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Crimes (Assumed Identities) Bill
Victorian Legislation and Parliamentary Documents
Circulation Print
EXPLANATORY MEMORANDUM
General
This Bill implements national model legislation that was developed by a Joint
Working Group of the Standing Committee of Attorneys-General and the
Australasian Police Ministers' Council to facilitate the use of assumed
identities by law enforcement agencies in cross-border investigations.
The model laws were published in November 2003 in the Joint Working
Group's Report on Cross-Border Investigative Powers for Law Enforcement.
The Bill introduces a legislative scheme for law enforcement officers and
other authorised people to acquire and use assumed identities for law
enforcement purposes.
Clause Notes
PART 1--PRELIMINARY
Clause 1 sets out the purpose of the Bill, which is to facilitate, for law
enforcement purposes, investigations and intelligence gathering
in relation to criminal activity, including investigations extending
beyond Victoria.
The main ways in which that purpose will be achieved under this
Bill include--
· providing for the lawful acquisition and use of assumed
identities; and
· facilitating mutual recognition of things done in relation
to assumed identities under corresponding laws.
An assumed identity is a false identity that is used by an officer
or other person for a period of time for the purpose of
investigating an offence or gathering intelligence.
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551144 BILL LA CIRCULATION 2/4/2004
Clause 2 provides for the commencement of this Bill. The Bill includes an
open-ended proclamation provision. This is necessary because
the provisions of the Bill that confer powers and duties on
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officers of the Australian Crime Commission will require
associated Commonwealth regulations to be made under the
Australian Crime Commission Act 2002 (Cth).
Clause 3 provides definitions for the Bill.
Some key definitions are--
"authorised person" is someone authorised under these
provisions to acquire or use an assumed identity. An authorised
person will usually be a law enforcement officer but in some
cases may be a civilian. The legislative scheme created by this
Bill envisages the chief officer of a law enforcement agency
approving the use of assumed identities by both law enforcement
officers and civilians, if required by a particular investigation or
intelligence-gathering exercise. The Bill requires a supervisor to
be appointed if a civilian is authorised to acquire and use an
assumed identity (clause 5(3)).
"chief officer"--the chief officer of a law enforcement agency
has particular responsibilities under the Bill, such as approving,
varying and cancelling authorities, arranging audits, keeping
appropriate records and submitting reports. These functions are
delegable to other senior officers of at least the rank of
superintendent or above (clause 34(5)).
For the Australian Crime Commission, the chief officer may also
only delegate their functions under this Bill to four senior
officers. These officers are listed by office in clause 34(5) of the
Bill.
"corresponding authority" means an authority granted under
corresponding laws of participating jurisdictions. The mutual
recognition provisions in Part 5 of the Bill provide for
corresponding authorities to be recognised as if they were granted
under this Bill.
"corresponding law" means a law of another jurisdiction that is
declared by the regulations to correspond to this Act. The mutual
recognition provisions in Part 5 of the Bill contain the
mechanisms which allow law enforcement agencies from one
jurisdiction to make requests for assumed identity documents in
other participating jurisdictions.
"evidence of identity" is defined broadly to cover a variety of
documents that can be used to evidence a person's identity.
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"issuing agency" means an agency that issues evidence of
identity. Persons authorised to acquire or use assumed identities
will be able to acquire documentation from both government
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issuing agencies, such as road traffic authorities, and non-
government issuing bodies, such as banks and other financial
institutions.
"supervisor"--this refers to the supervisor who must be
appointed under clause 5(3) to supervise a civilian who is
authorised to acquire or use an assumed identity.
PART 2--AUTHORITY FOR ASSUMED IDENTITY
Clause 4 allows a law enforcement officer to make a written application to
the chief officer of a law enforcement agency for an authority to
acquire and use an assumed identity. Only a law enforcement
officer can make an application. The application must contain
the information listed in clause 4(3). These details include the
name of the applicant, and the name of the person to be
authorised to acquire or use the assumed identity. This is
necessary because the applicant may not always be the person
who is to acquire and use the identity.
