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On September 11th 001, approximately 1 Afghani terrorists boarded flights in American Domestic Airports to various cities around the nation. Upon boarding the planes, these men used other people's names in order to hide their own identities. Prior to boarding the planes, they used the same people's names when undertaking their pilot training. This case of identity fraud in America didn't cause, but assisted in the generating of a massive-scale tragedy that resulted in the loss of thousands of innocent lives. Within days of the appearance of lists of those missing or presumed missing in the rubble, hundreds of millions of dollars of goods and services were being illegally obtained by people who had adopted the identities of the victims; people participating in identity fraud.
Misuse of identity lies at the heart of a wide range of criminal activities (http//www.aic.gov.au). As technological advances grow around the world, so does the need for security of one's private information. Unfortunately, society's increasing knowledge of technology has caused the public to become careless when dealing out personal details, allowing hackers to gain access to millions of credit card details, addresses, and names of people who have entered details into a website. For this reason, identity fraud and credit card fraud is the fastest growing crime in Australia (‘Credit Card Scam Revealed' Courier Mail) and continues to grow with no set legislation in place to deter people who commit such fraud. The social and ethical implications associated with such illegal activity is a growing issue among citizens as people become weary of giving such details to organizations for fear of exploitation.
Identity fraud has existed since ‘Pirates' on the high seas flew the flag of another innocent ship in order to approach their victim without alerting them to their true identity and purpose, as did Ned Kelly and his gang who wore armour that also disguised their identities. Nowadays, a common form of identity fraud involves the use of technology to purchase goods or obtain a line of credit using someone else's credit card details. Other criminals assume the identities of known executives in Australian companies and by forging documents, are able to adopt genuine sounding e-mail addresses that are used to lease luxury cars and other equipment. This equipment is then sent overseas and sold for large sums of money on the black market. There are also many other types of identity fraud that exist in Australia and around the world.
Other forms of identity fraud are
· Terrorism
· Unlawful Immigration
· Fraud involving electronic mail and the Internet
· Dissemination of obscene materials electronically
· Funds transfer fraud
· Health benefits fraud
· Social security fraud
· Corporate deception
· Financial services fraud
· Bank loan fraud
· Revenue fraud
· Stolen cheque fraud
About one quarter of reported frauds to the Australian Federal Police involve the assumption of false identities. It has been estimated that identity fraud costs Australian's $.5 billion per annum (‘Credit Card Scam Revealed' Courier Mail). As the loss for the Australian economy is so large, it is vital for existing legislation to be continually enforced in order to regulate activity. As the problem continues to escalate, it may be necessary for the Australian Government to analyse other laws currently in legislation in other countries around the world.
Presently, the United States of America has the Identity Theft and Assumption Deterrence Act 18 (Identity Theft Act) to address the problem of identity theft. This Act makes it a federal crime when anyone
Knowingly transfers or uses, without lawful authority, a means of identification of another person with the intent to commit, or to aid or abet, any unlawful activity that constitutes a violation of Federal law or that constitutes a felony under any applicable State or local law (http//www.consumer.gov/idtheft/fedlaw.htm).
Violations of this act in America are investigated by federal investigative agencies such as the U.S. Secret Service, the FBI, and the U.S. Postal Inspection Service. Fraudsters are then prosecuted by the Department of Justice with the penalty being 15 years imprisonment and a maximum fine of US$50,000.
Currently in Australia, there is no legislation that solely deals with the issue of Identity Fraud. Each State or Territory governs identity fraud through its already commissioned criminal law. These laws usually consist of sections devoted to fraud-related activity or dishonesty. However, of the laws that do exist, it is said that they are complex, unclear and contradictory (http//www.aic.gov.au).
Presently, New South Wales governs the clearest and most comprehensive legislation regarding identity fraud. This particular legislation comes under Section 184 in the Crimes Act 100. It states
Whosoever falsely personates, or pretends to be some other person, with intent fraudulently to obtain any property, shall be liable to imprisonment for seven years. Nothing in this section shall prevent any person so personating, or pretending, from being proceeded against in respect of such act, or pretence, under any other enactment or at Common Law (http//www.aic.gov.au).
Fraudsters have also been prosecuted in NSW under
· 178A Fraudulent misappropriation of moneys collected or received imprisonment for 7 years
· 178B Obtaining money etc by deception imprisonment for 5 years
· 178BB Obtaining money etc by false or misleading statements imprisonment for 5 years
· 178C Obtaining credit by fraud imprisonment for one year
· 17 False pretences etc imprisonment for 5 years
· 184 Fraudulent personation (above)
The Australian Capital Territory also refers to its own version of the Crimes Act 100. The most appropriate section being 104 ‘Obtaining financial advantage by deception'. This section states
A person who by deception dishonestly obtains for himself or herself of another person a financial advantage is guilty of an offence punishable, on conviction by imprisonment for 5 years.
