House of Representatives

Explanatory Memorandum

(Circulated by authority of the Minister for Justice and Customs, Senator the Honourable Chris Ellison)

Schedule 2 - Assumed identities

Crimes Act 1914

The purpose of this Schedule is to amend the Crimes Act by inserting a proposed Part 1AC, which will provide the basis for the acquisition and use of evidence of identity by members of intelligence and law enforcement agencies, and others who are supervised by a member of such an agency. The ability to assume a new identity will be an effective means by which those members and persons will be able to perform the functions of the respective agencies without others being aware of their true identity. The proposed new provisions will provide:

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that evidence of an assumed identity may be acquired and used in certain circumstances;

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for the exemption from criminal responsibility of certain approved officers and persons;

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for the indemnification of approved officers and persons against civil liability;

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for the authorisation of acquisition and use of an assumed identity and the content and form of that authorisation;

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that certain agencies are to comply with requests for the issue of evidence of identity and others to have a discretion;

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for offences for the misuse of assumed identities;

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for record-keeping, audit and reporting requirements; and

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other matters that are necessary for the effective operation of the assumed identity scheme, such as the definition of special terms and a regulation making power.

Division 1 - Definitions etc

Section 15XA: Definitions etc

Proposed subsection 15XA(1) defines a number of expressions for the purposes of the proposed assumed identity provisions and provides that in proposed Part 1AC:

approved officer means an officer or foreign officer referred to in an authorisation under proposed paragraph 15XI(2)(c). Proposed section 15XI sets out the matters that must be included in an authorisation for the acquisition and use of an assumed identity.

approved person means a person referred to in proposed subparagraph 15XI(2)(d)(i).

authorisation means an authorisation that is in force under proposed section 15XG or 15XH. Proposed section 15XG will enable a Commonwealth participating agency and proposed section 15XH will enable a State or a territory participating agency to authorise the acquisition and use of an assumed identity.

authorisation conditions means conditions to which an authorisation is subject under proposed paragraph 15XI(2)(j).

authorising person means the head of a participating agency or a person in a participating agency, included in a prescribed class, who is authorised in writing by the head of the agency. Under proposed sections 15XG and 15XH an authorising person will be able to authorise the acquisition and use of an assumed identity.

Commonwealth agency means the Commonwealth or an authority of the Commonwealth. Under proposed sections 15XG and 15XH an authorising person may authorise the acquisition of evidence of an assumed identity from, inter alia , any Commonwealth agency, that agency will become an issuing agency when the authorisation under proposed section 15XI specifies the agency.

Commonwealth participating agency means the AFP, Customs, NCA, Australian Security Intelligence Organisation, Australian Secret Intelligence Service, the Australian Taxation Office and any other Commonwealth agency specified in the regulations. Proposed section 15XG will enable an authorising person in a Commonwealth participating agency to authorise the acquisition and use of an assumed identity.

foreign officer means an officer, however described, of an agency that has responsibility for the law enforcement in, intelligence gathering for, or security of a foreign country. Under proposed section 15XG a foreign officer may be authorised to acquire and use evidence of an assumed identity.

issuing agency means a Commonwealth agency or a non-government body that is referred to in an authorisation issued under proposed paragraph 15XI(2)(f).

issuing evidence of an assumed identity is defined as including the making of an entry in a record of information in respect of an assumed identity.

non-government body means a body that is not managed or controlled by or on behalf of the Commonwealth or the Government of a State or Territory. Under proposed sections 15XG a Commonwealth participating agency may authorise the acquisition of evidence of an assumed identity from, inter alia , any non-government body and that body will become an issuing agency when the authorisation under proposed section 15XI specifies the body.

participating agency means either a Commonwealth, State or Territory participating agency.

