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  • Fraud Offences in Australia

    Some offences involve various forms of deception, and one of them is the fraud offences in Australia. Fraud is committed in numerous ways and spans the range of Commonwealth benefit programs and assistance available to the Australian community, including the Australian taxation system. Because of this, fraud prosecutions are diverse and fundamental to protecting Commonwealth resources, so they benefit all Australians.

    Part 7.3, Division 134 of the Criminal Code Act 1995 (Commonwealth) defines what fraud offences are under Australian Commonwealth law and prescribes the maximum penalties for offenders. Due to the broad scope of fraud offences in Australia, the Code lists the many circumstances.

    Fraud offences show up on a criminal background check and are displayed in accordance with the spent convictions scheme.

    The Commonwealth Code defines a Fraud offence to be committed in any of these cases;

    Obtaining a Property by deception (Commonwealth)

    • The person, by deception, dishonestly gets property belonging to another to deprive them permanently of the property; and
    • The property belongs to a Commonwealth entity.

    The Court will find a person guilty of fraud offences under the law if the accused person;

    • Assumes ownership, possession or control of it for themselves or another person; or
    • Ownership, custody or control of it to be retained by themselves; or
    • Induces another person to commit any of the offence, or
    • The Criminal Code also maintains that a person can still be guilty of fraud offences even if they are willing to pay for the property (as far as they obtained it dishonestly).

    Intention to permanently deprive a person of the property

    An accused person is guilty under the law of fraud offences if;

    • They obtain property belonging to another without meaning the other permanently to lose the thing itself; and
    • The accused person intends to treat the thing as the person's own to dispose of regardless of the other's rights;

    For this, a borrower/lender can treat the property like theirs to dispose of regardless of the other's rights. However, this is only possible if the borrowing or lending was for a period and the circumstances made it equivalent to an outright taking or disposal.

    Fraud offences in Money transfers

    A person who has caused another person to transfer an amount to a third person dishonestly is guilty of fraud offences. The amount they dishonestly took is regarded as the property of the second person (victim).

    The first person ruled to obtain the property for the third person to permanently deprive the second person of the property.

    Fraud offences of General deficiency

    An accused person will be found guilty of this offence if they have taken part or wholly in a general deficiency. It does not matter that the shortage;

    • Money or property related,
    • The sums or items are obtained over a period.

    Fraud and Theft offences

    If an accused person is charged for a fraud offence, but the Court is not satisfied that they are guilty of fraud but theft, the accused will be convicted of the theft offence.

    In the same way, if a person was charged for theft offences, but the Court is dissatisfied that they are guilty of the theft offences, but of fraud, the Court will convict them of fraud offences.

    Fraud offences of obtaining a financial advantage

    The Court will find you guilty under Section 135.2 of the Criminal Code Act 1995 (Cth) if ;

    • By deception, dishonestly obtain a financial advantage from another person; and,
    • The other person is a Commonwealth entity.

    The Criminal Code (Commonwealth) stipulates maximum penalties of 10 years for such offences.

    Which Courts deal with fraud offences?

    Fraud is treated as either an indictable or summary offence depending on the Court where it is handled. Lesser crimes of fraud are dealt with summarily in a Magistrate court, while serious fraud offences are usually held in a District or Supreme court where they are finalized.

    How a fraud case is handled may also vary depending on the jurisdiction where the offence occurred.

    What are the penalties for Fraud offences?

    The individual states have varying legislations for fraud offences committed in their jurisdiction. However, for a federal or commonwealth fraud offence dealt as an indictable offence, the Criminal Code (Commonwealth) stipulates maximum penalties of 10 years imprisonment.

    Fraud offences of Obtaining a gain

    The Court can convict a person of fraudulent offences if they are satisfied the person;

    • Did anything intending to obtain some gains from another person; and dishonestly
    • The other person is a Commonwealth entity.

    Such offence attracts a maximum penalty of a 5-year imprisonment term. The prosecution doesn't need to prove that the other person knew that the person was a Commonwealth entity for such an offence.

