasurer) (15:27): Obtained leave and introduced a bill for an act to amend the Criminal Law Consolidation Act 1935, the Criminal Procedure Act 1921, the Sentencing Act 2017 and the Youth Court Act 1993. Read a first time.

Second Reading

The Hon. R.I. LUCAS (Treasurer) (15:28): I move:

That this bill be now read a second time.

I am pleased to introduce the Statutes Amendment (Identity Theft) Bill 2021. 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. However, in the 18 years since then, criminals and technology have evolved significantly. Change is required to update our laws to make sure they are fit for this new reality.

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 of 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 reasonable cause for possessing another person's identification information. 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.

There are a number of defences for the possession of another person's personal identity 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, or

where the defendant is a guardian or administrator for the victim.

Where a defence of reasonable excuse is raised, 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 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. It is proposed in 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 penalty for the existing offence of producing or possessing prohibited material in section 144D is also increasing from three years to five years to provide a greater deterrent for this type of offence.

Section 144F of the Criminal Law Consolidation Act currently contains a broad exemption for misrepresentations by persons under the age of 18 for the purposes of obtaining alcohol, tobacco, 'or any other product or service'. The breadth of the underage exemption for 'any other product or service' is narrowed by the bill. Minors who access online gambling products or services or R18+ publications, films or computer games will no longer be exempt from identity fraud.

Minors will, of course, 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.

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 this certificate to prove 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 secondly, that the victim apply 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 and, 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 a significant amount 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 financial 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 moved from the Sentencing Act to the Criminal Procedure Act.

Keeping our laws current and relevant is one of the Marshall Liberal government's key justice priorities. This bill will ensure that our laws capture modern-day methods of perpetrating identity theft crimes and, most importantly, provide greater protections to the victims. I commend the bill to members and I seek leave to insert the detailed explanation of clauses in Hansard without my reading it.

Leave granted.

Explanation of Clauses

Part 1—Preliminary

1—Short title

2—Commencement

3—Amendment provisions

These clauses are formal.

Part 2—Amendment of Criminal Law Consolidation Act 1935

4—Amendment of section 144A—Interpretation

This clause makes consequential changes to the definitions in Part 5A of the Act.

5—Amendment of section 144B—False identity etc

This clause gets rid of references to 'serious' criminal offences so the offence in section 144B will apply in relation to an intention to commit, or facilitate the commission of, any criminal offence.

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

This clause gets rid of references to 'serious' criminal offences so the offence in section 144C will apply in relation to an intention to commit, or facilitate the commission of, any criminal offence.

7—Amendment of section 144D—Prohibited material

This clause increases the penalties from 3 years imprisonment to 5 years imprisonment.

8—Insertion of section 144DA

This clause inserts a new summary offence of possession, without reasonable excuse, of personal identification information.

9—Amendment of section 144F—Application of Part

This clause applies Part 5A to misrepresentation by a minor for the purpose of obtaining access to on-line gambling products or services and publications, films or computer games, where they are not lawfully allowed to be made available or supplied to persons under the age of 18.

Part 3—Amendment of Criminal Procedure Act 1921

10—Insertion of Part 4 Division 6

This clause inserts a new Division allowing the Magistrates Court to issue a person with a certificate if satisfied, on the balance of probabilities, that the person is an identity theft victim.

Part 4—Amendment of Sentencing Act 2017

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

This clause makes a consequential amendment to section 125 to recognise the new identity theft certificate procedure.

Part 5—Amendment of Youth Court Act 1993

12—Amendment of section 7—Jurisdiction

This clause allows the Youth Court to exercise the same jurisdiction as the Magistrates Court to issue an identity theft certificate to an applicant who is a child or youth.

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

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