Other sections on which fraudsters have been punished in the ACT are sections theft (10 years), and 15C forgery and the use of forged instruments.
Victoria, similar to New South Wales and the Australian Capital Territory, also makes use of its Crimes Act 158 to govern identity fraud. Section 81 refers to obtaining money by deception resulting in a 5-10 year jail term while Section 8, similar to the ACT's Crimes Act 100 regulates obtaining financial advantage by deception, resulting again, in a jail term of 5-10 years. This legislation was recently enforced in an identity-related fraud case held in Victoria.
Victorian legislation resulted in a man being sentenced by the County Court of Victoria to five years imprisonment, and ordered to pay the Commonwealth Government about half a million dollars as a result of an identity fraud scam. He was found guilty of using over forty names other than his own over a period of twenty six months. He had registered fictitious business and companies, and opened numerous bank accounts giving false names and false addresses. As a result the man was able to obtain almost half a million dollars from various banks and merchants as well as from the Commonwealth government.
The first offence this man committed involved him opening a bank account with Westpac in a false name, which was a criminal offence and carried a maximum term of three years imprisonment. The means of identification that he used were a birth certificate and a student identification card in another person's name. Both were created at his home address using a personal computer, scanner and a laser printer. Two weeks later he used the same documents to open another bank account at a Commonwealth Bank.
Within one week, the man had opened forty-two new accounts with the Commonwealth Bank, ANZ and Westpac using false birth certificate and student identification cards. For all the accounts, he gave the same address, which was a post office box at a newsagency where he was working.
This man did not steal any of the identities, he just created identities and obtained benefits in the name of people who didn't actually exists. In some cases, identity fraudsters use real identities, causing hard times for those, whose details are exploited by the criminal.
Queensland, Western Australia, Tasmania and the Northern Territory all operate under their own Criminal Code which they use to regulate and deter identity fraud within their state's borders. When prosecuting for identity fraud all states refer to sections regarding stealing. Both Western Australia and the Northern Territory govern a seven year imprisonment punishment for the act of stealing, whereas in Queensland the person found guilty will be imprisoned for two years less five years.
Queensland also refers to
· Section 408C Fraud and Misappropriation imprisonment between 5-10 years
· Section 441 Falsifying and producing false records imprisonment of 10 years
· Section 48 Uttering imprisonment for years
Western Australia also refers to
· Section 40 fraud
· Section 47 forging and uttering - imprisonment of 7 years
· Section 474 preparation for forgery imprisonment of years
· Section 55 attempted fraud
· Section 558 conspiracy to commit fraud
The Northern Territory has been know to use
· Section 7 criminal deception imprisonment of 7 years
· Section 76 unlawfully altering data processing material with fraudulent intent imprisonment of years
South Australia prosecutes identity fraud through its Criminal Law Consolidation Act 15 under Sections 184 and 15. Section 184 refers to fraudulent misappropriation and governs a jail term of no more than 7 years, while Section 15, false pretences, enforces a four year jail term.
It is obvious that the current laws that exist in Australia are inconsistent throughout the different States of Australia. In order to harmonise these laws, the Model Criminal Code Officers Committee of the Standing Committee of Attorneys-General has devised uniform laws relating to economic crime for introduction throughout Australia (http//www.aic.gov.au). These laws were recently enacted in the Commonwealth's Criminal Code Amendment (theft, fraud, bribery and related offences) Act 000, which commenced operation on 4 May 001. The main Commonwealth Criminal Code Fraud Offences are
· Obtaining property by deception (s. 14.1) Max penalty imprisonment for 10 years
· Obtaining a financial advantage by deception (s. 14.) Max penalty imprisonment for 10 years
· General Dishonesty (s. 15.1) Max penalty imprisonment for 5 years
· Obtaining financial advantage (s. 15.) Max penalty imprisonment for 1 months
· Conspiracy to defraud (s. 15.4) Max penalty
As well as the Criminal Code Amendment Act 000 the Australian Parliament has also enacted the Cybercrime Act 001 which commenced operation on 1 December 001. This Act can be used to prosecute identity-related frauds carried out through the misuse of computers (http//www.aic.gov.au). Sections that are relevant to Identity Fraud are
Section 477.1 which creates the offence of unauthorised access, modification or impairment with intent to commit a serious offence. Max penalty not exceeding that for the serious offence
Section 477. creates the offence of unauthorised modification of data to cause impairment. Max penalty imprisonment for 10 years
Section 477. creates the offence of unauthorised impairment of electronic communication. Max penalty imprisonment for 10 years (each offence)
Section 478.1 creates the offence of unauthorised access to, or modification of, restricted data (which means data held in a computer to which access is restricted by an access control system). Max penalty imprisonment for years
Section 478. and Section 478.4 relate to possession or control of data with intent to commit a computer offence, and producing, supplying or obtaining data with intent to commit a computer offence. Max penalty imprisonment for years (each offence)
The Commonwealth also enforces the Financial Transaction Reports Act 188 which regulates the manner in which identity must be established when accounts with financial institutions are created. By using a points system, documents that are submitted as proof of identity are assigned a number of points depending upon their importance and level of security. At present a person wishing to open an account must supply identification documents that equals 100 points. For example a passport equals 70 points and a drivers licence equals 40 points. By offering a passport and a drivers licence as identification, a person will have 111 points. Therefore they have the sufficient amount of identification to open a bank account.
