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This is a Bill, not an Act. For current law, see the Acts databases.
CRIMES (ASSUMED IDENTITIES) BILL 2009
2009
THE LEGISLATIVE ASSEMBLY
FOR THE AUSTRALIAN CAPITAL
TERRITORY
(As presented)
(Attorney-General)
Crimes
(Assumed Identities) Bill 2009
Contents
Page
2009
THE LEGISLATIVE ASSEMBLY
FOR THE AUSTRALIAN CAPITAL
TERRITORY
(As presented)
(Attorney-General)
Crimes (Assumed
Identities) Bill 2009
A Bill for
An Act to provide for the lawful acquisition and use of assumed identities
for law enforcement purposes
The Legislative Assembly for the Australian Capital Territory enacts as
follows:
This Act is the Crimes (Assumed Identities) Act 2009.
This Act commences on a day fixed by the Minister by written
notice.
Note 1 The naming and commencement provisions automatically commence
on the notification day (see Legislation Act, s 75 (1)).
Note 2 A single day or time may be fixed, or different days or times
may be fixed, for the commencement of different provisions (see Legislation Act,
s 77 (1)).
Note 3 If a provision has not commenced within 6 months beginning on
the notification day, it automatically commences on the first day after that
period (see Legislation Act, s 79).
The dictionary at the end of this Act is part of this Act.
Note 1 The dictionary at the end of this Act defines certain terms
used in this Act, and includes references (signpost definitions)
to other terms defined elsewhere.
For example, the signpost definition ‘controlled
operation—see the Crimes (Controlled Operations) Act 2008,
dictionary.’ means that the term ‘controlled operation’ is
defined in that dictionary and the definition applies to this Act.
Note 2 A definition in the dictionary (including a signpost
definition) applies to the entire Act unless the definition, or another
provision of the Act, provides otherwise or the contrary intention otherwise
appears (see Legislation Act, s 155 and s 156 (1)).
A note included in this Act is explanatory and is not part of this
Act.
Note See the Legislation Act, s 127 (1), (4) and (5) for the
legal status of notes.
5 Offences
against Act—application of Criminal Code etc
Other legislation applies in relation to offences against this
Act.
Note 1 Criminal Code
The Criminal Code, ch 2 applies to all offences against this Act (see Code,
pt 2.1).
The chapter sets out the general principles of criminal responsibility
(including burdens of proof and general defences), and defines terms used for
offences to which the Code applies (eg conduct,
intention, recklessness and strict
liability).
Note 2 Penalty units
The Legislation Act, s 133 deals with the meaning of offence penalties that
are expressed in penalty units.
(1) The main purpose of this Act is to facilitate, for law enforcement
purposes, investigations and intelligence gathering in relation to criminal
activity, including investigations extending beyond the ACT.
(2) The purpose is to be achieved mainly by—
(a) providing for the lawful acquisition and use of assumed identities;
and
(b) facilitating mutual recognition of things done in relation to assumed
identities under corresponding laws.
7 Relationship
to other laws
The following Acts do not apply in relation to activities, documents, and
records under this Act:
(a) the Freedom of Information Act 1989;
(b) the Territory Records Act 2002.
Part
2 Authority to acquire or use assumed
identity
8 Application
for authority
(1) A law enforcement officer of a law enforcement agency may apply to the
chief officer of the agency for an authority for the law enforcement officer, or
someone else, to do either or both of the following:
(a) acquire an assumed identity;
(b) use an assumed identity.
(2) A separate application must be made for each assumed identity to be
acquired or used.
(3) An application must be in writing in the form approved by the chief
officer.
(4) An application must contain—
(a) the applicant’s name; and
(b) if someone other than the applicant is to be authorised to acquire or
use an assumed identity—the person’s name; and
(c) if the person mentioned in paragraph (b) is not a law enforcement
officer—the name and rank or position of the law enforcement officer
proposed to be appointed as the person’s supervisor, and an explanation of
why it is necessary for a person who is not a law enforcement officer to acquire
or use an assumed identity; and
(d) details of the proposed assumed identity; and
(e) reasons for the need to acquire or use an assumed identity;
and
(f) details (to the extent known) of the investigation or
intelligence-gathering exercise in which the assumed identity will be used;
and
(g) details of the issuing agencies (if any) and the kinds of evidence to
be issued by them; and
(h) details of any application to be made for an order under
section 16 (Making entries in register of births, deaths or marriages) in
relation to the assumed identity.
