obtaining financial advantage by deception commonwealth

Commonwealth, state and territory agencies and private sector organisations who provided of obtaining a financial benefit by deception. (obtaining property by deception) or s 135.1 (dishonestly obtaining a gain). These offences, and others, replace the now repealed s 29B and 29D of the. section 134.1 – obtaining property by deception · section 134.2 – obtaining a financial advantage by deception · section 135.1 – general. obtaining financial advantage by deception commonwealth

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Why Sydney woman stole $3.5m from Commonwealth Bank

A former Commonwealth Bank employee who ripped off customers to the tune of $3.5m to pay for a lavish lifestyle and appease an abusive ex has been jailed.

Hsin-Yu Tsai, 33, had claimed that she was not motivated by greed when she used her position as a customer service officer to move millions of dollars out of the accounts of unsuspecting clients.

However, a NSW District Court judge ruled that she did reap substantial amounts of money from the scheme and said there was no other option than for her to be jailed.

The court was told that Tsai claimed she was pressured into the offending in order to satisfy her then boyfriend’s desire for expensive watches and clothes.

Judge John Pickering said that according to Tsai, shortly after she moved in with the man, he pressured her to lavish him with material gifts.

Tsai pleaded guilty to three counts of dishonestly obtaining financial advantage by deception and one count of using false documents to gain advantage by deception.

Judge Pickering said aspects of the boyfriend’s behaviour were similar to those of a “domestic predator” and Tsai claimed that he had been violent and abusive.

It was in those circumstances that she began stealing from the bank, the court was told.

She moved $2.4m out of the account of a South African national who lived overseas; however, he did not discover the fraud for another three years.

She also siphoned off money from the term deposit account of another customer and in all stole $3.5m.

She claimed that her then boyfriend was a financial burden on her and had pressured her into buying a $600,000 Ferrari.

“She felt she had to please him and keep him happy because she had no other family to rely on in Sydney. Her parents were overseas and she had been isolated from her friends,” Judge Pickering said.

However, she also used the money for her own gain.

When the relationship ended, they negotiated through lawyers for her to be paid a $1m settlement.

She used the money to travel to Taiwan, China and Europe, bought designer handbags and purchased property.

However, Judge Pickering noted, her offending ceased following the break-up and despite her having the opportunity to continue stealing money over the next three years while she continued to work at the bank.

“Sometimes the proof is in how you live your life after this,” Judge Pickering said.

“ … That needs to be balanced by the fact she made a lot of money including the million dollars she got at the end of her settlement.

“But nevertheless it is a remarkable circumstance that she continued to be employed by the Commonwealth Bank, did not take the opportunity to commit any fraud and placed herself in a completely different life.”

The court was told that with the help of her parents, Tsai had paid back the money she had stolen from the Commonwealth Bank.

Judge Pickering noted she was now working in the health industry, had a young family and had rehabilitated herself.

However, he said there was no other option than to send her to prison considering the amount of money she had stolen.

“It would be an extremely rare scenario where someone who defrauded the bank of $3.5m and was an employee … did not go to jail fulltime,” Judge Pickering said.

Tsai also made full admissions to police and pleaded guilty at the first opportunity.

She was sentenced to three years and three months in prison, with a 14-month non parole period, meaning she will be eligible for release in December next year.

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Источник: https://thewest.com.au/news/why-sydney-woman-stole-35m-from-commonwealth-bank-c-4366282
Australia

Legal regime

Australia is a federation comprising six States and two self-governing Territories.  The Australian Constitution specifies those areas in which the Commonwealth has power to legislate and leaves the remainder to the States.  Corruption and bribery are largely State matters.

Each of the States and Territories criminalise both public sector and private sector bribery.[i]  However, many of these offences are technical in nature and therefore difficult to enforce.

The Australian federal government (the Commonwealth) has laws which prohibit bribery of federal public officials,[ii] as well as laws which prohibit bribery of foreign public officials.

Foreign public sector bribery

Australia ratified the Organisation for Economic Co-operation and Development (OECD) Convention on Combating Bribery of Foreign Public Officials in International Business Transactions (OECD Convention) in 1999.  Australia is also a party to the United Nations Convention against Corruption (UNCAC) of 2003.  Both treaties require State Parties to criminalise bribery of foreign public officials in the course of international business.

Australia has given effect to its treaty obligations in Division 70 of the Criminal Code Act 1995 (Cth) (Criminal Code).  Section 70.2(1) makes it an offence to provide, offer or promise to provide a benefit not legitimately due to another person, with the intention of influencing the exercise of a foreign public official’s duties in order to obtain business or a business advantage.

“Foreign public official” is broadly defined to include:

  • an employee or official of a foreign government body;
  • a member of the executive, judiciary or magistracy of a foreign country;
  • a member or officer of the legislature of a foreign country;
  • a person who performs official duties under the law of a foreign country; and
  • an employee or official of a public international organisation, such as the United Nations.

“Benefit” is also broadly defined to mean “any advantage” and is expressly not limited to property.

The offence created by section 70.2(1) captures bribes made to foreign public officials either directly or indirectly via an agent, relative or business partner.  While a key element of the offence is that the defendant must have intended to influence the foreign public official, it is not necessary to show that such an intention was expressed.[iii]  Section 70.2(1A) makes it clear that liability under section 70.2(1) will arise whether or not the bribe achieved its desired purpose of obtaining or retaining business or a business advantage.  In determining whether a benefit was legitimately due, a court must disregard whether the benefit in question was customary, necessary or required in the particular circumstances.  The value of the benefit is also to be disregarded.

Section 70.2 has extra-territorial reach.  Liability arises if the bribery occurred in Australia, and also where it occurred outside Australia, so long as the person who engaged in it was an Australian citizen or resident, or a body corporate incorporated in Australia.[iv]

The maximum penalty for an individual who is convicted under section 70.2(1) is 10 years’ imprisonment, a fine of AU$2.22 million, or both.  A corporation can be fined the greatest of: AU$22.2 million; three times the value of any benefit obtained directly or indirectly that can be reasonably attributed to the bribe; or, where the value of the benefit cannot be determined, 10% of the corporation’s annual turnover for the 12 months up to the end of the month in which the conduct constituting the offence occurred.  Bribery may also give rise to money-laundering charges under Division 400 of the Criminal Code.

In addition to criminal penalties, any benefits obtained by foreign bribery can be forfeited to the Australian government under the Proceeds of Crime Act 2002 (Cth).  That Act establishes a regime that allows proceeds of Commonwealth-indictable offences to be traced, restrained and confiscated by a court.  It also confers power on a court to order that a person appear before it to demonstrate that unexplained wealth was acquired by lawful means.

In December 2019, the Crimes Legislation Amendment (Combatting Corporate Crime) Bill 2019 (Cth) (Crimes Bill) was introduced to Parliament.

