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aw Enforcement and National Security (Assumed Identities) Bill 2010 No , 2010 A Bill for An Act in relation to assumed identities; to repeal the Law Enforcement and National Security (Assumed Identities) Act 1998; and for other purposes. Clause 1 Law Enforcement and National Security (Assumed Identities) Bill 2010 Part 1 Preliminary The Legislature of New South Wales enacts: 1 Part 1 Preliminary 2 1 Name of Act 3 This Act is the Law Enforcement and National Security (Assumed 4 Identities) Act 2010. 5 2 Commencement 6 This Act commences on the date of assent to this Act. 7 3 Objects of Act 8 (1) The main purposes of this Act are: 9 (a) to facilitate, for law enforcement purposes, investigations and 10 intelligence-gathering in relation to criminal activity, including 11 investigations extending beyond New South Wales, and 12 (b) to enable the safe and effective exercise of functions in 13 administering witness protection programs. 14 (2) The main ways in which those purposes are to be achieved by this Act 15 include: 16 (a) providing for the lawful acquisition and use of assumed 17 identities, and 18 (b) facilitating mutual recognition of things done in relation to 19 assumed identities under corresponding laws. 20 4 Definitions 21 (1) In this Act: 22 acquire an assumed identity, means acquire evidence of the identity and 23 includes taking steps towards acquiring evidence of the identity. 24 Australian Crime Commission means the Australian Crime 25 Commission established by the Australian Crime Commission Act 2002 26 of the Commonwealth. 27 authorised civilian means a person (other than a law enforcement 28 officer) who is authorised under an authority to acquire or use an 29 assumed identity. 30 authorised officer means a law enforcement officer who is authorised 31 under an authority to acquire or use an assumed identity. 32 authorised person means: 33 (a) an authorised civilian, or 34 (b) an authorised officer. 35 Page 2 Law Enforcement and National Security (Assumed Identities) Bill 2010 Clause 4 Preliminary Part 1 authority means an authority granted under section 6 to acquire and use 1 an assumed identity, including the authority as varied under section 9. 2 chief officer of a law enforcement agency means the person for the time 3 being holding office or acting as: 4 (a) in relation to the NSW Police Force, the Commissioner of Police, 5 or 6 (b) in relation to the Independent Commission Against Corruption, 7 the Commissioner for that Commission, or 8 (c) in relation to the New South Wales Crime Commission, the 9 Commissioner for that Commission, or 10 (d) in relation to the Police Integrity Commission, the Commissioner 11 for that Commission, or 12 (e) in relation to Corrective Services NSW, the Commissioner of 13 Corrective Services, or 14 (f) in relation to the Australian Crime Commission, the Chief 15 Executive Officer of the Australian Crime Commission, or 16 (g) in relation to an agency prescribed by the regulations as a law 17 enforcement agency for the purposes of this Act, the officer 18 prescribed by the regulations as the chief executive officer of the 19 agency. 20 chief officer of an issuing agency means the chief officer (however 21 described) of the agency. 22 conduct includes any act or omission. 23 corresponding authority means: 24 (a) an authority under a corresponding law to acquire or use an 25 assumed identity in this jurisdiction, or 26 (b) an authority under a corresponding law to request the production 27 of evidence of an assumed identity in this jurisdiction. 28 corresponding law means a law of another jurisdiction that corresponds 29 to this Act or a provision of this Act (as the case may be), and includes 30 a law of another jurisdiction that is declared by the regulations to 31 correspond to this Act or a provision of this Act. 32 criminal activity means conduct that involves the commission of an 33 offence by one or more persons. 34 doing a thing includes failing to do the thing. 35 evidence of identity means a document or other thing (such as a driver 36 licence, birth certificate, credit card or identity card) that evidences or 37 indicates, or can be used to evidence or indicate, a person's identity or 38 any aspect of a person's identity. 39 exercise a function includes perform a duty. 40 Page 3 Clause 4 Law Enforcement and National Security (Assumed Identities) Bill 2010 Part 1 Preliminary function includes a power, authority or duty. 1 government issuing agency, in relation to an authority, means an entity 2 that: 3 (a) is named in the authority, and 4 (b) issues evidence of identity as part of performing any function of 5 the Government of the State. 6 Note. Government issuing agencies may include entities such as the Roads 7 and Traffic Authority and the NSW Police Force. 8 issuing agency means: 9 (a) a government issuing agency, or 10 (b) a non-government issuing agency. 11 jurisdiction means the Commonwealth or a State or Territory of the 12 Commonwealth. 13 law enforcement agency means the following: 14 (a) the NSW Police Force, 15 (b) the Independent Commission Against Corruption, 16 (c) the New South Wales Crime Commission, 17 (d) the Police Integrity Commission, 18 (e) Corrective Services NSW, 19 (f) the Australian Crime Commission, 20 (g) such of the following agencies as may be prescribed by the 21 regulations as law enforcement agencies for the purposes of this 22 Act: 23 (i) the Australian Federal Police, 24 (ii) the Australian Security Intelligence Organisation, 25 (iii) the Australian Secret Intelligence Service, 26 (iv) Customs (within the meaning of the Customs 27 Administration Act 1985 of the Commonwealth), 28 (v) the Australian Taxation Office. 