Crimes (Assumed Identities) Act 2009 (ACT)

This Act creates a statutory framework that authorises and regulates the lawful acquisition and use of assumed identities by specified law enforcement and intelligence bodies for investigations and intelligence gathering. The main mechanism is a written, time‑limited or cancellable authority granted by the chief officer of a law enforcement agency permitting a named person either to acquire evidence of an assumed identity or to use an assumed identity (see ss 8-9, 12-13). The Act also provides routes for the creation (and later cancellation) of entries in births, deaths and marriages registers to support assumed identities subject to closed‑court orders (ss 16, 18). It establishes obligations on issuing agencies, both government and non‑government, to produce identity evidence on request (s 19) and, in the case of government issuing agencies, to comply within a stated reasonable period (s 20). The Act recognises corresponding laws in other jurisdictions and provides mutual recognition mechanisms for evidence of assumed identity and for cancelling evidence created in another participating jurisdiction (Pt 5, ss 31-35).

The Act supplies statutory immunities and limits to liability linked to authorised conduct. It creates protection from criminal responsibility for issuing‑agency officers who would otherwise be committing offences when complying with a request under s 19 or a direction under s 22 (s 23). It protects authorised persons (both authorised officers and authorised civilians) from criminal responsibility for conduct that would otherwise be an offence where that conduct is undertaken in the course of acquiring or using an assumed identity under an authority (s 27). Comparable civil‑liability protections are supplied for issuing agencies, their officers, and authorised persons where conduct is done honestly and without recklessness and any prescribed regulatory requirements have been met; civil liability instead attaches to the law enforcement agency (ss 25(2)-(3), 28(2)-(3), 34(2)-(3)).

Authorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au Australian Capital Territory Crimes (Assumed Identities) Act 2009 A2009-33 Republication No 7 Effective: 17 December 2021 Republication date: 17 December 2021 Last amendment made by A2021-33

Authorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au About this republication The republished law This is a republication of the Crimes (Assumed Identities) Act 2009 (including any amendment made under the Legislation Act 2001, part 11.3 (Editorial changes)) as in force on 17 December 2021. It also includes any commencement, amendment, repeal or expiry affecting this republished law to 17 December 2021. The legislation history and amendment history of the republished law are set out in endnotes 3 and 4. Kinds of republications The Parliamentary Counsel’s Office prepares 2 kinds of republications of ACT laws (see the ACT legislation register at www.legislation.act.gov.au): • authorised republications to which the Legislation Act 2001 applies • unauthorised republications. The status of this republication appears on the bottom of each page. Editorial changes The Legislation Act 2001, part 11.3 authorises the Parliamentary Counsel to make editorial amendments and other changes of a formal nature when preparing a law for republication. Editorial changes do not change the effect of the law, but have effect as if they had been made by an Act commencing on the republication date (see Legislation Act 2001, s 115 and s 117). The changes are made if the Parliamentary Counsel considers they are desirable to bring the law into line, or more closely into line, with current legislative drafting practice. This republication does not include amendments made under part 11.3 (see endnote 1). Uncommenced provisions and amendments If a provision of the republished law has not commenced, the symbol U appears immediately before the provision heading. Any uncommenced amendments that affect this republished law are accessible on the ACT legislation register (www.legislation.act.gov.au). For more information, see the home page for this law on the register. Modifications If a provision of the republished law is affected by a current modification, the symbol M appears immediately before the provision heading. The text of the modifying provision appears in the endnotes. For the legal status of modifications, see the Legislation Act 2001, section 95. Penalties At the republication date, the value of a penalty unit for an offence against this law is $160 for an individual and $810 for a corporation (see Legislation Act 2001, s 133).

R7 17/12/21 Crimes (Assumed Identities) Act 2009 Effective: 17/12/21 contents 1 Authorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au Australian Capital Territory Crimes (Assumed Identities) Act 2009 Contents Page Part 1 Preliminary 1 Name of Act 2 3 Dictionary 2 4 Notes 2 5 Offences against Act—application of Criminal Code etc 3 6 Purpose of Act 3 7 Relationship to other laws 3 Part 2 Authority to acquire or use assumed identity 8 Application for authority 4 9 Decision on application for authority 5 10 Authorised civilian’s authority not longer than 3 months 6 11 Authorised civilian’s supervisor 6 12 Form of authority 7 13 Period of authority 8

Contents Page contents 2 Crimes (Assumed Identities) Act 2009 Effective: 17/12/21 R7 17/12/21 Authorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au 14 Amendment or cancellation of authority 8 15 Review of authority granted to authorised officer 9 16 Making entries in register of births, deaths or marriages 9 17 Cancellation of authority affecting entry in register of births, deaths or marriages 10 18 Cancelling entries in register of births, deaths or marriages 11 Part 3 Evidence of assumed identity 19 Request for evidence of assumed identity 12 20 Government issuing agency to comply with request 13 21 Non-government issuing agency may comply with request 13 22 Cancellation of evidence of assumed identity 13 23 Protection from criminal responsibility—officers of issuing agencies 13 24 Protection from criminal responsibility for certain ancillary conduct 14 25 Protection from civil liability—issuing agencies and officers 14 Part 4 Effect of authority 26 Assumed identity may be acquired and used 16 27 Protection from criminal responsibility—authorised people 17 28 Protection from civil liability—authorised people 17 29 Particular qualifications 18 30 Effect of being unaware of amendment or cancellation of authority 18 Part 5 Mutual recognition under corresponding laws 31 Request to participating jurisdiction for evidence of assumed identity 20 32 Request from participating jurisdiction for evidence of assumed identity 20 33 Direction from participating jurisdiction to cancel evidence of assumed identity 21 34 Protection from civil liability—issuing agencies and officers of participating jurisdictions 21 35 Application of Act to corresponding authorities 22 Part 6 Compliance and monitoring Division 6.1 Misuse of assumed identity and information 36 Misuse of assumed identity 23 37 Unauthorised disclosure of information about assumed identity 25

Contents Page R7 17/12/21 Crimes (Assumed Identities) Act 2009 Effective: 17/12/21 contents 3 Authorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au Division 6.2 Reporting and record keeping 38 Report about authorities for assumed identities etc 27 39 Record keeping 28 40 Audit of records 29 Division 6.3 Inspection 41 Inspection of records by ombudsman 29 Part 7 Miscellaneous 42 Delegation 31 43 Regulation-making power 32 Dictionary 33 Endnotes 1 About the endnotes 37 2 Abbreviation key 37 3 Legislation history 38 4 Amendment history 40 5 Earlier republications 41

R7 17/12/21 Crimes (Assumed Identities) Act 2009 Effective: 17/12/21 page 1 Authorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au Australian Capital Territory Crimes (Assumed Identities) Act 2009 An Act to provide for the lawful acquisition and use of assumed identities for law enforcement purposes

Part 1 Preliminary Section 1 page 2 Crimes (Assumed Identities) Act 2009 Effective: 17/12/21 R7 17/12/21 Authorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au Part 1 Preliminary 1 Name of Act This Act is the Crimes (Assumed Identities) Act 2009. 3 Dictionary 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)). 4 Notes 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.

Preliminary Part 1 Section 5 R7 17/12/21 Crimes (Assumed Identities) Act 2009 Effective: 17/12/21 page 3 Authorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au 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. 6 Purpose of Act (1) The main purpose of this Act is to facilitate, for law enforcement purposes, investigations and intelligence gathering in relation to criminal activity and corrupt conduct, 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 2016; (b) the Territory Records Act 2002.

