Identity Theft (Commonwealth)
Identity theft involves a person using another person’s personal information without consent, often to obtain a benefit. The information can be used to apply for a credit card, passport, driver licence, birth certificate, tax file number, Medicare card, or other benefit. The stolen identity can then be used for illegal activity such as money laundering, dealing in stolen vehicles, drug trafficking, fraudulently claiming Centrelink payments, or obtaining a bank loan or mobile phone contract.
Information can be sourced from any document that contains personal information, and from public sources, including social media accounts which can include date of birth, photos and contacts.
States and territories each have their own legislation to deal with identity theft. This article deals with identity theft under Commonwealth law.
The crime of identity theft
Part 9.5 of the Criminal Code Act 1995 (“Criminal Code”) deals with identity theft. As well as name and address, the Act takes “identification information” to include information such biometric data, a voice print, a digital signature and an ABN.
If a person deals (makes, supplies or uses) identification information with the intention that they or another person will pretend to be someone else (who is living, dead, real or fictitious), for the purpose of committing or helping to commit, a Commonwealth indictable offence (a crime against Commonwealth law punishable by more than 12 months imprisonment) or a foreign indictable offence, they face a maximum penalty of 5 years in prison.
If a person possesses identification information, or a machine used to make identification documents, with an intent to commit identity fraud, they face a maximum penalty of 3 years in prison.
If a person is found not guilty of identity theft, they can still be found guilty of possessing identification information with intent to commit identity theft.
Other pieces of federal legislation contain offence provisions which can be used to prosecute identity theft. For example, the Financial Transaction Reports Act 1988 makes it an offence to open an account in a false name, punishable by up to 2 years imprisonment. Also, the Migration Act 1958 makes it an offence to use false documents in an application for a visa, punishable by imprisonment for up to 10 years or a fine of 1000 penalty units ($222,000) or both.
Reporting identity theft
It is important a victim acts quickly to minimise financial or other damage. The matter should be reported to police, who will provide a reference number as evidence of the reporting. Other agencies may need to be contacted, such as banks, the Australian Passport Office, or the driver licensing authority in the relevant state or territory. Online passwords will need to be changed and any unauthorised accounts closed. National identity and cyber support service IDcare offers free expert support to deal with identity theft.
A victim of identity theft should also obtain a copy of their credit report. A person is entitled to a free credit report every 12 months. The report will show which organisations have recently checked the person’s credit history, and those organisations can be advised not to authorise any new accounts. Credit reporting bodies can also place a ban period on the report, during which time the bodies will not disclose or add to the report.
Commonwealth Victims’ Certificate
A victim of identity theft can apply for a Commonwealth Victims’ Certificate which records the name of the victim and describes the circumstances of the identity theft. The victim can present the certificate at agencies such as banks and businesses to help negotiate the removal of a fraudulent transaction from their record, or re-establish their credit rating, for example.
An application for a certificate and a statutory declaration is submitted to a state or territory magistrates court. The magistrate needs to see proof of identity and can request further information to make a decision.
Protection against identity theft
There are steps a person can take to protect their identity from being stolen. These include:
- using a locked mailbox and clearing mail regularly;
- shredding or destroying personal or financial papers before disposal;
- use anti-virus and security software on computers;
- not using public computers or unsecured wireless “hot spots” to do internet banking;
- use the most secure settings on social media sites, and take care if placing personal data such as birth dates, phone numbers or educational details on a profile.
The Commonwealth Government offers Identity Matching Services to help organisations verify a person’s identity. The Document Verification Service confirms whether biographic information provided matches official records, such as passports, driver licences and birth certificates. The Face Verification Service compares a photo provided against an image used on identity documents to verify someone’s identity. The Face Identification Service compares a photo provided against an image used on identity documents to identify a person. This service can be used only by national security, law enforcement and anti-corruption agencies and only in limited circumstances.
For advice or representation in any legal matter, please contact Armstrong Legal.