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Legislative Council - Fifty-Fourth Parliament, Second Session (54-2)
2021-06-22 Daily Xml
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Bills

Statutes Amendment (Identity Theft) Bill

Second Reading

Adjourned debate on second reading.

(Continued from 27 May 2021.)

The Hon. K.J. MAHER (Leader of the Opposition) (15:27): I rise to speak on the Statutes Amendment (Identity Theft) Bill 2021. I indicate that Labor will support this bill at the second reading, but will be moving an amendment which has now been filed and reserves its right in relation to the third reading of this bill, seeking assurances from the government about the operation of the bill before making a final decision as the opposition whether or not to support the bill.

The opposition was briefed on this bill, but there were many questions that went unanswered or were answered unsatisfactorily, and further communications have not made clear some of our significant concerns about this bill. Identity theft is a significant problem and can cause very real harm and hardship for victims. The nature of identity theft is constantly evolving and has been for some decades now.

When identity theft was added to the Criminal Law Consolidation Act in 2003, the methods of identity theft and the technology used were vastly different to what exists now. At that time, in 2003, the launch of the original iPhone was still four years away and Australia had just had its first ever video call on a Nokia 1100. That was the most popular phone in Australia. So it is fair to say that the offences probably need some modernisation. Unfortunately, the bill that is before us has made some rather draconian changes involving minors, in terms of misrepresenting their age, as well as some extremely wideranging possession offences.

This bill essentially has five parts. The first part is a reduction lowering the bar of offences for false identity under section 144B of the Criminal Law Consolidation Act and the misuse of personal identification information from intending to commit or facilitate serious criminal offences. The second part is increasing the maximum penalties around possession or production of prohibited material from three to five years.

The third part is where concerns really start. In that third part, clause 8 creates a strict liability offence with a reverse onus of proof of possession of personal identification information. In short, what this means is that anyone who has the personal identification information of another person needs to have a reasonable excuse for having that information or may be guilty of a criminal offence. 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 also 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. This is, we think, possibly a very weak protection 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—in response to concerns that were raised by the Law Society about this bill and its use.

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 have a similar offence that does not also have a requirement of the intent or equivalent to commit an offence. We would be grateful if the government could provide some examples, particularly of other Australian jurisdictions, that have a similar possession offence, or comparable international countries that have a similar offence to what we are contemplating in this bill.

We do have offences for the possession of personal identification information with the intent to use it for a criminal purpose already contained, as they have been for some time, in section 144 of the Criminal Law Consolidation Act. During the briefings the opposition was provided, one of the concerns raised was we were not able to be given details about what might, when this act is operating, constitute a reasonable excuse.

The Law Society noted in their submission from some time ago on this legislation how much importance would be put on a reasonable excuse. Section 5B of the Criminal Law Consolidation Act states:

In proceedings for an offence against this Act in which it is material to establish whether an act was done with or without lawful authority, lawful excuse or reasonable excuse the onus of proving the authority or excuse lies on the defendant and in the absence of such proof it will be presumed that no such authority or excuse exists.

Other offences under the Criminal Law Consolidation Act that use this reverse onus of proof in terms of a reasonable excuse or lawful excuse are very serious offences. The other offences include information for a terrorist act, piracy—that is involving piracy of vehicles, not movies—acting improperly for a public officer or impeding investigations of offences.

The opposition is somewhat uneasy about the potential scope of this new offence, given that reverse onus of proof in the absence of a reasonable excuse or a lawful excuse, as in some other places of the Criminal Law Consolidation Act, being applied to this possession offence. It casts a very wide net over the material that can be covered; it does not require the defendant to have any sort of intention whatsoever to make use of that information in any way that would cause harm to anyone or necessarily create any potential victims.

We already have an offence for the possession of personal identification information with the intention for it to be used for a criminal purpose. Some of the questions the opposition would like to ask in relation to this are: would someone who is unaware that they received the personal identification information have a reasonable excuse? If someone is sent the information—they are not aware or have not opened the file—does that in and of itself create a reasonable excuse, or does that person then have the reverse onus of proof and have to provide a reasonable excuse? It creates a strict liability offence.

In briefings, it would seem that the mere possession, without any knowledge of that possession, constitutes the possibility of being charged with that offence, and then it would be up to that person to have to argue in their defence that they were not aware, or have it taken into account in sentencing.

We would ask the government to state on the record whether not being aware of having received that information would constitute a reasonable excuse under this legislation, because certainly we were not able to get that assurance at briefings, and that in and of itself creates for us very significant concerns if we are going to have a criminal sanction, which could include gaol time, for an offence of possession, where not having knowledge of having the material could end up seeing you prosecuted.

