Law and Justice Legislation Amendment (Identity Crimes and Other Measures) Act 2011 (3 of 2011)

Schedule 1   Identity crimes

Part 1   Main amendments

Criminal Code Act 1995

1   After Part 9.4 of the Criminal Code

Insert:

Part 9.5 - Identity crime

Division 370 - Preliminary

370.1 Definitions

In this Code:

deal , in identification information, includes make, supply or use any such information.

identification documentation means any document or other thing that:

(a) contains or incorporates identification information; and

(b) is capable of being used by a person for the purpose of pretending to be, or passing the person off as, another person (whether living, dead, real or fictitious).

identification information means information, or a document, relating to a person (whether living, dead, real or fictitious) that is capable of being used (whether alone or in conjunction with other information or documents) to identify or purportedly identify the person, including any of the following:

(a) a name or address;

(b) a date or place of birth, whether the person is married or has a de facto partner, relatives' identity or similar information;

(c) a driver's licence or driver's licence number;

(d) a passport or passport number;

(e) biometric data;

(f) a voice print;

(g) a credit or debit card, its number, or data stored or encrypted on it;

(h) a financial account number, user name or password;

(i) a digital signature;

(j) a series of numbers or letters (or both) intended for use as a means of personal identification;

(k) an ABN.

Division 372 - Identity fraud offences

372.1 Dealing in identification information

(1) A person (the first person ) commits an offence if:

(a) the first person deals in identification information; and

(b) the first person intends that any person (the user ) (whether or not the first person) will use the identification information to pretend to be, or to pass the user off as, another person (whether living, dead, real or fictitious) for the purpose of:

(i) committing an offence; or

(ii) facilitating the commission of an offence; and

(c) the offence referred to in paragraph (b) is an indictable offence against a law of the Commonwealth.

Penalty: Imprisonment for 5 years.

Note: Deal , in identification information, includes make, supply or use any such information. See section 370.1.

(2) Absolute liability applies to the paragraph (1)(c) element of the offence.

Note: For absolute liability, see section 6.2.

(3) This section applies:

(a) even if:

(i) committing the offence referred to in paragraph (1)(b) is impossible; or

(ii) the offence referred to in paragraph (1)(b) is to be committed at a later time; and

(b) whether or not the person to whom the identification information concerned relates consented to the dealing in the identification information.

(4) This section does not apply to dealing in the first person's own identification information.

372.2 Possession of identification information

(1) A person (the first person ) commits an offence if:

(a) the first person possesses identification information; and

(b) the first person intends that any person (whether or not the first person) will use the identification information to engage in conduct; and

(c) the conduct referred to in paragraph (b) constitutes an offence against section 372.1.

Penalty: Imprisonment for 3 years.

(2) Absolute liability applies to the paragraph (1)(c) element of the offence.

Note: For absolute liability, see section 6.2.

(3) This section applies whether or not the person to whom the identification information concerned relates consented to the possession of the identification information.

(4) This section does not apply to the possession of the first person's own identification information.

372.3 Possession of equipment used to make identification documentation

(1) A person (the first person ) commits an offence if:

(a) the first person possesses equipment; and

(b) the first person intends that any person (whether or not the first person) will use the equipment to make identification documentation; and

(c) the first person intends that any person (whether or not referred to in paragraph (b)) will use the identification documentation to engage in conduct; and

(d) the conduct referred to in paragraph (c) constitutes an offence against section 372.1.

Penalty: Imprisonment for 3 years.

(2) Absolute liability applies to the paragraph (1)(d) element of the offence.

Note: For absolute liability, see section 6.2.

372.4 Extended geographical jurisdiction - category A

Section 15.1 (extended geographical jurisdiction - category A) applies to an offence against this Division.

372.5 Alternative verdict

(1) This section applies if, in a prosecution for an offence against section 372.1, the trier of fact is not satisfied that the defendant is guilty of the offence, but is satisfied beyond reasonable doubt that the defendant is guilty of an offence against section 372.2.

(2) The trier of fact may find the defendant not guilty of the offence against section 372.1 but guilty of the offence against section 372.2, so long as the defendant has been accorded procedural fairness in relation to that finding of guilt.

372.6 Attempt

It is not an offence to attempt to commit an offence against this Division.

Division 375 - Victims' certificates

375.1 Certificate may be issued by magistrate in relation to victim of identity crime

(1) A magistrate may, on application by a person (the victim ), issue a certificate under this section if the magistrate is satisfied, on the balance of probabilities, that:

(a) another person (the dealer ) has dealt in identification information; and

(b) the dealer intended that any person (the user ) (whether or not the dealer) would use the identification information to pretend to be, or to pass the user off as, another person (whether the victim or another person living, dead, real or fictitious) for the purpose of:

(i) committing an offence; or

(ii) facilitating the commission of an offence; and

(c) the certificate may assist with any problems the dealing has caused in relation to the victim's personal or business affairs; and

(d) the offence referred to in paragraph (b) is an indictable offence against a law of the Commonwealth.

Note: Deal , in identification information, includes make, supply or use any such information. See section 370.1.

(2) This section applies:

(a) even if:

(i) committing the offence referred to in paragraph (1)(b) is impossible; or

(ii) the offence referred to in paragraph (1)(b) is to be committed at a later time; and

(b) whether or not the person to whom the identification information concerned relates consented to the dealing in the identification information.

375.2 Content of certificate

(1) A certificate issued under section 375.1 must:

(a) identify the victim; and

(b) describe the dealing in identification information.

(2) The certificate may contain such other information as the magistrate considers appropriate.

(3) The certificate must not identify the dealer.

375.3 Relation to civil and criminal proceedings

(1) The magistrate may issue a certificate under section 375.1 whether or not:

(a) the dealer is identifiable; or

(b) subject to subsection (2) - any proceedings (whether civil or criminal) have been or can be taken against a person for or in relation to the dealing, or are pending.

(2) The magistrate must not issue a certificate under section 375.1 if doing so would prejudice any proceedings.

(3) The certificate is not admissible in any proceedings.

375.4 Power conferred on magistrate personally

(1) Power is conferred by this Division on a magistrate only in a personal capacity and not as a court or a member of a court.

(2) The magistrate need not accept the power conferred.

(3) A magistrate exercising a power under this Division has the same protection and immunity as if he or she were exercising that power as, or as a member of, the court of which the magistrate is a member.