If passed, the Crimes Bill will:

  • extend the definition of foreign public official to include candidates for office;
  • remove the concept of a benefit being “not legitimately due” as an element of foreign bribery offences and replace it with a concept of “improperly influencing”.  The Crimes Bill also proposes the introduction of a provision which specifies matters which may and must not be taken into account in determining whether influence is improper;
  • extend the definition of foreign bribery to include conduct directed at obtaining or retaining personal advantage.  The current definition is limited to conduct directed at business advantage;
  • create a new corporate offence of failing to prevent foreign bribery.  This offence would be very similar to the failing-to-prevent-bribery offence in the UK Bribery Act 2010;
  • remove the requirement of influencing a foreign official in their official capacity;
  • make certain clarifying amendments to remove supposed uncertainties in the existing provisions;
  • introduce a Deferred Prosecution Agreement scheme in respect of certain serious corporate offences (see further below); and
  • amend the definition of dishonesty to mean “dishonest according to the standards of ordinary people” and remove the requirement for a defendant to have also “known” that the conduct was dishonest according to those standards.

In March 2020, the Senate Legal and Constitutional Affairs Legislation Committee recommended that the Crimes Bill be passed.[v]  The Crimes Bill is still before Parliament, and it is difficult to predict when it will likely be passed.

Defences to foreign public sector bribery

The Criminal Code provides two defences to the offence of foreign bribery under section 70.2(1).  The first defence is engaged where the provision of the benefit is permitted or required by a written law of the place where the conduct occurred.[vi]

The second defence is in respect of facilitation payments.  If the value of the benefit in question was of a minor nature, provided in return for expediting or securing the performance of a minor “routine government action”, and a record of the details of the conduct was created as soon as practicable, a defendant will have a good defence against liability.[vii]

For the purposes of the defence, routine government action is an action of a foreign public official that is commonly performed by that person, including things like granting permits or licences, processing government papers and providing access to utilities.  Routine government action does not involve a decision as to whether to award new business, or to continue existing business with a person.  Setting the terms of new or existing business is also excluded.  While sections 26–52 and 26–53 of the Income Tax Assessment Act 1997 (Cth) provide that domestic or foreign bribes cannot be deducted under the Act, facilitation payments are not considered bribes, so are tax-deductible as losses or outgoings.  A defendant bears the onus of proving a defence.

Domestic bribery offences

The Criminal Code also criminalises bribery of Commonwealth public officials.  Section 141.1(1) provides that it is an offence for a person to dishonestly provide or offer a benefit to another person, or cause a benefit to be so provided or offered, if done with the intention of influencing an Australian Commonwealth public official in the exercise of his or her official duties.  A Commonwealth public official will be guilty of a criminal offence under section 141.1(3) if he or she dishonestly requests, receives or agrees to receive a benefit with the intention either of having his or her duties influenced, or of fostering a belief that such influence will be wielded.  The maximum penalties for individuals and corporations convicted of these offences are the same as those for offences under section 70.2 of the Criminal Code.

Section 141.1 has extra-territorial reach.  A person will be liable whether or not the conduct constituting domestic public sector bribery occurred in Australia, and whether or not the result of the bribery was obtained in Australia, so long as it involved an Australian Commonwealth public official.

There are also State and Territory provisions which prohibit bribery of public officials, although those provisions are often the same as those which prohibit private sector bribery.[viii]

Domestic private sector bribery

The Criminal Code does not criminalise bribery in the private sector; the States and Territories are left to legislate in this area.  Indirect Commonwealth regulation is provided to some extent by the prescription of directors’ duties in the Corporations Act 2001 (Cth) (Corporations Act) and by the market-sharing and price-fixing provisions in Part IV of the Competition and Consumer Act 2010 (Cth).

At the State and Territory levels generally, it is illegal to corruptly give or offer inducements or secret commissions to, or receive them from, employees or agents of corporations and individuals.[ix]  Conduct will be “corrupt” only if engaged in with the intention of influencing the recipient to show favour.

Examples of the State and Territory provisions are those in the Crimes Act 1900 (NSW), the relevant statute for the State of New South Wales (NSW).  In that statute:

  • Section 249B(1) prohibits an agent from corruptly receiving or soliciting (or corruptly agreeing to receive or solicit) any benefit from another person as an inducement, a reward, or on account of doing or not doing something, or showing or not showing favour to any person in relation to the affairs or business of the agent’s principal.  It also prohibits the receipt of any expectation which would tend to influence the agent to show or not show favour to any person in relation to the affairs or business of the agent’s principal.  Section 249B(2) imposes mirror offences on persons who give or offer an agent any such benefit.
  • Section 249D(1) prohibits a person from corruptly giving a benefit to another person for giving secret advice to a third party where the person giving the benefit intends the advice to influence the third party to enter into a contract with the person giving the benefit, or appointing the person who gives the benefit to any office.  Section 249D(2) makes it an offence to corruptly receive such a benefit.
  • Section 249E makes it an offence for a person who offers or gives a benefit to a person entrusted with property (or any person entrusted with property who receives or solicits a benefit for anyone) without the consent of each person beneficially entitled to the property or the Supreme Court of NSW as an inducement or reward for the appointment of any person to be a person entrusted with the property.
  • Section 249J provides that it is not a defence that the receiving, soliciting, giving or offering of any benefit is customary in any trade, business, profession or calling.
  • The definition of “agent” is a wide one and includes employees: section 249A.

The legislation in the States and Territories varies as to the penalties that may be imposed for private sector bribery.  Generally, individuals are liable to between three and 21 years’ imprisonment.[x]  Under the NSW Crimes Act, an individual can be imprisoned for up to seven years, and may also be ordered to repay all or part of the value of any benefit received or given by that person.  He or she may also be disqualified from holding civic office for up to seven years.  Where bribery is perpetrated by a corporation, some jurisdictions provide for fines instead of imprisonment.

False accounting

On 1 March 2016, new false accounting provisions came into effect.  The provisions, found in Part 10.9 of the Criminal Code, criminalise intentional or reckless concealment of bribery by dealing with accounting documents.

Specifically, the provisions make it an offence to make, alter, destroy or conceal an accounting document, or to fail to make or alter an accounting document that the person is under a legal duty to make or alter, if that conduct is done:

  • with intent to “facilitate, conceal or disguise”; or
  • recklessly as to whether the conduct “facilitates, conceals or disguises”,

the occurrence of certain matters relating to the giving or receiving of a benefit which is not legitimately due.[xi]  This concept of a “benefit not legitimately due” echoes the language of the foreign bribery offences described above.

The offence only arises if “certain circumstances apply”.  The certain circumstances are intended to ensure that the offences are within the constitutional power of Federal Parliament.  However, they make it clear that the offence may apply to conduct committed outside of Australia.  The maximum penalties for these offences are identical to the penalties for the foreign bribery offences in the Criminal Code, described above.

