Does an identity theft victim need a lawyer?

How to respond to identity theft

Any cursory search of ‘identity theft help’ will give you hundreds of results on how to avoid and protect yourself from identity theft. This does not, however, tell you how to respond to, and deal with, the ongoing effects and consequences of identity theft.

The difficulty in providing an accurate guide for identity theft victims is, in part, because of the many forms that identity theft can take, and the resulting need for a tailored response to each case.

In many cases, there is little that a lawyer can do for a victim of identity theft. The appropriate response will depend on the circumstances of your case, and that response often does not require a lawyer.

The following steps provide a brief guide for responding to, and recovering from, identity theft.

4 steps to take if you believe you are a victim of identity theft

Preliminary steps to take once you realise your identity has been stolen are:

1. Contact the relevant authorities and report it

Identity theft involving cybercrime should be reported to the Australian Cybercrime Online Reporting Network (ACORN). This is a government initiative created to deal with cybercrime, and a report made to ACORN may then be referred to the police for investigation.

You could also report the theft to the police yourself. They may then investigate the crime and charge the perpetrator with a financial information offence.

If the offender is charged and convicted, you could make an application under Section 86 of the Sentencing Act 1991 for an order requiring that the offender compensate you for your loss. The relevant prosecutor could also make the application on your behalf, although they are not required to do so.

However, there is no guarantee that the Court will make the order sought. If your matter proceeds to this stage, you should seek legal advice regarding making an application and court processes.

2. Contact your financial institution(s) and bring the issue to their attention

Your financial institution may be able to dispute charges that are a result of fraud or identity theft.

Prepare a list of all charges you wish to dispute, including:

• the amount,
• the payee, and
• the date.

You can present these details to your bank or credit provider, which can then dispute the charges with the payee on your behalf. Most banks or credit providers will usually allow you to dispute charges up to 60 days old.

You should also cancel your account and cards to ensure that further fraudulent charges cannot occur.

3. Contact iDcare to obtain a Response Plan

iDcare is a free government-funded service which can provide guidance to people dealing with identity theft.

In addition to providing general advice on your matter, they are able to provide a Tailored Response Plan for your circumstances which can assist you in determining the steps you need to take to respond to your situation and to recover.

4. Apply for a Commonwealth Victims’ Certificate

A Commonwealth Victims’ Certificate can be issued under certain circumstances to help support your claim that you have been a victim of identity crime. This can therefore help you to recover from identity theft.

For example, it can be shown to credit agencies or financial institutions to re-establish your credentials or to support your contention that a transaction is fraudulent.

In order to receive a Victim’s Certificate, you will need to be able to show that you have been a victim of Commonwealth identity crime, which requires there to have been the commission of a Commonwealth indictable offence.

A Commonwealth indictable offence is an offence under Federal (not State) law, which is punishable by more than 12 months’ imprisonment. This could include using your identification details to claim Medicare or Centrelink benefits in your name or the use of your details to travel overseas, for example.

Please note that Commonwealth Victims' Certificates are rarely issued. We would recommend applying for this in addition to utilising other methods mentioned above.

How can Sharrock Pitman Legal assist?

For more advice on whether you may be able to apply for a Commonwealth Victims’ Certificate, or what steps you ought to take in response to identity theft, please feel free to contact our Disputes & Litigation team on 1300 205 506 or, alternatively, fill in the form below.

The information contained in this article is intended to be of a general nature only and should not be relied upon as legal advice. Any legal matters should be discussed specifically with one of our lawyers.

Liability limited by a scheme approved under Professional Standards Legislation.