For example, it may be necessary in an investigation for a
civilian to acquire and use an assumed identity. In this case, in
recognition of the fact that a civilian is not a trained law
enforcement officer, a supervisor must be appointed to manage
the civilian's acquisition and use of the assumed identity.
Clause 4(3)(b)(iii) requires the applicant to provide an
explanation of why it is necessary for a person who is not a law
enforcement officer to acquire or use an assumed identity.
The applicant must also provide reasons why the assumed
identity is needed, and details of the investigation or intelligence-
gathering exercise in which the assumed identity will be used (to
the extent known at the time).
Clause 5 allows the chief officer of a law enforcement agency to grant an
authority to acquire or use an assumed identity, and to impose
conditions on the authority. The chief officer may delegate this
function under clause 34.
In determining whether to grant an authority, the chief officer
must be satisfied on reasonable grounds that the assumed identity
is necessary for the purposes of an investigation or for gathering
intelligence in relation to criminal activity. The chief officer
must also be satisfied that the risk of abuse of the assumed
identity is minimal, and, if authorising the acquisition or use of
an assumed identity by a civilian, that it is impossible or
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impracticable for a law enforcement officer to acquire or use the
identity instead. This is to ensure that the use of civilians, who
may not have the same high level of training as law enforcement
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officers, is carefully considered by authorising officers.
As an additional safeguard when civilians are being used to
acquire and use assumed identities, the chief officer must appoint
a supervisor of the minimum rank of sergeant (for Victoria
Police) and senior investigator (for the Australian Crime
Commission).
A separate approval is required for every assumed identity.
This will facilitate the audit process under clause 33 of the Bill,
and ensure that the chief officer gives appropriate consideration
to the need for the acquisition and use of each assumed identity.
Clause 6 sets out the details required to be included on the form of each
authority.
Clause 7 sets out the period of time for which an authority for an assumed
identity is valid. An authority for a law enforcement officer
remains in force until it is cancelled. This allows flexibility for
operational law enforcement purposes. To provide a sufficient
level of oversight and accountability however, clause 9 requires
the chief officer of the law enforcement agency to ensure each
authority is reviewed annually.
For a civilian, an assumed identity authority must be for a limited
period of 3 months or less (clause 6(2)(h)(iii)).
Clause 8 provides that the chief officer may vary or cancel an assumed
authority at any time and must cancel the authority if he or she is
satisfied (on review under clause 9 or otherwise) that the
assumed identity authority is no longer needed. Written notice of
the variation or cancellation must be provided to the person
authorised to acquire or use the assumed identity, and to any
supervisor who may have been appointed to supervise civilian
acquisition and use of an assumed identity under clause 5(3).
The cancellation or variation takes effect on the day the written
notice is given to the authorised person, or if a later date of effect
is stated, on the day stated. It is important that authorised
persons are properly notified of any changes to authorities, as the
protection from civil and criminal liability in clauses 20 and 21
applies if the acts are done in accordance with the original
authority.
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Clause 9 requires the chief officer of a law enforcement agency to review
each authority granted by the chief officer or his or her delegate.
Each authority must be reviewed at least once every 12 months in
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order to determine whether the use of the assumed identity is still
necessary. If the chief officer is satisfied that the assumed
identity is no longer needed, he or she must cancel the authority
under clause 8 of the Bill. If the chief officer determines that the
assumed identity is still necessary, he or she must record his or
her reasons for this decision in writing.
Clause 10 provides for making entries in the Register of Births, Deaths and
Marriages in relation to assumed identities. If such an entry is
required in order to create a credible identity for the authorised
person who is using the identity in the field, a law enforcement
officer may apply to the chief officer of the law enforcement
agency. The chief officer may make an application to the
Supreme Court for an entry in the Register if this has been
authorised under clause 5(5)(a). The Supreme Court may only
grant the order if satisfied that the order is justified having regard
to the nature of the activities undertaken. The Registrar of Births,
Deaths and Marriages must give effect to the order either within
the period stated in the order or within 28 days after the order is
made.