Part 2 Authority to acquire or use assumed identity Section 8 page 4 Crimes (Assumed Identities) Act 2009 Effective: 17/12/21 R7 17/12/21 Authorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au 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

Authority to acquire or use assumed identity Part 2 Section 9 R7 17/12/21 Crimes (Assumed Identities) Act 2009 Effective: 17/12/21 page 5 Authorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au (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 or corrupt conduct; 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.

Part 2 Authority to acquire or use assumed identity Section 10 page 6 Crimes (Assumed Identities) Act 2009 Effective: 17/12/21 R7 17/12/21 Authorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au (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; and (c) for the integrity commission—a position of the integrity commission prescribed by regulation.

Authority to acquire or use assumed identity Part 2 Section 12 R7 17/12/21 Crimes (Assumed Identities) Act 2009 Effective: 17/12/21 page 7 Authorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au 12 Form of authority (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);

Part 2 Authority to acquire or use assumed identity Section 13 page 8 Crimes (Assumed Identities) Act 2009 Effective: 17/12/21 R7 17/12/21 Authorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au (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). 13 Period of authority (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.

Authority to acquire or use assumed identity Part 2 Section 15 R7 17/12/21 Crimes (Assumed Identities) Act 2009 Effective: 17/12/21 page 9 Authorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au (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

Part 2 Authority to acquire or use assumed identity Section 17 page 10 Crimes (Assumed Identities) Act 2009 Effective: 17/12/21 R7 17/12/21 Authorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au (ii) the chief officer of a law enforcement agency under a corresponding law; or (iii) the chief officer of an intelligence agency; 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 or intelligence 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.

Authority to acquire or use assumed identity Part 2 Section 18 R7 17/12/21 Crimes (Assumed Identities) Act 2009 Effective: 17/12/21 page 11 Authorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au (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 Section 19 page 12 Crimes (Assumed Identities) Act 2009 Effective: 17/12/21 R7 17/12/21 Authorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au 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. (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).

Evidence of assumed identity Part 3 Section 20 R7 17/12/21 Crimes (Assumed Identities) Act 2009 Effective: 17/12/21 page 13 Authorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au 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 or intelligence 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.

Part 3 Evidence of assumed identity Section 24 page 14 Crimes (Assumed Identities) Act 2009 Effective: 17/12/21 R7 17/12/21 Authorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au 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) (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

Evidence of assumed identity Part 3 Section 25 R7 17/12/21 Crimes (Assumed Identities) Act 2009 Effective: 17/12/21 page 15 Authorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au (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 Section 26 page 16 Crimes (Assumed Identities) Act 2009 Effective: 17/12/21 R7 17/12/21 Authorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au 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–– (a) in accordance with an authority or for a controlled operation; and (b) in accordance with any direction by the civilian’s supervisor under the authority.

Effect of authority Part 4 Section 27 R7 17/12/21 Crimes (Assumed Identities) Act 2009 Effective: 17/12/21 page 17 Authorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au 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

Part 4 Effect of authority Section 29 page 18 Crimes (Assumed Identities) Act 2009 Effective: 17/12/21 R7 17/12/21 Authorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au (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

Effect of authority Part 4 Section 30 R7 17/12/21 Crimes (Assumed Identities) Act 2009 Effective: 17/12/21 page 19 Authorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au (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 Section 31 page 20 Crimes (Assumed Identities) Act 2009 Effective: 17/12/21 R7 17/12/21 Authorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au 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

Mutual recognition under corresponding laws Part 5 Section 33 R7 17/12/21 Crimes (Assumed Identities) Act 2009 Effective: 17/12/21 page 21 Authorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au (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

Part 5 Mutual recognition under corresponding laws Section 35 page 22 Crimes (Assumed Identities) Act 2009 Effective: 17/12/21 R7 17/12/21 Authorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au (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).

Compliance and monitoring Part 6 Misuse of assumed identity and information Division 6.1 Section 36 R7 17/12/21 Crimes (Assumed Identities) Act 2009 Effective: 17/12/21 page 23 Authorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au 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

Part 6 Compliance and monitoring Division 6.1 Misuse of assumed identity and information Section 36 page 24 Crimes (Assumed Identities) Act 2009 Effective: 17/12/21 R7 17/12/21 Authorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au (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.

Compliance and monitoring Part 6 Misuse of assumed identity and information Division 6.1 Section 37 R7 17/12/21 Crimes (Assumed Identities) Act 2009 Effective: 17/12/21 page 25 Authorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au 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

Part 6 Compliance and monitoring Division 6.1 Misuse of assumed identity and information Section 37 page 26 Crimes (Assumed Identities) Act 2009 Effective: 17/12/21 R7 17/12/21 Authorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au (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.

Compliance and monitoring Part 6 Reporting and record keeping Division 6.2 Section 38 R7 17/12/21 Crimes (Assumed Identities) Act 2009 Effective: 17/12/21 page 27 Authorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au 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).

Part 6 Compliance and monitoring Division 6.2 Reporting and record keeping Section 39 page 28 Crimes (Assumed Identities) Act 2009 Effective: 17/12/21 R7 17/12/21 Authorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au (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. 39 Record keeping (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).

Compliance and monitoring Part 6 Inspection Division 6.3 Section 40 R7 17/12/21 Crimes (Assumed Identities) Act 2009 Effective: 17/12/21 page 29 Authorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au 40 Audit of records (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. Division 6.3 Inspection 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.

Part 6 Compliance and monitoring Division 6.3 Inspection Section 41 page 30 Crimes (Assumed Identities) Act 2009 Effective: 17/12/21 R7 17/12/21 Authorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au (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.

Miscellaneous Part 7 Section 42 R7 17/12/21 Crimes (Assumed Identities) Act 2009 Effective: 17/12/21 page 31 Authorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au Part 7 Miscellaneous 42 Delegation (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 police officer of the rank of commander (or a higher rank); 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; or (c) in relation to the integrity commission—a position of the integrity commission prescribed by regulation.

Part 7 Miscellaneous Section 43 page 32 Crimes (Assumed Identities) Act 2009 Effective: 17/12/21 R7 17/12/21 Authorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au 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.

Dictionary R7 17/12/21 Crimes (Assumed Identities) Act 2009 Effective: 17/12/21 page 33 Authorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au Dictionary (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 • integrity commission • integrity commissioner • 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).

Dictionary page 34 Crimes (Assumed Identities) Act 2009 Effective: 17/12/21 R7 17/12/21 Authorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au 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 (iii) in relation to the integrity commission—the integrity commissioner; 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.

Dictionary R7 17/12/21 Crimes (Assumed Identities) Act 2009 Effective: 17/12/21 page 35 Authorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au 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. corrupt conduct—see the Integrity Commission Act 2018, dictionary. 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. 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. intelligence agency means— (a) the Australian Secret Intelligence Service; or (b) the Australian Security Intelligence Organisation. 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; or (c) the integrity commission.

