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Australian
identity law
This page highlights Australian law of relevance for identity
crime.
It covers -
introduction
As the preceding pages have commented, legislation relevant
to identity theft/fraud essentially takes three forms.
Firstly it prohibits particular activities, for example
forgery of a signature on a bank cheque, manufacturing
documents for the purposes of identity fraud or impersonating
an official. Some Australian and overseas enactments are
highlighted below.
Secondly it encompasses legislation that assists victims
to deal with identity theft in a timely manner, for example
encourages financial reference services to provide victims
with information.
Thirdly - and perhaps just as importantly - legislation
encompasses obligations for organisations to protect information
collected by or entrusted to them.
There is no single all-encompassing identity crime enactment
at the federal or state/territory level and it is unlikely
that such legislation will be developed. Progress in the
development of complementary legislation (eg slow adoption
by the states of the Uniform Evidence Law) is also often
glacial.
official and private
The federal Crimes Act specifies that anyone who
without
authority, assumes to act as a person having authority
by law to administer an oath or take a solemn declaration
or affirmation or affidavit, or to do any other act
of a public nature that can only be done by persons
authorized by law to do so; or
(c) represents himself to be a person authorized by
law to sign a document testifying to the contents of
any register or record kept by lawful authority, or
testifying to any fact or event, and signs such document
as being so authorized when he is not and knows he is
not, in fact, so authorized,
is guilty of a crime and is liable to imprisonment for
3 years.
The legislation also identifies an offence of 'personating
public officers', providing that
any
person who -
(a) personates any person employed in the public service
on an occasion when the latter is required to do any
act or attend in any place by virtue of his employment;
or
(b) falsely represents himself to be a person employed
in the public service and assumes to do any act or to
attend in any place for the purpose of doing any act
by virtue of such employment,
is guilty of a crime and is liable to imprisonment for
3 years.
A
wide range of state and territory enactments feature offences
in relation to impersonation. They include s75 of the
Tow Truck Industry Act 1998 (NSW), s66 Jury
Act 1995 (Qld), s126 Gas Act 2000 (Tas),
s18 Fertilizers Act 1993 (Tas), s140 Electricity
Safety Act 1998 (Vic), s84 Road Management Act
2004 (Vic) s175 Chiropractors Registration Act
2001 (Qld), s24 Court Security Act 2005
(NSW) and s95 Pest Management Act 2001 (Qld).
Commonwealth
Federal legislation reflects the national government's
constitutional responsibilities,
with fraud/theft provisions relating to interstate commerce
and communications (eg the Cybercrime Act 2001)
and offences against the Commonwealth under the Crimes
Act.
Recent legislation of interest includes -
Criminal
Code Amendment (Theft, Fraud, Bribery & Related
Offences) Act 2000
Financial Transaction Reports Act 1998
Salient
provisions under the Criminal Code are -
- Obtaining
property by deception - s 134.1
- Obtaining
a financial advantage by deception - s. 134.2
- General
dishonesty - s. 135.1
- Obtaining
financial advantage - s. 135.2
- Conspiracy
to defraud - s. 135.4
- Forgery
- s. 144.1
- Using
forged document - s. 145.1
- Falsification
of documents - s. 145.4
Australian
states and territories address fraud and ID theft through
common and statute law. Some of the major enactments are
identified below.
Federal and state/territory privacy regimes are
explored in detail here.
Victoria
In Victoria the main legislation is the Crimes Act
1958. Salient provisions are -
- Obtaining
property by deception - s. 81(1)
- Obtaining
financial advantage by deception - s. 82
New South Wales
In NSW the main legislation is the Crimes Act 1900.
Salient provisions are -
- Fraudulent
misappropriation - s. 178A
- Obtaining
money by deception - s. 178BA
- Obtaining
money by false or misleading statements - s. 178BB
- Obtaining
credit by fraud - s. 178C
- False
pretences - s. 179
- Fraudulent
personation - s. 184
- Forging
and uttering - s. 250
Queensland
Salient provisions in the QLD Criminal Code are
-
- Stealing
- s. 398
- Fraud
- s. 408C(1)
- Misappropriation
- s. 408C
- False
pretences - s. 427(1)
- Falsifying
records - s. 441(d)
- Producing
false records - s. 441(e)
- Uttering
- s. 489
Western Australia
Salient provisions under the WA Criminal Code are -
- Stealing
- s. 378
- Stealing
as a servant - s. 378(7)
- Fraud
- s. 409(1)
- Forging
- s. 473(1)(a)
- Uttering
- s. 473(1)(b)
- Preparation
for Forgery - s. 474(1)
- Attempted
Fraud - s. 552
- Conspiracy
to commit fraud - s. 558(1)
South Australia
South Australia's Criminal Law Consolidation (Identity
Theft) Amendment Act 2004 specifically concerns identity
theft. It provides that assuming a false identity of another
person - living or dead, real or fictional, natural or
corporate - makes a 'false pretence', even if the person
acts with the consent of the person whose identity is
falsely assumed. Making a false pretence with the intention
of committing or facilitating commission of a serious
criminal offence is in itself an offence, whether or not
that crime occurs. The 2004 Act also encompasses production
or possession of material (including personal identification
information) that enables a person to assume a false identity.
Other SA legislation includes -
- Fraudulent
conversion - s. 184 Criminal Law Consolidation Act
1935
- False
pretences - s. 195 Criminal Law Consolidation Act
1935
Tasmania
In Tasmania the main legislation is the Criminal Code
Act 1924. Salient provisions are -
- Stealing
- ss. 229(1)(b) and 234
- Dishonestly
acquiring a financial advantage - s. 252A(1)
- Inserting
false information on data - s. 257E
- Attempting
to dishonestly acquire a financial advantage - s. 299
Australian
Capital Territory
In the ACT the main legislation is the Crimes Act
1900 (CA)
and Criminal Code 2002 (CC).
Salient provisions are -
- Theft
- s. 99
- Obtaining
a financial advantage by deception - s. 104(1)
- Making
a false instrument - s. 135C(1)
- Using
a false instrument - s. 135C(2)
Northern Territory
The Northern Territory regime, like that of the ACT, draws
on NSW legislation.
Salient provisions in the NT Criminal Code (CC)
are -
- Stealing
- s. 210
- Criminal
deception - s. 227
- Unlawfully
altering data processing material with fraudulent intent
- s. 276(1)
next page
(overseas law )
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