We would also like to know whether, for someone who receives a text or an email that contains a photo that purports or is actually a celebrity's driver's licence or passport, the act of receiving and retaining that constitutes a potential offence. Would the offence apply to expired identification documents? Would it be a defence if the details in the identification are wrong? Does it need to be correct identification information—that is unclear.

Will this criminalise marketing practices that use individuals' data that better tailor products than advertising to consumers? Will we see some of the companies that have been talked about, like NationBuilder, be subject to the provisions of this potential offence? Would the former Liberal opposition's use of NationBuilder websites and similar methods of data harvesting potentially constitute offences under this legislation?

Would people acting in good faith, and with generally no ill will, potentially be caught up by this offence? We asked this in briefings and were told that it is highly unlikely that people will be prosecuted in those circumstances. We would like more than that from the government—not a 'highly unlikely that people will be prosecuted'. We do not pass legislation on, 'Well, it's highly unlikely this would happen.' When we make legislation here we are entitled to understand exactly how that legislation could work, and not that they think it would be highly unlikely to work in a way.

As I foreshadowed—and I think it is now filed—I will move an amendment that we will agitate in the committee stage that seeks to take care of some of these concerns. We will certainly be asking for all those questions to be properly answered, but seeking to take into account some of those concerns by changing clause 8 so that it is no longer the reverse onus of proof, that it is in fact incumbent on prosecutors to prove that the potential offender had that personal identification information without a reasonable excuse.

This, in effect, would raise the bar slightly for this offence, and the intention would be to not capture people who may not be committing the offence with any intention. As it is currently drafted, and at our briefing it was confirmed, this is very much a strict liability offence—no intention at all is required. We think that if the mere act of having information becomes an offence it could be problematic for all the reasons and potential issues that have been outlined.

We then move on to clause 9 of the bill. The opposition has even more reservations about clause 9—essentially, the fourth element of this bill. What currently exists in the Criminal Law Consolidation Act in section 144F is a protection for misrepresentation for a person under 18 years of age if that person is making the misrepresentation of their age for the purposes of obtaining tobacco, alcohol or any other product or service not lawfully available to the person under the age of 18, or of gaining access to premises to which access is not ordinarily allowed to the person under the age of 18. That is protection from the prosecution in section 144 of the Criminal Law Consolidation Act that is for identity theft.

Offences exist for providing false information, evidence or statements when asked to provide proof of age for things under the Liquor Licensing Act or for entering regulated premises or for the possession of liquor. There is a new identical provision for someone trying to buy tobacco under the Tobacco and E-Cigarette Products Act. Similar provisions exist for the purchase of films, publications and computer games and access to gambling. The maximum penalty for a minor making false representations about their age for these types of offences ranges from a fine of $750 to $2,500; however, many would usually be dealt with by way of an expiation fee of between $105 and $210.

What the government is seeking to do with this bill is remove the protection from prosecution for identity theft crimes, as it currently exists, for a person under the age 18 years misrepresenting their age and attempting to gain access to online gambling products or services or a publication, film or computer game that is not lawfully allowed to be made available or supplied to a person under the age of 18.

I think most people who are parents of children under the age of 18, like myself, think it is entirely appropriate that parliaments legislate to discourage people under the age of 18 from attempting to gain access to products that we have decided are not appropriate for them: classified material, gambling products, alcohol and tobacco. What is deeply concerning is the vast disparity in the bill in how this would be dealt with. There is disparity in sentences.

As we understand it—and I am happy to be corrected by the government if we have misunderstood the briefings that have been provided—if this bill were to go into operation, a 15 or 16 year old who might use an older brother or sister's identification to gain access to the Call of Duty computer game (a number of the Call of Duty variants are classified) would now face the possibility of prosecution and time in gaol.

Again, I am sure we would be told that it would be a rare thing that that would be prosecuted and that a court would institute a gaol sentence, but this bill provides a very significant departure from the current law for someone under the age of 18 falsely representing their age to gain access to a computer game, in this example, where there might be an expiation fee or a fine. This bill now imposes the possibility of a sanction in gaol. We think this is completely disproportionate to the level of offending.

Children make bad decisions. I am sure that everyone in this chamber in their younger years probably made a bad decision. We had a bill before us a couple of years ago, in which the Attorney-General sought to impose a possible gaol sentence for the possession of cannabis. All the crossbench and Labor opposition members thought this was a bridge too far. It was far too draconian. A kid making a dumb choice and a bad decision should not end up with the possibility of going to gaol.

That was the decision of this council. Except for the members of the government, every single other member of this council thought that was a step way too far. There was significant discussion in the media about it at the time, and I think overwhelmingly the court of public opinion was against the Attorney for going way too far in seeking to impose the possibility of gaol time for a kid making a dumb mistake and possessing cannabis.

