Police Powers (Assumed Identities) Act 2006

Police Powers (Assumed Identities) Act 2006

This Act may be cited as the Police Powers (Assumed Identities) Act 2006.

This Act commences on a day to be proclaimed.

In this Act, unless the contrary intention appears –

acquire an assumed identity means acquire evidence of the identity and includes taking steps towards acquiring evidence of the identity;

agency means – an issuing agency; or a law enforcement agency;

Australian Crime Commission means the Australian Crime Commission established by the Australian Crime Commission Act 2002 of the Commonwealth;

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 – an authorised civilian; or an authorised officer;

authority means an authority granted under section 6 to acquire or use an assumed identity, including the authority as varied under section 9;

chief officer, of – a law enforcement agency, means the person for the time being holding office as – in relation to the Police Service, the Commissioner of Police; or in relation to the Australian Crime Commission, the Chief Executive Officer of the Australian Crime Commission; or an issuing agency, means the chief executive officer (however described) of the agency;

conduct includes any act or omission;

corresponding authority means – an authority under a corresponding law to acquire or use an assumed identity in this jurisdiction; or an authority under a corresponding law to request the production of evidence of an assumed identity in this jurisdiction;

corresponding law means a law of another jurisdiction that corresponds to this Act, and includes a law of another jurisdiction that is declared by the regulations to correspond to this Act;

criminal activity means conduct that involves the commission of an offence by one or more persons;

doing a thing includes failing to do the thing;

evidence, of identity, means a document or other thing (such as a driver's licence, birth certificate, credit card or identity card) that evidences, indicates or supports, or can be used to evidence, indicate or support, a person's identity or any aspect of a person's identity;

government issuing agency, in relation to an authority, means an entity that – performs any function of the government of this jurisdiction; and is named in the authority;

issuing agency means – a government issuing agency; or a non-government issuing agency;

jurisdiction means the Commonwealth or a State or Territory of the Commonwealth;

law enforcement agency means – the Police Service; or the Australian Crime Commission;

law enforcement officer means – in relation to the Police Service, police officers; and in relation to the Australian Crime Commission, a member of staff of the Australian Crime Commission – and 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 a person, body or entity (other than a government issuing agency) named 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;

Register has the same meaning as in the Births, Deaths and Marriages Registration Act 1999;

Registrar means the Registrar of Births, Deaths and Marriages appointed and holding office under the Births, Deaths and Marriages Registration Act 1999;

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;

this jurisdiction means Tasmania;

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.

A person is "reckless" in relation to a circumstance if – the person is aware of a substantial risk that the circumstance exists or will exist; and having regard to the circumstances known to the person, it is unjustifiable to take the risk.

A person is "reckless" in relation to a result if – the person is aware of a substantial risk that the result will happen; and having regard to the circumstances known to the person, it is unjustifiable to take the risk.

It is a question of fact as to whether taking a risk is unjustifiable.

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 any other person to do either or both of the following:acquire an assumed identity; use an assumed identity.

A separate application must be made in respect of each assumed identity to be acquired or used.

An application – must be in writing in the form approved by the chief officer; and must contain – the name of the applicant; and the name of the person to be authorised to acquire or use an assumed identity (if not the applicant); and if the person referred to in subparagraph (ii) is not a law enforcement officer, the name and rank or position of the person proposed to be appointed as supervisor and an explanation of why it is necessary for a person who is not a law enforcement officer to acquire or use the assumed identity; and details of the proposed assumed identity; and reasons for the need to acquire or use an assumed identity; and details of the investigation or intelligence-gathering exercise in which the assumed identity will be used (to the extent known); and details of any issuing agencies and the types of evidence to be issued by them; and details of any application to be made for an order under section 11 in respect of the assumed identity.

The chief officer may require the applicant to furnish such additional information concerning the application as is necessary for the chief officer's proper consideration of the application.

After considering an application for an authority to acquire or use an assumed identity, and any additional information furnished under section 5(4), the chief officer – may grant an authority to acquire or use the assumed identity, either unconditionally or subject to conditions; or may refuse the application.