State or Territory participating agency means the police force of a State or Territory; bodies established under the law of a State or Territory to investigate corruption (such as the New South Wales Independent Commission Against Corruption and the Queensland Criminal Justice Commission); Crime Commissions (such as the New South Wales Crime Commission and the Queensland Crime Commission); the New South Wales Police Integrity Commission; and any other body or agency of a State or Territory that is specified in the regulations.

supervising officer means the officer referred to in an authorisation under subparagraph 15XI(2)(d)(ii).

Proposed subsections 15XA(2), (3) and (4) are explanatory provisions, which provide that:

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a reference to an approved officer or person using an assumed identity includes a reference to the officer or person representing the assumed identity to be his or her real identity and such an officer or person acting in a way that is consistent with such an identity, rather than the persons real identity;

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a reference to an approved officer or person acquiring evidence of an assumed identity, includes obtaining, or taking steps towards obtaining, a document or other thing that purports to evidence the assumed identity; and

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engaging in conduct includes a reference to omitting to do an act.

The purpose of these provisions is to ensure that an assumed identity is not taken to be merely the forms of identity, but is designed to enable the person using the assumed identity to act as if he or she is, and to have all the indicia and attributes of, a real person with that identity. For example, if a person acquires a passport as evidence of an assumed identity, it is intended that the person will be able to use that passport to travel outside Australia as if it was the person real identity and not just hold the passport as a means of identification.

Division 2 - Effect of an assumed identity

The purpose of proposed Division 2 is to introduce new sections governing:

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when an approved officer or person may acquire evidence of and use an assumed identity;

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protection from criminal liability for approved officers and persons,

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indemnity against civil liability those persons;

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the operation of the Division in circumstances where an authorisation has been varied or revoked; and

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the limitation on the use of documents that purport to establish that a person has a particular skill or qualification.

Section 15XB - Assumed identities may be acquired and used

The purpose of proposed section 15XB is to set out the circumstances in which an approved officer or person may acquire evidence of, and use, an assumed identity.

Proposed subsection 15XB(1) provides that an approved officer may acquire evidence of, and use an assumed identity if the acquisition or use is in the course of duty.

Proposed subsection 15XB(2) provides that an approved person may acquire evidence of, and use, an assumed identity if the acquisition or use is in accordance with directions given by the supervising officer mentioned in the persons authorisation. This requirement reflects the need for persons who are not part of the authorising persons agency, or who are not foreign officers, to be under the command and direction of a person who is part of the authorising persons agency so that the operation is controlled by such an agency to the greatest extent possible.

For both approved officers and approved persons the acquisition or use must also be in accordance with any authorisation conditions (see proposed paragraph 15XI(2)(j)).

Section 15XC - Protection from criminal liability

The purpose of proposed section 15XC is to define the circumstances in which an approved officer or person will not be criminally responsible for otherwise unlawful conduct.

An approved officer will not be criminally responsible for conduct that would ordinarily constitute a Commonwealth, State or Territory offence if:

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the officer engages in the conduct in the course of acquiring evidence of, or using an assumed identity;

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the officer engages in the conduct in the course of duty;

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the conduct complies with all the authorisation conditions; and

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the conduct would not constitute that offence if the assumed identity were the officers real identity.

This last requirement means that:

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if the officer uses an assumed identity in such a way that would (but for this section) constitute an offence then the officer is exempt from criminal liability for that conduct if that use was not an offence if the identity was real.

For example it is an offence for a person to receive Job Search Allowance if they are not unemployed. But if the approved officer has evidence of an assumed identity which establishes them as being unemployed, then he or she can receive Job Search Allowance.

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an officer will be criminally responsible for an offence if the conduct would constitute an offence if the assumed identity was the persons real identity. The effect of this is to ensure that the proposed provisions do not de-criminalise conduct that is not authorised, as a matter of law, by the identity.

For example it is an offence to take protected fauna out of Australia. An approved officer who has a passport as evidence of an assumed identity and who takes protected fauna out of Australia whilst travelling on that passport, will still be criminally responsible for removal of the fauna from Australia.

