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Legislative Council - Fifty-Fourth Parliament, Second Session (54-2)
2021-05-27 Daily Xml
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Statutes Amendment (Identity Theft) Bill

Second Reading

Adjourned debate on second reading.

(Continued from 6 May 2021.)

The Hon. C. BONAROS (16:42): I rise to speak on behalf of SA-Best on the Statutes Amendment (Identity Theft) Bill 2021. The bill, as we know, seeks to expand on the existing but narrow identity theft provisions introduced into various acts in 2003. It is extremely timely, because as we know the world has changed since 2003. To give you an idea of how much, 2003 was the year Apple iTunes first launched, along with the doomed Blu-ray disc. Search engine Google was in its infancy and was about to go public on the stock exchange. Facebook was not even live yet.

Our laws require ongoing updating, given the ever-changing face of identity theft and the many various risks associated with it. Until now, and I am hoping beyond now, I have not been the victim of the sort of identity theft that we have been talking about in this bill. I can only imagine the horror, and thereafter the administrative nightmare, of being such a victim. I have certainly spoken to people who are victims of this sort of identity theft, and the ramifications are daunting but also very wideranging, to say the least.

We know it is on the increase. We saw a prime example of identity theft just yesterday when four accused people appeared in the Adelaide Magistrates Court after police allegedly found them in possession of a large number of fake IDs they suspect were stolen or fraudulently obtained. The bill seeks to increase the penalty for producing or possessing prohibited material from three to five years, with deterrence as a driving factor. That is a very welcome measure. There is a big market and big money in assuming someone else's identity. A driver's licence is often referred to as the 'golden ticket', enabling offenders to take out credit cards, telephone accounts and leases, and incur a range of debts in someone else's name.

The Australian Institute of Criminology has estimated the direct and indirect costs of identity theft in Australia in 2018-19 alone were some $3.1 billion; that is a 17 per cent increase in three years. Unfortunately, it can be a very difficult crime to prove and it can also be a very difficult mess for individuals to get out of.

So by deleting the word 'serious' from section 144C of the Criminal Law Consolidation Act, it is intended that it will lower the bar and hopefully boost conviction rates. Currently, it must be proven that the defendant intended to commit a serious criminal offence, being an indictable offence, or an offence prescribed by regulation, with the information. The Attorney has described the current threshold as unreasonably high, and I, for one, agree with that description.

The bill also creates a new offence for possessing or using another person's ID information without reasonable excuse, with a maximum penalty of two years. It reverses the onus on the defendant to show reasonable cause for possessing that information. There are defences available, such as information a person can hold in the ordinary course of a lawful occupation or activity or if the defendant is a close relative of the victim, holds a power of attorney for the victim or is the guardian or administrator. In those circumstances the prosecution will then need to prove its case beyond reasonable doubt.

As if the consequences of identity theft are not devastating enough, it can also prove very difficult for a victim, as I said, to clear their name in the aftermath. Currently, the offender must be convicted for a crime to apply to the court for an identity theft certificate, and accessing a certificate is not easy given the low conviction rates. So it is a ripple effect, if indeed charges are proceeded with at all. The process can be drawn out over months or years, if it is indeed proceeded with, and in the meantime the impact of that identify theft on a person's credit rating can be crippling due to absolutely no fault of their own.

I think we have all heard in the media the sorts of stories we are referring to in relation to this bill. The amendment to the Criminal Procedure Act means a victim can now apply to the Magistrates Court for a certificate with no charges or convictions required and get to clear their name in a much more streamlined process. They must prove they are a victim on the balance of probabilities, which is a fair test considering offenders are often located overseas or in unidentified locations. A victim, if a minor, will similarly be able to apply to the Youth Court for a certificate.

Finally, I was triggered when I saw the word 'gambling' in this bill. While minors will continue to be exempt in cases where they use another's identity for the purchase of alcohol, the bill narrows the scope of exemptions to preclude minors who access online gambling products or R18+ publications, films or computer games.

Online gambling or accessing R18+ publications are considered a lot more serious. If this was a spectrum that we were considering, they are at the more serious end of the offending than, say, using a brother's, a cousin's or a mate's fake ID to buy alcohol or to get into a venue. Having said that, I do not by any means intend to diminish the seriousness of those acts as well.

Overall, I think these are very sensible reforms. They are very much needed reforms and improvements to identity theft laws. I understand the Law Society is supportive of the amendments, though a suggestion was made to expand the provisions to include what has become commonly known as deepfakes, and I know a thing or two about them given my own experience with Japanese anime and hentai.

I apparently feature in a few videos that include my face moving for the prohibition of childlike sex dolls in South Australia and also hentai, which is basically child exploitation material. People who love that material do not really like us for moving those laws, and there are some colourful videos indeed that would fall within the deepfake category. So I am sympathetic to this issue. It is not nice having your face plastered on one of these sorts of productions.

All that said, the laws relating to deepfakes might be better placed elsewhere. I think they fall within the category of defamation rather than identity theft. Nobody has actually tried to steal my identity by plastering my face onto a hentai picture and do anything other than humiliate me with it. So even though there is a place for those laws, I do not think this is it. I agree with the Attorney that we should be considering those separately. With those words, I indicate the support of SA-Best for this bill.

Debate adjourned on motion of Hon. J.E. Hanson.

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