An authority to acquire or use an assumed identity may not be granted unless the chief officer is satisfied on reasonable grounds – that the assumed identity is necessary for the purposes of an investigation or intelligence-gathering in relation to criminal activity; and that the risk of abuse of the assumed identity by the authorised person is minimal; and if the application is for authorisation of an assumed identity for a person who is not a law enforcement officer, that 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.

If an authority is granted for an authorised civilian, the chief officer must appoint a law enforcement officer of the law enforcement agency to supervise the acquisition or use of the assumed identity by the authorised civilian.

The law enforcement officer appointed as supervisor must be – for the Police Service, of or above the rank of sergeant; or for the Australian Crime Commission, of or above the rank of senior investigator.

An authority may also authorise any one or more of the following:an application for an order for an entry in a register of births, deaths or marriages under section 11 or a corresponding law; a request under section 15 or 26; the use of an assumed identity in a participating jurisdiction.

A separate authority is required for each assumed identity.

An authority must be – in writing in the form approved by the chief officer; and signed by the person granting it.

An authority must state the following:the name of the person granting the authority; the date of the authority; details of the assumed identity authorised; details of any evidence of the assumed identity that may be acquired under the authority; the conditions (if any) to which the authority is subject; why the authority is granted; if the authority relates to an authorised officer, the name of the officer; if the authority relates to an authorised civilian – the name of the authorised civilian; and the name of his or her supervisor under the authority; and the period for which the authority will remain in force, being a period not exceeding 3 months.

The authority must also state the following:each issuing agency to which a request may be made under section 15 or 26; whether it authorises an application for an order for an entry in a register of births, deaths or marriages under section 11 or a corresponding law; each participating jurisdiction in which an assumed identity may be used.

An authority for an authorised officer remains in force until cancelled under section 9.

An authority for an authorised civilian remains in force until the end of the period specified in the authority in accordance with section 7(2)(h)(iii), unless the authority is cancelled sooner under section 9.

A fresh authority may be issued to an authorised civilian before or after the end of the period specified in the initial authority.

The chief officer who grants an authority – may vary or cancel the authority at any time; and must cancel the authority if the chief officer is satisfied (on a review under section 10 or otherwise) that use of the assumed identity is no longer necessary.

The chief officer must give written notice of the variation or cancellation to – the authorised person to whom it relates; and if the authorised person is an authorised civilian, the authorised person's supervisor.

The notice must state why the authority is varied or cancelled.

The variation or cancellation takes effect – on the day on which the written notice is given to the authorised person; or if a later date of effect is stated in the notice, on the day stated.

The chief officer must periodically review each authority granted by the chief officer or a delegate of the chief officer under this Act.

A review of an authority under this section is to be conducted at least once every 12 months.

The purpose of a review is to determine whether use of the assumed identity under the authority is still necessary.

If the chief officer is satisfied on a review that use of the assumed identity under the authority is no longer necessary, he or she must cancel the authority under section 9.

If the chief officer is satisfied on a review that use of the assumed identity under the authority is still necessary, he or she must record his or her opinion, and the reasons for it, in writing.

The Supreme Court may order the Registrar to do one or more of the following:make an entry in the Register; issue a certificate of birth, death or marriage in relation to the acquisition of an assumed identity under an authority or corresponding authority.

The Registrar may create such other records as the Registrar thinks necessary to support the entry or certificate made or issued in accordance with the order in relation to the acquisition of an assumed identity under an authority or corresponding authority.

The Court may make the order only – on application by – the chief officer of a law enforcement agency; or the chief officer of a law enforcement agency under a corresponding law; or the chief officer of a Commonwealth participating agency within the meaning of Part 1AC of the Crimes Act 1914 of the Commonwealth; and if satisfied that the order is justified, having regard to the nature of the activities undertaken or to be undertaken by the officer or person under the authority or corresponding authority.

The application must be heard in closed court.

The Registrar must give effect to an order – within the period stated in the order; or if no period is stated in the order, within 28 days after the day on which the order is made.

In this section – chief officer includes the chief officer (however described) of a participating agency under Part 1AC of the Crimes Act 1914 of the Commonwealth; corresponding authority includes an authorisation issued under Division 3 of Part 1AC of the Crimes Act 1914 of the Commonwealth.