The proposed conditions under which an approved person will not be criminally responsible for conduct that would ordinarily constitute an offence are similar to those for approved officers except there is a requirement for the conduct to be in accordance with directions given by the supervising officer rather than in the course of duty.

Section 15XD - Indemnification of approved officers and persons

The purpose of proposed section 15XD is to set out the circumstances in which a Commonwealth participating agency must indemnify both approved officers and approved persons against any liability incurred because of the conduct of the officer or person.

A Commonwealth participating agency that issues an authorisation must indemnify an approved officer against any liability (including reasonable costs) that the officer incurs because of conduct the officer engages in if:

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the officer is covered by that authorisation;

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the officer engages in the conduct in acquiring evidence of, or using, an assumed identity in the course of duty;

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the conduct is in accordance with any authorisation conditions; and

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the requirements (if any) specified in the regulations have been met.

The proposed conditions under which an approved person must be indemnified by the Commonwealth agency that issues the authorisation, are similar to those for approved officers except that there is a requirement for the conduct to be in accordance with any directions given by the supervising officer rather than in the course of duty.

Section 15XE - Effect of being unaware of variation or revocation of authorisation

The purpose of proposed section 15XE is to provide that where an authorisation has been varied or revoked, the exemption from criminal responsibility and the indemnification against civil liability will continue to exist for so long as:

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the officer or person is unaware of the variation; and

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the officer or person is not reckless with respect to the existence of the variation or revocation.

Section 15XF - Documents authorising use of skill or qualification

Proposed section 15XF provides that an approved officer or person will not be exempt from criminal responsibility or indemnified against civil liability if he or she engages in conduct that requires a special skill or qualification and he or she does not have that skill or qualification. This proposed limitation on the protection provisions applies whether or not the officer or person has acquired as evidence of an assumed identity, a document that establishes that he or she has that skill or qualification.

This means that if a person has as evidence of an assumed identity a documents that indicates that the person possesses a certain skill or qualification, that person does not in fact have that skill or qualification, and the person engages in conduct that needs that skill or qualification, then he or she will be criminally responsible for his or her acts and will not be indemnified for any civil liability.

For example, if a person has as evidence of identity a pilots licence but the person is not, in fact, qualified to pilot an aeroplane, then the person will be criminally responsible for his or her acts if he or she pilots an aeroplane, and will not be indemnified for any civil liability incurred.

Division 3 - Authorising the acquisition or use of assumed identities

The purpose of proposed Division 3 is to introduce new sections governing:

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the circumstances in which Commonwealth, State and Territory participating agencies may authorise the acquisition and use of assumed identities;

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the form and content of an authorisation issued under proposed sections 15XG and 15XH;

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when an authorisation is in force; and

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variation and revocation of authorisations.

Section 15XG - Commonwealth authorisations of the acquisition or use of assumed identities

Proposed section 15XG provides that an authorising person of a Commonwealth participating agency may authorise any person to acquire evidence of an assumed identity from any Commonwealth or non-government body and to use that identity.

The provision provides that the tests as to whether the authorisation should be issued are:

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for foreign officers, if the authorising person is satisfied that it is reasonably necessary to do so;

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in any other case, if the authorising person is satisfied that it is appropriate to do so; and

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in either case, the assumed identity may only be used in a foreign country if the authorising person is satisfied that it is reasonably necessary to do so.

This means that in relation to both the acquisition and use of an assumed identity by foreign officers and the use of an assumed identity in a foreign country, there is a higher threshold applying before the authorisation may be issued. This reflects the need to ensure that the provisions do not apply to foreign operatives or in foreign countries, unless there is a clear need for that operation and all relevant matters (for example, the inability to exempt an Australian from the operations of the laws of a foreign country) have been taken into account.

Section 15XH - State or Territory authorisations of the acquisition or use of assumed identities

Proposed section 15XH provides that an authorising person of a State or Territory participating agency may authorise a person (except a foreign officer) to acquire evidence of an assumed identity from any Commonwealth agency and to use that identity.