29 law enforcement officer means the following: 30 (a) in relation to the NSW Police Force, a member of the NSW 31 Police Force, 32 (b) in relation to the Independent Commission Against Corruption, 33 an officer of the Commission (within the meaning of the 34 Independent Commission Against Corruption Act 1988), 35 (c) in relation to the New South Wales Crime Commission, a 36 member of staff of the Commission (within the meaning of the 37 New South Wales Crime Commission Act 1985), 38 Page 4 Law Enforcement and National Security (Assumed Identities) Bill 2010 Clause 4 Preliminary Part 1 (d) in relation to the Police Integrity Commission, an officer of the 1 Commission (within the meaning of the Police Integrity 2 Commission Act 1996), 3 (e) in relation to Corrective Services NSW, a correctional officer 4 (within the meaning of the Crimes (Administration of Sentences) 5 Act 1999), 6 (f) in relation to the Australian Crime Commission, a member of the 7 staff of the Australian Crime Commission (within the meaning of 8 the Australian Crime Commission Act 2002 of the 9 Commonwealth), 10 (g) in relation to an agency prescribed by the regulations as a law 11 enforcement agency for the purposes of this Act, such members, 12 officers or employees or class of members, officers or employees 13 as may be prescribed by the regulations as law enforcement 14 officers for the purposes of this Act in relation to that agency, 15 and includes a person who is seconded to a law enforcement agency, 16 including (but not limited to) a member of the police force or police 17 service or a police officer (however described) of another jurisdiction. 18 However, (despite the above) the term does not include the chief officer 19 of a law enforcement agency. 20 non-government issuing agency, in relation to an authority, means an 21 entity, other than a government issuing agency, that: 22 (a) is named in the authority, and 23 (b) issues evidence of identity. 24 Note. Non-government issuing agencies may include entities such as banking 25 institutions and registered clubs. 26 officer of an agency includes a person employed or engaged in the 27 agency. 28 participating jurisdiction means a jurisdiction in which a 29 corresponding law is in force. 30 Registrar means the Registrar of Births, Deaths and Marriages. 31 supervisor of an authorised civilian means the law enforcement officer 32 who supervises or is to supervise the acquisition or use of an assumed 33 identity by the authorised civilian. 34 this jurisdiction means New South Wales. 35 use an assumed identity includes representing (whether expressly or 36 impliedly, or by saying or doing something) the identity to be real when 37 it is not. 38 witness protection program means a witness protection program 39 established and maintained under the Witness Protection Act 1995. 40 (2) Notes included in this Act do not form part of this Act. 41 Page 5 Clause 5 Law Enforcement and National Security (Assumed Identities) Bill 2010 Part 2 Authority for assumed identity Part 2 Authority for assumed identity 1 5 Application for authority to acquire or use assumed identity 2 (1) A law enforcement officer of a law enforcement agency may apply to 3 the chief officer of the agency for an authority for the law enforcement 4 officer or any other person to do either or both of the following: 5 (a) acquire an assumed identity, 6 (b) use an assumed identity. 7 (2) A separate application must be made in respect of each assumed identity 8 to be acquired or used. 9 (3) An application: 10 (a) must be in writing in the form approved by the chief officer, and 11 (b) must contain: 12 (i) the name of the applicant, and 13 (ii) the name of the person to be authorised to acquire or use 14 an assumed identity (if not the applicant), and 15 (iii) if the person referred to in subparagraph (ii) is not a law 16 enforcement officer, the name and rank or position of the 17 person proposed to be appointed as supervisor and an 18 explanation of why it is necessary for a person who is not 19 a law enforcement officer to acquire or use the assumed 20 identity, and 21 (iv) details of the proposed assumed identity, and 22 (v) reasons for the need to acquire or use an assumed identity, 23 and 24 (vi) if the assumed identity is to be used in an investigation or 25 for intelligence-gathering, details of the investigation or 26 intelligence-gathering exercise (to the extent known), and 27 (vii) if the assumed identity is to be used for the purposes of 28 implementing measures to facilitate the conduct of 29 investigations or intelligence-gathering that may take 30 place in the future, details of those measures, and 31 (viii) if the assumed identity is to be used to ensure the effective 32 and safe exercise of functions in administering witness 33 protection programs, details of the functions concerned, 34 and 35 (ix) details of any issuing agencies and the types of evidence to 36 be issued by them in relation to the assumed identity to be 37 acquired or used, and 38 Page 6 Law Enforcement and National Security (Assumed Identities) Bill 2010 Clause 6 Authority for assumed identity Part 2 (x) details of any application to be made for an order under 1 section 11 (Making entries in Births, Deaths and Marriages 2 Register) in respect of the assumed identity. 3 (4) The chief officer may require the applicant to furnish such additional 4 information concerning the application as is necessary for the chief 5 officer's proper consideration of the application. 6 6 Determination of applications 7 (1) After considering an application for an authority to acquire or use an 8 assumed identity, and any additional information under section 5 (4), 9 the chief officer: 10 (a) may grant an authority to acquire or use the assumed identity, 11 either unconditionally or subject to conditions, or 12 (b) may refuse the application. 13 (2) An authority to acquire or use an assumed identity may not be granted 14 unless the chief officer is satisfied on reasonable grounds: 15 (a) that the assumed identity is necessary for the purposes of: 16 (i) an investigation or intelligence-gathering in relation to 17 criminal activity, or 18 (ii) implementing measures to facilitate the conduct of such 19 investigations or intelligence-gathering that may take 20 place in the future, or 21 (iii) enabling employees of the NSW Police Force to exercise 22 their functions in administering witness protection 23 programs and ensuring their safety while doing so, and 24 (b) that the risk of abuse of the assumed identity by the authorised 25 person is minimal, and 26 (c) if the application is for authorisation of an assumed identity for a 27 person who is not a law enforcement officer--that it would be 28 impossible or impracticable in the circumstances for a law 29 enforcement officer to acquire or use the assumed identity for the 30 purpose sought. 31 (3) If an authority is granted for an authorised civilian, the chief officer 32 must appoint a law enforcement officer of the law enforcement agency 33 to supervise the acquisition or use of the assumed identity by the 34 authorised civilian. 