Dictionary page 36 Crimes (Assumed Identities) Act 2009 Effective: 17/12/21 R7 17/12/21 Authorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au law enforcement officer— (a) means— (i) a police officer; or (ii) a member of staff of the Australian Crime Commission; or (iii) an investigator under the Integrity Commission Act 2018; 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 About the endnotes 1 R7 17/12/21 Crimes (Assumed Identities) Act 2009 Effective: 17/12/21 page 37 Authorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au Endnotes 1 About the endnotes Amending and modifying laws are annotated in the legislation history and the amendment history. Current modifications are not included in the republished law but are set out in the endnotes. Not all editorial amendments made under the Legislation Act 2001, part 11.3 are annotated in the amendment history. Full details of any amendments can be obtained from the Parliamentary Counsel’s Office. Uncommenced amending laws are not included in the republished law. The details of these laws are underlined in the legislation history. Uncommenced expiries are underlined in the legislation history and amendment history. If all the provisions of the law have been renumbered, a table of renumbered provisions gives details of previous and current numbering. The endnotes also include a table of earlier republications. 2 Abbreviation key A = Act NI = Notifiable instrument AF = Approved form o = order am = amended om = omitted/repealed amdt = amendment ord = ordinance AR = Assembly resolution orig = original ch = chapter par = paragraph/subparagraph CN = Commencement notice pres = present def = definition prev = previous DI = Disallowable instrument (prev...) = previously dict = dictionary pt = part disallowed = disallowed by the Legislative r = rule/subrule Assembly reloc = relocated div = division renum = renumbered exp = expires/expired R[X] = Republication No Gaz = gazette RI = reissue hdg = heading s = section/subsection IA = Interpretation Act 1967 sch = schedule ins = inserted/added sdiv = subdivision LA = Legislation Act 2001 SL = Subordinate law LR = legislation register sub = substituted LRA = Legislation (Republication) Act 1996 underlining = whole or part not commenced mod = modified/modification or to be expired

Endnotes 3 Legislation history page 38 Crimes (Assumed Identities) Act 2009 Effective: 17/12/21 R7 17/12/21 Authorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au 3 Legislation history Crimes (Assumed Identities) Act 2009 A2009-33 notified LR 22 September 2009 s 1, s 2 commenced 22 September 2009 (LA s 75 (1)) remainder commenced 22 March 2010 (s 2 and LA s 79) as amended by Statute Law Amendment Act 2010 A2010-18 sch 3 pt 3.3 notified LR 13 May 2010 s 1, s 2 commenced 13 May 2010 (LA s 75 (1)) sch 3 pt 3.3 commenced 3 June 2010 (s 2) Crimes Legislation Amendment Act 2013 (No 2) A2013-50 pt 4 notified LR 9 December 2013 s 1, s 2 commenced 9 December 2013 (LA s 75) pt 4 commenced 10 December 2013 (s 2 (2)) Crimes (Serious and Organised Crime) Legislation Amendment Act 2016 A2016-48 pt 4 notified LR 23 August 2016 s 1, s 2 commenced 23 August 2016 (LA s 75 (1)) pt 4 commenced 24 August 2016 (s 2 (1)) Freedom of Information Act 2016 A2016-55 sch 4 pt 4.4 (as am by A2017-14 s 19) notified LR 26 August 2016 s 1, s 2 commenced 26 August 2016 (LA s 75 (1)) sch 4 pt 4.4 commenced 1 January 2018 (s 2 as am by A2017-14 s 19) Justice and Community Safety Legislation Amendment Act 2017 (No 2) A2017-14 s 19 notified LR 17 May 2017 s 1, s 2 commenced 17 May 2017 (LA s 75 (1)) s 19 commenced 24 May 2017 (s 2 (1)) Note This Act only amends the Freedom of Information Act 2016 A2016-55.

Endnotes Legislation history 3 R7 17/12/21 Crimes (Assumed Identities) Act 2009 Effective: 17/12/21 page 39 Authorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au Integrity Commission Act 2018 A2018-52 sch 1 pt 1.5 (as am by A2019-18 s 4) notified LR 11 December 2018 s 1, s 2 commenced 11 December 2018 (LA s 75 (1)) sch 1 pt 1.5 commenced 1 December 2019 (s 2 (2) (a) as am by A2019-18 s 4) Integrity Commission Amendment Act 2019 A2019-18 s 4 notified LR 14 June 2019 s 1, s 2 commenced 14 June 2019 (LA s 75 (1)) s 3, s 4 commenced 15 June 2019 (s 2 (1)) Note This Act only amends the Integrity Commission Act 2018 A2018-52. Justice and Community Safety Legislation Amendment Act 2021 (No 2) A2021-33 pt 4 notified LR 10 December 2021 s 1, s 2 commenced 10 December 2021 (LA s 75 (1)) pt 4 commenced 17 December 2021 (s 2 (1))

Endnotes 4 Amendment history page 40 Crimes (Assumed Identities) Act 2009 Effective: 17/12/21 R7 17/12/21 Authorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au 4 Amendment history Commencement s 2 om LA s 89 (4) Purpose of Act s 6 am A2018-52 amdt 1.23 Relationship to other laws s 7 am A2016-55 amdt 4.6 Decision on application for authority s 9 am A2018-52 amdt 1.24 Authorised civilian’s supervisor s 11 am A2018-52 amdt 1.25 Making entries in register of births, deaths or marriages s 16 am A2013-50 s 8, s 9; A2016-48 s 13 Cancellation of authority affecting entry in register of births, deaths or marriages s 17 am A2016-48 s 14 Cancellation of evidence of assumed identity s 22 am A2016-48 s 15 Assumed identity may be acquired and used s 26 am A2010-18 amdt 3.3 Delegation s 42 am A2018-52 amdt 1.26; A2021-33 s 12 Dictionary dict am A2018-52 amdt 1.27 def chief officer am A2018-52 amdt 1.28 def corrupt conduct am A2018-52 amdt 1.29 def intelligence agency ins A2016-48 s 16 def law enforcement agency am A2018-52 amdt 1.30 def law enforcement officer am A2018-52 amdt 1.31

Endnotes Earlier republications 5 R7 17/12/21 Crimes (Assumed Identities) Act 2009 Effective: 17/12/21 page 41 Authorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au 5 Earlier republications Some earlier republications were not numbered. The number in column 1 refers to the publication order. Since 12 September 2001 every authorised republication has been published in electronic pdf format on the ACT legislation register. A selection of authorised republications have also been published in printed format. These republications are marked with an asterisk (*) in column 1. Electronic and printed versions of an authorised republication are identical. Republication No and date Effective Last amendment made by Republication for R1 22 Mar 2010 22 Mar 2010– 2 June 2010 not amended new Act R2 3 June 2010 3 June 2010– 9 Dec 2013 A2010-18 amendments by A2010-18 R3 10 Dec 2013 10 Dec 2013– 23 Aug 2016 A2013-50 amendments by A2013-50 R4 24 Aug 2016 24 Aug 2016– 31 Dec 2017 A2016-48 amendments by A2016-48 R5 1 Jan 2018 1 Jan 2018– 30 Nov 2019 A2017-14 amendments by A2016-55 as amended by A2017-14 R6 1 Dec 2019 1 Dec 2019– 16 Dec 2021 A2019-18 amendments by A2018-52 as amended by A2019-18 © Australian Capital Territory 2021

Assumed identity and evidence of identity. The Act uses a two‑part concept. An assumed identity is an identity that is not a person’s real identity; to acquire an assumed identity an authorised person acquires "evidence of identity" (dictionary: “a document or other thing, for example, a driver’s licence, birth certificate, credit card or identity card” that evidences or indicates a person’s identity or an aspect of it). Acquisition includes taking steps towards acquiring such evidence (dict; s 26). The Act distinguishes between acquiring evidence and using an assumed identity; both activities are regulated (ss 8, 26).

Authority. An authority is the statutory authorisation granted under s 9 by the chief officer of a law enforcement agency. Authorities must be in writing in the approved form and signed (s 12(1)). They must state, among other things, who granted it, when it commences, details of the assumed identity, the evidence that may be acquired, conditions, why the authority is granted, and information about issuing agencies and participating jurisdictions (s 12(2)-(3)). A separate application and separate authority are required for each assumed identity (ss 8(2), 9(4)). Authorities can be amended or cancelled by the granting chief officer (s 14); authorities for authorised officers run until cancelled, whereas authorities for authorised civilians are time‑limited and cannot exceed three months (ss 13, 10).