This means that unlike an authorising person of a Commonwealth participating agency, an authorising person of a State or Territory participating agency may:

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only authorise a person to acquire evidence from a Commonwealth agency; and

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may not authorise a foreign officer to acquire evidence of or use an assumed identity.

The test as to whether a State or Territory participating agency may authorise the acquisition or use of an assumed identity is if the authorising person is satisfied that it is appropriate to do so and if the identity is to be used in a foreign country, then the authorising person must is satisfied that it is reasonably necessary to do so.

Section 15XI - Contents of an authorisation for an assumed identity

Proposed section 15XI sets out the form and contents of an authorisation for an assumed identity and provides that it must be in writing and signed by the authorising person.

The authorisation must specify such matters as:

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the name of the officer or person who is authorised to acquire or use an assumed identity;

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the name of the supervising officer (for approved persons who are not part of the authorising persons participating agency);

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details of the assumed identity which the authorisation covers;

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the Commonwealth agency or non-government body who is to be requested to issue the evidence of identity;

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whether the identity can be used in a foreign country; and

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any conditions to which the authorisation is subject.

The requirement for the authorisation to specify such matters reflects the need to ensure that an authorisation sets the limits for and strictly controls the acquisition and use of assumed identities by whom and in what circumstances.

The proposed provision also makes it clear that the authorisation can cover more than one assumed identity.

Section 15XJ - When an authorisation is in force

Proposed section 15XJ provides that an authorisation is in force until it is revoked. Revocation is provided for in proposed section 15XK.

Section 15XK - Variation and revocation of authorisation

Proposed section 15XK provides that an authorising person who issues an authorisation or any other authorising person from the same agency, may vary or revoke the authorisation at any time. A written notice of that variation or revocation must be given to the person covered by the authorisation. The notice must state the date the variation or revocation takes effect, the nature of the variation, if any, and the reasons for the variation or revocation.

The proposed scheme introduces flexibility in the management of the operation, while at the same time ensuring that there is sufficient written evidence for record keeping and auditing purposes.

(Proposed section 15XE sets out the effect of a person covered by an authorisation not being aware of its variation or revocation. Proposed section 15XU provides for record keeping and auditing.)

Division 4 - Issuing and cancelling evidence of assumed identities

The purpose of proposed Division 4 is to introduce new sections governing:

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requests to issue evidence of an assumed identity;

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compliance with such requests;

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cancellation of issued evidence of an assumed identity;

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protection from criminal liability for employees of an issuing agency; and

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indemnification for issuing agencies and their employees;

Section 15XL - Authorising person may request agencies and bodies to issue evidence of assumed identities etc.

Proposed section 15XL provides that an authorising person who issues an authorisation may request an issuing agency to issue evidence of an assumed identity to the approved person or officer.

The intention is that the authorisation will serve as the requesting notice without the need for anything further to be produced to the issuing agency. The provision provides that the name of the issuing agency, and evidence of identity that may be requested, will be specified in the authorisation thereby providing the issuing agency with the necessary authority to act.

Section 15XM - Requesting Commonwealth agencies to issue evidence of assumed identities

The purpose of proposed section 15XM is to set out the compliance requirements for requests made to an issuing agency of the Commonwealth under proposed section 15XL.

The proposed section provides that where the request is made to an issuing agency of the Commonwealth (as opposed to a non-government body (which is dealt with in proposed section 15XN)) by a Commonwealth participating agency, then the issuing agency must comply with the request.

However, where such a request is received from a State or Territory participatingagency, then the issuing agency may comply with the request but need not do so.

Although the proposed provision is not subject to a penalty provision, the intention is to make it clear that decision-making about the use of this scheme within the Commonwealth rests solely with the Commonwealth participating (ie, law enforcement and security) agencies. However, this clear-cut approach is not appropriate where two different levels of Government are involved, so Commonwealth agencies will have discretion whether to accede to a request from a State or Territory participating agency.