35 (4) The law enforcement officer appointed as supervisor must be: 36 (a) in relation to the NSW Police Force, of or above the rank of 37 Sergeant, and 38 Page 7 Clause 7 Law Enforcement and National Security (Assumed Identities) Bill 2010 Part 2 Authority for assumed identity (b) in relation to the Independent Commission Against Corruption, 1 of or above the rank of Senior Investigator, and 2 (c) in relation to the New South Wales Crime Commission, a New 3 South Wales Crime Commission Investigations Manager, and 4 (d) in relation to the Police Integrity Commission, a Police Integrity 5 Commission Investigator, and 6 (e) in relation to Corrective Services NSW, of or above the rank of 7 Assistant Superintendent, and 8 (f) in relation to the Australian Crime Commission, of or above the 9 rank of senior investigator, and 10 (g) in relation to an agency prescribed by the regulations as a law 11 enforcement agency for the purposes of this Act, of or above such 12 rank or position as may be prescribed by the regulations for the 13 purposes of this provision in relation to that agency. 14 (5) An authority may also authorise any one or more of the following: 15 (a) an application for an order for an entry in the Births, Deaths and 16 Marriages Register under section 11 or a like register under a 17 corresponding law, 18 (b) a request under section 15 or 27, 19 (c) the use of an assumed identity in a participating jurisdiction. 20 (6) A separate authority is required for each assumed identity. 21 7 Form of authority 22 (1) An authority must be: 23 (a) in writing in the form approved by the chief officer, and 24 (b) signed by the person granting it. 25 Note. The functions under this Act of the chief officer of a law enforcement 26 agency (including that of granting authorities) may be delegated under 27 section 39. 28 (2) An authority must state the following: 29 (a) the name of the person granting the authority, 30 (b) the date of the authority, 31 (c) details of the assumed identity authorised, 32 (d) details of any evidence of the assumed identity that may be 33 acquired under the authority, 34 (e) the conditions (if any) to which the authority is subject, 35 (f) why the authority is granted, 36 Page 8 Law Enforcement and National Security (Assumed Identities) Bill 2010 Clause 8 Authority for assumed identity Part 2 (g) if the authority relates to an authorised officer--the name of the 1 officer, 2 (h) if the authority relates to an authorised civilian: 3 (i) the name of the authorised civilian, and 4 (ii) the name of his or her supervisor under the authority, and 5 (iii) the period for which the authority will remain in force, 6 being a period not exceeding 3 months. 7 (3) The authority must also state the following: 8 (a) each issuing agency to which a request may be made under 9 section 15 or 27, 10 (b) whether it authorises an application for an order for an entry in 11 the Births, Deaths and Marriages Register under section 11 or a 12 like register under a corresponding law, 13 (c) each participating jurisdiction in which an assumed identity may 14 be used. 15 8 Period of authority 16 (1) An authority for an authorised officer remains in force until cancelled 17 under section 9. 18 (2) An authority for an authorised civilian remains in force until the end of 19 the period specified in the authority in accordance with section 20 7 (2) (h) (iii), unless the authority is cancelled sooner under section 9. 21 9 Variation or cancellation of authority 22 (1) The chief officer who grants an authority: 23 (a) may vary or cancel the authority at any time, and 24 (b) must cancel the authority if the chief officer is satisfied that use 25 of the assumed identity is no longer necessary. 26 (2) The chief officer must give written notice of the variation or 27 cancellation of an authority to: 28 (a) the authorised person to whom it relates, and 29 (b) if the authorised person is an authorised civilian--the authorised 30 person's supervisor. 31 (3) The notice must state why the authority is varied or cancelled. 32 (4) The variation or cancellation takes effect: 33 (a) on the day the written notice is given to the authorised person, or 34 (b) if a later date of effect is stated in the notice--on the day stated. 35 Page 9 Clause 10 Law Enforcement and National Security (Assumed Identities) Bill 2010 Part 2 Authority for assumed identity 10 Yearly review of authority 1 (1) The chief officer of a law enforcement agency must periodically review 2 each authority granted by the chief officer under this Act that authorises 3 the use of an assumed identity in a participating jurisdiction. 4 (2) A review of an authority under this section is to be conducted at least 5 once every 12 months. 6 (3) The purpose of a review is to determine whether use of the assumed 7 identity under the authority is still necessary. 8 (4) If the chief officer is satisfied on a review that use of the assumed 9 identity under the authority is no longer necessary, he or she must 10 cancel the authority under section 9. 11 (5) If the chief officer is satisfied on a review that use of the assumed 12 identity under the authority is still necessary, he or she must record his 13 or her opinion, and the reasons for it, in writing. 14 11 Making entries in Births, Deaths and Marriages Register 15 (1) An eligible Judge may order the Registrar to make an entry in the Births, 16 Deaths and Marriages Register in relation to the acquisition of an 17 assumed identity under an authority or corresponding authority. 18 (2) An eligible Judge may make the order only: 19 (a) on application by: 20 (i) the chief officer of a law enforcement agency of this 21 jurisdiction, or 22 (ii) the chief officer of a law enforcement agency under a 23 corresponding law, and 24 (b) if satisfied the order is justified having regard to the nature of the 25 activities undertaken or to be undertaken by the officer or person 26 under the authority or corresponding authority. 27 (3) The application must be heard in closed court. 28 (4) The Registrar must give effect to an order: 29 (a) within the period stated in the order, or 30 (b) if no period is stated in the order--within 28 days after the day 31 the order is made. 32 12 Eligible Judges 33 (1) In this section and sections 11 and 14: 34 eligible Judge means a Judge in relation to whom a consent under 35 subsection (2) and a declaration under subsection (3) are in force. 