(5) The chief officer may require the applicant to give the chief officer
the additional information the chief officer reasonably needs to decide the
application.
Note The chief officer may delegate a function under this section
(see s 42).
9 Decision
on application for authority
(1) After considering an application for an authority to acquire or use an
assumed identity, and any additional information given under section 8 (5), the
chief officer of a law enforcement agency may—
(a) grant an authority to acquire or use the assumed identity, with or
without conditions; or
(b) refuse the application.
(2) The chief officer must not grant an authority to acquire or use an
assumed identity unless satisfied on reasonable grounds that—
(a) the assumed identity is necessary for the purposes of an investigation
or intelligence gathering in relation to criminal activity; and
(b) the risk of abuse of the assumed identity by the authorised person is
minimal; and
(c) if the application is for authorisation of an assumed identity for a
person who is not a law enforcement officer—it would be impossible or
impracticable in the circumstances for a law enforcement officer to acquire or
use the assumed identity for the purpose sought.
(3) An authority may also authorise 1 or more of the following:
(a) an application for an order for an entry in a register of births,
deaths or marriages under section 16 (Making entries in register of births,
deaths or marriages) or a corresponding law;
(b) a request under section 19 (Request for evidence of assumed identity)
or section 31 (Request to participating jurisdiction for evidence of assumed
identity);
(c) the use of an assumed identity in a participating
jurisdiction.
(4) A separate authority is required for each assumed identity.
Note The chief officer may delegate a function under this section
(see s 42).
10 Authorised
civilian’s authority not longer than 3 months
The chief officer must not grant an authority for an authorised civilian
for longer than 3 months.
11 Authorised
civilian’s supervisor
(1) This section applies if the chief officer of a law enforcement agency
grants an authority for an authorised civilian.
(2) The chief officer must appoint a law enforcement officer of the agency
to supervise the acquisition or use of the assumed identity by the authorised
civilian.
(3) The law enforcement officer appointed as supervisor must
be—
(a) for the Australian Federal Police—of or above the rank of
sergeant; and
(b) for the Australian Crime Commission—of or above the rank of
senior investigator.
(1) An authority must be—
(a) in writing in the form approved by the chief officer; and
(b) signed by the person granting it.
(2) An authority must state the following:
(a) the name of the person granting the authority;
(b) the date on which the authority comes into effect;
(c) details of the assumed identity under the authority;
(d) details of any evidence of the assumed identity that may be acquired
under the authority;
(e) the conditions (if any) to which the authority is subject;
(f) why the authority is granted;
(g) if the authority relates to an authorised officer—the authorised
officer’s name;
(h) if the authority relates to an authorised civilian—
(i) the authorised civilian’s name; and
(ii) the name of the authorised civilian’s supervisor under the
authority; and
(iii) the period the authority is in force.
Note An authorised civilian’s authority must not be for longer
than 3 months (see s 10).
(3) The authority must also state the following:
(a) each issuing agency to which a request may be made under section 19
(Request for evidence of assumed identity) or section 31 (Request to
participating jurisdiction for evidence of assumed identity);
(b) whether it authorises an application for an order for an entry in a
register of births, deaths or marriages under section 16 (Making entries in
register of births, deaths or marriages) or a corresponding law;
(c) each participating jurisdiction in which an assumed identity may be
used.
Note The chief officer may delegate a function under this section
(see s 42).
(1) An authority for an authorised officer is in force until cancelled
under section 14.
(2) An authority for an authorised civilian is in force
until—
(a) the end of the period stated in the authority; or
(b) if the authority is cancelled under section
14—the day the authority is
cancelled.
14 Amendment
or cancellation of authority
(1) The chief officer of a law enforcement agency who grants an
authority—
(a) may amend or cancel the authority at any time; and
(b) must cancel the authority if satisfied on reasonable grounds (on a
review under section 15 or otherwise) that use of the assumed identity under the
authority is no longer necessary.
(2) The chief officer must give written notice of the amendment or
cancellation to—
(a) the authorised person to whom the authority relates; and
(b) if the authorised person is an authorised civilian—the
authorised person’s supervisor.
(3) The notice must state why the authority is amended or
cancelled.
(4) The amendment or cancellation takes effect on—
(a) the day the written notice is given to the authorised person;
or
(b) if the notice states a later date of effect—the stated
date.
Note The chief officer may delegate a function under this section
(see s 42).
15 Review
of authority granted to authorised officer
(1) The chief officer of a law enforcement agency must review each
authority granted to an authorised officer by the chief officer, and in force,
under this Act to decide whether use of the assumed identity under the authority
is still necessary.