Authorised persons: officers and civilians. An authorised officer is a law enforcement officer authorised to acquire or use an assumed identity (dict; s 26). An authorised civilian is a person who is not a law enforcement officer but who may be authorised under an authority to acquire or use an assumed identity; such civilians must be supervised by a law enforcement officer appointed by the chief officer (ss 8(4)(c), 11). The Act prescribes minimum ranks for supervisors depending on agency,sergeant or above for AFP, senior investigator or above for ACC, or a prescribed integrity commission position (s 11(3)).

Issuing agencies. An issuing agency is a body that issues evidence of identity and may be a government issuing agency or a non‑government issuing agency (dict; s 19). Where an authority authorises it, the chief officer who granted the authority may request an issuing agency to produce evidence of an assumed identity and to give that evidence to the authorised person (s 19). Government issuing agencies must comply within a reasonable period stated in the request (s 20); non‑government issuing agencies have discretion to comply (s 21).

Mutual recognition and corresponding laws. The Act contemplates corresponding laws in other jurisdictions and sets out mutual recognition procedures. Chief officers may ask issuing agencies in participating jurisdictions to produce evidence of an assumed identity (s 31). Requests from participating jurisdictions for production of evidence in the ACT must be complied with by government issuing agencies within a reasonable period (s 32), while non‑government issuing agencies may comply. Directions to cancel evidence produced under those mutual recognition provisions are supported (s 33). The Act applies specified provisions to corresponding authorities as though they were authorities granted under s 9 (s 35).

Protections and liability shift. The Act provides statutory protection from criminal responsibility for issuing‑agency officers who would otherwise commit an offence if they act to comply with a s 19 request or a s 22 direction (s 23). Section 24 protects persons who engage in ancillary conduct (for example aiding and abetting or conspiracy) if they believed the related conduct was being or would be engaged in by an issuing‑agency officer. Civil immunity is provided on specified conditions: conduct must be honest, without recklessness and meet any regulatory requirements; liability that would attach to the issuing agency, its officers or the authorised person instead attaches to the law enforcement agency (ss 25(2)-(3), 28(2)-(3), 34(2)-(3)).

Controls, reporting and oversight. The Act requires record keeping about authorities and related matters (s 39), audits of those records at least every six months while an authority is in force and once in the six months after it ends (s 40), and an annual report from each chief officer to the Minister containing specified information (s 38). The ombudsman may inspect agency records and must report on inspections under the Annual Reports (Government Agencies) Act 2004 (s 41).

Misuse and disclosure offences. The Act criminalises misuse of assumed identity by authorised officers and authorised civilians where an acquisition or use is not in accordance with authority or course of duty or supervisor direction and the person is reckless about that fact (s 36). It criminalises unauthorised disclosure of information that reveals or is likely to reveal that an assumed identity is not the person’s real identity; higher maximum penalties apply where disclosure endangers health or safety or prejudices investigations (s 37).

Administrative limits. Delegation of the chief officer’s functions is tightly controlled: chief officer functions must not be delegated generally, but a chief officer may delegate to senior officers with a maximum of four delegations in force for any agency at a time (s 42). The Act excludes its activities and records from the Freedom of Information Act 2016 and the Territory Records Act 2002 (s 7).

Primary decision‑makers and implementers. The Act places the initial decision power in the hands of the chief officer of a law enforcement agency as defined at the dictionary and in ss 8-9. The chief officer decides whether to grant, amend or cancel authorities (ss 9, 14), appoints supervisors for authorised civilians (s 11), must review authorities for authorised officers at least annually (s 15), must keep records and arrange audits (ss 39-40), and must report annually to the Minister (s 38). The chief officer may delegate some functions to senior officers but only within prescribed limits (s 42).

Law enforcement agencies. The Act applies to specified agencies: Australian Federal Police, Australian Crime Commission (now referenced as a named entity in the dictionary), and the integrity commission (dict; definition of law enforcement agency). The chief officers of these agencies are central to the operation of the Act. The Act also permits corresponding authorities under corresponding laws from participating jurisdictions (Pt 5, s 31-35), which brings interstate and Commonwealth interplay into the operational scope.

Authorised officers and authorised civilians. Law enforcement officers authorised under an authority (authorised officers) and non‑law‑enforcement persons temporarily authorised (authorised civilians) are the principal operational actors who can acquire and use assumed identities (ss 26-27). Authorised civilians must be supervised by a law enforcement officer of specified rank or position and their authorities are strictly limited to a maximum of three months (ss 10-11, 13).

Issuing agencies and their officers. Issuing agencies,government and non‑government,that produce identity documents or other evidence of identity are affected. Government issuing agencies are obliged to comply with requests under s 19 and with participating‑jurisdiction requests under s 32; non‑government issuing agencies have discretion to comply (ss 19-21, 31-33). Officers of issuing agencies gain protection from criminal responsibility for conduct undertaken to comply with s 19 requests or s 22 directions (s 23) and may gain civil liability protection if prescribed requirements are met (s 25).

Courts and registrars. The Supreme Court has power to make closed‑court orders directing the registrar‑general to create entries in the Births, Deaths and Marriages register to effect an assumed identity, but only on application by chief officers and only if the court is satisfied the order is justified by the kinds of activities the officer or person will undertake (s 16). The registrar‑general is obliged to effect such orders within a stated period and provide a certificate to the chief officer (s 16(4)-(5)). The Supreme Court likewise may order cancellation of such entries (s 18).

Oversight and legislative actors. The Minister receives annual reports (s 38), with a statutory power to exclude sensitive information on specific public‑interest grounds (s 38(2)-(3)). The ombudsman may inspect agency records and must report under the Annual Reports Act (s 41). The Legislative Assembly is the recipient of the Minister’s report (s 38(4)).

Third parties and the public. Third parties whose identity documentation or personal data is created, altered or otherwise used to effect an assumed identity are affected indirectly by the Act: the Act contemplates altering or deleting entries in official registers (ss 16, 22, 18) and using documents that ordinarily prove identity (dict: birth certificate, driver’s licence, credit card). The Act criminalises unauthorised disclosure of information that reveals the assumed nature of an identity (s 37), thereby affecting media, private investigators, and any person who might come into possession of such information.

Participating jurisdictions and intelligence agencies. The Act expressly accommodates requests to and from participating jurisdictions and includes intelligence agencies as potential applicants for BD&M orders (s 16(2)(a)(iii)). Corresponding laws of other jurisdictions are treated as capable of authorising activities in the ACT for the relevant provisions (s 35).

Financial and institutional implications. The Act shifts civil liability in prescribed circumstances from issuing agencies and authorised persons to the law enforcement agency (ss 25(3), 28(3), 34(3)), which implicates public finances and risk management within the law enforcement agency. The preface to the republication states penalty unit values for such offences at the republication date ($160 for an individual, $810 for a corporation). The Act’s reporting, audit and ombudsman inspection requirements require administrative resources for compliance (ss 38-41).

Application and decision duty. A law enforcement officer may apply in writing to the chief officer for an authority to acquire or use an assumed identity; a separate application is required for each assumed identity and applications must be in an approved form including prescribed particulars (s 8(1)-(4)). The chief officer may require additional information to decide (s 8(5)). After considering the application, the chief officer may grant the authority, with or without conditions, or refuse the application (s 9(1)).

Decision criteria and limits. The chief officer is required not to grant an authority unless satisfied on reasonable grounds that the assumed identity is necessary for an investigation or intelligence gathering in relation to criminal activity or corrupt conduct, that the risk of abuse is minimal, and that if the subject is not a law enforcement officer it would be impossible or impracticable for a law enforcement officer to perform the task (s 9(2)). Authorities can authorise related actions including applications for entries in births, deaths and marriages registers under s 16, requests to issuing agencies under s 19, and use in participating jurisdictions (s 9(3)).