This bill does exactly the same. It suffers from exactly the same defect: the Attorney-General going way too far and seeking to impose the possibility of time in gaol for a kid making a dumb mistake in trying to access an R-rated computer game, for example. We will not be supporting this. We think it is a bridge way too far. We think it is overreach by the Attorney-General. We will be opposing clause 9 when it comes to be voted on as part of this bill, and I can indicate that if clause 9 succeeds we will be opposing the bill in its entirety.

Having the possibility of throwing kids in goal for seeking to access an R-rated computer game is not something that we think is good policy and it is not something, from our discussions, that many members of the public think is very good policy at all. I look forward to the government explaining in much greater detail the potential operations at clause 8, not just what they think would likely happen in practice but what the potential ramifications are for clause 8 creating an offence of mere possession of personal identification information.

We are very interested in the government explaining why they think it is appropriate, what the policy basis and justification is, for potential goal time for a 16 year old who makes a bad decision, a dumb mistake, of seeking to access, for instance, a Call of Duty computer game that is R-rated. We do not agree with the government on these matters.

If we have in some way misconstrued or been given not entirely correct information in briefings or we have drawn wrong conclusions, or there are reasons that the government has not explained to us yet about why it is necessary to potentially throw kids in goal, we are open to hearing them. If they can explain during the second reading summing up and the committee stage that there is some actual and needed policy justification for this criminalisation of a dumb decision by a minor, we are open to hearing it.

If there are reasons why, on clause 8, what they are proposing is necessary, we are open to hearing that as well. We are even open in between the chambers, should this bill pass with variations or clause 9 removed, as I will be advocating in the committee stage. If there are reasons that the government has not expressed to us yet that require these clauses to be passed, we are not closed off to that.

We will be happy to consider that in the committee stage and between the houses. But on the information that the government has provided us so far and the way that we understand it from that information, we will be moving the amendment, as I have foreshadowed and now filed, on clause 8 and we will be opposing clause 9 in its entirety.

The Hon. F. PANGALLO (15:48): SA-Best is supportive of any measures designed to curb identity theft but, as the honourable Leader of the Opposition has just pointed out, they need to be fair. While on this topic of identity theft, I would like to give an example of how easy it is to commit identity theft on the South Australian government's own Department for Infrastructure and Transport website. It is a serious issue that needs to be rectified urgently by the minister, the Hon. Corey Wingard, and his highly paid bureaucrats in the register of motor vehicles.

A constituent reported to me that after having his wallet stolen, which he reported to police at the time, the thief used the stolen driver's licence to change the constituent's address shown on it. It was so easy. No passwords were required to do this. Having the details on the licence was enough. The implications for the constituent were enormous. Using the constituent's identity, with two falsified addresses, the thief was able to use the data to access almost $6,000 in loans from Afterpay and Zip.

When the constituent started to get reminder notices from these two loan providers, he was alerted to what had happened and managed to put a stop to those bills. However, because of the changes in address, the constituent did not get registration renewal notices for one of his vehicles. He has 20 in his fleet. On a trip to Adelaide, a camera reported this particular vehicle as being unregistered. This of course was news to him, because he always paid when they were due. However, in this case, the renewal notices had been sent to one of the false addresses created rather than to his business address.

Just as a reminder of how this happened, somebody stole his wallet, managed to access his driver's licence, went onto the Department for Infrastructure and Transport's website just using the driver's licence, and they were able to change the address of the holder of that licence. Unbeknown to the constituent, he not only copped a $500 fine but a further $500 on top for ignoring the notice that he had never received at his normal address.

When he discovered what happened, he then had to pay a $26 application fee to the fines unit for the matter to be reviewed. They simply reduced the fine back to the original $500 rather than waive it, telling him it was his responsibility to know when the registration was due. He rightly asks, if it is his responsibility to know this, why then do they still send the renewal notices?

What if this type of ID theft happened to senior citizens reliant on a mail-out or people from different ethnic backgrounds and limited knowledge of English or skills in using online portals? The constituent had no choice but to pay the $500 expiation notice, despite protestations and the police report he had filed, plus he has incurred demerit points through no fault of his own.

Clearly, there is a serious flaw on this government website, which provides little protection in the event of ID theft. In light of this legislation, I am just amazed that something as simple as this can still slip through the cracks and remain unchecked. I would urge the minister, the Hon. Corey Wingard, to address this as a priority.

Getting back to the legislation before us, there are some good provisions in this legislation, like making it easier to get verification from a court if persons have been the victims of ID theft. Of course, there will be the onus of proof on a defendant to show cause for having another person's ID, while there are still some obvious defences that have been built in. It will be up to the prosecution to prove there is no reasonable excuse. However, as the Hon. Kyam Maher has pointed out, there can be some problems even in this specific area of legislation.