Note An authority granted by a delegate of a chief officer is taken
to have been granted by the chief officer (see Legislation Act, s 239
(4)).
(2) The review must happen at least once every 12 months.
(3) If the chief officer is satisfied on reasonable grounds on a review
that use of the assumed identity under the authority is no longer necessary, the
chief officer must cancel the authority under section 14.
(4) If the chief officer is satisfied on reasonable grounds on a review
that use of the assumed identity under the authority is still necessary, the
chief officer must record the chief officer’s opinion, and the reasons for
it, in writing.
Note The chief officer may delegate a function under this section
(see s 42).
16 Making
entries in register of births, deaths or marriages
(1) The Supreme Court may order the registrar-general to make an entry in
the register under the Births, Deaths and Marriages Registration Act 1997
in relation to the acquisition of an assumed identity under an authority or
corresponding authority.
(2) The court may make the order only—
(a) on application by—
(i) the chief officer of a law enforcement agency; or
(ii) the chief officer of a law enforcement agency under a corresponding
law; and
(b) if satisfied that the order is justified having regard to the kind of
activities undertaken or to be undertaken by the officer or person under the
authority or corresponding authority.
(3) The application must be heard in closed court.
(4) The registrar-general must give effect to an order—
(a) within the period stated in the order; or
(b) if no period is stated in the order—within 28 days after the day
the order is made.
Note The chief officer may delegate a function under this section
(see s 42).
(5) The registrar-general must give the chief officer who applied for the
order a certificate under the Births, Deaths and Marriages Registration Act
1997 in relation to the entry made in the register under the
order.
17 Cancellation
of authority affecting entry in register of births, deaths or
marriages
(1) This section applies if—
(a) the chief officer of a law enforcement agency cancels an authority for
an assumed identity; and
(b) there is an entry in relation to the identity—
(i) in the register under the Births, Deaths and Marriages Registration
Act 1997 because of an order under section 16; or
(ii) in a register of births, deaths or marriages in a participating
jurisdiction because of an order under a corresponding law of the
jurisdiction.
(2) If subsection (1) (b) (i) applies, the chief officer must apply for an
order under section 18 within 28 days after the day the authority is
cancelled.
(3) If subsection (1) (b) (ii) applies, the chief officer must apply for
an order under the corresponding law to cancel the entry within 28 days after
the day the authority is cancelled.
18 Cancelling
entries in register of births, deaths or marriages
(1) The Supreme Court may order the registrar-general to cancel an entry
that has been made in the register under the Births, Deaths and Marriages
Registration Act 1997 because of an order under section 16.
(2) The court may make the order only on application by the chief officer
mentioned in section 17.
(3) The application must be heard in closed court.
(4) The registrar-general must give effect to the order within 28 days
after the day the order is made.
(5) The chief officer who applied for the order must return to the
registrar-general any certificate relating to the entry in the register that was
given by the registrar-general in accordance with
section 16 (5).
Part
3 Evidence of assumed
identity
19 Request
for evidence of assumed identity
(1) This section applies if an authority authorises a request under this
section.
Note Authority means an authority granted under s 9 to
acquire and use an assumed identity, and includes the authority as amended under
s 14 (see dict).
(2) The chief officer of a law enforcement agency who grants the authority
may ask the chief officer of an issuing agency stated in the authority
to—
(a) produce evidence of an assumed identity in accordance with the
authority; and
(b) give evidence of the assumed identity to the authorised person stated
in the authority.
Example—produce evidence of
identity
The assumed identity is Emmy Morgan. An issuing agency creates a
driver’s licence in the name of Emmy Morgan.
Note An example is part of the Act, is not exhaustive and may
extend, but does not limit, the meaning of the provision in which it appears
(see Legislation Act, s 126 and s 132).
(3) The request must state a reasonable period for compliance with
the request.
(4) A request must not be made under this section for an entry in the
register under the Births, Deaths and Marriages Registration
Act 1997 or a certificate under that Act in relation to the
entry.
Note Section 16 deals with entries in the register and related
certificates.
(5) In this section:
evidence means evidence of identity similar to that
ordinarily produced or given by the issuing agency.
Note 1 Evidence of identity—see the
dictionary.
Note 2 The chief officer may delegate a function under this section
(see s 42).
20 Government
issuing agency to comply with request
The chief officer of a government issuing agency who receives a request
under section 19 must comply with the request within the reasonable period
stated in the request.
