Fraud and dishonesty
The range of fraud and dishonesty charges is rather wide mainly because of the range of legislative changes put into law by the various levels of Australian governments to deal with problems that include money laundering, welfare entitlements, and new technology-related offences.
The objective of this information is to give a review of these offences and explain how they generally operate within Australia.
Common law vs statutory offences
Just like many criminal offences, fraud came from the common law and was a general offence judged on a standard of what the ordinary person might have regarded as honest behaviour. However, the criminal laws of the Commonwealth, States and Territories, now divide offences of dishonesty into a numerous charges that covers several different activities that may not have fallen within the original scope of the common law offence.
Categories of offences
Listing all of the different categories of fraud and dishonesty offences is beyond the scope of this article, however, generally speaking these offences can fall under the following categories:
‘Traditional’ fraud, which generally involves knowingly taking advantage of someone dishonestly for a financial or a material advantage;
- Specific classes of charges relating to contracts, securities and financial instruments (for example, forging signatures on a mortgage or passing fake cheques);
- Commonwealth fraud offences that can (but are not limited to) a person providing information or employing deceptive or fraudulent means to obtain payments from Centrelink, the ATO or Medicare; and
- Newer technology-related offences which includes identity theft.
The first point really breaks the main concept of fraud down: It must be done knowingly and with an intention to take advantage of someone - meaning that the person committing the fraud knows, or suspects which they wouldn't be entitled to the benefit under normal circumstances. A key part of the offence is that the victim does not know that they have been subject to the fraudulent activity. Finally, it should be stressed that the benefit or gain from the fraud does not have to be monetary.
A number of jurisdictions have a number of laws relating to specific fraud involving documents, instruments, or particular forms of business activity. As an example, the Corporations Act 2001 (Cth) creates various offences regarding the conduct of company directors and people who may have engaged in activities such as insider trading.
Commonwealth fraud and dishonesty offences are broadly defined and may appear to overlap with State and Territory criminal laws. However, as noted earlier, the most common use of these offences is for prosecuting fraudulent conduct relating to benefit payments via agencies such as Centrelink and Medicare. While not all of these overpayments or investigations will necessarily lead to a criminal charge, it is fair to say that the level of vigour the Commonwealth is now pursuing these cases has increased. There is also, of course extensive application of fraud concepts in criminal provisions of Australia's taxation laws.
Identity theft is now a specific crime or is expressly covered by many States and Territories. This is not, however aimed at the misuse of computer resources or compromising security where there is no intention to cause loss. There is the possibility that the prosecution might have to employ some existing fraud charges in a more novel way to deal with aspects of online identity theft, but there certainly is the potential for existing laws to combat the growing problem.
If you have been approached by a government agency or the police in relation to an offence of dishonesty or fraud, it is vital that you speak to a criminal lawyer right away. Apart from vigorously defending you in court, a criminal solicitor can help plead circumstances of mitigation to reduce a sentence or show that a key part of the charge of fraud is missing.
Alternatively, lawyers can be of great assistance in helping you to recover from fraud or identity theft. An unfortunate consequence of laws like the Privacy Act 1988 (Cth) is that it can take a long time to re-establish your identity and a qualified lawyer can assist you in getting your life back on track by obtaining court orders or in pursuing your own interests during a criminal prosecution.
Disclaimer : This article is just a summary of the subject matter being discussed and should not be regarded as a comprehensive legal advice for you to defend yourself alone. If you are charged with criminal offences, it is recommended that you seek legal assistance from criminal lawyers.