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Article
The True Identity Of Australian Identity Theft Offences: A Measured Response Or An Unjustified Status Offence?
University of New South Wales Law Journal (2010)
  • Alex Steel, University of New South Wales
Abstract
New offences to deal with internet based identity crime have been created worldwide in recent years and there has been concern at the breadth of such offences. This article provides a detailed analysis of Australian versions of these offences and compares them to other internet related offences, with a focus on Australian and Canadian approaches to the issues. After defining what is meant by identity theft and identity crime it provides an overview of some of the differences in the nature of digital crime that have led to calls for specific legislation, and some of the problems that face traditional approaches to investigating and preventing fraud. It goes on to examine the specific approaches taken in Australian identity theft law, considering whether the prohibited subject of the offences – identification information – is defined too widely. The core behaviour prohibited – possession – is then examined in detail. The article argues that possession is an inappropriate basis for criminalisation on both theoretical and practical grounds, and illustrates this by a comparison with the concept’s use in insider trading and child pornography offences. Similar issues are raised with the ‘dealing in information’ offence. It is argued that the inadequacies of these provisions are the outcome of an approach to law making that creates criminal liability too early in the chronology of planning and executing crime. As a result the offences fail to exhibit sufficient external elements to satisfy fundamental requirements of the rule of law, and place too much unfettered discretion in the hands of law enforcement.
Keywords
  • identity fraud,
  • identity crime,
  • identity theft,
  • possession,
  • theft,
  • information,
  • cybercrime
Disciplines
Publication Date
2010
Citation Information
Alex Steel. "The True Identity Of Australian Identity Theft Offences: A Measured Response Or An Unjustified Status Offence?" 33 (2010) University of New South Wales Law Journal 503-531. Available at: http://works.bepress.com/alex_steel/21