I share the same concerns as the opposition on the draconian amendment widening the net for minors under 18 for purchasing prohibited material, carrying up to five years' gaol. While there are accepted exemptions for buying alcohol or tobacco products, it is the other aspect of the exemption that takes in any other product or service. This has been altered to now include access to online gambling services, restricted 18+ publications, films or computer games, which were previously exempted.

I detest online gambling, but that is another issue that needs to be addressed by commonwealth action. A lack of oversight has seen this area explode and with it creating enormous social problems. I would certainly like to see any data that shows the extent of the problem among minors. We know it is out there in the community. Online gambling is rampant; it is promoted widely through the media, in newspapers and on television, and we see it all the time when we are watching football matches.

Is it any wonder that youngsters can be influenced by that type of advertising, particularly when you hear kids in the playground or wherever talking about the Crows' or Port Adelaide's chances of winning their games on the weekend based on what dividends are going to be paid by Sportsbet or one of those other publications? We have certainly created problems with online gambling and that needs to be addressed, but that is really for another place.

I agree that we need to have adequate controls over R-rated materials being accessed by minors. We have read with interest in the last few days another crusading campaign by News Ltd about so-called 'screenagers', with many kids these days spending most of their time addicted to screens large and small. I can tell you it is not just 'screenagers' who are out there, it is also adults who are totally addicted to their screens.

I find it quite amazing when merely walking down the street, going down in a lift, seeing people stopped at pedestrian crossings and the first thing they do is pull out their phone and start scrolling. I am amazed by that. It is something unique to the 21st century, where it is almost the norm these days that people will pull out their smart phone or their tablet and access them, and with it goes the art of verbal communication between people.

I am not digressing, I am just totally amazed that it was not even picked up in the other place. How the Attorney could come up with a piece of legislation that would send a minor to gaol for using a false ID to buy video games. As the honourable Leader of the Opposition pointed out, games like Call of Duty, Grand Theft Auto, Doom, and whatever, are extremely popular amongst kids and it is very difficult—and I know it, even though my kids are over the age of 18, I always found it very difficult to control their interest in these games. You would never know when they were playing them. Of course, you would try to admonish them and discipline them, but—

The Hon. K.J. Maher: Five years' gaol.

The Hon. F. PANGALLO: Five years' gaol.

The Hon. K.J. Maher: That will discipline them!

The Hon. F. PANGALLO: Yes, and not only that they could not even play those games in gaol until they turned of age. Honestly, I just shook my head when I saw that. I thought, 'Are they being real here?' Are you going to send a kid to gaol—as the Hon. Kyam Maher pointed out—for making a dumb mistake of judgement? They innocently thought, 'I'm going to use mum or dad's or my older brother's driver's licence or credit card to get this game,' and then face the prospect of a criminal conviction.

We know that it can be dealt with and that is where it should be dealt with—in another area—but to have such a draconian sentence facing somebody is, I think, nanny state stuff that has just gone totally overboard. Like the Hon. Kyam Maher, there is no way that SA-Best will be supporting that particular clause. As I pointed out previously, there are some good things in this legislation that we will be supporting but, like the honourable Leader of the Opposition, we will be supporting the second reading and, like the opposition, we will be reserving our rights on certain aspects of the bill pending assurances from the government.

The Hon. R.A. SIMMS (15:59): I want to associate the Greens with the comments made by the Leader of the Opposition and the Hon. Frank Pangallo on behalf of SA-Best. We are broadly supportive of the intention of this bill—that is, to deal with the growing issue of identify theft. We recognise that it is a growing scourge and, indeed, a 21st century crime in many ways and one that is escalating and one that this parliament needs to deal with, but we do have serious concerns about some of the elements in this bill.

We are supportive of the amendment that the Labor Party is seeking to put forward. We are concerned about the reversal of the presumption of innocence and the burden of proof in terms of what that means and how that works within our legal system. We also share the concerns of the Labor Party and SA-Best about the potential criminalising of conduct by young people. I mean, the idea, Mr President, that you could see a young person thrown in gaol for trying to gain access to an adult video game is just absurd and, as has been rightly pointed out, draconian and I think something that would make most South Australian parents very anxious indeed.

As the Hon. Frank Pangallo has stated, many parents will be concerned about their children's access to these video games, but at the same time they are not going to want to see their children being threatened with a criminal sanction of this nature. I think most South Australians would recognise that this is not the way to deal with this kind of behaviour. It is not the way to prevent young people from accessing inappropriate material, if indeed that is the government's intention. So the Greens are not supportive of that provision.

We look forward to the third reading stage, where we can delve a little bit further into some of these issues.

Debate adjourned on motion of Hon. T.J. Stephens.

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