21 Non-government
issuing agency may comply with request
The chief officer of a non-government issuing agency who receives a request
under section 19 may comply with the request.
22 Cancellation
of evidence of assumed identity
(1) This section applies if the chief officer of an issuing agency
produces evidence of an assumed identity under this part.
(2) The chief officer of the issuing agency must cancel the evidence if
given a written direction to do so by the chief officer of a law enforcement
agency who asked for the evidence.
(3) In this section:
cancel includes delete or alter an entry in a record of
information.
23 Protection
from criminal responsibility—officers of issuing
agencies
(1) This section applies if the chief officer or an officer of an issuing
agency engages in conduct that would, apart from this section, be an
offence.
Note An issuing agency may be government or non-government (see
dict).
(2) The chief officer or officer is not criminally responsible for the
offence if the conduct is engaged in to comply with a request under section 19
or a direction under section 22.
24 Protection
from criminal responsibility for certain ancillary conduct
(1) This section applies to conduct (ancillary conduct) for
which a person may be criminally responsible because it involves conduct engaged
in by someone else for which the other person would (apart from section 23) be
criminally responsible (the related conduct).
Examples—ancillary
conduct
1 aiding and abetting (see Criminal Code, s 45)
2 conspiracy (see Criminal Code, s 48)
Note An example is part of the Act is not exhaustive and may extend,
but does not limit, the meaning of the provision in which it appears (see
Legislation Act, s 126 and s 132).
(2) Despite any other territory law, a person who engages in ancillary
conduct that is an offence (whether or not the person is an authorised person or
officer of an issuing agency) is not criminally responsible for the offence if,
at the time the person engaged in the ancillary conduct, the person believed the
related conduct was being engaged in, or would be engaged in, by the chief
officer or an officer of an issuing agency.
Note An issuing agency may be government or non-government (see
dict).
25 Protection
from civil liability—issuing agencies and officers
(1) This section applies if the chief officer of a law enforcement agency
makes a request under section 19 (Request for evidence of assumed identity) of,
or gives a direction under section 22 (Cancellation of evidence of assumed
identity) to, the chief officer of an issuing agency.
Note An issuing agency may be government or non-government (see
dict).
(2) The issuing agency, or an officer of the issuing agency, is not
civilly liable for conduct engaged in honestly and without recklessness
if—
(a) the conduct is engaged in by the agency or officer—
(i) to comply with the request or direction in the course of duty;
or
(ii) in the reasonable belief that the conduct was engaged in to comply
with the request or direction in the course of duty; and
(b) the requirements (if any) prescribed by regulation have been
met.
(3) Any civil liability (including reasonable costs) that would, apart
from this section, attach to the issuing agency or officer attaches instead to
the law enforcement agency.
Part
4 Effect of
authority
26 Assumed
identity may be acquired and used
(1) An authorised officer may acquire an assumed identity if the
acquisition is—
(a) in accordance with an authority; and
(b) in the course of duty.
(2) An authorised officer may use an assumed identity if the use
is—
(a) in accordance with an authority or for a controlled operation;
and
(b) in the course of duty.
(3) An authorised civilian may acquire an assumed identity if the
acquisition is in accordance with—
(a) an authority; and
(b) any direction by the civilian’s supervisor under the
authority.
(4) An authorised civilian may use an assumed identity if the use is in
accordance with—
(a) an authority or for a controlled operation; and
(b) any direction by the civilian’s supervisor under the
authority.
27 Protection
from criminal responsibility—authorised people
(1) This section applies if an authorised person engages in conduct (in
the ACT or elsewhere) that would, apart from this section, be an
offence.
(2) Despite any other territory law, the person is not criminally
responsible for the offence if—
(a) the conduct is engaged in in the course of—
(i) acquiring an assumed identity in accordance with an authority;
or
(ii) using an assumed identity in accordance with an authority or for a
controlled operation; and
(b) the conduct is engaged in—
(i) for an authorised officer—in the course of the officer’s
duty; or
(ii) for an authorised civilian—in accordance with any direction by
the civilian’s supervisor under the authority; and
(c) engaging in the conduct would not be an offence if the assumed
identity were the person’s real identity.
28 Protection
from civil liability—authorised people
(1) This section applies if the chief officer of a law enforcement agency
grants an authority in relation to an authorised person.