The chief officer may sometimes wish to organise for an entry to
be made in the register of another State or Territory on behalf of
an officer. The Bill does not allow the chief officer to apply to
the Supreme Court in the home jurisdiction for an order affecting
the register of that other jurisdiction. Rather, it is envisaged that
the chief officer would liaise with his or her counterpart in the
other jurisdiction to enable the application to be made to the
Supreme Court in the jurisdiction where the register is located.
This arrangement would ensure that jurisdictions retain control
over amendments to their local registers.
Clause 11 applies if the chief officer cancels an authority for an assumed
identity under clause 8 and there is an entry in relation to that
identity in a Register of Births, Deaths and Marriages in Victoria
or in another participating jurisdiction. In these circumstances,
the chief officer of the law enforcement agency must apply to the
Supreme Court of the relevant jurisdiction within 28 days for an
order cancelling that entry in the Register.
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Clause 12 allows the Supreme Court to order the Registrar of Births, Deaths
and Marriages to cancel an entry that has been made in the
Register under clause 10 of the Bill. The Supreme Court may
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only make the order on application by the chief officer under
clause 10. For security reasons, such applications must be heard
in closed court. The Registrar must give effect to the order
within 28 days after the order is made.
PART 3--EVIDENCE OF ASSUMED IDENTITY
Clause 13 provides that if the appropriate authority is given under clause 5
of the Bill, then the chief officer of a law enforcement agency
may request the chief officer of an issuing agency to produce
evidence of an assumed identity in accordance with the authority;
and give evidence of that authority to the authorised person
named in the authority. The request must state a reasonable time
for compliance. This clause does not authorise an entry in the
Registry of Births, Deaths and Marriages, as clauses 10, 11
and 12 deal specifically with entries in the Register.
Clause 14 requires the chief officer of a government issuing agency to
comply with a request for assumed identity documents under
clause 13.
Clause 15 provides that the chief officer of a non-government issuing
agency who receives a request under clause 13 may comply with
a request but is not required to do so.
Clause 16 provides that the chief officer of an issuing agency who produces
evidence of an assumed identity is required to cancel that
evidence if directed in writing to do so by the chief officer of the
law enforcement agency who requested the evidence. This is to
ensure that evidence of an assumed identity is cancelled when no
longer necessary.
Clause 17 provides protection from criminal liability for the chief officer, or
another officer, of an issuing agency who does something to
comply with a request under clause 13 or a direction under
clause 16. This means that officers of agencies that issue
assumed identity documents will not be criminally liable for any
acts pursuant to a request under clause 13, or a direction under
clause 16.
Clause 18 applies when a chief officer of a law enforcement agency makes
a request under clause 13, or gives a direction under clause 16, to
the chief officer of an issuing agency.
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In these circumstances the law enforcement agency must
indemnify the issuing agency, or an officer of that agency, for
any liability incurred by that agency or officer, if the liability was
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incurred because of something done by the agency or officer to
comply with a request or direction in the course of their duty.
The protections from criminal and civil liability in clauses 17
and 18 do not specifically cover officers of issuing agencies who
do things in response to an order under clause 10. Clause 10
provides that the Supreme Court may order the Registrar of
Births, Deaths and Marriages to make an entry in the Register in
relation to the acquisition of an assumed identity under an
authority. It is not necessary for the Bill to provide protection
from criminal and civil liability to officers of an issuing agency
who do things relating to an assumed identity under clause 10
because those officers will be acting in response to an order of
the Supreme Court.
PART 4--EFFECT OF AUTHORITY
Clause 19 provides that an authorised officer may acquire or use an
assumed identity if the acquisition or use is in accordance with an
authority and in the course of duty.
An authorised civilian may acquire or use an assumed identity if
the acquisition or use is in accordance with the authority and with
any directions given by the person's supervisor.
Clause 20 provides that authorised persons will receive protection from
criminal liability for an act which, apart from this clause, would
otherwise be an offence, as long as the act is done in the course
of acquiring or using an assumed identity in accordance with the
authority.
In the case of an authorised law enforcement officer, the act must
also be done in the course of the officer's duty; in the case of an
authorised civilian, the act must have been done in accordance
with any directions given by his or her supervisor.