Section 15XN - Requesting non-government bodies to issue evidence of assumed identities etc

The purpose of proposed section 15XN is to state the compliance requirements for requests made to a non-government body issuing agency under proposed section 15XL.

The proposed section provides that where the request is made to an issuing agency that is a non-government body then the issuing agency may comply with the request but it does not have to do so. (Under proposed sections 15XG and 15XH, only Commonwealth participating agencies can authorise the acquisition and use of evidence from non-Government bodies.)

The provision provides a discretion because it is not appropriate for non-government bodies to be compelled to comply with requests (cf, where issuing is a purely internal Commonwealth matter).

Section 15XO - Cancelling evidence of assumed identities etc

Proposed section 15XO provides that an issuing agency that has issued evidence of an assumed identity must cancel the evidence on the written request of an authorising person who made the request or any other authorising person in the same participating agency.

The evidence may be cancelled by deleting or altering an entry in a record of information. The intention is to terminate the effect of the evidence of identity that was issued. For example this might mean simply monitoring the use of that evidence of identity and not allowing it to achieve its purpose after it has been cancelled.

For logistical reasons, there is no requirement imposed on an issuing agency to physically retrieve the evidence of identity. For example, cancelling a passport means that a person can no longer travel out of or into Australia using that passport, although the person may continue to possess the document.

Section 15XP - Protection from criminal liability

Proposed section 15XP provides that an employee of an issuing agency who, in the performance of the functions of that agency, complies with a request to issue evidence, is exempt from criminal responsibility in relation to that conduct. This means that in circumstances where the issue of evidence of identity in a name other than the name of the applicant would constitute an offence, the employee of the issuing agency is not criminally responsible for that conduct.

Proposed section 15XQ - Indemnification of issuing agencies etc

Proposed section 15XQ provides an indemnification for an issuing agency and its employees against any liability (including reasonable costs) incurred by that agency or employee as a result of complying with a request to issue of evidence of identity. The Commonwealth participating agency whose authorising person issued the authorisation must provide the indemnification. The proposed provision also provides that there is a need to meet the requirements (if any) specified in the regulations.

Division 5 - Offences relating to assumed identities

The purpose of proposed Division 5 is to introduce two new offences: the misuse of an assumed identity and disclosing information relating to assumed identities.

Section 15XR - Misuse of assumed identities

Proposed section 15XR provides that certain conduct in relation to the acquisition or use of evidence of an assumed identity will amount to an offence. An approved officer who acquires evidence of or uses an assumed identity otherwise than in the course of duty commits an offence and an approved persons who acquires evidence of or uses an assumed identity otherwise than in accordance with the directions of their supervising officer also commits an offence.

It is also a proposed offence for either an approved officer or an approved person to acquire evidence of or use an assumed identity otherwise than in accordance with the authorisation conditions.

In all cases, the maximum penalty is 12 months imprisonment. (The maximum fine is $6 600 by operation of subsections 4AA(1) and 4B(2) of the Crimes Act.)

The offences proposed by section 15XR are to operate in addition to any offence that might exist in relation to the acquisition or use of evidence of an assumed identity. For example, if an approved officer makes a false and misleading statement as to his or her identity in reliance on the evidence of identity, and that use is not covered by the authorisation, then the approved officer may have committed two offences: one of the false representation and one of misuse. (Section 4C of the Crimes Act will operate to protect against any double jeopardy.)

The offences will require proof of fault, in accordance with Division 5 of the Criminal Code.

Section 15XS - Disclosing information relating to assumed identities

Proposed section 15XS provides that if a person discloses information that reveals or is likely to reveal the fact that someone is using an authorised assumed identity and the disclosure endangers or is likely to endanger the health or safety of any person or adversely effect the operations of any participating agency, then an offence is committed.

The proposed maximum penalty for this offence is 10 years imprisonment, which reflects the serious consequences that a disclosure of this kind could bring to the operatives involved. (The maximum fine is $66 000 by operation of subsections 4AA(1) and 4B(2) of the Crimes Act.)