    Fraud offences of Causing a loss

    The Court can convict a person if they are satisfied that they;

    • Did anything to cause a loss to another person dishonestly;
    • Dishonestly causes a risk of loss
    • Know or believe that such failure is bound or that there is a possible significant risk of the loss occurring;
    • Where the other person is a Commonwealth entity.

    The person will also be guilty of fraudulent offences against a commonwealth public official if they;

    do anything to dishonestly influence a public official in the exercise of the official's duties as a public official;

    where

    • The public official is a Commonwealth or public official; and
    • The duties are duties as a Commonwealth public official.

    The Criminal Code (Commonwealth) stipulates maximum penalties of 5 years for such offences.

    Fraud offences of Obtaining a financial advantage

    Under Section 135.2;

    A person is guilty of the offence if they obtain a financial advantage for themselves or another from a Commonwealth entity, knowing or believing that they are not eligible for the economic benefit.

    It also includes all cases where the accused person induces the commonwealth entity to do anything that results in the financial advantage.

    The Criminal Code (Commonwealth) stipulates a 12-month penalty term for such offences.

    Conspiracy to defraud

    A person is guilty of this offence (fraud) if they;

    • Conspired with another person with the intention of dishonestly;
    • Obtaining gains from a third person, where the third person is a Commonwealth entity, or,
    • Causing them any loss, or,
    • They are dishonestly influencing a public official or affecting their duties.

    The prosecution doesn’t have to prove that they knew that the person defrauded was a Commonwealth entity.

    The Criminal Code (Commonwealth) stipulates maximum penalties of up to 10 years for such offences.

    Proving a Fraud Offence in Court

    The Court will only be satisfied that the person is guilty of such offences if the prosecution can prove that;

    • The person agreed with one or more other persons; and
    • The person and at least one other party to the agreement intended to do the thing under the agreement; and
    • Some persons or parties to the agreement committed an overt act under the contract.

    The accused person/party are still guilty even if;

    • They cannot obtain their purpose, get the gain, cause the risk of loss or influence the public official.
    • The other member of the venture is a body corporate; or
    • Other parties of the agreement involve a person who is not criminally responsible; or
    • All other parties to the contract are acquitted of the offence.

    A person cannot be found guilty of the fraud offence if:

    • All other members to the agreement were acquitted of the crime, and

    a finding of guilt would be inconsistent with their acquittal.

    • Backed out from the deal and took all reasonable steps to prevent the doing of the thing.

    Fraud offences under the various State and Territory legislation

    While the definition and acts that constitute fraud in the manifold are no different from the Commonwealth laws, the penalties imposed can vary. It is prohibited in their legislation on Crimes and related offences.

    Fraud offences in the ACT

    All offences relating to fraud are dealt with under Part 3.3 of the Criminal Code 2002. And runs across Sections 326 to 334 under the law dealing with issues of;

    • Obtaining property by deception,
    • Obtaining financial advantage,
    • General dishonesty, Section 333,
    • Conspiracy to defraud, Section 334,

    The maximum individual penalty for obtaining property by deception is ten years imprisonment and a fine of $150,000. It also prescribes the same punishment for the offence of conspiracy to defraud.

    Fraud offences in NSW

    Section 192E of the Crimes Act 1900 (NSW) stipulates it a grave offence if a person;

    Dishonestly appropriates a property belonging to another or obtain any financial advantage, or,

    Cause a financial disadvantage to another, done by any form of deception.

    For proof, the prosecution must prove that:

    • The defendant acted dishonestly and through deception
    • These actions created a financial gain over another person's property or caused them to suffer an economic disadvantage, and
    • The actions were intentional or reckless.

    If the prosecution cannot prove these elements beyond doubt, the defendant is entitled to an acquittal.

    The Crimes Act 1900 (NSW) stipulates the maximum penalty for the offence as;

    • Ten years imprisonment term if the matter is heard in a High court (District), and,
    • Two years imprisonment if it is settled in the Local Court.