Form, content and duration. Authorities must be in writing, in a form approved by the chief officer and signed (s 12(1)). They must state specified information including issuing agencies to which requests may be made, whether an application under s 16 is authorised and participating jurisdictions in which the assumed identity may be used (s 12(3)). An authority for an authorised officer continues until cancelled (s 13(1)). An authority for an authorised civilian is time limited and must not exceed three months (ss 10, 13(2)).

Supervision and qualifications for authorised civilians. Where an authority covers an authorised civilian, the chief officer must appoint a law enforcement officer to supervise the civilian’s acquisition and use of the assumed identity and the supervisor must meet minimum rank or prescribed position requirements (s 11). The application must explain why it is necessary for a non‑law‑enforcement person to be authorised (s 8(4)(c)).

Requests to issuing agencies and compliance duties. Where an authority authorises it, the chief officer who granted the authority may request an issuing agency listed in the authority to produce evidence of an assumed identity and to give it to the authorised person (s 19). For government issuing agencies, the chief officer must comply with such a request within the reasonable period stated (s 20). Non‑government issuing agencies may comply but are not compelled (s 21). Issuing agencies must cancel evidence produced on a written direction from the requesting chief officer (s 22).

Criminal and civil protections. Officers of issuing agencies (and authorised persons) receive protection from criminal responsibility for conduct that would otherwise be an offence where they act to comply with s 19 requests or s 22 directions (s 23). The protection extends to ancillary conduct where a person reasonably believes the related conduct is being done by an issuing‑agency officer (s 24). Civil liability protections apply to issuing agencies, their officers and authorised persons for conduct engaged in honestly and without recklessness where any regulatory requirements have been met; liability is shifted to the law enforcement agency (ss 25(2)-(3), 28(2)-(3), 34(2)-(3)). These protections are subject to regulatory requirements where prescribed (ss 25(2)(b), 28(2)(c), 34(2)(b)).

Record keeping, audit and reporting duties. Chief officers must cause records to be kept that include the date authorities were granted, amended or cancelled and the name of the person who acted, details of the authorised person and the assumed identity, details of requests to issuing agencies, the general nature of duties undertaken, general details of relevant financial transactions and review details for authorised officers (s 39(2)(a)-(f)). Audits of those records must be carried out at least once every six months while an authority is in force and at least once in the six months after the authority ends, by an appointed person who is not the grantor, amender, canceller or an authorised person under the authority (s 40). Chief officers must provide a written audit report (s 40(4)). Chief officers must also prepare an annual report for the Minister with specific contents and the Minister must present a copy to the Legislative Assembly within 15 sitting days (s 38).

Oversight and access rights. The ombudsman may inspect agency records, enter premises after notification, access relevant records and require staff to provide necessary information; the ombudsman must report on the results of inspections under the Annual Reports (Government Agencies) Act 2004 but must not include information that could endanger safety, prejudice investigations, or compromise operational activities (s 41(1)-(6)).

Offences and enforcement rights. The Act creates offences for misuse of an assumed identity by authorised officers and authorised civilians where acquisition or use is not in accordance with authority or course of duty or supervisor direction and the person is reckless about that fact (s 36). It creates offences for unauthorised disclosure of information revealing that an assumed identity is not a person’s real identity, with higher penalties where disclosure endangers safety or prejudices investigations (s 37). The Criminal Code applies to offences under this Act and provides general criminal law principles, including defences and fault elements (s 5).

Delegation constraints. Chief officers cannot delegate their functions generally under this Act but may delegate to senior officers; however not more than four delegations may be in force for any one law enforcement agency at any time (s 42). The Act also provides definitions of who qualifies as a senior officer for the AFP, ACC and integrity commission (s 42(4)).

Criminal offences under the Act. The Act identifies specific criminal offences tied to misuse and disclosure. Misuse offences target authorised officers and authorised civilians who acquire or use evidence of an assumed identity contrary to their authority or outside the course of duty or supervisor direction, coupled with recklessness about that fact. Each misuse offence carries a maximum penalty of imprisonment for two years (s 36(1)-(4)). The unauthorised disclosure provisions in s 37 create offences where a person discloses information that reveals or is likely to reveal that an assumed identity is not the person’s real identity and the person knows or is reckless about that fact; maximum penalties for the basic disclosure offences are imprisonment for two years (ss 37(1)-(2)). Higher maximum penalties apply where disclosure is done with intent to endanger health or safety or recklessly so,up to ten years’ imprisonment (s 37(3)),or where disclosure intends to prejudice, or is reckless about prejudicing, effective conduct of investigation or intelligence gathering,also up to ten years’ imprisonment (s 37(4)).

Criminal law framework. Section 5 expressly imports the Criminal Code, chapter 2, to all offences against the Act. That means general principles of criminal responsibility, including fault elements such as intention and recklessness, and general defences and burdens of proof, apply to prosecutions under the Act. The Act includes examples of fault standards by reference (for example, the recklessness requirement in ss 36 and 37 and the note that the Criminal Code’s s 20(4) allows recklessness to be satisfied by proof of intention, knowledge or recklessness).

Civil liability and liability shifting. The Act limits civil liability in specified circumstances. Issuing agencies or their officers that engage in conduct honestly and without recklessness to comply with a request under s 19 or a direction under s 22 are not civilly liable provided any prescribed regulatory requirements have been met, and any civil liability that would have attached instead attaches to the law enforcement agency (s 25(2)-(3)). The same approach applies to authorised persons in s 28 and to issuing agencies of participating jurisdictions in s 34. The effect is that, when the statutory conditions are met, civil exposure is reserved to the law enforcement agency which benefits from the statutory indemnity mechanism. That shifts financial and legal risk from issuing agencies and individuals to the relevant law enforcement agency.

Administrative enforcement and oversight. Enforcement is not only criminal. The chief officer may amend or cancel an authority at any time and must cancel if satisfied on reasonable grounds that the use of an assumed identity is no longer necessary (s 14). Authorities for authorised officers must be reviewed at least annually and cancelled where no longer necessary (s 15). Chief officers must maintain records (s 39) and conduct audits (s 40). The ombudsman may inspect records and report on agency compliance under the Annual Reports (Government Agencies) Act 2004 (s 41). The Minister receives an annual report and may exclude sensitive information from publication if advised by chief officers that publication would endanger safety, prejudice an investigation or compromise operational activities (s 38(1)-(4)).

Court processes. The Supreme Court may, on application by the chief officer (or a chief officer under a corresponding law or an intelligence agency), make closed orders directing the registrar‑general to make or cancel entries in the Births, Deaths and Marriages Registration Act 1997 register in relation to acquisition of an assumed identity (ss 16(1)-(3), 18(1)-(4)). Such applications are heard in closed court (ss 16(3), 18(3)). The registrar‑general must give effect to such orders within specified periods and supply a certificate (s 16(4)-(5)). These provisions create a judicially supervised, closed process for altering civil status records to support assumed identities.

Penalty unit values. The republication preface to the Act notes, at the republication date, that the value of a penalty unit for an offence against this law is $160 for an individual and $810 for a corporation (Legislation Act 2001 s 133 as applied at the time). Although the Act’s principal sanctions are expressed in imprisonment terms, the preface confirms the monetary scale applicable to any penalty units that might be used in subordinate instruments or regulations interacting with this Act.

Limitations and qualifying conditions on protections. Criminal and civil protections are conditional. Protections apply only to conduct done in accordance with an authority and in the course of duty (or in accordance with supervisor direction for authorised civilians) (ss 27-28). Civil protections also require conduct to be "honestly and without recklessness" and compliance with any prescribed regulatory requirements (ss 25(2), 28(2), 34(2)). Officers of issuing agencies are not criminally responsible for conduct only where such conduct is engaged in to comply with s 19 or s 22 directions (s 23). Ancillary conduct protections require belief that the related conduct is being or will be engaged in by an issuing agency officer (s 24).