These provisions were introduced as a direct response to criticism in the OECD Phase 3 report (discussed further below) about the inadequacy of Australia’s books and records offences.

Whistleblower protection

Sweeping reforms of Australia’s whistleblower protection framework came into force on 1 July 2019 as a result of the Treasury Laws Amendment (Enhancing Whistleblower Protections) Act 2019 (Cth).  The new regime, which sits in Part 9.4AAA of the Corporations Act, has significantly expanded and strengthened private sector whistleblower protections, increased applicable penalties and introduced a requirement for public companies and large proprietary companies to have a whistleblower policy which addresses certain matters.

Importantly, protected disclosures are no longer limited to potential contraventions of the corporations legislation, but now extend to disclosures where the whistleblower has reasonable grounds to suspect that the information concerns misconduct, or an improper state of affairs or circumstances, in relation to the relevant company or a related body corporate.  This specifically includes conduct by the entity, or one of its employees or officers, that constitutes an offence against a law of the Commonwealth punishable by imprisonment for a period of 12 months or more (e.g., the foreign bribery offence).

Where certain criteria are met, a whistleblower will receive protections in relation to the confidentiality of their identity and victimisation.  The penalties for breach of these protections have been significantly increased.  The maximum civil penalty for companies, for example, is now the greater of AU$11.1 million, three times the benefit derived from the contravention or 10% of annual turnover (up to a maximum of AU$555 million).  It is also now easier for victimised whistleblowers to claim compensation and other remedies.

The federal government considered the use of financial rewards to incentivise whistleblowing, as occurs in the United States, but decided not to implement this.

Public officials are protected under the Public Interest Disclosure Act 2013 (Cth) (PID Act).  The PID Act seeks to encourage public officials to report suspected wrongdoing in the Australian public sector, while protecting those who make public interest disclosures from reprisals.  There is equivalent legislation covering public servants in each State and Territory.

There are also specific protections against reprisals for union whistleblowers.  These were introduced by the Fair Work (Registered Organisations) Amendment Act 2016 (Cth), which contained a range of measures intended to fight union corruption.

Investigation and enforcement agencies

Australia has adopted a multi-agency approach to combatting corruption.  Australia’s main criminal law enforcement agencies in bribery cases are the Australian Federal Police (AFP) and the Office of the Commonwealth Director of Public Prosecutions (DPP).  State-based investigations are generally conducted by the fraud squad of the particular State police department, with prosecutions being undertaken by State Directors of Public Prosecution.

The AFP is active in detecting and investigating corruption as part of its statutory obligations to investigate serious crimes against federal laws and against Commonwealth property, revenue and expenditure.

While allegations of corruption will generally be referred to the AFP, other agencies that may become involved in investigation processes include: the Australian Securities and Investments Commission (ASIC); the Australian Commission for Law Enforcement Integrity; the Australian Criminal Intelligence Commission; the Inspector-General of Intelligence and Security; and the Office of the Commonwealth Ombudsman.  The DPP is largely responsible for prosecuting offenders under the anti-bribery provisions of the Criminal Code.

Corruption involving or affecting the public sector (including State government agencies, local government authorities, members of Parliament and the judiciary) is also dealt with at State level through independent bodies such as the NSW Independent Commission Against Corruption (ICAC).[xii]  While it cannot charge individuals or corporations with offences, the ICAC has wide-ranging power to investigate “corrupt conduct” involving NSW public officials or public bodies/authorities.  Reports following an investigation can be given to Parliament, the police, or be released publicly.

Despite repeated calls over recent years, there is still no federal anti-corruption commission in Australia.  The present federal government has agreed to establish a federal integrity commission to address the issue of corruption within the administration of the government in both its law enforcement and public sector agencies.  However, the model previously proposed by the government was heavily criticised by the opposition and cross-bench parties as lacking teeth.  Draft legislation formalising the government’s current proposal was released on 2 November 2020, and will be the subject of an extensive consultation process.

Cases prosecuted

The first case prosecuted under Australia’s foreign anti-bribery laws centred upon Securency International Pty Limited (Securency), a subsidiary of the Reserve Bank of Australia.  It arose from allegations by a company insider that Securency had paid nearly AU$50 million to international sales agents to bribe central banking officials in Malaysia, Indonesia and Vietnam in order to secure banknote supply contracts.  Investigations were jointly conducted by the AFP, the United Kingdom’s Serious Fraud Office and Malaysia’s Anti-Corruption Commission, leading to raids and searches in all three countries.

In 2011, following the AFP’s investigation, the AFP charged Securency and another Reserve Bank subsidiary, Note Printing Australia Limited (NPA), and several of the companies’ former senior managers with conspiracy to bribe foreign public officials contrary to section 70.2(1) of the Criminal Code.

Over the ensuing years, the prosecutions were mired in lengthy committal hearings and interlocutory arguments.  Unfortunately for the AFP, public awareness of the outcomes of the prosecutions was hampered by a suite of non-publication orders made by the Supreme Court of Victoria.  Those orders were only vacated in November 2018, following the last accused pleading guilty to conspiracy to bribe a foreign public official in Malaysia.

Amongst the information suppressed were the early guilty pleas by both Securency and NPA in 2011.  Each pleaded guilty to three charges of conspiracy to commit foreign bribery, and were fined AU$480,000 and AU$450,000, respectively.  Each company also co-operated in an application brought under the Proceeds of Crime Act 2002 (Cth) as a result of the successful prosecutions, and paid a total of about AU$22 million in pecuniary penalty orders.

The DPP ultimately secured a series of convictions against various individuals, following guilty pleas, on charges of conspiracy to bribe foreign public officials and/or false accounting.  The individuals convicted included the former CEO of Securency, the former CFO of Securency, the Indonesian sales agent for Securency, a former senior business development manager of Securency, and a former banknote specialist of Securency.

However, in a significant blow for the AFP and Commonwealth DPP, in 2018, the prosecutions of a further four individuals were permanently stayed by the High Court (the highest court in the Australian judicial system).  The stay was granted on the basis that the continued prosecution of these individuals would bring the administration of justice into disrepute following unlawful compulsory examinations conducted during the course of the AFP’s investigation by what is now the Australian Criminal Intelligence Commission: see Strickland v Commonwealth Director of Public Prosecution [2018] HCA 53.

The second charges under Australian foreign anti-bribery laws were laid by the AFP in February 2015 against two directors of an Australian construction company, Lifese.  The directors were charged with conspiracy to bribe a foreign public official in connection with building contracts in Iraq.  A third man was also charged.  Much of the evidence relied upon by the prosecution was from intercepted telephone conversations.  The three men pleaded guilty and were sentenced in September 2017 (R v Jousif; R v I Elomar; R v M Elomar [2017] NSWSC 1299).  The directors were each sentenced to four years’ imprisonment and fined $250,000.  The third man was sentenced to four years’ imprisonment.  The jail sentences of the directors were reduced on appeal to three years and four months (with a non-parole period of one year and eight months) (Elomar v R [2018] NSWCCA 224).