(2) The authorised person is not civilly liable for conduct (in the ACT or
elsewhere) engaged in honestly and without recklessness if—
(a) the conduct is engaged in in the course of—
(i) acquiring an assumed identity in accordance with an authority;
or
(ii) using an assumed identity in accordance with an authority or for a
controlled operation; and
(b) the conduct is engaged in—
(i) for an authorised officer—in the course of the officer’s
duty; or
(ii) for an authorised civilian—in accordance with any direction by
the civilian’s supervisor under the authority; and
(c) the requirements (if any) prescribed by regulation have
been met.
(3) Any civil liability (including reasonable costs) that would, apart
from this section, attach to the authorised person attaches instead to the law
enforcement agency.
29 Particular
qualifications
(1) Section 27 and section 28 do not apply to conduct engaged in by an
authorised person if—
(a) a particular qualification is needed to engage in the conduct;
and
(b) the person does not have the qualification.
(2) Subsection (1) applies whether or not the person has acquired, as
evidence of an assumed identity, a document indicating that the person has the
qualification.
30 Effect
of being unaware of amendment or cancellation of authority
(1) If an authority is amended in a way that limits its scope, this part
continues to apply to the authorised person to whom the authority relates as if
it had not been amended in that way, for so long as the person—
(a) is unaware of the amendment; and
(b) is not reckless about the existence of the amendment.
(2) If an authority is cancelled, this part continues to apply to the
authorised person to whom the authority related as if it had not been cancelled,
for so long as the person—
(a) is unaware of the cancellation; and
(b) is not reckless about the existence of the cancellation.
(3) For this section, a person is reckless about the
existence of the amendment or cancellation of an authority if—
(a) the person is aware of a substantial risk that the authority has been
amended or cancelled; and
(b) having regard to the circumstances known to the person, it is
unjustifiable to take the risk.
Part
5 Mutual recognition under
corresponding laws
31 Request
to participating jurisdiction for evidence of assumed
identity
(1) This section applies if an authority authorises a request under this
section.
Note Authority means an authority granted under s 9 to
acquire and use an assumed identity, and includes the authority as amended under
s 14 (see dict).
(2) The chief officer of a law enforcement agency who grants the authority
may ask the chief officer of an issuing agency of a participating jurisdiction
stated in the authority to—
(a) produce evidence of an assumed identity in accordance with the
authority; and
(b) give evidence of the assumed identity to the authorised person stated
in the authority.
Note The chief officer may delegate a function under this section
(see s 42).
32 Request
from participating jurisdiction for evidence of assumed
identity
(1) This section applies if—
(a) a corresponding authority authorises a request for—
(i) the production of evidence of an assumed identity in the ACT;
and
(ii) the giving of evidence of the assumed identity to the authorised
person stated in the authority; and
(b) the request is made to the chief officer of an issuing agency in the
ACT; and
(c) the request states a reasonable period for compliance with the
request.
(2) The chief officer of a government issuing agency who receives the
request must comply with the request within the reasonable period stated in the
request.
(3) The chief officer of a non-government issuing agency who receives the
request may comply with the request.
33 Direction
from participating jurisdiction to cancel evidence of assumed
identity
(1) This section applies if the chief officer of an issuing agency
produces evidence of an assumed identity because of a request mentioned in
section 32.
(2) The chief officer of the issuing agency must cancel the evidence if
given a written direction to do so by the chief officer of a law enforcement
agency who made the request.
(3) In this section:
cancel includes delete or alter an entry in a record of
information.
34 Protection
from civil liability—issuing agencies and officers of participating
jurisdictions
(1) This section applies if the chief officer of a law enforcement agency
makes a request under section 31 of, or gives a direction under section 33 to,
the chief officer of an issuing agency of a participating
jurisdiction.
(2) The issuing agency, or an officer of the issuing agency, is not
civilly liable for conduct engaged in honestly and without recklessness
if—
(a) the conduct is engaged in (in the ACT or elsewhere) by the agency or
officer—
(i) to comply with the request in the course of duty; or
(ii) in the reasonable belief that the conduct was engaged in to comply
with the request in the course of duty; and
(b) the requirements (if any) prescribed by regulation have been
met.
(3) Any civil liability (including reasonable costs) that would, apart
from this section, attach to the issuing agency or officer attaches instead to
the law enforcement agency.
35 Application
of Act to corresponding authorities
The following provisions apply, with any necessary changes, to anything
done in the ACT in relation to a corresponding authority as if it were an
authority granted under section 9:
(a) section 23 (Protection from criminal responsibility—officers of
issuing agencies);
(b) section 26 (Assumed identity may be acquired and used);
(c) section 27 (Protection from criminal responsibility—authorised
people);
(d) section 29 (Particular qualifications);
(e) section 30 (Effect of being unaware of amendment or cancellation of
authority);
(f) section 36 (Misuse of assumed identity);
(g) section 37 (Unauthorised disclosure of information about assumed
identity).