Although the points system has been effective, it does not provide a complete solution to the problem of identity-related fraud. It is still possible to submit documents that have been forged or altered. This shows that Australia is in need of further modifications to the existing legislation in order to regulate identity fraud under the one law.
Currently there is no specific legislation in Australia that regulates identity fraud and so far it seems that the Commonwealth has not even considered introducing such a law. Research shows that it is evident that Australia needs a law in place to control the growing crime of identity fraud in Australia. Inconsistency of laws between the States and Territories makes the punishment for identity fraud a difficult task which could cause problems in the future as cases arise concerning Identity Fraud. It may be necessary for Australia to introduce legislation similar to America's Identity Theft and Assumption Deterrence Act 18. The introduction of such a law will also ease social ramifications that have arisen among the public concerning the issue of identity fraud.
Sociological issues that have risen due to identity fraud have affected the economy in many ways. Nowadays, many people are preferring to pay for goods or services using cheque, or direct debit, rather than giving out numbers of their credit cards. This has been the result of consumers believing that there is not much stopping dishonest employees of an organization from using client's credit cards to purchase goods for themselves, with the intention of selling them later to gain a profit. As most communication between the public and various business is done either over the phone, via the Internet or some other communication device, it is difficult for the consumer to identify whether, or not, they are dealing with a genuine company. For this reason, many people are cheated by deceitful ‘business people' who promise to supply goods and services but later abscond with the clients money and other private information.
When identity fraud involves a credit card, the result can create much hardship for the innocent person to whom the card belonged. Being able to prove that the rightful owner did not initiate the expenditure incurred upon the credit card can be a time-consuming task. Not only does the owner have to prove that they didn't run the debt on the card, but they also have to go to the trouble of cancelling the exploited card and arranging for a replacement. Should the issue lead to a court case, the owner can also acquire heavy costs for legal aid as they seek to defend themselves in court. Finally, the most unfortunate social issue concerning identity fraud is the fact that it is very common in today's society. Many people assume that they are dealing with genuine companies and, as in the above precedent from Victoria, this can lead to much fraudulent activity, involving false identities, eventually leading to the loss of monies by innocent parties. No longer can we assume that people are trustworthy, or reliable. Identity fraud has resulted in a decline of the moral standing of the Australian society.
It is evident that a review of the many imposed laws needs to be conducted in order to access their efficiency in today's current society. Consideration of the sociological impacts of identity fraud must also be taken into account. The creation of new legislation that would apply exclusively to identity fraud will assist in the prevention and prosecution of identity-related fraud cases throughout Australia. Such legislation would also suppress fears of exploitation by the public and thus allow for a more relaxed attitude when using credit cards for purchases and when giving out personal information to various organizations.
000, "BDM News New Crackdown on Identity Fraud" http//www.legalaid.nsw.gov.au/bdm/bdm.nsf/pages/what0 (accessed 7/0/0)
000, "Legislation" http//www.farislaw.com.au/legislation.htm (accessed 7/0/0)
‘Credit Card Scam Revealed' Courier Mail (18 Feb 00), page 8
Smith, R.G. Examining the Legislative and Regulatory Controls on identity Fraud In Australia, http//www.aic.gov.au (accessed 5/0/0)
00, ‘Federal Laws' http//www.consumer.gov/idtheft/fedlaw.htm (accessed 5/0/0)
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