In May 2018, the AFP charged engineering consultancy Sinclair Knight Merz, now known as Jacobs Group Australia, its former chief executive and other individuals, with conspiring to bribe foreign officials in the Philippines and Vietnam to secure various infrastructure projects.  The case is still at the committal stage.

In September 2018, the AFP charged Mr. Mozammil Bhojani with conspiracy to bribe a foreign public official.  It was alleged that between January 2015 and 2018, Mr. Bhojani conspired to bribe two Nauru government officials with more than AU$100,000 in kickbacks in exchange for favourable phosphate shipments for his company, Radiance International Pty Ltd.  In 2020, Mr. Bhojani pleaded guilty and was convicted and sentenced to two-and-a-half years of intensive correction in the community and 400 hours of community work.

In March and April 2015, NSW police charged two former executives of Commonwealth Bank of Australia (CBA) with receiving bribes in return for the grant of IT contracts to a US company, ServiceMesh.  The charges resulted from the bank reporting anomalies it had uncovered to the police.  These charges were brought under domestic anti-bribery laws.  One of the former executives, who pleaded guilty, was sentenced in late 2016 to three-and-a-half years’ jail.  The other has pleaded not guilty.

In March 2019, the former chief of staff at National Australia Bank (NAB), Ms. Rosemary Rogers, was charged in NSW with one count of dishonestly obtaining advantage by deception and 56 counts of an agent corruptly receiving benefits under domestic anti-bribery laws.  The charges relate to a scheme by which the executive allegedly approved inflated invoices issued by an events company to the bank, in return for personal travel, cash and other benefits totalling AU$5.4 million.  The head of the events company, Ms. Helen Rosamond, has also been charged.  The bank has commenced civil proceedings against Ms. Rosamond and her events company in an attempt to recover its losses.  In February 2020, Ms. Rogers pleaded guilty to an amended list of 38 charges, including dishonestly obtaining a financial benefit by deception.  Ms. Rogers is now awaiting sentencing, while Ms. Rosamund has pleaded not guilty to over 70 fraud and corruption charges.  Her trial is set to go ahead in July 2021.

Disgraced former NSW government minister, Mr. Eddie Obeid, who was found guilty of misconduct in public office in 2016 in relation to his family’s business interests in café leases in Sydney’s Circular Quay, has also been charged, along with his son and another former minister, Mr. Ian MacDonald, with conspiracy to commit misconduct in public office over their alleged involvement in the issuance of a coal mining exploration licence.  Each has entered a not-guilty plea and the trial is currently in progress.

In September 2019, the NSW DPP dropped corruption charges against the former Australian CEO of fleet management company Orix, and a former fellow executive, after disclosure issues emerged during the trial.  The individuals had been accused of making corrupt payments totalling almost AU$1 million to a former fleet manager of Coca-Cola Amatil in exchange for vehicle leasing contracts.  That former fleet manager was convicted of corruption charges in 2017 after pleading guilty, and jailed for a minimum of four years.  One other individual was also convicted of corruption charges after pleading guilty, and served a home prison sentence.  In December 2018, Mr. Peter Gregg, the former CFO of Leighton Holdings, was found guilty of two counts of contravening section 1307 of the Corporations Act by engaging in conduct that resulted in the falsification of Leighton Holdings’ books.  The case centred on two payments totalling US$15 million made in 2011 to the United Arab Emirates’ Asian Global Projects and Trading FZE, and a backdated agreement to buy and sell steel, executed by Mr. Gregg on behalf of Leighton Holdings.  The Crown alleged that the agreement was not genuine, and was only signed in order to legitimise the payments in question.  Mr. Gregg was sentenced to a total effective sentence of two years’ imprisonment, to be served by way of an intensive correction order.  However on 30 September 2020, the Court of Criminal Appeal quashed Mr. Gregg’s conviction and entered a verdict of acquittal on each count, finding that the verdicts against him were unreasonable and that there had been a miscarriage of justice.

In July 2020, Mr. Dennis Teen, a Melbourne property developer, was charged with bribing a Malaysian foreign public official and four counts of false accounting relating to the sale in 2013 of a newly-developed student hostel to a Malaysian government-owned entity.  It is alleged that the sale occurred at an inflated price and that about AU$4.75 million was paid to Malaysian foreign officials.  The AFP has also restrained about AU$1.6 million of assets held by Mr. Teen, his wife and associated entities in connection with the matter.

Current investigations

It is difficult to obtain reliable data in relation to the number of bribery and corruption investigations currently under way in Australia.  However, in December 2019, the OECD’s Phase 4 Two-Year Follow-Up Report on Australia (discussed further below) recorded that the AFP had eight foreign bribery cases under investigation (compared to 19 as at December 2017).

The AFP does not generally publish details of its ongoing investigations.  However, aspects of some investigations are the subject of media reports from time to time.  For example, it has been reported that the AFP is investigating the mining company Getax, and its director Mr. Amit Gupta, in relation to allegations of conspiracy to bribe a number of high-ranking politicians in Nauru in order to gain control of the country’s phosphate resources.  It has also been reported that in February 2020, in connection with this investigation, the Attorney-General of Australia requested that US authorities obtain court orders to prevent Gupta family members from selling a US$3.67 million apartment in New York.

In August 2019, the NSW ICAC commenced a public inquiry into whether, from January 2015, NSW Labor party officials, members of Chinese Friends of Labor, political donors and others entered into a scheme to circumvent prohibitions or requirements under Part 6 of the Election Funding, Expenditure and Disclosures Act 1981 (NSW) relating to political donations.  This includes investigating allegations that a billionaire property developer, Mr. Huang Xiangmo, made a AU$100,000 cash donation to the NSW Labor Party and that party officials sought to mask the origins of the money using “straw donors”.  It is illegal in NSW for property developers to make donations to political parties.

In September 2020, the NSW ICAC commenced a public inquiry into whether, from 2012 to August 2018, the then NSW Member of Parliament for Wagga Wagga, Mr. Daryl Maguire, engaged in conduct that involved a breach of public trust by using his public office and parliamentary resources to improperly gain a benefit for himself and/or entities close to him.  This inquiry, which is ongoing, followed an earlier inquiry during which the ICAC heard secret recordings of telephone conversations in which Mr. Maguire allegedly admitted trying to earn commission payments by setting property developers up with Chinese investors.

Current trends of enforcement action

Despite a growing number of successful prosecutions, Australia is still in the early stages of enforcing anti-bribery laws in relation to foreign public officials.  However, significant progress has been made in the level of enforcement action in recent years.  The catalyst for that progress was the Phase 3 Report on Implementing the OECD Anti-Bribery Convention in Australia, issued by the OECD Working Group on Bribery in late 2012 (OECD Phase 3 Report).  The OECD Phase 3 Report noted that a substantial proportion of Australia’s international economic activity is exposed to foreign bribery risks, particularly in the mining & resources and agriculture sectors.  It criticised Australian enforcement efforts and was particularly scathing about the failure of the AFP to resource, prioritise and pursue foreign bribery investigations.

