The Second Reading speech for the South Australian
Statutes Amendment (Identity Theft) Bill 2023 - to amend the
Criminal Law Consolidation Act 1935 (SA), the
Criminal Procedure Act 1921 (SA), the
Sentencing Act 2017 (SA) and the
Youth Court Act 1993 (SA) - states
This bill updates the provisions in part 5A of the Criminal Law Consolidation Act to make it easier to prosecute identity theft and to increase penalties associated with the crime. It changes the law so as to support victims by making it easier to quickly obtain verification from a court that they have been the victim of identity theft, which will assist the victims to restore their creditworthiness.
The bill inserts a new offence into the Criminal Law Consolidation Act of possessing or using another person's identification information without reasonable excuse. The new offence, in section 144DA, places the onus of proof on the defendant to show that they have a reasonable excuse for possessing another person's personal identity information.
This offence is a summary-level offence carrying a maximum penalty of two years' imprisonment. The reverse onus nature of the offence aims to address the fact that identity theft offences are becoming increasingly prevalent and are generally committed remotely from the victim, leaving little physical evidence, and are far harder to track than many other property offences.
Varying the burden of proof in this way recognises that the reasonable excuse of possessing another person's identity information relates to the facts which, if they exist, are readily provable by the accused as matters within his or her own knowledge or to which they have ready access.
The new offence is limited to possession of personal identification information of natural persons rather than bodies corporate. The new offence does not include the possession of public identification information. This is defined to include name, address or other contact details, date or place of birth, marital status and relatives. These details are often readily available publicly and possession of them does not constitute an offence.
When this council last considered a similar bill, I supported amendments aimed at removing some of the reverse onus of proof provisions in this clause. Upon coming into government, I consulted with the police commissioner and inquiries were made about whether this bill could be effective without the reverse onus of proof. The commissioner's response noted his support for the inclusion of these matters in this bill. He noted that it was not uncommon in legislation and is utilised in a number of offence settings, including summary offences of unlawful possession and carry offensive weapon.
Given such feedback, we have formed the view that this element should be maintained. However, an additional exemption has been added to the bill beyond what has previously been included. There are a number of exemptions to the reverse onus of proof aspect of the offence, including for the use in the ordinary course of a lawful occupation or activity, where the defendant is a close relative of the victim, where the defendant holds the power of attorney for the victim, where the defendant is a guardian or administrator for the victim, or where the personal identification information consists of a single set of personal identity information that was readily publicly available.
Where the defendant falls into one of the above-mentioned categories, the onus is then on the prosecution to prove beyond reasonable doubt that the defendant had possession of the relevant material without reasonable excuse.
The existing identity theft offences are very narrow. Currently, sections 144B and 144C require the prosecution to prove that the assumption of the false identity or the misuse of the personal identity information was done to commit a serious criminal offence. A serious criminal offence is defined in section 144A as an indictable offence or one prescribed by regulation.
This requirement has meant that the threshold for the prosecution has been unreasonably high and failed to capture many modern identity theft schemes. For instance, 'card not present' fraud, skimming, payWave and other high volume and low value offences are not usually captured. It is proposed in this bill to remove the requirement for intent to commit a serious criminal offence and simply refer to a criminal offence. With this amendment, law enforcement will be able to target a wider spectrum of offending.
This bill also increases the penalty for the existing offences of producing or possessing prohibited material in section 144D from three to five years' imprisonment to provide a greater deterrent for this type of behaviour.
Finally, the bill modifies existing provisions regarding the issuing of identity theft certificates. An identity theft certificate is a document that can be provided by a court to verify that the victim is a victim of identity theft. Victims then use the certificate to prove to relevant authorities that their identity has been compromised. Under the current framework, many victims are not able to obtain an identity theft certificate. Currently, section 125 of the Sentencing Act requires first, the conviction of the offender, and secondly, an application by the victim to the court that arrived at the finding of guilt for a certificate to be issued.
This process presents difficulties for many victims. Many perpetrators are never found or charged, as it is common for them to be located outside of Australia and, even if the perpetrator is found and charged, it can take years for a prosecution to be completed. There is also a low rate of successful prosecutions. In the meantime, victims can spend significant amounts of time and effort convincing government departments, agencies, utilities or credit reporting agencies that their identities have been compromised before it is possible for them to obtain credit services.
In cases where there is a prosecution, the long wait for a court outcome exacerbates the financial detriment and emotional stress experienced by victims. The bill inserts a new section 84 in the Criminal Procedure Act 1921 enabling the Magistrates Court or, in the case of minors, the Youth Court to issue a certificate to victims of identity theft where the court is satisfied on the balance of probabilities that they are the victim of identity theft.
As the ability to obtain a certificate is no longer contingent on a conviction of the perpetrator, the provision has been moved from the Sentencing Act to the Criminal Procedure Act. The bill also makes consequential amendments to the Youth Court Act to allow the Youth Court to also issue identity theft certificates where the victim is a minor.
Finally, I note that the former version of this bill introduced under the former Liberal government included further provisions which rolled back the current exclusions of persons under 18 from the identity theft provision already in the Criminal Law Consolidation Act. Labor, then in opposition, opposed these provisions at the time and we have removed them from the bill that is introduced today.