Practical enforcement consequence. The statutory design concentrates decision power with chief officers, delegates limited, requires internal audits and ombudsman scrutiny, and erects criminal sanctions for misuse and disclosure. Enforcement options therefore include criminal prosecution, administrative cancellation of authorities, internal disciplinary consequences for misuse, civil claims redirected to law enforcement agencies where the Act's conditions are met, and judicial orders for BD&M entries made or cancelled via closed court procedures.

Criminal Code. Section 5 specifies that the Criminal Code, chapter 2, applies to all offences against this Act. The Criminal Code supplies the fault elements, general defences and interpretive rules for criminal responsibility. The Act’s references to recklessness and notes linking to Criminal Code principles (for example, s 36 note) mean that established Code concepts control the interpretation of statutory fault terms used in the Act.

Registers and the Births, Deaths and Marriages Registration Act 1997. The Act permits the Supreme Court to order entry in the Births, Deaths and Marriages register under the Births, Deaths and Marriages Registration Act 1997 in relation to acquisition of an assumed identity (s 16). The registrar‑general must effect such an order within the stated period and issue a certificate to the applying chief officer (s 16(4)-(5)). Likewise, the court may order cancellation of such an entry on application (s 18). The Act therefore provides a statutory bridge between law enforcement needs and the normally protected civil status registers, but only on closed‑court, judicial authorisation (ss 16-18).

Freedom of Information and Records Acts. The Act expressly excludes the Freedom of Information Act 2016 and the Territory Records Act 2002 from applying to activities, documents and records under this Act (s 7). That exclusion removes FOI pathways for third‑party access to the records created or used under the Act and places an evidentiary and administrative confidentiality layer around the scheme.

Controlled operations. The Act permits the use of an assumed identity in the course of a controlled operation; s 26(2) allows authorised officers to use an assumed identity for a controlled operation. The definition of controlled operation is provided by cross‑reference to the Crimes (Controlled Operations) Act 2008 dictionary (see s 3 Notes and s 26(2)). This cross‑reference integrates the assumed‑identity regime with controlled‑operations law, meaning work done under one authorisation may overlap with or rely upon the other statutory regime.

Corresponding laws and participating jurisdictions. The Act contemplates and facilitates mutual recognition and cooperation with other jurisdictions whose laws correspond to this Act. It allows chief officers to make requests to issuing agencies in participating jurisdictions (s 31), sets out duties for issuing agencies in the ACT when requested by other jurisdictions (s 32), and provides for directions from participating jurisdictions to cancel evidence (s 33). Section 35 applies specified provisions of the Act to corresponding authorities as if they were authorities granted under s 9, meaning that many of the Act’s protections and offences operate in inter‑jurisdictional contexts.

Intelligence legislation. Section 16(2)(a)(iii) expressly permits an application for a BD&M order by the chief officer of an intelligence agency. The Act therefore interfaces with Commonwealth intelligence laws to the extent those agencies are applicants for judicial orders under s 16. The dictionary also defines intelligence agency to include ASIS and ASIO, signalling an intention to accommodate national security actors.

Ombudsman and Annual Reports Act. The ombudsman’s inspection role is given statutory force in s 41 and the ombudsman must report under the Annual Reports (Government Agencies) Act 2004 on the results of inspections. The ombudsman’s reporting is constrained by the same public‑interest exclusions that the Minister may rely on for the Minister’s annual report (s 41(4)-(6); s 38(2)-(3)). That creates a layered accountability interaction between agency internal records, ombudsman oversight, and parliamentary reporting.

Delegation and administrative law. Section 42 sets out delegation rules and limits, including that chief officers’ functions must not be delegated generally but may be delegated to senior officers with a cap of four concurrent delegations. This interacts with the Legislation Act’s general delegation rules (the Act’s notes reference Legislation Act provisions) and constrains the internal administrative law architecture of the agencies.

Regulations and subordinate instruments. The Executive may make regulations for the Act (s 43). The Act references prescribed requirements for civil‑liability protections (ss 25(2)(b), 28(2)(c), 34(2)(b)), meaning the operation of the liability‑shift provisions depends in part on regulations that may detail procedural or recordkeeping steps.

Public law limits. The Act’s explicit exclusions from FOI and the Territory Records Act, its closed‑court procedures for altering civil status registers, and its criminal prohibitions on disclosure all reduce public access pathways. At the same time, the Act imposes statutory reporting, audits and ombudsman inspection, creating administrative oversight pathways that intersect with existing public‑administration statutes.

Note on prescribed offences and penalty units. The Act’s offences are expressed with imprisonment maxima, and the republication preface supplies penalty unit values for monetary penalties associated with offences against this law at the republication date. Any interactions with financial penalties in regulations would therefore engage the Legislation Act’s penalty‑unit framework.

The endnotes of the republished Act list several amending instruments and the provisions they changed. The Act was notified LR 22 September 2009 and most provisions commenced 22 March 2010 (legislative history, endnote 3). Subsequent amendments of note include:

Statute Law Amendment Act 2010 (A2010‑18) which made an amendment to the assumption‑identity acquisition provision (noted in the amendment history as amending s 26). The republication records a commencement on 3 June 2010 for that part (endnote 3).
Crimes Legislation Amendment Act 2013 (No 2) (A2013‑50) which amended provisions relating to making entries in the register of births, deaths and marriages (s 16) and related provisions (endnotes 3 and 4 reference amendments by A2013‑50 to s 16 and related sections).
Crimes (Serious and Organised Crime) Legislation Amendment Act 2016 (A2016‑48) amended several provisions including those dealing with making and cancelling register entries (ss 16-18), cancelling evidence of assumed identity (s 22), and inserted the definition of intelligence agency into the dictionary (endnotes 3 and 4 list these amendments and identify s 16, s 17 and s 22 changes and the insertion of the intelligence agency definition).
The Freedom of Information Act 2016 and subsequent amendments (A2016‑55 and A2017‑14) resulted in s 7 being amended to state expressly that the Freedom of Information Act 2016 and the Territory Records Act 2002 do not apply in relation to activities, documents and records under this Act (endnotes 3-4).
Integrity Commission Act 2018 and consequent Integrity Commission Amendment Act 2019 (A2018‑52; A2019‑18) produced a series of amendments. The amendment history notes changes to the Purpose (s 6), Decision on application for authority (s 9), supervised authorised civilians (s 11), delegation (s 42), the dictionary and the definitions of chief officer, corrupt conduct, law enforcement agency and law enforcement officer (endnote 4). The Integrity Commission Act amendments also adjusted commencement timings for related provisions (endnote 3 entries show commencement dates differ across parts).
Justice and Community Safety Legislation Amendment Act 2021 (No 2) (A2021‑33) further amended s 42 and other provisions; it was notified LR 10 December 2021 and the relevant part commenced 17 December 2021 (endnote 3 and 4).

The amendment history in endnote 4 lists specific sections amended and identifies the instruments by short title and amending items. The republication contains a table of legislation history (endnote 3) that details the notification and commencement dates for the original Act and each subsequent amending instrument or part. The pattern of amendment shows legislative attention to: (a) interactions with the births, deaths and marriages register; (b) adding definitions and integrating the integrity commission and intelligence agencies; (c) clarifying delegation constraints; and (d) carving out FOI and records access for the scheme. The Act’s text and endnotes provide no case law interpreting these amendments; the amendments are statutory changes with commencement dates recorded. Users should consult the listed amending Acts directly for the precise text changes and any regulations made under s 43 that implement the Act’s prescribed requirements.

