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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).
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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
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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
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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
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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
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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
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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
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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
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(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
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(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
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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
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(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
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(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
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(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
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(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
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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
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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
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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
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(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
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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
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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
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(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
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(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
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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
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(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
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(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
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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
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(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
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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
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(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
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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
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(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
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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
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(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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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