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Key Takeaways

Identity fraud is the use of a person’s personal information through means of stealing, fraudulent documents, or otherwise appropriating a person’s identity. It’s commonly used to open bank accounts, apply for loans, passports, register vehicles, file fraudulent tax returns, create debts, apply for drive licences and obtain money from bank accounts, superannuation, or investments and shares. Penalties for identity fraud range from 1 to 21-years imprisonment across Australia.

This article whilst written by our fraud and white collar crime lawyers Sydney team, it should not be used as legal advice without speaking to a lawyer for tailored advice.

Identity fraud or theft involves the use of someone else’s personal details via stolen or fraudulent documents, or otherwise appropriating their identity.

Did you know?

Over 154,300 Australians (estimated 0.8%) have experienced identity fraud in 2020-21. Of the reported incidents of identity fraud, the personal information was most commonly used to obtain money from a bank account, superannuation, or investments or shares.

In other incidents, the information was utilised to open an account in the victim’s name, to apply for a loan or to file a fraudulent tax return. Here is more on lying on tax returns.

Armed with another’s personal information, someone may also be able to create debts, apply for a driving licence or passport, and register a vehicle. Here is more on credit card theft.

For more on white collar and corporate crime click here.

Identity theft cases in Australia come in many other forms. This can include stealing your personal information from social media accounts which may include your date of birth, photos and more information about you and your family.

 

Identity Theft Punishment Australia & Statistics

The Australian Federal Police have advised for the community to be vigilant with their personal information, to prevent it being stolen or misused.

Strategies include properly disposing of any personal and financial papers which contain personal details, ensuring anti-virus software on your devices is up to date, and being cautious of who you provide your personal information to.

The estimated direct and indirect cost of identity crime cases in Australia in 2018–19 was $3.1 billion, with this rising more than 17% than in 2015-16.

Identity fraud is criminalised by all states and territories in Australia, with strict penalties applicable.

 

Report Identity Theft Australia

Being a victim of identity theft is awful. As either a victim or if you suspect it, you can report it directly to the police. The next step you should take, if not before, is to report to the organisation or agency that issued you with the stolen identification document and update them on the issue. This can prevent further offences against you from occurring. You should also change your passwords and immediately close any unauthorised accounts in your name.

When reporting to police, always ask and record the police reference number. You can use this reference number when speaking with police later on during the police investigation process.

If a victim of cybercrime, you can report cybercrime online.

For further advice and help, you can call police on 131 444.

 

Free Identity Theft Check Australia

What you someone has stolen your identity?

  • Report the identity theft to police
  • Report the theft to the body or organisation that issued you with the identity document
  • Change passwords
  • Close any unauthorised accounts
  • Get expert advice
  • Obtain a copy of your credit report to check it’s correct and accurate. You have access to a free credit report once every 1 year.

 

Identity Theft in New South Wales

Whilst identity theft was previously dealt with under existing offences such as fraud or larceny in NSW, the Crimes Amendment (Fraud, Identity and Forgery Offences) Bill 2009 created three new identity theft offences to specifically target the crime.

Part 4AB of the Crimes Act 1900 (NSW) criminalises identity fraud related offences.

As outlined in 192J, it is an offence to deal with identification information with the intention of committing, or of facilitating the commission of, an indictable offence. A maximum penalty of 10 years imprisonment is applicable.

The Act also criminalises possession of identification information (section 192K), and possession of equipment to make identification documents (section 192L). These offences carry respective maximum penalties of 7 years, and 3 years imprisonment.

The equipment referred to must be capable of being used to make a document or other thing containing identification information, including such as a licence or passport.

Identification information is defined as information relating to a person that is capable of being used to identify the person, or purportedly do so.

The person ‘identified’ via the information may be living or dead and real or fictitious and includes individuals or corporations.

It is also immaterial whether the information can solely be used to ‘identify’ the person, or other information is required.

The relevant information may include:

  • a name or address,
  • a date or place of birth, marital status, relative’s identity, or similar information,
  • a driver licence or driver licence number,
  • a passport or passport number,
  • biometric data,
  • a voice print,
  • a credit or debit card, its number or data stored or encrypted on it,
  • a financial account number, username, or password,
  • a digital signature, or
  • an ABN.

Each offence requires the accused person to commit it with the intention of committing or facilitating an indictable offence.

Therefore, it is not required that the offender actually has carried out the indictable offence, but rather had the intention to do so.

An indictable offence carries a maximum penalty of more than 2 years imprisonment and can be prosecuted in the District Court.