Part
6 Compliance and
monitoring
Division
6.1 Misuse of assumed identity and
information
36 Misuse
of assumed identity
(1) An authorised officer commits an offence if—
(a) the officer acquires evidence of an assumed identity; and
(b) the acquisition is not—
(i) in accordance with the officer’s authority; or
(ii) in the course of duty; and
(c) the officer is reckless about whether the acquisition is
not—
(i) in accordance with the authority; or
(ii) in the course of duty.
Maximum penalty: imprisonment for 2 years.
Note The fault element of recklessness can be satisfied by proof of
intention, knowledge or recklessness (see Criminal Code, s
20 (4)).
(2) An authorised officer commits an offence if—
(a) the officer uses an assumed identity; and
(b) the use is not—
(i) in accordance with the officer’s authority or for a controlled
operation; or
(ii) in the course of duty; and
(c) the officer is reckless about whether the use is not—
(i) in accordance with the authority or for a controlled operation;
or
(ii) in the course of duty.
Maximum penalty: imprisonment for 2 years.
(3) An authorised civilian commits an offence if—
(a) the civilian acquires evidence of an assumed identity; and
(b) the acquisition is not—
(i) in accordance with the civilian’s authority; or
(ii) in accordance with a direction of the civilian’s supervisor
under the authority; and
(c) the civilian is reckless about whether the acquisition is
not—
(i) in accordance with the authority; or
(ii) in accordance with a direction of the civilian’s supervisor
under the authority.
Maximum penalty: imprisonment for 2 years.
(4) An authorised civilian commits an offence if—
(a) the civilian uses an assumed identity; and
(b) the use is not—
(i) in accordance with the civilian’s authority or for a controlled
operation; or
(ii) in accordance with a direction of the civilian’s supervisor
under the authority; and
(c) the civilian is reckless about whether the use is not—
(i) in accordance with the authority or for a controlled operation;
or
(ii) in accordance with a direction of the civilian’s supervisor
under the authority.
Maximum penalty: imprisonment for 2 years.
37 Unauthorised
disclosure of information about assumed identity
(1) A person commits an offence if—
(a) the person discloses information; and
(b) the information reveals, or is likely to reveal, that an assumed
identity acquired or used by someone else is not the other person’s real
identity; and
(c) the person knows that the information reveals, or is likely to reveal,
that an assumed identity acquired or used by someone else is not the other
person’s real identity; and
(d) the disclosure is not made—
(i) in connection with the administration or execution of this Act or a
corresponding law; or
(ii) for the purposes of any legal proceeding arising out of or otherwise
related to this Act or a corresponding law or of any report of any such
proceeding; or
(iii) in accordance with any requirement imposed by law; and
(e) the person is reckless about whether the disclosure is not made as
mentioned in paragraph (d).
Maximum penalty: imprisonment for 2 years.
(2) A person commits an offence if—
(a) the person discloses information; and
(b) the information reveals, or is likely to reveal, that an assumed
identity acquired or used by someone else is not the other person’s real
identity; and
(c) the person is reckless about whether the information reveals, or is
likely to reveal, that an assumed identity acquired or used by someone else is
not the other person’s real identity; and
(d) the disclosure is not made—
(i) in connection with the administration or execution of this Act or a
corresponding law; or
(ii) for the purposes of any legal proceeding arising out of or otherwise
related to this Act or a corresponding law or of any report of any such
proceeding; or
(iii) in accordance with any requirement imposed by law; and
(e) the person is reckless about whether the disclosure is not made as
mentioned in paragraph (d).
Maximum penalty: imprisonment for 2 years.
(3) A person commits an offence if the person commits an offence against
subsection (1) or (2) in circumstances in which the person—
(a) intends to endanger the health or safety of anyone; or
(b) is reckless about whether the disclosure of the information endangers
or will endanger the health or safety of anyone.
Maximum penalty: imprisonment for 10 years.
(4) A person commits an offence if the person commits an offence against
subsection (1) or (2) in circumstances in which the
person––
(a) intends to prejudice the effective conduct of an investigation or
intelligence-gathering in relation to criminal activity; or
(b) is reckless about whether the disclosure of the information prejudices
or will prejudice the effective conduct of investigation or
intelligence-gathering in relation to criminal activity.