The AFP and the Australian government responded to the OECD Phase 3 Report with a number of initiatives.  These included: entry by the AFP into a Memorandum of Understanding with ASIC in respect of collaborative working arrangements and the sharing of information; the establishment by the AFP of dedicated Fraud and Anti-Corruption (FAC) teams in five capital cities; and the establishment of a FAC Centre to improve coordination amongst agencies, to develop standards and procedures for fraud and anti-corruption investigation and to provide training to investigators.

The OECD Working Group published its Phase 4 Report for Australia in December 2017.[xiii]  That report found that Australia’s enforcement of laws on foreign bribery had increased markedly since the Phase 3 Report.  It noted that seven offenders had been convicted of foreign bribery offences, and that Australia had taken substantial steps to improve its framework for detecting and investigating foreign bribery cases, including the creation of the FAC Centre.  It provided recommendations designed to further help Australia strengthen foreign bribery enforcement, including:

  • enhancing whistleblower protections in the private sector (which, as discussed above, has since occurred);
  • proactively pursuing criminal charges against companies for foreign bribery and related offences; and
  • encouraging companies to develop and adopt adequate internal controls and compliance programmes.

In its two-year follow-up report on the Phase 4 report, the OECD Working Group commended Australia for its full and partial implementation of a number of recommendations from its Phase 4 report, including establishing enhanced protections for private sector whistleblowers, increasing the AFP’s budget for foreign bribery investigations, and adopting measures to improve the detection of foreign bribery through its money laundering system.[xiv]  However, the Working Group noted that not all of its earlier recommendations had yet been implemented, and expressed concern about the low level of foreign bribery enforcement in Australia given the size of its economy and the high-risk regions and sectors in which its companies operate.  It regarded Australia’s low level of cases against corporate entities, in particular, to be “very concerning” and hoped that Australia would address its longstanding challenges in attributing wrongdoing to corporate entities.

The enforcement environment in Australia has also intensified in the wake of the Royal Commission into Misconduct in the Banking, Superannuation and Financial Services Industry (Royal Commission).  The final report of Commissioner Hayne was provided to the Governor-General on 1 February 2019.

The Royal Commission highlighted multiple instances of serious malpractice by Australian banks and other financial services providers, and the Commissioner’s report included 76 recommendations for reform.  The Commissioner was, amongst other things, very critical of ASIC for failing to take tougher action against companies and individuals.  In the aftermath of the Royal Commission, ASIC announced a new enforcement approach, by which ASIC will actively ask itself “Why not litigate?”, and established a new “Office of Enforcement” in July 2019 to lead its enforcement function.  This new strategic approach, coupled with a significant boost in government funding and increased penalties and powers, has led to an uplift in the number of civil and criminal enforcement actions by ASIC in the past year, and it is expected that it will continue to do so.  In a recent enforcement update, ASIC noted that between January 2019 and January 2020, there had been a 10% increase in the number of ASIC enforcement investigations generally, and a 52% increase in enforcement investigations involving Australia’s pre-eminent financial services companies, CBA, NAB, Westpac, ANZ and AMP (or their officers or subsidiary employees).[xv]  In the year ahead, referrals from the Royal Commission remain one of ASIC’s strategic priorities.

In the foreign bribery space, we have seen a trend, in the last few years, of ASIC taking a more active interest in potential Corporations Act contraventions by directors or officers.  We expect that trend to continue.

Facilitation payments

The Criminal Code excludes criminal liability for facilitation payments.  However, individuals and corporates alike need to be aware that they will only be able to rely upon the defence if the value of the benefit is of a minor nature, made for the sole or dominant purpose of expediting or securing the performance of a routine government action of a minor nature, and specific details of the payment are properly recorded as soon as is reasonably practicable.  Determining whether a particular payment satisfies these strict requirements can often be difficult.

Although the OECD Convention does not require countries to criminalise the use of facilitation payments, there has been a gradual shift in mood, and such payments are no longer widely considered acceptable.  A growing number of Australian companies with international operations now prohibit, as a matter of company policy, facilitation payments.

Somewhat controversially, the Crimes Bill does not propose the abolition of the “facilitation payments” defence, even though the Senate Economic References Committee report on Foreign Bribery (2018) recommended, by majority, that the defence be abolished over a transition period.

Hospitality

Australian legislation does not expressly explain the circumstances under which providing gifts and hospitality may amount to bribery.  As the law currently stands, the giving of such benefits will only be unlawful if done with the intention of influencing a public official.  There is little in the way of guidance on this area from Australian regulators.  The principal guidance for Commonwealth public officials is under the Public Service Act 1999 (Cth), which has a series of relevant standards set out in the Australian Public Service Code of Conduct, and the Australian Public Service Values, under the umbrella of the Australian Public Service Commission Guide to its Integrated Leadership System.  The Department of Foreign Affairs and Trade has its own Code of Conduct for Overseas Service.  State and Territory governments also have their own public services with their own codes of conduct, which may be supplemented by agency-specific codes.

In certain business transactions, providing a level of hospitality to prospective clients may be required.  Vigilance is recommended in this area to ensure compliance with anti-bribery laws, particularly when engaging with public officials.  Some issues to consider in determining whether hospitality is appropriate are: whether the company providing it has a clear policy on gifts and hospitality and whether that policy is being complied with; whether the expenditure is reasonable and is accurately recorded; and whether the hospitality might reasonably be suspected of influencing the recipient’s decision-making processes.

The BHP Billiton case is a timely reminder of the particular risks associated with the provision of hospitality to public officials.  In 2015, BHP Billiton agreed to pay to the SEC a US$25 million penalty to settle SEC charges that it violated the FCPA by failing to devise and maintain sufficient internal controls over its global hospitality programme connected to the company’s sponsorship of the 2008 Summer Olympic Games in Beijing.

Self-reporting

In Australia, self-reporting of foreign bribery to the AFP is encouraged but is not mandated by any legislative or formal framework.  At the time the OECD Phase 4 Report was published, at least eight companies had self-reported evidence of bribery committed by persons related to them.  In each case, the AFP proceeded to investigate.

The AFP has indicated that it expects to see more self-reporting by companies; however, this has not been matched by legislative amendments or clear prosecution guidelines.  While there are few, if any, formal incentives from a criminal law perspective, a potential benefit to self-reporting is that the AFP may be more inclined to work with the corporation in question, and keep it better informed during the investigation process.  There may also be leniency at the prosecution stage, although a number of other factors would also be considered in accordance with the Prosecution Policy of the Commonwealth.  While the AFP has attempted to address some of this uncertainty through the publication of a Best Practice Guideline for self-reporting of foreign bribery and related offending by corporations,[xvi] it is the proposed introduction of a deferred prosecution agreement scheme (see below) that will likely be the “game-changer” in terms of encouraging self-reporting.