    Fraud Offences in Western Australia (WA)

    Section 409 of the Criminal Code Act in WA defines and prohibits fraudulent offences in Western Australia. It includes all the crimes punishable under Commonwealth laws.

    Fraudulent activities and crimes in WA attracts penalties of;

    • Seven years imprisonment.
    • However, if the person deceived is above 60 years, the maximum penalty increases to imprisonment for ten years.

    As a summary offence

    The maximum penalty when fraud is dealt with summarily is;

    • Two years imprisonment and,
    • fine of $24,000.

    If the victim is over the age of 60, then the maximum penalty increases to imprisonment for;

    • Three years and,
    • Fine of $36,000.

    Being Guilty of fraud in WA includes;

    • That the accused person had the intention to commit the act;
    • They would have saved the fraud if they did not stop them;
    • Committed the act

    In WA, offences of fraud apply only in situations that have a ‘commercial flavour’; it includes;

    When the accused's intention to deceive is concerning a victim's economic interests or public duties.

    However, it is not fraud if;

    The action or inducement to actions/inactions does not amount to fraud where that action affects only non-economic interests, for example, social relationships.


    Defences for fraud under WA laws;

    The legal counsel for the accused can argue that their client;

    • Had an honest claim of right to the property under (s 22) of the WA Criminal Code) and,
    • Made an honest and reasonable mistake of fact under (s 24) of WA the Criminal Code.

    Fraud offences in Queensland (QLD)

    Section 408C of the Criminal Code Act 1899 (QLD) states that fraud offences are treated as severe and indictable violations. In Queensland, an offender can be liable to a 12-years imprisonment term

    Fraud simpliciter, or "fraud", is when a person commits one or more of the various conduct listed above without a circumstance of aggravation. It incurs a maximum penalty of 5 years

    In Court, the prosecution must prove;

    • You engaged in any of the actions set out in section 408C(1), and
    • You acted dishonestly and intentionally

    Fraud matters are handled in a District Court in Queensland.

    Fraud Offences in Tasmania

    Matters relating to fraud in Tasmania are governed by the 253A of the Criminal Code Act 1924 (Tasmania). Fraud offences are grave in Tasmania and attract penalties up to 21 years imprisonment.

    However, if the person is convicted summarily, the penalties imposed are;

    • 20 penalty units ($3,080) in fines
    • Two years imprisonment term.

    Fraud offences in the Northern Territory (NT)

    The Northern Territory maintains a definition of fraud-related activities similar to those of the Commonwealth. Section 227 of the Criminal Code Act 1983 prescribes the punishments, types, circumstances and requirements for these offences.

    The punishment for fraud in the NT is seven years’ imprisonment.

    Fraud Offences in South Australia (SA)

    The Criminal Law Consolidation Act 1935 (SA) governs all criminal offences, including those involving deception. Section 139 of the Act defines, stipulates and prohibits fraud through deception and cases of public dishonesty.

    Under the act, the Court can impose penalties up to 15 years, especially in circumstances of aggravation. However, it also depends if the matter is handled as an indictable or summary offence.

    Other offences of fraud are;

    • Dishonest handling of Documents (s 140)
    • Manipulation of machines through dishonesty (s 141)
    • Dishonest exploitation of a position advantage (s142)
    • Fraudulent interference with merchandise (s 143)
    • Making off without payments (s 144)
    • Misusing Personal Identification Information (s 144B)

    Fraud offences in Victoria (VIC)

    The Crimes Act 1958 (VIC) covers all illegal behaviours in Victoria. Section 81 of the Act defines and prescribes punishments for all offenders.

    The act classifies all acts of deception, dishonesty, and illicit financial advantage against public or civil citizens as fraud offences.

    The Crime of Fraud and obtaining by deception carries a maximum penalty of 10 years imprisonment. The legislation makes such an offence a Level 5 offence.

    Do Fraud offences show up on criminal record checks?

    Where there is a conviction in an Australian Court, fraud offences are displayed on a national police check in accordance with the rules of the spent convictions scheme.

    You can obtain your criminal record check online via the Australian National Character Check (ANCC) website.

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