Maximum penalty: imprisonment for 10 years.
Division
6.2 Reporting and
record-keeping
38 Report
about authorities for assumed identities etc
(1) As soon as practicable after the end of each financial year, the chief
officer of a law enforcement agency must give a written report to the Minister
that includes the following information for the year:
(a) the number of authorities granted during the year;
(b) a general description of the activities undertaken by authorised
people when using assumed identities under this Act during the year;
(c) the number of applications for authorities that were refused during
the year;
(d) a statement whether or not any fraud or other unlawful activity was
identified by an audit under section 40 during the year;
(e) any other information relating to authorities, assumed identities or
the administration of this Act that the Minister considers
appropriate.
(2) The chief officer must advise the Minister of any information in the
report that, in the chief officer’s opinion, should be excluded from the
report before the report is presented to the Legislative Assembly because the
information, if made public, could reasonably be expected to—
(a) endanger a person’s safety; or
(b) prejudice an investigation or prosecution; or
(c) compromise any law enforcement agency’s operational activities
or methodologies.
(3) The Minister must exclude information from the report if satisfied on
the advice of the chief officer of any of the grounds
set out in subsection (2).
(4) The Minister must present a copy of the report to the Legislative
Assembly within 15 sitting days after the day the Minister receives the
report.
(1) The chief officer of a law enforcement agency must cause appropriate
records to be kept about this Act’s operation in relation to the
agency.
(2) The records must include the following in relation to each authority
granted, amended or cancelled under this Act in relation to the
agency:
(a) the date the authority was granted, amended or cancelled and the name
of the person who granted, amended or cancelled it;
(b) the name of the authorised person under the authority, together with
details of the assumed identity to which the authority applies;
(c) details of any request made to an issuing agency under section 19
(Request for evidence of assumed identity) in relation to the
authority;
(d) the general nature of the duties undertaken by the authorised person
under the assumed identity;
(e) general details of relevant financial transactions entered into using
the assumed identity;
(f) for an authority granted to an authorised officer—details of
reviews of the authority under section 15 (Review of authority granted to
authorised officer).
(1) The chief officer of a law enforcement agency must have the records
kept under section 39 for each authority in relation to the agency
audited—
(a) at least once every 6 months while the authority is in force;
and
(b) at least once in the 6 months after the authority ends or is
cancelled.
(2) The chief officer must appoint a person to conduct the
audit.
(3) The person appointed to conduct the audit—
(a) may, but need not, be an officer of the law enforcement agency;
and
(b) must not be a person—
(i) who granted, amended or cancelled any of the authorities to which the
records under section 39 relate; or
(ii) who is or was an authorised person under any of the authorities to
which the records relate.
(4) A person who conducts an audit under this section for a law
enforcement agency must give the chief officer of the agency a written report of
the results of the audit.
41 Inspection
of records by ombudsman
(1) The ombudsman may inspect the records of a law enforcement agency to
determine the extent of compliance with this Act by the agency and law
enforcement officers of the agency.
(2) For the purpose of an inspection under this section, the
ombudsman—
(a) after notifying the chief officer of the law enforcement agency, may
enter at any reasonable time premises occupied by the agency; and
(b) is entitled to have full and free access at all reasonable times to
all records of the agency that are relevant to the inspection; and
(c) may require a member of staff of the agency to give the ombudsman any
information that the ombudsman considers necessary, being information that is in
the member’s possession, or to which the member has access, and that is
relevant to the inspection.
(3) The chief officer must ensure that members of staff of the agency give
the ombudsman any assistance the ombudsman reasonably requires to enable the
ombudsman to exercise functions under this section.
(4) The ombudsman must give a written report prepared under the Annual
Reports (Government Agencies) Act 2004, on the results of each inspection
under this section in the preceding financial year.
(5) The report must include a report on the comprehensiveness and adequacy
of the records of the agency and the cooperation given by the agency in
facilitating the inspection by the ombudsman of those records.
(6) The report must not include any information that, if made public,
could reasonably be expected to—
(a) endanger a person’s safety; or
(b) prejudice an investigation or prosecution; or
(c) compromise any law enforcement agency’s operational activities
or methodologies.
(1) Despite any other territory law, the functions of a chief officer of a
law enforcement agency under this Act must not be delegated to anyone
else.
(2) However, a chief officer of a law enforcement agency may delegate to a
senior officer of the law enforcement agency any of the chief officer’s
functions under this Act.