In situations where the disclosure is not likely to endanger the health or safety of any person or the effectiveness of an operation carried out by any participating agency, then the proposed maximum penalty is 2 years imprisonment. (The maximum fine is $13200 by operation of subsections 4AA(1) and 4B(2) of the Crimes Act.)

The offences will require proof of fault, in accordance with Division 5 of the Criminal Code.

Division 6 - Miscellaneous

Section 15XT - Disclosing real identities during court proceedings etc

The purpose of proposed section 15XT is to ensure that, to the greatest extent possible, the real identity of a person who is or was covered by an authorisation, is not disclosed to the public. Proceedings of courts, tribunals and commissions of inquiry are to be held in private and any necessary suppression orders are to be made.

The proposed provision makes it clear, however, that the non-disclosure of the persons real identity does not apply to the extent that the court, tribunal or commission considers that the interests of justice otherwise requires.

Section 15XU - Keeping and auditing records of assumed identities

Proposed section 15XU requires the head of a Commonwealth participating agency to keep certain records while the authorisation is in force and for at least 12 months after it has been revoked. The head of the agency must also cause those records to be audited at least once every 6 months while the authorisation is in force and at least once in the 6 months period after it has been revoked. This will help to ensure that the use of this scheme is properly documented and accountable.

Under proposed subsection 15XU(1A), auditing must be at arms length from the use of the assumed identities scheme. Persons who have issued, varied or revoked an assumed identity authorisation or who have been covered by such an authorisation are not to conduct an audit. This amendment, and proposed section 15XUA, respond to recommendation 4 of the Senate Legal and Constitutional Legislation Committee report on the Bill.

Section 15XUA - Matters to be reported

Proposed section 15XUA would require Commonwealth participating agencies (ie, agencies that may authorise the use of assumed identities under proposed Part 1AC) to prepare a report following the end of each financial year providing:

(a)

details of the number of authorisations to use an assumed identity issued during that financial year;

(b)

a general description of the activities undertaken pursuant to those identities; and

(c)

a statement as to whether the audit of those identities revealed any fraud or unlawful activity.

The Australian Security Intelligence Organisation and Australian Secret Intelligence Service would be required to provide this report to the Inspector-General of Intelligence and Security. The remaining Commonwealth participating agencies would be required to provide this report to the Minister responsible for the agency for the year to 30 June within 3 months after 30 June. The Minister would then be required to table the report in Parliament within 15 sitting days after receiving the report.

The legislation permits the tabling of the report as a stand alone document, but does not require this. For example, as long as all legislative time limits are met, a report on assumed identities could be included in the agencys annual report.

Under proposed subsection 15XUA(5), before tabling a report in Parliament, the Minister is to remove material that the Minister considers, on the advice of the relevant agency head, may endanger a persons safety, prejudice an investigation or prosecution or compromise the operational activities or methodologies of the agency. This caveat is necessitated by the sensitivity of the information involved. For example, a person who has used an identity may be at risk of reprisals from a criminal group that has been infiltrated.

This amendment, and proposed section 15XU(1A(, respond to recommendation 4 of the Senate Legal and Constitutional Legislation Committee report on the Bill. The amendment is designed to enhance the transparency of the assumed identities framework.

Section 15XV - Concurrent operation of State and Territory laws

Proposed section 15XV enables State and Territory laws to operate concurrently with proposed Part 1AC provided that they are not inconsistent with that Part. This is important, for example, because an operation may involve as assumed identity supported by documents issued under both Commonwealth and New South Wales assumed identities legislation.

Section 15XW - Regulations

Proposed section 15XW enables regulations to be made for the purposes of proposed Part 1AC. This is required, for example, to prescribe persons other than agency heads who may be authorising persons (ie, authorise the acquisition and use of assumed identity) and to prescribe an agency to be a Commonwealth participating agency for the purposes of proposed section 15XA.