Plea bargaining

A plea bargain can take two forms, the first being an agreement between the prosecution and the defence that the defendant agree to plead guilty to a particular charge in return for more serious charges being dropped.  This type of plea bargain is allowed in Australia and, in certain circumstances, the DPP may be able to provide a defendant with testimonial or prosecutorial immunity.  In addition to agreeing to drop certain charges in return for a guilty plea, the DPP may agree to proceed with a charge summarily rather than on indictment, or agree not to oppose a defence.

The Prosecution Policy of the Commonwealth provides guidance on negotiations between the prosecution and the defence about charges to be prosecuted.  Charge negotiations are specifically encouraged and can occur at any stage of a prosecution, and at the DPP’s initiation.  This practice will meet the requirements of justice as long as the charges to be continued bear a reasonable relationship to the nature of the defendant’s criminal conduct, provide an adequate basis for the imposition of an appropriate sentence, and are supported by evidence.

The second form involves a defendant pleading guilty to a charge in return for a lesser sentence being imposed by a court.  This form of plea bargaining has been precluded by the High Court in Barbaro v the Queen (2014) 253 CLR 58 for criminal proceedings, which holds that prosecutors are not required and should not be permitted to proffer even a sentencing regime to a judge.  In Commonwealth v Director, Fair Work Building Industry Inspectorate and Others (2015) 258 CLR 482, the High Court held that this principle did not apply in civil penalty proceedings (which will include many proceedings brought under the Corporations Act – see above – but not proceedings under the Criminal Code).

The Crimes Bill will, if passed, introduce a deferred prosecution scheme in Australia.  It will have the following features:

  • Deferred Prosecution Agreements (DPAs) would be available only to companies (and not individuals) for certain specified crimes which are regarded as “serious corporate crime”.  These would include foreign bribery, false accounting and insider trading;
  • there would be certain mandatory terms of a DPA, including a statement of facts relating to each offence specified in the DPA, the requirements to be fulfilled by the person under the DPA, the amount of financial penalty to be paid by the person, and the circumstances which constitute a material contravention of the DPA; and
  • after the proposed terms of any DPA are agreed between the person and the Director, it will need to be referred to an “approving officer” – who must be a retired judicial officer with sufficient knowledge and experience – who would determine whether the terms are in the interests of justice and are fair, reasonable and proportionate (in which case, the DPA must be approved).  In referring the DPA for approval, the Director must provide a written statement to the effect that he or she is satisfied that there are reasonable grounds to believe that an offence specified in the DPA has been committed, and that entering into the DPA is in the public interest.

The Australian Law Reform Commission (an independent federal government agency that provides recommendations for law reform to government) (ALRC), in its Final Report on Corporate Criminal Attribution, dated April 2020, recommended that the Crimes Bill be amended to require that the terms of any DPA be subject to approval by a (current) judge of the Federal Court of Australia, and that reasons for the approval of the DPA be published in open court (following receipt of oral submissions from the parties).  The ALRC considered that these amendments would enhance the integrity of DPAs and uphold public trust in them.  The government is still considering this recommendation.

Civil versus criminal prosecution

Foreign and domestic public sector bribery offences at the Commonwealth level are prosecuted in Australia under provisions of the Criminal Code.  At the State and Territory levels, public and private sector bribery are also prosecuted criminally.  There are only some circumstances in which acts of bribery may also give rise to civil claims.  Civil penalty proceedings under the Corporations Act (which are brought by ASIC) for breaching directors’ duties are an example.

Examples of cases in which ASIC has pursued directors or officers for breach of section 180 of the Corporations Act (for failing to exercise due care, skill and diligence) include ASIC v Ingleby [2013] VSCA 49, ASIC v Lindberg [2012] VSC 332 and ASIC v Flugge [2016] VSC 779.  Those cases all arose out of the rorting by AWB Ltd, an Australian wheat exporter, of the UN’s Oil-for-Food Programme in Iraq.  These cases highlight the need for directors and officers to ensure that proper systems are in place to combat bribery and corruption within their organisations, the importance of not ignoring “red flags”, and the need to ensure that the Board is appropriately informed of relevant matters.

Parallel investigations

As the drive to enforce the anti-bribery regime gathers momentum and the regime itself becomes more sophisticated, Australian agencies are increasingly using parallel investigations and collaborating with overseas agencies, both generally and in relation to specific cross-border investigations.

An International Foreign Bribery Taskforce (IFBT) was established in May 2013 as a platform for specialist investigators from Australia, the United States, Canada and the United Kingdom to work together to combat foreign bribery.  The IFBT facilitates collaboration and cooperation between experts from the AFP, the Federal Bureau of Investigation, the Royal Canadian Mounted Police and the City of London Police Overseas Anti-Corruption Unit.  The IFBT aims to enhance the response of these like-minded countries to foreign bribery by encouraging experts to share knowledge, skills and methodologies.

Australia is also an active member of the G20 Anti-Corruption Working Group, which aims to enhance the prevention of corruption-related activities.  In 2018, the G20 published its Anti-Corruption Action Plan for 2019–2021, which included a strengthened commitment to work together to prevent, investigate and take enforcement action against corruption.

Another multilateral anti-corruption forum to which Australia contributes is the Asia-Pacific Economic Cooperation (APEC) Anti-Corruption and Transparency Experts Taskforce.  Australia was a key participant in developing the APEC Code of Conduct for Business and has since worked with Chile, Thailand and Vietnam to implement it.  For the purpose of disturbing the financing of corrupt activities, Australia has also collaborated with other APEC members to promote the use of anti-money laundering systems, and hosted several international conferences on this topic.

Overseas impacts

Australia’s geographic location and footprint in certain high-risk economic activities expose it to impacts from overseas laws concerning bribery and corruption, as set out above.  In addition to the mining & resources and agriculture sectors, another area of risk is the construction sector, especially in the Asian markets (and in particular, China) to which Australian companies are increasingly turning, given the investment opportunities.

Overseas impacts are also felt in Australia, due to the increasingly international nature of business.  An example is provided by the differences in anti-bribery laws in Australia and the United Kingdom.  While in Australia, facilitation payments are allowed and there is (for the moment at least) no strict liability bribery offence for corporations, the opposite is true in the United Kingdom.  Australian-based companies doing business in the United Kingdom must be aware of the need to comply with the strict anti-bribery regime in place there, and may be required to implement company-wide procedures and policies to ensure compliance.

Corporate liability may arise under foreign laws even where there is no obvious jurisdictional nexus.  It is increasingly common for international business partners to demand that their Australian counterparts comply with foreign laws.  International business contracts may require that Australian companies warrant their compliance with foreign anti-corruption laws or provide annual certificates of compliance with them.

