Last updated 29 August 2016
Section 408C of the Criminal Code Act 1899 (Qld) (Criminal Code) deals with the offence of fraud. Subsection 1 of this section provides that a person commits fraud if they dishonestly:
- apply to their own use or to the use of any person:
- property belonging to another person
- property belonging to another person, or which is in that person’s possession, either solely or jointly with another person, subject to a trust, direction, condition or on account of any other person
- obtain property from any person
- induce any person to deliver property to any person
- gain a benefit or advantage, pecuniary or otherwise, for any person
- cause a detriment, pecuniary or otherwise, to any person
- induce any person to do any act which the person is lawfully entitled to abstain from doing
- induce any person to abstain from doing any act which that person is lawfully entitled to do
- make off without having paid and with intent to avoid payment, knowing that payment on the spot is required or expected for any property lawfully supplied or returned, or for any service lawfully provided.
This subsection effectively conveys the types of situations that can constitute fraud. In proving fraud, dishonesty must be established. In fact, the courts have indicated that fraudulence has been given a meaning that is interchangeable with dishonesty. To prove fraud, the defendant must have acted dishonestly by the standards of an ordinary, honest and reasonable person, and the defendant must have known that their actions were dishonest by these ordinary standards (see Peters (1998) 192 CLR 493).
Penalty for fraud
The sentence for fraud is five years imprisonment, but in certain circumstances it can be increased to 12 years. The increased sentence is imposed where the amount defrauded is greater than $30 000 and if the fraud was committed by an employee or company director in the course of employment, or where the defendant had possession or control of the property in accordance with a particular obligation (e.g. a trustee).
Offences of fraud will generally be determined in the District Court, but where the value of the property stolen is less than $30 000, there is provision for the charge to be dealt with summarily in the Magistrates Court.
Specific fraud offences
In addition to the general offence of fraud, there are a number of other fraud-related offences contained within the Criminal Code. The most common offences include:
- concealing registers or records (s 399)
- fraudulently obtaining or dealing with identification material (s 408D)
- obtaining property by passing valueless cheques (s 427A)
- forgery and like offences (ss 488–502)
- personation (ss 514–515).
All of these offences attract various penalties, and the maximum penalty for each offence is contained within the relevant section of the Criminal Code.
Centrelink is the key government agency that assists people financially. Whether you are receiving a pension, benefit or allowance, there are important obligations imposed on receivers of government money. In terms of criminal liability, the most important obligation is the duty to be honest with Centrelink and to advise them of any changes to your income. Being overpaid by Centrelink due to a failure to disclose your change in circumstances can very easily lead to criminal charges.
Centrelink fraud is committed when a person:
- knowingly gives false and misleading information to get payment(s) they should not be getting
- does not tell Centrelink information they are obliged to provide.
Fraud can be committed in a number of ways such as providing Centrelink with incorrect information on forms completed, making false statements, giving false identification or deliberately telling Centrelink the wrong information.
Given the large amount of government money that is allocated to the Centrelink system each year, Centrelink has demonstrated a strong commitment to investigating fraud. Centrelink officers investigate fraud in a similar way to police investigating crimes, for example:
- sending letters to financial institutions, employers, real estate agents and local governments to confirm current customer details. Centrelink may also contact family, friends or neighbours to confirm information the customer provides to Centrelink
- interviewing customers at a Centrelink Customer Service Centre, at home or at another suitable place
- checking income details with a customer’s last or current employer, by either sending a letter directly to the employer or through the Australian Taxation Office
- using many external information sources that are available to Centrelink to check whether customers are getting the right type and amount of payment. This includes checking names, addresses, redirection information and post office box information through Australia Post, as well as contacting local councils to verify who owns property, dates of purchase and locations of properties.
If Centrelink believes you have been overpaid, they will contact you and request an interview. It is important to get legal advice immediately. Tell Centrelink that you are not avoiding their request for an interview and you are not being uncooperative, but that you would like to get legal advice before speaking to them.
Legal advice is strongly recommended as the applicable legislation (the Social Security Act 1991 (Cth)) is a very large and complex piece of legislation, and an allegation of fraud is very serious, which, upon conviction, can result in severe penalties including fines, probation orders or even imprisonment where large amounts of money are owed.
Upon request, Centrelink will provide you with a statement outlining the basis for their belief that you have been overpaid. This document will take the form of an account showing the amounts you have been paid by Centrelink and the amount that you should have been paid based on your income.
After receiving legal advice, a decision needs to be made about whether to participate in an interview. If you do, this interview will be recorded and can later be used in evidence against you. It is not recommended to participate in an interview unless you have a solicitor present.
If it is clear that you have been overpaid, and there is no legitimate excuse, then you are likely to be charged with Centrelink fraud. It is important to remember that forgetting to advise Centrelink about any personal changes is not a defence. Centrelink are likely to issue you with a summons to appear in court. Imprisonment can be imposed as a penalty for Centrelink fraud, so it is important to seek legal advice immediately if you are charged. Whether a custodial sentence is imposed will depend on a range of factors including how much is owed, whether you told Centrelink about being overpaid or they found out themselves and whether you have previous convictions for similar offences.
Paying Centrelink back
If you have been overpaid, it is important to make attempts to pay Centrelink back. However, paying back Centrelink will not stop you being charged criminally. Given the large amounts of people who receive Centrelink benefits, there is a strong deterrence argument to charge people who have broken the law. If you are charged and face a sentence, any restitution paid will be a strong mitigating factor on the sentence.