Clause 21 applies if the chief officer of a law enforcement agency grants an
assumed identity authority. The law enforcement agency must
indemnify the authorised officer under the authority for any
liability incurred by that authorised officer because of something
the officer does in the course of acquiring or using an assumed
identity, which is in accordance with the authority and in the
course of duty. For an authorised civilian to receive the
indemnity, the act must be in accordance with the authority and
any directions issued by the supervisor.
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Clause 22 provides that the protections from criminal and civil liability will
not apply to anything an authorised person does if a particular
qualification is needed to do the act and the person does not have
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that qualification. This exclusion applies even if the person has
acquired a document which indicates that the person has the
qualification.
For example, a law enforcement officer would not receive
protection from criminal responsibility for driving a car using a
driver licence issued in an assumed name if he or she was not in
fact licensed to drive a car.
Clause 23 provides that if an authorised person is not aware that an
authority has been varied or cancelled, and the person is not
reckless about the existence of the variation or cancellation, then
the person will still receive protection from criminal and civil
liability in clauses 20 and 21.
A person is reckless about the existence of a variation or
cancellation of an authority if the person is aware of a substantial
risk that the authority has been varied or cancelled, and having
regard to the circumstances which are known to that person, it is
unjustifiable to take the risk.
PART 5--MUTUAL RECOGNITION
Clause 24 applies if the chief officer of a law enforcement agency grants an
authority under clause 5 which authorises a request for assumed
identity documentation from a participating jurisdiction.
The chief officer who grants the authority may request the chief
officer of the issuing agency in a participating jurisdiction which
is stated in the authority to produce evidence of the assumed
identity in accordance with the authority; and to give that
evidence to the authorised person named in the authority.
Clause 25 applies if an authority under a corresponding law in a
participating jurisdiction authorises a request for the production
of evidence of an assumed identity in Victoria. The chief officer
of a Victorian government issuing agency who receives a request
must comply with the request; whereas the chief officer of a
Victorian non-government issuing agency who receives a request
may comply but is not required to do so. This provision mirrors
those in clauses 14 and 15.
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Clause 26 applies when the chief officer of an issuing agency produces
evidence of an assumed identity pursuant to a request made under
clause 25. The chief officer of that issuing agency must cancel
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that evidence if directed to do so by the chief officer of the law
enforcement agency who made the request. This is to ensure that
evidence of an assumed identity is cancelled when no longer
necessary. This clause mirrors the cancellation provision in
clause 16.
Clause 27 provides an indemnity for issuing agencies and officers in a
participating jurisdiction who issue assumed identity documents
in response to a request under clause 24 from the chief officer of
a law enforcement agency. The law enforcement agency that
made the request must indemnify the issuing agency and any
officer of the issuing agency for any liability incurred if that
liability is incurred because of any act done by the by the agency
or officer of the agency to comply with the request. This clause
reflects the position in clause 18.
Clause 28 lists a number of provisions in this Bill which apply to anything
done in Victoria under a corresponding authority as if that
authority had been granted under clause 5. This means that an
authority validly granted under, for example, a New South Wales
corresponding law would be recognised as a corresponding
authority in Victoria and the list of provisions in this clause
would apply to acts done pursuant to that corresponding authority
as if it was an authority granted under clause 5.
PART 6--COMPLIANCE AND MONITORING
Division 1--Misuse of Assumed Identity and Information
Clause 29 creates an offence of misuse of an assumed identity.
An authorised officer who intentionally, knowingly or recklessly
acquires or uses evidence of an assumed identity; and who knows
that, or is reckless about whether, the acquisition or use is not in
accordance with the authority or not in the course of duty, is
guilty of an offence.
An authorised civilian who intentionally, knowingly or recklessly
acquires or uses evidence of an assumed identity; and who knows
that, or is reckless about whether, the acquisition or use is not in
accordance with the authority, or not in accordance with the
directions of a supervisor, is guilty of an offence.
These offences carry a maximum penalty of 2 years
imprisonment.
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Clause 30 Sub-clause (1) provides that a person is guilty of an offence if the
person intentionally, knowingly or recklessly discloses
information and the person knows that, or is reckless as to
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whether, the information reveals or is likely to reveal that an
assumed identity acquired or used by another person is not that
other person's real identity.