Section 70.2(1) of the Criminal Code creates the offence of providing, offering or promising to provide a benefit not legitimately due to another person, with the intention of influencing the exercise of a foreign public official’s duties to obtain business or a business advantage.  This offence captures the conduct of individuals and corporations alike; however, to establish the criminal liability of a corporation, the Criminal Code requires that both the physical and mental (or “fault”) elements can be attributed to the corporation.

The physical element of the offence under section 70.2(1) is attributed to a corporation if the conduct was committed by an employee, agent or officer of the body corporate acting within the actual or apparent scope of that person’s employment or authority.[xvii]  The key fault element, being the requirement of intention under section 70.2(1), is satisfied if the corporation “expressly, tacitly or impliedly authorised or permitted the commission of the offence”.[xviii]  Authorisation or permission can be established in several ways under Part 2.5 of the Criminal Code, including by proving that:

  • the corporation’s board of directors or a “high managerial agent”[xix] (a senior officer) carried out the conduct, or authorised or permitted the commission of the offence;
  • the corporation had a corporate culture that directed, encouraged, tolerated or led to non-compliance with the legislative provisions; or
  • the corporation failed to create and maintain a corporate culture requiring compliance with the relevant anti-bribery laws.

A similar analysis applies in respect of the false accounting provisions in the Criminal Code.

The scope of corporate liability provisions in the Criminal Code is potentially broad, although the provisions are often complex to apply in practice.  The provisions relating to corporate culture direct attention to the adequacy of a corporation’s anti-bribery compliance programme.

As is discussed above, the proposed amendments to the Criminal Code would see the introduction into Australia of an even broader corporate offence of failure to prevent bribery closely modelled on section 7 of the UK Bribery Act 2010.

Such an offence would have the effect that a body corporate would be liable for the offence of failing to prevent bribery of a foreign public official if an associate (including employees, contractors, agents and subsidiaries) commits an offence against section 70.2 (or engages in conduct outside Australia that, if engaged in in Australia, would constitute an offence against section 70.2), and the associate does so for the profit or gain of the body corporate.  The offence will be an offence of strict liability; however, it will be a defence if the body corporate can prove that it had in place adequate procedures, designed to prevent the commission of an offence against section 70.2.

The Crimes Bill includes a provision which would require the minister to publish guidance on the steps that a body corporate could take to prevent an associate from bribing foreign public officials,  A draft of such guidance was issued by the Attorney-General’s Department in November 2019 for comment.  However, the legislation will not prescribe what constitutes “adequate procedures” – that task will be left to the courts to determine on a case-by-case basis.

The ALRC’s Final Report on Corporate Criminal Responsibility (April 2020) comprehensively reviewed Australia’s corporate criminal responsibility regime.  It made a number of recommendations, including standardising attribution of criminal responsibility to corporations and amending Part 2.5 of the Criminal Code to make it simpler and arguably more prosecutorially friendly, but still allowing corporations to avoid liability by demonstrating that they took reasonable precautions to prevent misconduct.  The ALRC also recommended that the government develop a national debarment regime for criminally convicted corporations.  The government is still considering, and has not yet responded to, the recommendations made by the ALRC.

If passed, the Crimes Bill will see three significant reforms relevant to bribery and corruption, namely:

  • reforms to the foreign bribery provisions in the Criminal Code, aimed at making enforcement of those offences easier;
  • the introduction of the corporate offence of failure to prevent foreign bribery; and
  • the introduction of a deferred prosecution scheme.

We may also finally see the establishment of a federal anti-corruption body, together with potentially significant reform to Australia’s corporate criminal responsibility regime.

Collectively, these reform proposals represent a recognition and continuation of the government’s response to the criticisms of Australia’s anti-corruption efforts.

 

[i] Crimes Act 1900 (NSW), s 249B; Crimes Act 1958 (Vic), s 176; Criminal Law Consolidation Act 1935 (SA), s 150; Criminal Code Act 1899 (Qld), ss 442B–442BA; The Criminal Code (WA), ss 529–530; Criminal Code Act 1924 (Tas), s 266; Criminal Code 2002 (ACT), ss 356–357; and Criminal Code Act 1983 (NT), s 236.

[ii] Part 7.6 of the Criminal Code Act 1995 (Cth).

[iii] Proving an offence under s 70.2(1) of the Criminal Code requires proof of the physical elements and the fault elements of the offence.  In the case of the key fault element, intention to influence may be proved by showing that the person in question “means to bring [the result] about or is aware that it will occur in the ordinary course of events”: Criminal Code, s 5.2.

[iv] Criminal Code, s 70.5.

[v]  (Hyperlink) See also the Committee’s earlier report dated 20 April 2018 on the predecessor 2017 bill (Hyperlink) and the report of the Senate Economics References Committee on “Foreign bribery” dated March 2018 (Hyperlink)

[vi] Criminal Code, s 70.3.

[vii] Criminal Code, s 70.4.

[viii] Various State and Territory legislation criminalises public sector bribery: Crimes Act 1900 (NSW), s 249B; Crimes Act 1958 (Vic), s 176; Criminal Law Consolidation Act 1935 (SA), s 150; Criminal Code Act 1899 (Qld), ss 442B–442BA; The Criminal Code (WA), ss 529–530; Criminal Code Act 1924 (Tas), s 266; Criminal Code 2002 (ACT), ss 356–357; and Criminal Code Act 1983 (NT), s 236.

[ix] Crimes Act 1900 (NSW), Part 4A; Crimes Act 1958 (Vic), s 176; Criminal Code 1899 (Qld), ss 60 and 98C; Criminal Law Consolidation Act 1935 (SA), ss 149–150; Criminal Code Act 1942 (Tas), s 72; Criminal Code Compilation Act 1913 (WA), s 61; Criminal Code 2002 (ACT), s 356; and Criminal Code Act 1983 (NT), ss 59–60 and 77–88.

[x] Maximum periods of imprisonment provided for by the various pieces of State and Territory legislation are: seven years under the Crimes Act 1900 (NSW), s 249B; 10 years under the Crimes Act 1958 (Vic), s 176; seven years under the Criminal Law Consolidation Act 1935 (SA), s 150; seven years under the Criminal Code Act 1899 (Qld), s 442I; seven years under The Criminal Code (WA), s 538; 21 years under the Criminal Code Act 1924 (Tas), s 389(3); 10 years under the Criminal Code 2002 (ACT), s 356; and three years under the Criminal Code Act 1983 (NT), s 236.

[xi] Criminal Code, s 490.1 and 490.2.

[xii] Other bodies include: the Independent Broad-based Anti-Corruption Commission in Victoria; the Crime and Corruption Commission in Queensland; and the Corruption and Crime Commission in Western Australia.

[xvii] Criminal Code Act 1995 (Cth), s 12.2.

[xviii] Criminal Code Act 1995 (Cth), s 12.3.