(3) Not more than 4 delegations may be in force under this section at any
one time in relation to any 1 law enforcement agency.
(4) In this section:
senior officer means—
(a) in relation to the Australian Federal Police—a deputy chief
police officer; or
(b) in relation to the Australian Crime Commission—any of the
following:
(i) the Director National Operations;
(ii) a Director;
(iii) a Head of Investigation/Operation;
(iv) a position of the Australian Crime Commission prescribed by
regulation.
43 Regulation-making
power
The Executive may make regulations for this Act.
Note A regulation must be notified, and presented to the Legislative
Assembly, under the Legislation Act.
(see s 3)
Note 1 The Legislation Act contains definitions and other provisions
relevant to this Act.
Note 2 For example, the Legislation Act, dict, pt 1, defines the
following terms:
• ACT
• chief police officer
• Commonwealth
• entity
• exercise, a function
• financial year
• function
• in relation to
• Legislative Assembly
• Minister (see s 162)
• police officer
• position
• registrar-general
• territory law.
acquire an assumed identity, means acquire evidence of the
identity, and includes taking steps towards acquiring evidence of the
identity.
agency means—
(a) an issuing agency; or
(b) a law enforcement agency.
Australian Crime Commission
means the Australian Crime Commission
established by the Australian Crime Commission
Act 2002 (Cwlth).
authorised civilian means a person (other than a law
enforcement officer) who is authorised under an authority to acquire or use an
assumed identity.
authorised officer means a law enforcement officer who is
authorised under an authority to acquire or use an assumed identity.
authorised person
means—
(a) an authorised civilian; or
(b) an authorised officer.
authority means an authority granted under section 9 to
acquire and use an assumed identity, and includes the authority as amended under
section 14.
chief officer—
(a) of a law enforcement agency, means—
(i) in relation to the Australian Federal Police––the chief
police officer; and
(ii) in relation to the Australian Crime Commission—the chief
executive officer of the Australian Crime Commission; and
(b) of an issuing agency—means the chief executive officer (however
described) of the agency.
conduct means an act or omission to do an act.
controlled operation—see the Crimes (Controlled
Operations) Act 2008, dictionary.
corresponding authority means an authority under a
corresponding law—
(a) to acquire or use an assumed identity in the ACT; or
(b) to request the production of evidence of an assumed
identity.
corresponding law means a law of another jurisdiction that
corresponds to this Act, and includes a law of another jurisdiction that is
declared by regulation to correspond to this Act.
criminal activity means conduct that involves the commission
of an offence by 1 or more people.
doing a thing, includes failing to do the thing.
evidence of identity, means a document or other thing (for
example, a driver’s licence, birth certificate, credit card or identity
card) that evidences or indicates, or can be used to evidence or indicate, a
person’s identity or any aspect of a person’s identity.
Note An example is part of the Act, is not exhaustive and may
extend, but does not limit, the meaning of the provision in which it appears
(see Legislation Act, s 126 and s 132).
government issuing agency, in relation to an authority, means
any of the following stated in the authority that issues evidence of
identity:
(a) an entity that exercises a function of the government of the
ACT;
(b) an entity prescribed by regulation.
issuing agency means—
(a) a government issuing agency; or
(b) a non-government issuing agency.
jurisdiction means the Commonwealth or a State or Territory
of the Commonwealth.
law enforcement agency means—
(a) the Australian Federal Police;
or
(b) the Australian Crime Commission.
law enforcement officer—
(a) means—
(i) a police officer; or
(ii) a member of staff of the Australian Crime Commission; and
(b) includes a person who is seconded to a law enforcement agency,
including (but not limited to) a member of the police force or police service,
and a police officer (however described), of another jurisdiction.
non-government issuing agency, in relation to an authority,
means an entity (other than a government issuing agency) stated in the authority
that issues evidence of identity.
officer of an agency, includes a person employed or engaged
in the agency.
participating jurisdiction means a jurisdiction in which a
corresponding law is in force.
supervisor of an authorised civilian, means the law
enforcement officer who supervises or is to supervise the acquisition or use of
an assumed identity by the authorised civilian.
use an assumed identity, includes representing (whether
expressly or impliedly, or by saying or doing something) the identity to be real
when it is not.
Endnotes
1 Presentation speech
Presentation speech made in the Legislative Assembly on 2009.
2 Notification
Notified under the Legislation Act on 2009.
3 Republications of amended laws
For the latest republication of amended laws, see
www.legislation.act.gov.au.
© Australian Capital Territory
2009
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