Australia According To The Criminal Code Act 1995 (Cth)
According to the Criminal Code Act 1995 (Cth), identity theft occurs ‘when a criminal gains access to your personal information (such as your name, address, date of birth or bank account details) to steal money or gain other benefits.’ The legal issue to be addressed is that in an Australian society with increasingly complex social and technological advances, identity theft has progressively become more detrimental to victims. Current measures have only been somewhat effective in engaging with, and fighting this type of crime and this is due to the current legislations in Australia inadequately protecting society to the extent where there is a rapid upsurge in identity theft offences throughout the country. Another legal issue that needs to be addressed is whether sections 132.1 and 134.2 of the Criminal Code Act 1995 (Cth) (to be referred to as the Act), and section 134.2 (1) of the Crimes Act 1914 (Cth); inadequately protects victims and other stakeholders from identity theft and its detrimental consequences. Section 132.1 of
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the Act needs to be amended to uphold that all individuals have a right to protection and for penalties to be harsher and more severe. The key stakeholders in this issue includes the complainant, offender, involved Commonwealth entities, the arresting police officer and the prosecutor. The law will now be outlined.
The Act states that identity theft is where a person ‘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’ (Rebovich, 2017).
The law being investigated is sections 132.1 and 134.2 of the Criminal Code Act 1995 (Cth). Part (1) of section 132.1 addresses the issue of identity theft being an individual who commits the offence of dishonestly receiving stolen personal identity, knowing or believing the identity is stolen. Under part (1) section 134.2 identity theft refers to an individual; by a deception, dishonestly obtaining financial advantage from another individual. Identity theft is commonly referred to as the fraudulent practice of using another individual’s name or personal information usually for financial
gain.
Considering applications to the current laws; elements of the offences committed by the defendants will be investigated according to the order of appearance in its description. It is important to consider that the first legislation in Australia to specifically and directly target identity theft was proposed by South Australia. The Attorney-General Michael Atkinson of the South Australian Government stated that ‘identity theft, which occurs when people use someone else's personal information with the intention of committing a crime, would be an offence under the new laws, attracting a maximum jail term of up to 12 years.’ Current legislations in Queensland, Northern Territory, Western Australia, Victoria and New South Wales are only direct in comprising long standing laws regarding dishonesty and forgery, or prohibiting the impersonation of a police officer. Therefore it is clear that the Criminal Code Act 1995 (Cth) in every state and territory (excluding South Australia), is only adequate in regulating the collection, storage and practice of personal information; but are not consistent in ‘preventing’ the theft or fraud of that data.
The Supreme Court of Queensland found the final decision on the R v Massey [2015] QCA 254 case in August 2014. The underpinning facts related to this case is that the defendant; John Massey, pleaded guilty to 11 counts of ‘attempting’ and 14 counts of ‘obtaining’ a financial advantage by deception under section 134.2 (1) of the Criminal Code Act 1995 (Cth). Massey was sentenced to three and a half years imprisonment and expected to pay reparation to the Commonwealth in the sum of $141,048.22. In two seperate instances, Messey personally nominated certain people to be a director without their prior knowledge. From this, 85 false invoices were created which he used to claim a sum of tax refunds for business expenses that were not previously incurred. Post to this, Massey used a registered tax agent to lodge the false statements, changing to a second tax agent once the first agent questioned the legitimacy of a particular invoice. The proceeds directly went to pay the fees of his lawyer and his tax agent. A sum of $26,194.99 was paid directly to him as a result of his crimes. The second instance found Massey on a disability support pension. He ensured that ‘no large amounts’ came directly to him in case federal authorities such as Centrelink or Austrac caught on to his intentions. Authorities made the arrest for his criminal offences and later went on trial.
The prosecutor and judge’s sentencing remarks summarised that Massey was the key and principal offender. Her Honour concluded that due to the maximum penalty being ten years imprisonment; the most ‘appropriate’ sentence should be three and a half years. According to this evidence, the legislation has been ineffective in concluding the ‘most appropriate’ sentence. In the Supreme Court of Queensland’s report, the application for leave to appeal against the sentence was refused although offences of this kind are considered to be ‘costly to detect’. It is concluded that as the experienced sentencing judge noted, ‘the cases placed before her as comparable, whilst helpful in a general way were not closely comparable to the unusual matrix of circumstances in this case’ (Supreme Court Queensland, 2017). Therefore it is evident to state that section 134.2 of the Criminal Code Act 1995 (Cth) is inadequate in delivering the ‘most appropriate’ sentence to offending identity theft criminals.