The republished statute and its endnotes do not record any court decisions or litigation history interpreting the Crimes (Assumed Identities) Act 2009. The Act itself sets out procedural pathways that involve courts, however, and identifies closed court procedures and judicial powers that may generate litigation:

Closed‑court applications for entries and cancellations in the Births, Deaths and Marriages register. Sections 16 and 18 authorise applications to the Supreme Court for orders to make or cancel BD&M entries in relation to assumed identities. These applications must be heard in closed court (ss 16(3), 18(3)). That creates a statutory route for judicial oversight and, potentially, ex parte or in camera proceedings where the court must be satisfied that the order is justified by the nature of the activities to be undertaken under the authority (s 16(2)(b)).
Criminal prosecutions under the Act. The Criminal Code applies to offences under the Act (s 5). Any prosecution for misuse (s 36) or unauthorised disclosure (s 37) would proceed under normal criminal procedure, invoking the Criminal Code’s rules on fault elements, offences, defences and burdens of proof. Courts will be asked to interpret statutory terms such as "reckless" as used in ss 36-37 in the context of Criminal Code definitions and authorities.
Civil litigation. The Act shifts civil liability arising from authorised conduct to the law enforcement agency in prescribed circumstances (ss 25(3), 28(3), 34(3)). Civil claims by third parties relating to actions taken in the name of an assumed identity could therefore target the law enforcement agency, subject to the Act’s conditions about honesty, absence of recklessness and compliance with any regulatory requirements. Litigation arising from those civil claims would engage the Act’s statutory shield as a substantive defence issue.
Administrative and oversight reporting. The Act obliges chief officers to provide annual reports to the Minister (s 38) and the ombudsman to inspect records and to report under the Annual Reports (Government Agencies) Act 2004 (s 41). Judicial review or administrative litigation could arise if stakeholders challenge the adequacy of statutory records, audit processes, or the manner in which a chief officer exercises discretion to grant or cancel an authority. Section 42 carves a particular administrative signature into delegation rules that may shape any challenge.
Lack of named jurisprudence in the republished Act. The Act’s republication and endnotes do not include references to specific cases. Practitioners looking for interpretive guidance should therefore not expect the text of this republished Act to supply litigation history. Where judicial interpretation exists, it will be found in court records and published judgments outside the Act’s text.

In short, while the Act creates multiple points at which judicial or administrative litigation could arise,the Supreme Court orders for BD&M register entries, criminal prosecutions under the Criminal Code, civil claims against law enforcement agencies, and administrative law challenges,the republished text does not report any cases or decisions. Users seeking judicial interpretation must search case law databases and court records for decisions applying or construing the Act’s provisions.

Separation of powers and closed processes. Applications to create or cancel BD&M register entries must be made to the Supreme Court and are to be heard in closed court (ss 16(2), 16(3), 18(2), 18(3)). This is not an administrative process; it requires judicial authorisation and a court‑level justification that the entry is warranted by the activities the person will undertake. Practitioners should not assume registry staff can alter civil status records without a court order; s 19(4) expressly forbids using the s 19 request process to obtain BD&M register entries or certificates (the correct route is s 16).

Authorised civilian limits and supervision. Authorities for authorised civilians are capped at three months and supervisors must be specified law enforcement officers of a minimum rank or prescribed position (ss 10-11, 12(2)(h)). The application must explain why a non‑law‑enforcement person is necessary for the role (s 8(4)(c)). Failure to meet the supervisor‑appointment or time‑limit rules risks statutory non‑compliance and potential misuse offences for the civilian (s 36(3)-(4)). The Act also requires the chief officer to notify the authorised civilian and supervisor in writing of cancellations or amendments, and that cancellations take effect on notice (s 14).

Non‑government issuing agencies have discretion. Government issuing agencies must comply with requests under s 19 within a reasonable period; non‑government issuing agencies may comply but are not compelled (ss 20-21). This creates practical uncertainty where the desired evidence must be produced by a private entity,there is no statutory compulsion. Legal advisers must identify issuing agencies in the authority (s 12(3)(a)) and secure commercial or administrative cooperation where non‑government bodies are involved.

Criminal and civil protections are conditional. Criminal immunity for issuing‑agency officers (s 23) and civil protections for issuing agencies and authorised persons (ss 25, 28, 34) are tied to strict conditions: conduct must be engaged in honestly and without recklessness, and any prescribed regulatory requirements must be met. The Act does not automatically indemnify reckless or dishonest conduct. Practitioners should note that liability is shifted to the law enforcement agency only where the statutory conditions hold; otherwise individual officers or agencies could remain exposed.

Recklessness standard and potential prosecution risk. Several offences turn on recklessness about whether conduct is authorised or about whether disclosure is permitted (ss 36, 37). Recklessness has a defined place in the Criminal Code and can be satisfied by proof of intention, knowledge or recklessness depending on circumstances (see s 36 note referencing Criminal Code s 20(4)). The subjective and objective components of the recklessness test create evidential complexities. Operational personnel need clear training and documented supervisory instructions to reduce the risk that a court could find recklessness.

Recordkeeping and audit specifics. Records must include "general details of relevant financial transactions entered into using the assumed identity" (s 39(2)(e)). That wording requires agencies to create auditable trails of financial activity conducted under an assumed identity, which may involve corporate banking, procurement or covert funding arrangements. These records are subject to audits every six months while the authority is in force and once after it ends (s 40). Practitioners should plan for secure, segregated record systems that meet the operational confidentiality the Act anticipates while also satisfying auditability.

Exclusions from FOI and Territory Records Act. Section 7 removes the operation of the Freedom of Information Act 2016 and the Territory Records Act 2002 in relation to activities, documents and records under this Act. That means affected records are not subject to ordinary public access or record retention regimes. However, the ombudsman retains inspection powers (s 41) and annual reports are still required (s 38). Those institutional oversight points do not replace FOI mechanisms; they are different channels with their own constraints and public‑interest exclusions.

Delegation constraints. Chief officers’ functions "must not be delegated to anyone else" but may be delegated to senior officers with a cap on the number of delegations (s 42(1)-(3)). The dichotomy creates administrative complexity: procedures must clearly identify the limited delegations in force at any time and ensure they are exercised only by authorised senior officers as defined (s 42(4)). Misdelegation could invalidate actions or invite internal or external challenge.

Mutual recognition complications. The Act accommodates requests to and from participating jurisdictions, but participating jurisdictions are those where a corresponding law is in force (dict; Pt 5). Practically, mutual recognition depends on that correspondence and on operational alignment of procedures across jurisdictions. The demands of cross‑jurisdictional privacy law, third‑party data protection, and non‑government issuing agencies’ willingness to act may hamper seamless mutual recognition.

Effect of being unaware of amendment or cancellation. Sections 30(1)-(3) protect authorised persons who are unaware of an amendment or cancellation of authority so long as they are not reckless about its existence. The test for recklessness is substantive: awareness of a substantial risk plus unjustifiability of taking the risk given circumstances known to the person (s 30(3)). This can produce evidentiary disputes on knowledge and the reasonableness of continuing to act after notice ought to have been received.

Civil liability redirection to the law enforcement agency. When the Act’s conditions are met, civil liability attaches to the law enforcement agency rather than to issuing agencies or authorised persons (ss 25(3), 28(3), 34(3)). That shifts litigation exposure to the public purse, which has budgeting and claims‑management implications not detailed in the Act. It also means internal agency risk management must account for potential civil claims arising from authorised activities.

Terminology and document scope. The dictionary’s expansive definition of "evidence of identity" can include documents and items as varied as credit cards and identity cards, not only government identity documents (dict). Practitioners should not assume the scope is limited to official government‑issued proof; the Act contemplates a broad array of evidentiary items.