36 Page 10 Law Enforcement and National Security (Assumed Identities) Bill 2010 Clause 13 Authority for assumed identity Part 2 Judge means a person who is a Judge of the Supreme Court. 1 (2) A Judge may, by instrument in writing, consent to being the subject of 2 a declaration by the Attorney General under subsection (3). 3 (3) The Attorney General may, by instrument in writing, declare Judges in 4 relation to whom consents are in force under subsection (2) to be 5 eligible Judges for the purposes of this Act. 6 (4) An eligible Judge has, in relation to the exercise of a function conferred 7 on an eligible Judge by section 11 or 14, the same protection and 8 immunity as a Judge of the Supreme Court has in relation to 9 proceedings in the Supreme Court. 10 (5) A Judge who has given consent under this section may, by instrument 11 in writing, revoke the consent. 12 (6) A declaration of an eligible Judge under subsection (3) cannot be 13 revoked by the Attorney General. However, the declaration of a Judge 14 as an eligible Judge is revoked if: 15 (a) the eligible Judge revokes his or her consent in accordance with 16 subsection (5) or ceases to be a Judge, or 17 (b) the Chief Justice notifies the Attorney General that the Judge 18 should not continue to be an eligible Judge. 19 (7) To avoid doubt, the selection of the eligible Judge to exercise any 20 particular function conferred on eligible Judges is not to be made by the 21 Attorney General or other Minister of the Crown, and the exercise of 22 that particular function is not subject to the control and direction of the 23 Attorney General or other Minister of the Crown. 24 13 Cancellation of authority affecting entry in a register of births, deaths 25 and marriages 26 (1) This section applies if: 27 (a) the chief officer cancels an authority for an assumed identity, and 28 (b) there is an entry in relation to that identity: 29 (i) in the Births, Deaths and Marriages Register because of an 30 order under section 11, or 31 (ii) in a like register of a participating jurisdiction because of 32 an order under a corresponding law of the jurisdiction. 33 (2) If subsection (1) (b) (i) applies, the chief officer must apply for an order 34 under section 14 within 28 days after the day the authority is cancelled. 35 (3) If subsection (1) (b) (ii) applies, the chief officer must apply for an order 36 under the corresponding law to cancel the entry within 28 days after the 37 day the authority is cancelled. 38 Page 11 Clause 14 Law Enforcement and National Security (Assumed Identities) Bill 2010 Part 2 Authority for assumed identity 14 Cancelling entries in Births, Deaths and Marriages Register 1 (1) An eligible Judge may order the Registrar to cancel an entry that has 2 been made in the Births, Deaths and Marriages Register under an order 3 under section 11. 4 (2) The eligible Judge may make the order on application by the chief 5 officer who applied for the order under section 11. 6 (3) The application must be heard in closed court. 7 (4) The Registrar must give effect to the order within 28 days after the day 8 the order is made. 9 Page 12 Law Enforcement and National Security (Assumed Identities) Bill 2010 Clause 15 Evidence of assumed identity Part 3 Part 3 Evidence of assumed identity 1 15 Request for evidence of assumed identity 2 (1) This section applies if an authority granted under section 6 authorises a 3 request under this section. 4 (2) The chief officer who grants the authority may request the chief officer 5 of an issuing agency stated in the authority to: 6 (a) produce evidence of an assumed identity in accordance with the 7 authority, and 8 (b) give evidence of the assumed identity to the authorised person 9 named in the authority. 10 (3) The request must state a reasonable period for compliance with the 11 request. 12 (4) A request cannot be made under this section for an entry in the Births, 13 Deaths and Marriages Register or a like register of a participating 14 jurisdiction. 15 (5) In this section: 16 evidence means evidence similar to that ordinarily produced or given by 17 the issuing agency. 18 16 Government issuing agencies to comply with request 19 The chief officer of a government issuing agency who receives a request 20 under section 15 must comply with the request within the reasonable 21 period stated in the request. 22 17 Non-government issuing agencies may comply with request 23 The chief officer of a non-government issuing agency who receives a 24 request under section 15 may comply with the request. 25 18 Cancellation of evidence of assumed identity 26 (1) The chief officer of an issuing agency who produces evidence of an 27 assumed identity must cancel the evidence if directed in writing to do so 28 by the chief officer who granted the authority for the assumed identity. 29 (2) In this section: 30 cancel includes delete or alter an entry in a record of information. 31 Page 13 Clause 19 Law Enforcement and National Security (Assumed Identities) Bill 2010 Part 3 Evidence of assumed identity 19 Protection from liability--officers of issuing agencies 1 Anything done by the chief officer, or an officer, of an issuing agency 2 (whether government or non-government) in good faith to comply with 3 a request under section 15 or a direction under section 18 is not 4 unlawful, and does not constitute an offence or corrupt conduct. 5 20 Indemnity for issuing agencies and officers 6 (1) This section applies if the chief officer of a law enforcement agency 7 makes a request under section 15 or gives a direction under section 18 8 to the chief officer of an issuing agency, whether government or 9 non-government. 10 (2) The law enforcement agency must indemnify the issuing agency, or an 11 officer of the agency, for any liability incurred by the agency or officer 12 (including reasonable costs) if: 13 (a) the liability is incurred because of something done by the agency 14 or officer to comply with the request or direction in the course of 15 duty, and 16 (b) any requirements prescribed under the regulations have been met. 17 Page 14 Law Enforcement and National Security (Assumed Identities) Bill 2010 Clause 21 Effect of authority Part 4 Part 4 Effect of authority 1 21 Assumed identity may be acquired and used 2 (1) An authorised officer may acquire or use (or both) an assumed identity 3 if the acquisition or use (or both) are: 4 (a) in accordance with an authority, and 5 (b) in the course of duty. 6 (2) An authorised civilian may acquire or use (or both) an assumed identity 7 if the acquisition or use (or both) are in accordance with: 8 (a) an authority, and 9 (b) any direction by the person's supervisor under the authority. 