Identity Theft (NSW)
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 New South Wales law.
The crime of identity theft
Part 4AB of the Crimes Act 1900 deals with identity theft. “Identification information” means “information relating to a person (whether living or dead, real or fictitious or an individual or a body corporate) that is capable of being used, whether alone or in conjunction with other information, to identify or purportedly identify the person”. It includes:
- 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, user name or password;
- a digital signature;
- a series of letters or numbers (or both|), intended for use as a means of personal identification;
- an ABN.
If a person makes, uses or supplies identification information with the intention of committing or helping to commit an indictable offence (a crime punishable by more than 12 months imprisonment) they face a maximum penalty of 10 years imprisonment.
If a person possesses identification information with the intention of committing or helping to commit an indictable offence, they face a maximum penalty of 7 years imprisonment.
If a person possesses equipment, material or another thing that can be used to make a document or other thing containing identification information, and intends that the document or other thing made will be used to commit or help commit an indictable offence, they face a maximum penalty of 3 years in prison.
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.
Victim of Identity Theft Certificate
Under the Criminal Procedure Act 1986, a victim of identity theft can obtain a certificate from a court that identifies the victim and describes the away their identification information was used to commit the offence. The court can include any other information it considers appropriate. The certificate can be issued whether or not the perpetrator of the offence is identifiable or any criminal proceedings have begun or are pending. The court can issue a certificate on its own initiative or on application by the victim. The victim can present the certificate at agencies such as banks and businesses to help support a claim of identity theft. For instance, it can help the victim negotiate the removal of a fraudulent transaction from their record, or re-establish their credit rating.
A victim of identity theft under Commonwealth law can apply for a Commonwealth Victims’ Certificate.
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.