Over the past few years, there has been a noticeable growth in the prominence of fake IDs in Australia and questions around whether they are illegal.
With websites openly selling these IDs, many have questioned what the potential consequences of possessing such an item is.
It is well-established that you can be charged by Police if you are in possession of false identification documents. However, this seems at odds with the blatant and brazen advertising of fake IDs on the internet.
So, what is the answer?
Buy Fake IDs Online
There are a number of websites that offer fake IDs for prices as low as $60. The most prominent example of this is ‘Fakies.com.au'.
Despite having run afoul of the law in 2013, the website relaunched in 2016 and is now operating without issue.
Their ability to restart after Police shut down the website in 2013 is based on them holding out the fake IDs as ‘novelty IDs'.
The IDs do not contain exact features of legitimate IDs. Because of this, ‘Fakies' production of fake IDs is not considered a criminal offence.
However, if a person attempted to pass on the ID as legitimate then they would be committing a criminal offence.
When asked to comment on the operation of businesses that sell fake IDs in Australia, Detective Superintendent Colin Dyson said, “the legality or otherwise of making, possessing and using these fake identification instruments is very much dependent on the intention of the maker and user”.
Possessing Identification Information
To understand this, we need to look at the laws for fake IDs.
It is a criminal offence under Section 192K of the Crimes Act 1900 (NSW), to have identification information in your possession with the intention of committing, or of facilitating the commission of, an indictable offence.
Under s192K of the Crimes Act, the maximum penalty for possessing a fake ID is 7 years imprisonment.
There is a further offence under Section 192J of the Crimes Act 1900 (NSW), that involves dealing with identification information with the intention of committing, or of facilitating the commission of, an indictable offence.
Under this section, the maximum penalty for dealing with a fake ID is 10 years imprisonment.
A key element of this legislation is that the prosecution must to prove you intended to commit, or assist with, an indictable offence.
This explains how the fake IDs produced by websites such as ‘Fakies' are able to circumvent the legislation. Unless consumers use or attempt to use the IDs to commit an indictable offence, then they will also be able to avoid criminal charges.
An indictable offence is any offence that carries a maximum penalty of at least 5 years imprisonment.
These offences are commonly associated with fraud charges, such as dishonestly obtaining financial advantage by deception.
Often, persons will use the fake IDs to make fraudulent transactions at banks or through currency exchange facilities. The fake IDs will usually be used to withdraw funds from legitimate bank accounts and transfer them to an overseas account. The money is then transferred again or withdrawn from the account, making it very difficult for Police to track it.
Generally, an experienced fraud lawyer can defend these charges by arguing that Police cannot prove identification beyond reasonable doubt.
This is because unless the Accused is caught in the act, the prosecution will be relying on CCTV footage or the evidence of witnesses. Unless the Accused is known to the witnesses or there is some DNA or fingerprint evidence, it will be difficult for Police to prove their case beyond reasonable doubt.
What is the Penalty for Using a Fake ID?
Depending on the nature of the attempt to use false identification information, a person will be liable for different penalties for using a fake ID in Australia.
This is because there are a different offences a person can be charged with based on the level of their criminality.
Offences pursuant to s192J & 192K of the Crimes Act 1900 carry terms of imprisonment of 10 years and 7 years respectively.
However, there are other fraud offences that a person can be charged with. You can see some recent fraud cases here.
Driving With A Fake ID
Often people will obtain a fake driver's licence so they can drive while disqualified, or while their licence is cancelled.
Pursuant to Section 51 of the Road Transport Act 2013 (NSW), it is a criminal offence for a person to alter a driver licence, or present an altered driver licence, with the intention to deceive.
If a person is found guilty to driving with a fake ID in Australia, the penalty can be as high as a $2,200 fine.
Section 51(3) also states that a person must not:
(a) forge a driver licence; or
(b) fraudulently alter or use a driver licence; or
(c) fraudulently lend, or allow another person to use, a driver licence.
Buying Alcohol With A Fake ID
Pursuant to Section 129 of the Liquor Act 2007 (NSW), a person under the age of 18 will be committing an offence if they use a fake ID to purchase alcohol.
This offence also applies to minors who use false identification documents to gain entry into alcohol-licensed premises such as clubs or pubs.
The maximum penalty for using a fake ID to purchase alcohol is a $2,200 fine.
There is a further offence under Section 128 of the Liquor Act 2007 (NSW) which sets out that if an authorised person suspects someone is a minor, they can ask for further details to confirm their identity.
Authorised persons include a licensee, inspector or police officer. If a person is asked to provide identity information, it is a criminal offence if the suspected minor:
(a) refuses or fails to state his or her full name, residential address and date of birth; or
(b) without reasonable excuse, refuses or fails to produce an evidence of age document that may reasonably be accepted as applying to the person.
The maximum penalty for this offence is a $2,200 fine.
Charged With Using a Identification Information?
If you have been charged with using a fake ID or dealing/possessing identification information, you should consult experienced criminal defence lawyers immediately.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.