10 22 Protection from liability--authorised persons 11 Anything done by an authorised person (whether in this jurisdiction or 12 elsewhere) in the course of acquiring or using an assumed identity is not 13 unlawful, and does not constitute an offence or corrupt conduct if: 14 (a) the thing is done in accordance with an authority, and 15 (b) the thing is done in the course of the authorised person's duty (in 16 the case of an authorised officer) or in accordance with any 17 direction by the authorised person's supervisor under the 18 authority (in the case of an authorised civilian), and 19 (c) doing the thing would not be unlawful or constitute an offence or 20 corrupt conduct if the assumed identity were the person's real 21 identity. 22 23 Indemnity for authorised persons 23 (1) This section applies if the chief officer of a law enforcement agency 24 grants an authority. 25 (2) The law enforcement agency must indemnify the authorised person 26 under the authority for any liability incurred by the person (including 27 reasonable costs) because of something done by the person (whether in 28 this jurisdiction or elsewhere) if: 29 (a) the thing is done in the course of acquiring or using an assumed 30 identity in accordance with the authority, and 31 (b) the thing is done: 32 (i) in the case of an authorised officer--in the course of his or 33 her duty, or 34 Page 15 Clause 24 Law Enforcement and National Security (Assumed Identities) Bill 2010 Part 4 Effect of authority (ii) in the case of an authorised civilian--in accordance with 1 any direction by his or her supervisor under the authority, 2 and 3 (c) any requirements prescribed under the regulations have been met. 4 24 Particular qualifications 5 (1) Sections 22 and 23 do not apply to anything done by an authorised 6 person if: 7 (a) a particular qualification is needed to do the thing, and 8 (b) the person does not have that qualification. 9 (2) Subsection (1) applies whether or not the person has acquired, as 10 evidence of an assumed identity, a document that indicates that he or 11 she has that qualification. 12 25 Effect of being unaware of variation or cancellation of authority 13 (1) If an authority has been varied in a way that limits its scope, this Part 14 continues to apply to the authorised person to whom it relates as if it had 15 not been varied in that way, for as long as the person: 16 (a) is unaware of the variation, and 17 (b) is not reckless about the existence of the variation. 18 (2) If an authority has been cancelled, this Part continues to apply to the 19 authorised person to whom it related as if it had not been cancelled, for 20 as long as the person: 21 (a) is unaware of the cancellation, and 22 (b) is not reckless about the existence of the cancellation. 23 (3) For the purposes of this section, a person is reckless about the existence 24 of the variation or cancellation of an authority if: 25 (a) the person is aware of a substantial risk that the authority has been 26 varied or cancelled, and 27 (b) having regard to the circumstances known to the person, it is 28 unjustifiable to take the risk. 29 26 Chief officer may make certain representations about authorised person 30 An authority to acquire or use an assumed identity authorises the chief 31 officer who grants it to make any false or misleading representation 32 about the authorised person to whom it relates, for the purposes of or in 33 connection with the acquisition or use of the assumed identity by the 34 authorised person. 35 Page 16 Law Enforcement and National Security (Assumed Identities) Bill 2010 Clause 27 Mutual recognition under corresponding laws Part 5 Part 5 Mutual recognition under corresponding laws 1 27 Requests to a participating jurisdiction for evidence of assumed identity 2 (1) This section applies if an authority granted under section 6 authorises a 3 request under this section. 4 (2) The chief officer who grants the authority may request the chief officer 5 of an issuing agency of a participating jurisdiction stated in the authority 6 to: 7 (a) produce evidence of the assumed identity in accordance with the 8 authority, and 9 (b) give evidence of the assumed identity to the authorised person 10 named in the authority. 11 28 Requests from a participating jurisdiction for evidence of assumed 12 identity 13 (1) This section applies if: 14 (a) an authority under a corresponding law authorises a request for: 15 (i) the production of evidence of an assumed identity in this 16 jurisdiction, and 17 (ii) the giving of evidence of the assumed identity to the 18 authorised person named in the authority, and 19 (b) the request is made to the chief officer of an issuing agency of this 20 jurisdiction, and 21 (c) the request states a reasonable period for compliance with the 22 request. 23 (2) The chief officer of a government issuing agency who receives the 24 request must comply with the request within the reasonable period 25 stated in the request. 26 (3) The chief officer of a non-government issuing agency who receives the 27 request may comply with the request. 28 29 Directions from a participating jurisdiction to cancel evidence of 29 assumed identity 30 (1) The chief officer of an issuing agency who produces evidence of an 31 assumed identity must cancel the evidence if directed in writing to do so 32 by the chief officer who granted the authority for the assumed identity. 33 (2) In this section: 34 cancel includes delete or alter an entry in a record of information. 35 Page 17 Clause 30 Law Enforcement and National Security (Assumed Identities) Bill 2010 Part 5 Mutual recognition under corresponding laws 30 Indemnity for issuing agencies and officers 1 (1) This section applies if the chief officer of a law enforcement agency 2 makes a request to the chief officer of an issuing agency of a 3 participating jurisdiction under section 27. 