In conducting its investigations, ASIC has wide powers very similar to the police which extend to the ability to conduct compelled (compulsory) hearings where those being questioned cannot legally refuse to answer - see section 19 of the Australian Securities and Investments Commission Act 2001.
Common types of offending behaviour ASIC will investigate and prosecute include:
- Company Directors committing a fraud upon the company;
- Carrying on Financial Services Without a Licence;
- Falsification of Company records;
- Offences against the stock market such as insider trading and market manipulation.
WORKPLACE HEALTH & SAFETY PROSECUTIONS
When a business fails to provide a safe system of work for employees or customers of the service, and an injury occurs, Workplace Health and Safety Queensland may prosecute and individual or the business itself for that failure.
There are different categories of offences for failing to comply with a health and safety duty under the WHS Act, depending on the degree of seriousness or culpability involved. Possible penalties for breaches of the law range from fines to lengthy jail terms.
Offences involving reckless conduct will be prosecuted in the District Court, whereas lesser offences will be prosecuted in the Magistrates Court.
CORPORATIONS LAW OFFENCES
Offences involving Officers and Directors
Section 184 of the Corporations Act 2001 prohibits and criminalises certain conduct by officers and directors of corporations (companies). An officer or director of a corporation has an obligation to act honestly and in the best interests of the corporation.
A director or other officer of a corporation commits an offence if they are reckless or are intentionally dishonest or fail to exercise their powers and discharge their duties in good faith in the best interests of the corporation.
Likewise a director, other officer or employee of a corporation commits an offence if they use their position dishonestly with the intention of gaining an advantage for themselves, or someone else, or causing detriment to the corporation.
Further, a person who obtains information because they are, or have been, a director or other officer or employee of a corporation commits an offence if they use the information dishonestly with the intention of gaining an advantage for themselves, or someone else, or in causing detriment to the corporation.
The Act also criminalises certain personal conduct in circumstances where the nature of the corporations business requires that person to hold a financial services licence – such as the provision of financial advice. For example it is a criminal offence under the Act to provide such advice without a licence.
In Australia, the tax system is a self-assessment environment, and it relies on taxpayers acting honestly in fulfilling their tax obligations. The Commissioner of Taxation has the power to ensure compliance with the tax laws, and is able to apply penalties including administrative penalties and prosecutions.
If you are charged with having committed a criminal tax offence, proceedings against you can be initiated by the Australian Taxation Office (ATO) or the Commonwealth Director of Public Prosecution (CDPP).
The law provides for a range of taxation offences, such as:
- Making false and misleading statements;
- Failure to correctly keep accounting records;
- Failure to lodge taxation returns or activity statements;
- Failure to pay tax or remit the tax deductions of employees.
In more serious cases, taxpayers can be prosecuted for offences involving fraudulent conduct under the Commonwealth Criminal Code 1995. When the ATO or CDPP decide to prosecute, they consider a number of different aspects, including the seriousness of the offence, the circumstances of the taxpayer, and whether or not the prosecution could act as a deterrent to the wider community.
Tax fraud encompasses a range of frauds, including GST Fraud and Activity Statement Fraud.
The ATO takes tax fraud offences very seriously and will in most cases result at the very least in a serious fine, and in serious or repeated offending, may result in imprisonment.
SOCIAL SECURITY / CENTRELINK OFFENCES
Offences of this kind refer to the obtaining of a benefit from the Commonwealth Government where there is no entitlement. A person is guilty of an offence of this kind if
the person engages in conduct and as a result of that conduct, the person obtains a financial advantage for himself or herself from another person and the person knows or believes that he or she is not eligible to receive that financial advantage.
One of the most common ways people are alleged to have defrauded the government is by not correctly declaring income from employment. For example, they either fail to advise Centrelink that they are employed, or they declare some income but the amount declared is under the actual amount earned.
Other ways in which Centrelink Fraud offences can be committed include:
- Failing to declare a partner’s income
- Failing to advise Centrelink that you are living as a member of a couple
- Claiming benefits under multiple names or identities
- Continuing to claim benefits for children no longer under your care
Issues of general deterrence (deterring others in the community from committing similar offences) play a very important role in the sentencing process for offences of this type. Penalties in this area can be severe, and jail sentences for even relatively minor frauds are not uncommon. The likely sentence imposed will depend on a number of factors including:
- The amount of money obtained, and the length of the fraud
- Any attempts at concealing the offending or any level of sophistication
- If there were any false statements made or any positive attempts to deceive
- Any money paid back to Centrelink
- Whether the money was obtained as a result of “need” as opposed to “greed”.