Steps for law enforcement agencies (chief officers and operational managers)

Understand the statutory criteria before granting authorities. Before granting an authority, a chief officer must be satisfied on reasonable grounds that the assumed identity is necessary for investigation or intelligence gathering into criminal activity or corrupt conduct, that the risk of abuse is minimal, and for non‑law‑enforcement applicants that it would be impracticable for a law enforcement officer to perform the role (s 9(2)). Document the reasoning for this assessment in the authority file.
Use the approved application and authority forms. Applications must be in writing in the form approved by the chief officer and include the items specified at s 8(4) (applicant’s name; named person to be authorised; supervisor information if the person is not a law enforcement officer; details of the proposed assumed identity; reasons; investigation details; issuing agencies and types of evidence; details of any BD&M application under s 16). Authorities must be in writing, signed, and include the items specified at s 12(2)-(3).
Specify issuing agencies and participating jurisdictions. Authorities must state each issuing agency to which a request may be made and each participating jurisdiction in which the assumed identity may be used (s 12(3)). Identify government issuing agencies separately from non‑government issuing agencies (dict).
Supervise authorised civilians and limit authority duration. If the applicant is an authorised civilian, appoint a supervisor of the specified rank or position (s 11(2)-(3)) and limit the authority to a period not exceeding three months (ss 10, 13(2)). Ensure the application explains why a civilian is necessary (s 8(4)(c)).
Manage BD&M register entries through the Supreme Court. For entries in the Births, Deaths and Marriages register, apply to the Supreme Court under s 16; the application will be heard in closed court and the registrar‑general must give effect within the period stated or 28 days if none is indicated (s 16(1), (3)-(4)). Supply the registrar‑general with the certificate as required (s 16(5)). When cancelling authorities that affected BD&M entries, apply for cancellation orders within 28 days after cancellation (s 17).
Use s 19 requests to issuing agencies; observe limits. If the authority authorises it, the chief officer may request issuing agencies to produce evidence of an assumed identity and give it to the authorised person; requests must state a reasonable period for compliance (s 19(2)-(3)). Do not try to use s 19 to obtain BD&M register entries or certificates; s 19(4) forbids that route.
Maintain records and prepare for audits. Maintain the records required by s 39(2) for every authority: dates of grant/amendment/cancellation and identity of grantor; the authorised person and the assumed identity; details of requests to issuing agencies; the general nature of duties performed under the assumed identity; general details of relevant financial transactions; and records of reviews for authorised officers. Arrange audits at least once every six months while authorities are in force and once in the six months after termination (s 40). Appoint auditors who are not grantors or authorised persons under the authorities being audited and provide written audit reports to the chief officer (s 40).
Comply with ombudsman inspection and reporting duties. Ensure staff cooperate with ombudsman inspections as required by s 41(2)-(3). Prepare the annual report mandated by s 38 with required content and liaise with the Minister if any information ought to be excluded pursuant to s 38(2)-(3). Provide the Minister’s report in time for presentation to the Legislative Assembly (s 38(4)).
Implement training and protocols on recklessness, honesty and disclosure. Criminal and civil protections depend on conduct being honest and without recklessness; internal policies should define and train staff on what is meant by recklessness and the standards of disclosure to reduce risk under ss 23-25, 27-28 and 37.
Prepare processes for cancellation and amendment of authorities. The chief officer may amend or cancel authorities at any time (s 14). If cancellation occurs and an entry exists in a BD&M register because of an order under s 16, the chief officer must apply to cancel that entry within 28 days (s 17(2)). Provide written notice of amendments or cancellations to the authorised person and, where an authorised civilian is affected, to the supervisor, and state reasons (s 14(2)-(4)).

Steps for issuing agencies (government and non‑government) and their officers

Identify when a request is made under s 19 or s 31 and check authority content. If an issuing agency receives a s 19 or s 31 request, check that the request is from the chief officer who is named in the authority and that the agency is listed in the authority as an issuing agency for the assumed identity (s 19(2), s 12(3)(a)).
Government issuing agencies must comply within a reasonable period; non‑government agencies may comply. Government issuing agencies are obliged to comply with s 19 or s 32 requests within the reasonable period stated (s 20, s 32(2)). Non‑government issuing agencies may comply but are not obliged (s 21, s 32(3)). Ensure legal counsel is involved where non‑government status introduces commercial or legal risk.
Respond to written directions to cancel evidence. If directed in writing under s 22 or s 33 by the chief officer who asked for the evidence, the issuing agency must cancel the evidence, including deletion or alteration of entries where appropriate (s 22(2), s 33(2)). Maintain proper logs of cancellations and return any certificates as required by s 18(5).
Rely on statutory protections while meeting prescribed requirements. Issuing agencies and officers acting in good faith, honestly and without recklessness in compliance with requests or directions are protected from civil liability and, in some circumstances, criminal liability (ss 23, 25). Ensure that any regulatory requirements prescribed by regulation are met before relying on statutory indemnities (s 25(2)(b)).

Operational and compliance matters for authorised persons

Operate strictly within the authority and course of duty. Authorised persons must acquire and use assumed identities only in accordance with their authority and in the course of duty (s 26). Authorised civilians must also comply with any directions from their supervisor (s 26(3)-(4)).
Keep track of authority amendments and cancellations. Section 30 protects persons who are unaware of an amendment or cancellation so long as they are not reckless about the existence of that amendment or cancellation. Practically, authorised persons should check status with their supervisor or the granting agency to avoid acting recklessly under s 30.
Maintain honest, non‑reckless conduct, and record financial transactions. Civil protection requires honesty and absence of recklessness and compliance with any prescribed requirements. Records must capture general details of financial transactions conducted under the assumed identity for auditability (s 39(2)(e)).

Organisational controls and risk management

Limit delegations in accordance with s 42. Chief officers may delegate to senior officers but no more than four delegations can be in force at any one time for a single agency. Ensure internal delegation registers reflect the statutory cap and senior officer eligibility (s 42).
Policy and training. Draft operating procedures addressing application content, decision criteria (s 9(2)), documentary proof requirements, supervisor duties, recordkeeping templates for s 39 compliance, audit preparation (s 40), and handling of s 19 and s 31 requests to issuing agencies. Provide training on Criminal Code recklessness standards and on the limits of civil immunity.
Legal liaison. Maintain an established legal clearance process for s 16 applications to the Supreme Court, s 19 requests to issuing agencies, and s 22/33 cancellation directions. Involve counsel early where non‑government issuing agencies are involved or where BD&M register orders are contemplated.
Financial provisioning. Budget for potential civil liability claims that, under the Act’s scheme, attach to the law enforcement agency (ss 25(3), 28(3), 34(3)). Ensure internal insurance or claims‑management arrangements and consult treasury or finance units regarding appropriation rules for such claims.
Interaction with other regimes. Coordinate with controlled‑operations governance when activities will be simultaneous with controlled operations (s 26(2)). Identify any interplay with intelligence agencies and national security arrangements where s 16(2)(a)(iii) and the dictionary’s definition of intelligence agencies may apply.

Following these steps and embedding the statutory content into operational procedures will align practices with the Act’s requirements. Practitioners should regularly review the regulations made under s 43 for any prescribed requirements that affect civil protection eligibility, and consult agency legal advisers for case‑specific advice.

Crimes (Assumed Identities) Act 2009

Plain English Summary

Deep Dive

What it does

Current sections

Crimes (Assumed Identities) Act 2009

Source text: opening excerpt

Main concepts

Who it affects

Key duties and rights

Penalties and enforcement

How it interacts with other laws

Amendment history

Litigation history

Gotchas

How to comply