4 (2) The law enforcement agency must indemnify the issuing agency and 5 any officer of the issuing agency for any liability incurred by the agency 6 or officer (including reasonable costs) if: 7 (a) the liability is incurred because of something done (whether in 8 this jurisdiction or elsewhere) by the agency or officer to comply 9 with the request in the course of duty, and 10 (b) any requirements prescribed under the regulations have been met. 11 31 Application of this Act to authorities under corresponding laws 12 The following provisions apply to anything done in this jurisdiction in 13 relation to a corresponding authority as if it were an authority granted 14 under section 6: 15 (a) section 19 (Protection from liability--officers of issuing 16 agencies), 17 (b) section 21 (Assumed identity may be acquired and used), 18 (c) section 22 (Protection from liability--authorised persons), 19 (d) section 24 (Particular qualifications), 20 (e) section 25 (Effect of being unaware of variation or cancellation 21 of authority), 22 (f) section 32 (Misuse of assumed identity), 23 (g) section 33 (Disclosing information about assumed identity). 24 Page 18 Law Enforcement and National Security (Assumed Identities) Bill 2010 Clause 32 Compliance and monitoring Part 6 Part 6 Compliance and monitoring 1 Division 1 Misuse of assumed identity and information 2 32 Misuse of assumed identity 3 (1) An authorised officer is guilty of an offence if: 4 (a) he or she intentionally, knowingly or recklessly acquires 5 evidence of, or uses, an assumed identity covered by his or her 6 authority, and 7 (b) he or she knows that, or is reckless as to whether, the acquisition 8 or use is not: 9 (i) in accordance with his or her authority, or 10 (ii) in the course of duty. 11 Maximum penalty: imprisonment for 2 years. 12 (2) An authorised civilian is guilty of an offence if: 13 (a) he or she intentionally, knowingly or recklessly acquires 14 evidence of, or uses, an assumed identity covered by his or her 15 authority, and 16 (b) he or she knows that, or is reckless as to whether, the acquisition 17 or use is not in accordance with: 18 (i) his or her authority, or 19 (ii) the directions of his or her supervisor under the authority. 20 Maximum penalty: imprisonment for 2 years. 21 33 Disclosing information about assumed identity 22 (1) A person is guilty of an offence if: 23 (a) the person intentionally, knowingly or recklessly discloses any 24 information, and 25 (b) the person knows that, or is reckless as to whether, the 26 information reveals, or is likely to reveal, that an assumed 27 identity acquired or used by another person is not the other 28 person's real identity, and 29 (c) the person knows that, or is reckless as to whether, the disclosure 30 is not made: 31 (i) in connection with the administration or execution of this 32 Act or a corresponding law, or 33 Page 19 Clause 34 Law Enforcement and National Security (Assumed Identities) Bill 2010 Part 6 Compliance and monitoring (ii) for the purposes of any legal proceeding arising out of or 1 otherwise related to this Act or the regulations or a 2 corresponding law or of any report of any such 3 proceedings, or 4 (iii) in accordance with any requirement imposed by law. 5 Maximum penalty: imprisonment for 5 years. 6 (2) A person is guilty of an offence against this subsection if the person 7 commits an offence against subsection (1) in circumstances in which the 8 person: 9 (a) intends to endanger the health or safety of any person or prejudice 10 the effective conduct of an investigation or intelligence-gathering 11 in relation to criminal activity or implementation of a witness 12 protection program, or 13 (b) knows that, or is reckless as to whether, the disclosure of the 14 information: 15 (i) endangers or will endanger the health or safety of any 16 person, or 17 (ii) prejudices or will prejudice the effective conduct of an 18 investigation or intelligence-gathering in relation to 19 criminal activity or implementation of a witness protection 20 program. 21 Maximum penalty: imprisonment for 10 years. 22 Division 2 Disclosure of identity in legal proceedings 23 34 Identity of certain persons not to be disclosed in legal proceedings 24 (1) If, in proceedings before a court, a tribunal or a Royal Commission or 25 other commission of inquiry, the identity of a person in respect of whom 26 an authority is or was in force is in issue or may be disclosed, the court, 27 tribunal, Royal Commission or other commission must, unless it 28 considers that the interests of justice otherwise require: 29 (a) ensure that such parts of the proceedings as relate to the identity 30 of the person are held in private, and 31 (b) make such orders as to the suppression of evidence given before 32 it as, in its opinion, will ensure that the identity of the person is 33 not disclosed. 34 (2) In particular, the court, tribunal, Royal Commission or other 35 commission of inquiry: 36 (a) may allow a person in respect of whom an authority is or was in 37 force to appear before it under the assumed name or under a code 38 name or code number, and 39 Page 20 Law Enforcement and National Security (Assumed Identities) Bill 2010 Clause 35 Compliance and monitoring Part 6 (b) may make orders prohibiting the publication of any information 1 (including information derived from evidence given before it) 2 that identifies, or might facilitate the identification of, any person 3 who has been or is proposed to be called to give evidence. 4 (3) A person must not contravene an order in force under this section. 5 Maximum penalty: 50 penalty units or imprisonment for 12 months, or 6 both. 7 Division 3 Reporting and record-keeping 8 35 Reports about authorities for assumed identities etc 9 (1) As soon as practicable after the end of each financial year, the chief 10 officer of a law enforcement agency must submit a report to the Minister 11 that includes the following information for the year: 12 (a) the number of authorities granted, and the number of authorities 13 cancelled, during the year, 14 (b) a general description of the activities undertaken by authorised 15 persons when using assumed identities under this Act during the 16 year, 17 (c) the number of applications for authorities that were refused 18 during the year, 19 (d) a statement as to whether or not any fraud or other unlawful 20 activity was identified by an audit under section 37 during the 21 year, 22 (e) any other information relating to authorities and assumed 23 identities and the administration of this Act that the Minister 24 considers appropriate. 