Draft Identity Theft Reform Bill Released for SA

Thursday 18 February 2021 @ 1.28 p.m. | Crime | Judiciary, Legal Profession & Procedure | Legal Research

In a media release dated 5 February 2021, the SA Attorney-General, Vickie Chapman, announced that SA's identity theft laws "are set for an overhaul," to ensure SA legislation meets modern standards and can better target and prosecute perpetrators. According to the Attorney-General, the reforms are needed because since SA's identity theft laws were first introduced in 2003, the techniques used by perpetrators have changed, and the prevalence of identity theft crimes has grown.

A draft Identity Theft Bill (the draft Bill) has been released which proposes to amend the following SA Acts:

Criminal Law Consolidation Act 1935
Sentencing Act 2017
Criminal Procedure Act 1921.

Background to Identity Theft Laws in SA

SA was the first Australian jurisdiction to enact legislation to specifically address identity theft in 2003. Since that time, the way that criminals use stolen or fake identities has changed significantly. A key driver of this is that identity thieves have been using the growth in online transactions and contactless payments to target members of the community via electronic communications, like email and social media platforms, to gather up personal identity information.

The range of crimes committed using the victim’s identity is growing and includes more than selling identity details on the black market. According to the Attorney-General, the laws need to be updated to ensure that more identity theft offences are captured, particularly those that involve electronic crime, for example, "card not present" fraud [where the customer does not physically present the card to the merchant during the fraudulent online transaction], skimming, and pay wave fraud.

The fact that identity theft is rising is confirmed in the Targeting Scams report 2019 produced by the Australian Competition and Consumer Commission (ACCC). The report shows that there were 837 reports of identity theft in SA in 2019 and states at page 14:

"Identity theft is becoming more common and it’s estimated that, on average, victims spend 22 hours repairing the damage... The aftermath of such scams can be long lasting and cause financial devastation. On top of this is the ongoing stress experienced by victims."

Key Issues

A problem is that current SA identity theft laws have a very high threshold for proving criminal intent beyond reasonable doubt. Changing the requirement to prove intent to be for a "criminal purpose" (rather than a "serious" criminal purpose) will make it easier to prosecute offenders who use a false identity or misuse personal information.

Another problem is that while victims can currently obtain an identity theft certificate to present to organisations, like banks and financial institutions, to help them repair any damage to their finances or credit rating, 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. Many circumstances exist where it is difficult to locate the offender or to take prosecution action - a key example being the offender is overseas. The draft Bill proposes 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.

Detail of Proposed Amendments

The draft Bill will create a new offence of identity theft making it an offence to have another person’s identity information without a reasonable excuse. Although, there will be a number of allowed situations where it will be legitimate to hold another person’s identity information, for example, Government agencies, tax agents, accountants, health providers and financial institutions having personal ID details of their clients. Persons having ID documents for their close relatives - a spouse, partner or sibling - will also be excluded. Further, the proposed offence would exclude commonly available information, such as a person’s name, address, date or place of birth or marital status.

The reforms will seek to make it easier to prosecute people who use a false identity or misuse personal ID information making it easier to take action in relation to high volume and low-value electronic crime such as "card not present" fraud, skimming and pay wave fraud. This is to be done by changing the requirement to "prove intent for a criminal purpose" (rather than a "serious criminal purpose"), making it easier to prosecute offenders who use a false identity or misuse personal information.

The reforms will make it a more simple process for victims to get an identity theft certificate, by helping victims to start the process of repairing any damage to their finances or credit rating.

Attorney-General's Comments

In her media release the Attorney-General stated:

"We are proposing a series of reforms that ensure our laws are contemporary and adequately address this serious issue . . . Given the scope of these changes, we are seeking input from the public on whether these laws achieve the desired outcome, and I would urge South Australians with an interest in this matter to have their say, . . . "

Submissions and comments on the draft Bill can be made at the YouSAy website by Friday, 26 February 2021.

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