Due to the nature of identity fraud matters, this associated offence will most often be fraud related, such as dishonestly obtaining a financial advantage by deception, or causing a financial disadvantage.

For more on the law on using fake ID click here.

 

Identity Theft in Victoria

In Victoria, identity theft is criminalised as outlined in Division 2AA of the Crimes Act 1958 (Vic).

It is an offence to make, use or supply identity information, that does not relate to yourself, in circumstances where it is intended to be utilised to commit or facilitate an indictable offence, as per section 192B. A maximum penalty of 5 years imprisonment is applicable.

It is not a defence that the person to whom the identification information relates consented to the making, use or supply of their identification information.

The Act also criminalises possession of identification information (section 192C), and possession of equipment to make identification documents (section 192D).

Both offences carry a maximum penalty of 3 years imprisonment.

 

Identity Theft in Queensland

In Queensland, section 408D of the Criminal Code Act 1899 (Qld) criminalises identity theft.

It is an offence to obtain or deal with another entity’s identification information for the purpose of committing, or facilitating the commission of, an indictable offence. This carries up to 5 years imprisonment.

Furthermore, it is an offence to possess equipment for the purpose of committing, or facilitating the commission of, the aforementioned offence. A maximum penalty of 5 years imprisonment is applicable to this offence.

It is immaterial whether the other entity is alive or dead, exists, or consents.

Furthermore, upon sentence, the court may order that the court’s certificate be issued to the victim stating the offence, the entity’s name, and anything else the court considers relevant for the entity’s benefit, in hopes of recovering or rectifying any debts or associated issues caused by the offender.

 

Identity Theft in Western Australia

In Western Australia, Chapter LI of the Criminal Code Compilation Act 1913 (WA) criminalises identity theft.

As per section 490, it is an offence to make, use or supply identification material with the intention that the material will be used, by the person or some other person, to commit or facilitate the commission of an indictable offence.

The maximum penalty applicable is the greater of 7 years imprisonment or the maximum penalty to which the person would have been liable if convicted of attempting to commit the relevant indictable offence.

Possessing identification material or equipment that can be used to make identification material, with the intention that the material will be used, by the person or some other person, to commit or facilitate the commission of an indictable offence, are also offences under the Act.

Both offences carry a maximum penalty of 2 years imprisonment and a $24,000 fine.

 

Identity Theft in South Australia

In South Australia, identity theft is criminalised, as outlined in Part 5A of the Criminal Law Consolidation Act 1935 (SA).

Section 144C makes it an offence to misuse another’s identification information to commit or facilitate a serious criminal offence.

The maximum penalty applicable is the penalty equivalent to an attempt to commit the relevant serious criminal offence.

It is prohibited to produce, possess, or sell ‘prohibited material’ whilst intending to use the material, or to enable another person to use the material, for a criminal purpose, as per section 144D.

A maximum penalty of 3 years imprisonment is applicable.

Prohibited material is defined by the Act to include anything that enables a person to assume a false identity or to exercise a right of ownership over another’s funds, credit, information or any other financial or non-financial benefit.

 

Identity Theft in Northern Territory

In the Northern Territory, identity-based crime is outlined in Division 2A of the Criminal Code Act 1983 (NT).

As per section 228C, it is an offence to deal in identification information, with the intent to commit or facilitate an offence.

‘Deal in’ is defined to include the acts of making, copying, storing, supplying, transmitting, and using.

It is also prohibited to possess identification information or equipment to deal in identification documentation, with both offences carrying maximum penalties of 3 years imprisonment.

It is immaterial whether the person identified consented to the possession of the identification information.

 

Identity Theft in Tasmania

In Tasmania, there are no offences which specifically address identity theft.

Therefore, identity-based crime is prosecuted using existing offences such as fraud.

As per section 253A of the Criminal Code Act 1924 (Tas), it is an offence to, with intent to defraud, or by deceit or any fraudulent means:

  • obtain property from a person,
  • induce a person to deliver, transfer, or assign, property to another person,
  • gain a benefit, pecuniary or otherwise, for any person,
  • induce any person to do an act or abstain from doing an act that the person is lawfully entitled to do or abstain from doing.

The maximum penalty applicable is 21 years imprisonment or a fine.

Published on 29/08/2022

AUTHOR Criminal Defence Lawyers Australia

Criminal Defence Lawyers Australia are Leading Criminal Defence Lawyers, Delivering Exceptional Results in all Australian Courts.

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