25 (2) The chief officer must advise the Minister of any information in the 26 report that, in the chief officer's opinion, should be excluded from the 27 report before the report is laid before Parliament because the 28 information, if made public, could reasonably be expected to: 29 (a) endanger a person's safety, or 30 (b) prejudice an investigation or prosecution, or 31 (c) compromise any law enforcement agency's operational activities 32 or methodologies. 33 (3) The Minister must: 34 (a) exclude information from the report if satisfied on the advice of 35 the chief officer of any of the grounds set out in subsection (2), 36 and 37 Page 21 Clause 36 Law Enforcement and National Security (Assumed Identities) Bill 2010 Part 6 Compliance and monitoring (b) cause a copy of the report to be laid before each House of 1 Parliament within 15 sitting days after the day on which the 2 Minister receives the report. 3 (4) If a House of Parliament is not sitting when the Minister seeks to lay a 4 report before it, the Minister may present copies of the report to the 5 Clerk of the House concerned. 6 36 Record keeping 7 (1) The chief officer of a law enforcement agency must cause appropriate 8 records to be kept about the operation of this Act in respect of the 9 agency. 10 (2) The records must include the following, in respect of authorities 11 granted, varied or cancelled under this Act in respect of the agency: 12 (a) the date on which an authority was granted, varied or cancelled 13 and the name of the person who granted, varied or cancelled it, 14 Note. The functions under this Act of the chief officer of a law 15 enforcement agency (including that of granting authorities) may be 16 delegated under section 39. 17 (b) the name of the authorised person under the authority, together 18 with details of the assumed identity to which the authority 19 applies, 20 (c) details of any request made to an issuing agency under section 15 21 in respect of the authority, 22 (d) the general nature of the duties undertaken by the authorised 23 person under the assumed identity, 24 (e) general details of relevant financial transactions entered into 25 using the assumed identity, 26 (f) details of any review of the authority under section 10. 27 37 Audit of records 28 (1) The chief officer of a law enforcement agency must arrange for the 29 records kept under section 36: 30 (a) for each authority in respect of the agency that authorises the use 31 of an assumed identity in a participating jurisdiction, to be 32 audited: 33 (i) at least once every 6 months while the authority is in force, 34 and 35 (ii) once in the 6 months after the cancellation or expiry of the 36 authority, and 37 (b) for each other authority in respect of the agency, to be audited at 38 least once every 12 months while the authority is in force. 39 Page 22 Law Enforcement and National Security (Assumed Identities) Bill 2010 Clause 37 Compliance and monitoring Part 6 (2) The audit is to be conducted by a person appointed by the chief officer. 1 (3) The person appointed to conduct the audit: 2 (a) may but need not be an officer of the law enforcement agency, 3 and 4 (b) must not be a person: 5 (i) who granted, varied or cancelled any of the authorities to 6 which the records under section 36 relate, or 7 (ii) who is or was an authorised person under any of the 8 authorities to which those records relate. 9 Note. The functions under this Act of the chief officer of a law enforcement 10 agency (including that of granting authorities) may be delegated under 11 section 39. 12 (4) The results of an audit are to be reported to the chief officer. 13 Page 23 Clause 38 Law Enforcement and National Security (Assumed Identities) Bill 2010 Part 7 General Part 7 General 1 38 Act binds Crown 2 This Act binds the Crown in right of New South Wales and, in so far as 3 the legislative power of Parliament permits, the Crown in all its other 4 capacities. 5 39 Delegation of chief officer's functions 6 (1) Except as provided by this section (and despite any other Act or law to 7 the contrary) the functions of a chief officer under this Act may not be 8 delegated to any other person. 9 (2) A chief officer may delegate to a senior officer of the law enforcement 10 agency any of the chief officer's functions under this Act (except this 11 power of delegation). 12 (3) No more than 4 delegations may be in force under this section at any one 13 time in respect of any one law enforcement agency. 14 (4) In this section: 15 senior officer means a person for the time being holding office or acting 16 as: 17 (a) in relation to the NSW Police Force, an Assistant Commissioner 18 or a Deputy Commissioner, and 19 (b) in relation to the Independent Commission Against Corruption, 20 an Assistant Commissioner, and 21 (c) in relation to the New South Wales Crime Commission, the 22 Director of Investigations or the Assistant Director of 23 Investigations, and 24 (d) in relation to the Police Integrity Commission, an Assistant 25 Commissioner, the Director of Operations or the Commission 26 Solicitor, and 27 (e) in relation to Corrective Services NSW, an Assistant 28 Commissioner or a Deputy Commissioner, and 29 (f) in relation to an agency prescribed by the regulations as a law 30 enforcement agency for the purposes of this Act, of or above such 31 rank or position as may be prescribed by the regulations for the 32 purposes of this provision in relation to that agency, and 33 (g) in relation to the Australian Crime Commission, any of the 34 following: 35 (i) the Director National Operations, 36 (ii) a Director, 37 Page 24 Law Enforcement and National Security (Assumed Identities) Bill 2010 Clause 40 General Part 7 (iii) a Head of Investigation or Head of Operation, 1 (iv) an office of the Australian Crime Commission that is 2 prescribed by the regulations. 3 40 Other Acts not affected 4 This Act does not limit or otherwise affect the operation of the Law 5 Enforcement (Controlled Operations) Act 1997 or the Witness 6 Protection Act 1995. 7 41 Proceedings for offences 8 (1) Proceedings for an offence against this Act or the regulations, except 9 section 33 (1) or (2), are to be dealt with summarily by the Local Court. 10 (2) Chapter 5 of the Criminal Procedure Act 1986 (which relates to the 11 summary disposal of certain indictable offences unless an election is 12 made to proceed on indictment) applies to and in respect of an offence 13 under section 33 (1) or (2). 