In 2003, South Australia was the first Australian state/territory to enact legislation to specifically address identity theft.
Since then, the way that criminals use stolen or fake identities has changed significantly and reports of identity theft have increased greatly.
Identity thieves have been using the growth in online transactions and contactless payments to target members of the community via electronic communications - such as email and social media - to gather personal identity information.
A range of crimes are committed using the victim’s identity, as well as selling identity details on the black market.
The laws need to be updated to ensure that more identity theft offences are captured, particularly those that involve electronic crime – e.g. ‘card not present’ fraud, skimming and pay wave fraud.
Current identity theft laws have a very high threshold to prove criminal intent beyond reasonable doubt, which can be difficult for contemporary identity crime. By changing the requirement to prove intent for a criminal purpose (instead of a ‘serious’ criminal purpose) it will be easier to prosecute offenders who use a false identity or misuse personal information.
Victims can obtain an identity theft certificate to present to organisations (e.g. banks) to help them repair any damage to their finances or credit rating. However, under the current law, a victim can only get this certificate from a court once the offender has been convicted of the identity theft crime. There are many circumstances where it is difficult to locate the offender (e.g. they live overseas) or to take prosecution action. It is proposed that the law be changed to allow a court to issue an identity theft certificate where there is sufficient evidence that the person has been a victim of identity theft, regardless of whether any criminal proceedings have been or will be taken in relation to the offence.