In addition to this, the Centrelink v Widders [2016-2017] QCA 254 case was considered by the Supreme Court of Queensland in December 2016. The underpinning facts related to this particular case is that the defendant; Raymond Widders, pleaded guilty to obtaining a financial advantage by deception; consequently seeing him overpaid $169,390.89 in social security benefits. Known charges involved two seperate counts of obtaining a financial advantage from the Commonwealth by deception ‘contrary’ to section 134.2 (1) of the Criminal Code Act 199 the defendant ‘simultaneously’ claiming Centrelink benefits in his birth name of Raymond John Widders although this is contradicted when he was already claiming these benefits in a name by which he was previously known; Ray John Widders.
the Act needs to be amended to uphold that all individuals have a right to protection and for penalties to be harsher and more severe. The key stakeholders in this issue includes the complainant, offender, involved Commonwealth entities, the arresting police officer and the prosecutor. The law will now be outlined.
The Act states that identity theft is where a person ‘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’ (Rebovich, 2017).
The law being investigated is sections 132.1 and 134.2 of the Criminal Code Act 1995 (Cth). Part (1) of section 132.1 addresses the issue of identity theft being an individual who commits the offence of dishonestly receiving stolen personal identity, knowing or believing the identity is stolen. Under part (1) section 134.2 identity theft refers to an individual; by a deception, dishonestly obtaining financial advantage from another individual. Identity theft is commonly referred to as the fraudulent practice of using another individual’s name or personal information usually for financial
gain.
Considering applications to the current laws; elements of the offences committed by the defendants will be investigated according to the order of appearance in its description. It is important to consider that the first legislation in Australia to specifically and directly target identity theft was proposed by South Australia. The Attorney-General Michael Atkinson of the South Australian Government stated that ‘identity theft, which occurs when people use someone else's personal information with the intention of committing a crime, would be an offence under the new laws, attracting a maximum jail term of up to 12 years.’ Current legislations in Queensland, Northern Territory, Western Australia, Victoria and New South Wales are only direct in comprising long standing laws regarding dishonesty and forgery, or prohibiting the impersonation of a police officer. Therefore it is clear that the Criminal Code Act 1995 (Cth) in every state and territory (excluding South Australia), is only adequate in regulating the collection, storage and practice of personal information; but are not consistent in ‘preventing’ the theft or fraud of that data.
The Supreme Court of Queensland found the final decision on the R v Massey [2015] QCA 254 case in August 2014. The underpinning facts related to this case is that the defendant; John Massey, pleaded guilty to 11 counts of ‘attempting’ and 14 counts of ‘obtaining’ a financial advantage by deception under section 134.2 (1) of the Criminal Code Act 1995 (Cth). Massey was sentenced to three and a half years imprisonment and expected to pay reparation to the Commonwealth in the sum of $141,048.22. In two seperate instances, Messey personally nominated certain people to be a director without their prior knowledge. From this, 85 false invoices were created which he used to claim a sum of tax refunds for business expenses that were not previously incurred. Post to this, Massey used a registered tax agent to lodge the false statements, changing to a second tax agent once the first agent questioned the legitimacy of a particular invoice. The proceeds directly went to pay the fees of his lawyer and his tax agent. A sum of $26,194.99 was paid directly to him as a result of his crimes. The second instance found Massey on a disability support pension. He ensured that ‘no large amounts’ came directly to him in case federal authorities such as Centrelink or Austrac caught on to his intentions. Authorities made the arrest for his criminal offences and later went on trial.
The prosecutor and judge’s sentencing remarks summarised that Massey was the key and principal offender. Her Honour concluded that due to the maximum penalty being ten years imprisonment; the most ‘appropriate’ sentence should be three and a half years. According to this evidence, the legislation has been ineffective in concluding the ‘most appropriate’ sentence. In the Supreme Court of Queensland’s report, the application for leave to appeal against the sentence was refused although offences of this kind are considered to be ‘costly to detect’. It is concluded that as the experienced sentencing judge noted, ‘the cases placed before her as comparable, whilst helpful in a general way were not closely comparable to the unusual matrix of circumstances in this case’ (Supreme Court Queensland, 2017). Therefore it is evident to state that section 134.2 of the Criminal Code Act 1995 (Cth) is inadequate in delivering the ‘most appropriate’ sentence to offending identity theft criminals.
In addition to this, the Centrelink v Widders [2016-2017] QCA 254 case was considered by the Supreme Court of Queensland in December 2016. The underpinning facts related to this particular case is that the defendant; Raymond Widders, pleaded guilty to obtaining a financial advantage by deception; consequently seeing him overpaid $169,390.89 in social security benefits. Known charges involved two seperate counts of obtaining a financial advantage from the Commonwealth by deception ‘contrary’ to section 134.2 (1) of the Criminal Code Act 199 the defendant ‘simultaneously’ claiming Centrelink benefits in his birth name of Raymond John Widders although this is contradicted when he was already claiming these benefits in a name by which he was previously known; Ray John Widders.