A person will not commit the offence if the disclosure was in
connection with the administration or execution of the Bill or a
corresponding law; or for the purposes of any legal proceeding
related to the Bill; or in accordance with any requirement
imposed by law.
This offence carries a maximum penalty of 2 years
imprisonment.
In addition, sub-clause (2) creates another, more serious
disclosure offence. A person will be guilty of an offence if they
commit an offence under clause 30(1) intending to, knowing that,
or being reckless as to whether, the disclosure would endanger
the health or safety of a person, or prejudice the effective conduct
of an investigation, or intelligence-gathering.
This offence is an indictable offence and carries a maximum
penalty of 10 years imprisonment.
For the avoidance of doubt, clause 30(4) contains a provision to
the effect that section 38 of the Freedom of Information Act
1982 applies to information referred to in clause 30(1) of the Bill.
Section 38 of the Freedom of Information Act 1982 provides
that a document is an exempt document if there is in force an
enactment applying specifically to information of a kind
contained in the document and prohibiting persons referred to in
the enactment from disclosing information of that kind, whether
the prohibition is absolute or subject to exceptions or
qualifications.
Division 2--Reporting and Record-keeping
Clause 31 requires the chief officer of a law enforcement agency to submit a
report to the Minister which includes the information contained
in clause 31(1). The information includes statistical information
about assumed identity authorities, a general description of the
activities that were undertaken by authorised persons; whether
any fraud or other unlawful activity was identified by the audit
under clause 33; and any other information relating to assumed
identities that the Minister considers appropriate.
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The chief officer of the law enforcement agency must advise the
Minister whether there is any information in the report that
should be excluded from the report before it is tabled in
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Parliament. This is information that, if made public, could be
reasonably expected to endanger a person's safety, prejudice an
investigation or prosecution, or compromise law enforcement
agencies' operations or methodologies.
The Minister must table the report in Parliament within 15 sitting
days of receiving the report.
Clause 32 sets out what kind of records the law enforcement agency must
keep in relation to assumed identities.
Clause 33 requires the chief officer of a law enforcement agency to arrange
for assumed identity records for each authority to be audited at
least once every 6 months while the authority is in force, and at
least once in the 6 months after the cancellation of the authority.
The person conducting the audit may be a law enforcement
officer, but must not be a person who granted, varied or cancelled
assumed identity authorities, and must not be an authorised
person under any of the assumed identity authorities.
Results of audits must be reported to the chief officer of the law
enforcement agency.
Clause 34 provides for delegation of the functions of the chief officer of a
law enforcement agency.
Clause 34(1) provides that the functions of chief officer of a law
enforcement agency cannot be delegated to any other person
except as provided for in this clause. This means that any other
delegation provisions under any other legislation, (including
section 6A of the Police Regulation Act 1958) do not apply to
the functions of the chief officer in this Bill.
Clause 34(2) provides that the chief officer of a law enforcement
agency may delegate to a senior officer any of the chief officer's
functions under the Bill. However no more than 4 delegations
may be in force under this clause at any one time with respect to
any one law enforcement agency.
Clause 34(5) defines "senior officer" in this clause.
For Victoria Police, "senior officer" means an officer of the rank
of superintendent or above.
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For the Australian Crime Commission, "senior officer" means--
· Director National Operations; or
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· Director; or
· General Manager National Operations; or
· any other Senior Executive Service positions that are
prescribed by the regulations.
Clause 34(5)(iv) provides for other Senior Executive Service
(SES) positions to be prescribed by the regulations. This clause
allows further positions to be added to this list if required for the
Australian Crime Commission.
Clause 35 provides for a general regulation-making power.
Clause 36 contains transitional provisions. Clauses 36(1) and 36(2) provide
that any assumed identities that were used under the policies and
procedures of Victoria Police prior to the commencement of the
Bill are taken to be authorities granted under the Bill for a limited
time. The period is from the start of the commencement day of
the Bill until the earlier of--
· the day when the authority is cancelled; or
· 6 months after the commencement day.
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