SUMMARY OF EXISTING LAW

Summary of Existing Offences
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There is no specific crime for identity related fraud or theft.  This particular type of offence is however, covered by a number of general sections in the Crimes Act 1961:

1 Interception: It is an offence to listen, record or disclose private communications between two or more people without authority.  “Private Communications” are confined to oral communications.
  
2 Obtaining by false pretences: It is an offence where a person intends to defraud or cause loss by causing another person to execute any valuable security or document on a false pretence.
  
3 Obtaining credit by fraud: It is an offence to obtain credit by fraud.
  
4 Impersonation: It is an offence where a person represents himself to be someone they are not with intent to obtain property or benefit.
  
5 Forgery: It is an offence to make or use a false document with intent that it be used as genuine.
  
6 Altering or reproducing a document: It is an offence to alter/reproduce a document with intent to defraud to obtain money or some benefit.
  
7 Using a document with intent to defraud: It is an offence to use a document with intent to defraud to obtain money or some benefit.
  
8 Conspiracy to defraud: It is an offence to conspire with any other person to defraud the public to affect market price of stocks, shares or anything else publicly sold.

The above are a few examples of the many offences in the Crimes Act that can be charged where people use a false identity to obtain some advantage.

As mentioned earlier, these offences were not drafted with our current technology in mind.  An interesting grey area of our current law relates to unauthorised access of a system.  Usually the offending arises from identically reproducing material, altering information, damaging information stored or damaging the system.  But what if you were just looking?   Arguably, if you were just “looking” then a crime hasn’t been committed.  If for example a hacker exploited an existing security weakness in the system rather than utilising a programme, an offence would be difficult to prove, particularly if the hacker’s intent was just to prove it could be done.  If once having accessed the information the hacker handwrote the information on a piece of paper rather than copying it from one system to another, then in law there has not been a reproduction as it is not an exact copy.   

Some computer experts would argue that you must always use a computer programme of some sort to access a system and therefore that hacker could arguably be charged with using a document (namely a computer programme).  The difficulty from a prosecution perspective, is to prove which document was actually  used i.e. how the offence was actually committed and more importantly, that there was an intent to defraud at the time the offence was carried out.

This was one of the arguments run in the Garrett trial.  The defence counsel argued that Mr Garrett had simply accessed material not with a dishonest purpose, but merely to highlight a weaknesses in the system.  This was a good argument and had Mr Garrett’s system not contained copies of numerous other files and private material, together with the threats that he made, such an argument may well have succeeded.