14 42 Regulations 15 (1) The Governor may make regulations for or with respect to prescribing 16 any matter or thing required or permitted by this Act to be prescribed or 17 necessary to be prescribed to give effect to this Act. 18 (2) The regulations may create offences punishable by a penalty not 19 exceeding 100 penalty units. 20 43 Review of Act 21 (1) The Minister is to review this Act to determine whether the policy 22 objectives of the Act remain valid and whether the terms of the Act 23 remain appropriate for securing those objectives. 24 (2) The review is to be undertaken as soon as possible after the period of 25 12 months from the commencement of this Act. 26 (3) A report on the outcome of the review is to be tabled in each House of 27 Parliament within 3 months after the end of the period of 12 months. 28 44 Repeals 29 The following Act and Regulation are repealed: 30 Law Enforcement and National Security (Assumed Identities) Act 1998 31 No 154 32 Law Enforcement and National Security (Assumed Identities) 33 Regulation 2004 34 Page 25 Law Enforcement and National Security (Assumed Identities) Bill 2010 Schedule 1 Savings and transitional provisions Schedule 1 Savings and transitional provisions 1 Part 1 General 2 1 Regulations 3 (1) The regulations may contain provisions of a savings or transitional 4 nature consequent on the enactment of the following Acts: 5 this Act 6 (2) Any such provision may, if the regulations so provide, take effect from 7 the date of assent to the Act concerned or a later date. 8 (3) To the extent to which any such provision takes effect from a date that 9 is earlier than the date of its publication on the NSW legislation website, 10 the provision does not operate so as: 11 (a) to affect, in a manner prejudicial to any person (other than the 12 State or an authority of the State), the rights of that person 13 existing before the date of its publication, or 14 (b) to impose liabilities on any person (other than the State or an 15 authority of the State) in respect of anything done or omitted to 16 be done before the date of its publication. 17 Part 2 Provisions consequent on enactment of this 18 Act 19 2 Definitions 20 In this Part: 21 appointed day means the day on which the repealed Act is repealed. 22 repealed Act means the Law Enforcement and National Security 23 (Assumed Identities) Act 1998. 24 3 Existing approvals 25 (1) The repealed Act (other than sections 11 and 12), as in force 26 immediately before the appointed day, continues to apply in relation to 27 an assumed identity approval granted under that Act and in force 28 immediately before that day (an existing approval) as if that Act had 29 not been repealed. 30 (2) Any records kept under section 10 of the repealed Act in respect of an 31 existing approval are taken to be records kept under section 36 of this 32 Act. 33 Page 26 Law Enforcement and National Security (Assumed Identities) Bill 2010 Savings and transitional provisions Schedule 1 (3) A reference in section 35 of this Act to an authority or to an authorised 1 person is taken to include a reference, respectively, to an existing 2 approval or to a person in respect of whom an existing approval is 3 granted. 4 4 Pending applications for approvals 5 (1) An application made under the repealed Act for an assumed identity 6 approval that, immediately before the appointed day, had not yet been 7 determined, is to continue to be dealt with as if it were an application for 8 an authority under this Act. 9 (2) A reference in section 35 (1) (c) of this Act to an application for an 10 authority is taken to include a reference to an application the subject of 11 subclause (1). 12 5 Eligible Judges 13 A nomination or consent in force under section 8 of the repealed Act 14 immediately before the appointed day is taken to be a declaration or 15 consent in force under section 12 of this Act. 16 6 Audit under repealed Act 17 A reference in section 35 (1) (d) of this Act to an audit under section 37 18 of this Act is taken to include a reference to an audit under section 11 of 19 the repealed Act if such an audit was carried out in the financial year 20 concerned. 21 7 References to repealed Act 22 A reference in any Act (other than this Act), in any instrument made 23 under an Act or in any document to the Law Enforcement and National 24 Security (Assumed Identities) Act 1998 is to be read: 25 (a) as a reference to this Act, unless it relates to a matter that 26 continues to be dealt with by the repealed Act, or 27 (b) if it relates to such a matter--as a reference to the repealed Act. 28 Page 27 Law Enforcement and National Security (Assumed Identities) Bill 2010 Schedule 2 Consequential amendment of other legislation Schedule 2 Consequential amendment of other 1 legislation 2 2.1 Births, Deaths and Marriages Registration Act 1995 No 62 3 Section 29C Exceptions to certain change of name restrictions 4 Omit "Law Enforcement and National Security (Assumed Identities) Act 5 1998" from section 29C (3) (b). 6 Insert instead "Law Enforcement and National Security (Assumed Identities) 7 Act 2010". 8 2.2 Criminal Procedure Act 1986 No 209 9 Schedule 1 Indictable offences triable summarily 10 Omit item 21A in Part 4 of Table 1 to the Schedule. Insert instead: 11 21A Law Enforcement and National Security (Assumed Identities) Act 12 2010 13 An offence under section 33 (1) or (2) of the Law Enforcement 14 and National Security (Assumed Identities) Act 2010. 15 2.3 Jury Regulation 2004 16 Clause 4A Identity of certain persons must not be disclosed 17 Omit "assumed identity approval is in force under the Law Enforcement and 18 National Security (Assumed Identities) Act 1998" from clause 4A (1) (a) and 19 (b) wherever occurring. 20 Insert instead "authority is in force under the Law Enforcement and National 21 Security (Assumed Identities) Act 2010". 22 Page 28 Law Enforcement and National Security (Assumed Identities) Bill 2010 Consequential amendment of other legislation Schedule 2 2.4 Law Enforcement (Powers and Responsibilities) Act 2002 1 No 103 2 Schedule 1 Acts not affected by this Act 3 Omit "Law Enforcement and National Security (Assumed Identities) Act 1998 4 No 154". 5 Insert instead "Law Enforcement and National Security (Assumed Identities) 6 Act 2010". 7 Page 29
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