[xix] Subject to a due diligence defence: Criminal Code, s 12.3(3).

Источник: https://www.globallegalinsights.com/practice-areas/bribery-and-corruption-laws-and-regulations/australia

Tasmanian tax agent James Burrows accused of stealing in excess of a million dollars from clients

A 35-year-old tax agent has been charged with more than 40 fraud offences, after allegedly stealing in excess of a million dollars from his clients.

Key points:

  • Police laid the larges following an 18-month investigation, sparked by social media
  • It's alleged James Burrows misappropriated tax returns and falsified business activity statements
  • Police say there could be up to 50 victims

Tasmania Police arrested and charged James Burrows after an 18-month long joint investigation with the Australian Tax Office (ATO) that was sparked by complaints on social media.

The Launceston man was charged with 25 counts of obtaining financial advantage by deception and 16 counts of stealing by misappropriation.

Detective Inspector Kim Steven said while the investigation was still underway, they believe there could be up to 50 victims.

"A number of people made a number of accusations and allegations through social media that eventually made their way to us and started the investigation," he said.

"We've certainty interviewed and spoken to a large number of people including employees."

Police said Mr Burrows misappropriated individual tax returns and falsified business activity statements for his financial benefit from September 2017 until March 2020.

The alleged offending breached both state and Commonwealth legislation.

Inspector Steven said both businesses and individuals had fallen victim to the alleged fraudulent activity.

"You like to think your money is safe when you're dealing with tax agents or accountants but unfortunately for a myriad of reasons, the human factor sometimes comes in and that's why we're still in the job unfortunately," he said.

"This doesn't happen every day. People should have faith in the tax system."

The Tax Practitioners Board terminated Mr Burrows' registration as a tax agent in 2019, following its own investigation.

In a statement, ATO Assistant Commissioner Ian Read said they are providing support to clients of Mr Burrows.

"The majority of tax agents are trusted advisors who support the integrity of the tax system and their clients," Mr Read said.

"However, when we identify tax agents who appear to be breaching the trust placed in them and defrauding their clients and the system, we take it seriously.

Mr Burrows has been bailed to appear in the Launceston Magistrates Court on the 26th of May.

Источник: https://www.abc.net.au/news/2021-03-12/tax-accountant-charged-over-alleged-theft-from-clients/13242728

Elder Abuse and Elder Financial Exploitation Statutes

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Citation Statute
Civil Financial Exploitation
10 G.C.A. § 21002. Definitions.

Title 10. Health and Safety.
Chapter 2. Division of Public Welfare.
Article 10. Adult Protective Services

(l) Financial or Property Exploitation means illegal or improper use of an elderly or adult with a disability's money, property, or other resources for monetary or personal benefit, profit or gain. This includes, but is not limited to, theft, misappropriation, concealment, misuse or fraudulent deprivation of money or property belonging to the elderly or adult with a disability.



(b) Adult with a Disability is any person eighteen (18) years or older who:
(1) has a physical or mental impairment which substantially limits one (1) or more major life activities; or
(2) has a history of, or has been classified as having, an impairment which substantially limits one (1) or more major life activities.

(h) Elderly refers to a person age sixty (60) years or older.

Civil Financial Exploitation
22 M.R.S. § 3472 (2020)

TITLE 22.  HEALTH AND WELFARE 
SUBTITLE 3.  INCOME SUPPLEMENTATION 
PART 2.  AGED, BLIND, DISABLED OR MEDICALLY INDIGENT PERSONS 
CHAPTER 958-A.  ADULT PROTECTIVE SERVICES ACT 
SUBCHAPTER 1.  GENERAL PROVISIONS
§ 3472.  Definitions

9. Exploitation. “Exploitation” means the illegal or improper use of an incapacitated or dependent adult or that adult's resources for another's profit or advantage.



2. Adult. “Adult” means any person who has attained 18 years of age or who is a legally emancipated minor.

6. Dependent adult. “Dependent adult” means an adult who has a physical or mental condition that substantially impairs the adult's ability to adequately provide for that adult's daily needs. “Dependent adult” includes, but is not limited to, any of the following:
A. A resident of a nursing home licensed or required to be licensed under section 1817;
B. A resident of a facility providing assisted living services licensed or required to be licensed pursuant to section 7801;
C. A person considered a dependent person under Title 17–A, section 555; or
D. A person, regardless of where that person resides, who is wholly or partially dependent upon one or more other persons for care or support, either emotional or physical, because the person suffers from a significant limitation in mobility, vision, hearing or emotional or mental functioning.

10. Incapacitated adult. “Incapacitated adult” means an adult who is unable to receive and evaluate information or make or communicate informed decisions to such an extent that the adult lacks the ability to meet essential requirements for physical health, safety or self-care, even with reasonably available appropriate technological assistance.

Civil Financial Exploitation
31 Del. C. § 3902(12) & (24) (2020)

TITLE 31.  WELFARE 
PART II.  WELFARE AGENCIES 
CHAPTER 39.  ADULT PROTECTIVE SERVICES
§ 3902. Definitions.

As used in this chapter:

(11) “Exploitation” means an act of forcing, compelling, or exerting undue influence over a vulnerable adult causing the vulnerable adult to act in a way that is inconsistent with relevant past behavior, or causing the vulnerable adult to perform services for the benefit of another.
(12) “Financial exploitation” means the illegal or improper use, control over, or withholding of the property, income, resources, or trust funds of the elderly person or the vulnerable adult by any person or entity for any person's or entity's profit or advantage other than for the elder person or the vulnerable adult's profit or advantage. “Financial exploitation” includes, but is not limited to:
a. The use of deception, intimidation, or undue influence by a person or entity in a position of trust and confidence with an elderly person or a vulnerable adult to obtain or use the property, income, resources, or trust funds of the elderly person or the vulnerable adult for the benefit of a person or entity other than the elderly person or the vulnerable adult;
b. The breach of a fiduciary duty, including, but not limited to, the misuse of a power of attorney, trust, or a guardianship appointment, that results in the unauthorized appropriation, sale, or transfer of the property, income, resources, or trust funds of the elderly person or the vulnerable adult for the benefit of a person or entity other than the elderly person or the vulnerable adult; and
c. Obtaining or using an elderly person or a vulnerable adult's property, income, resources, or trust funds without lawful authority, by a person or entity who knows or clearly should know that the elderly person or the vulnerable adult lacks the capacity to consent to the release or use of his or her property, income, resources, or trust funds.



(24) "Vulnerable adult" means an adult who meets the criteria set forth in § 1105c of Title 11.

Civil Financial Exploitation
320 ILCS 20/2(f-1) & (e) (2020)

CHAPTER 320.  AGING 
AN ACT IN RELATION TO ADULT PROTECTIVE SERVICES
§ 320 ILCS 20/2.  Definitions.

(f-1) “Financial exploitation” means the use of an eligible adult's resources by another to the disadvantage of that adult or the profit or advantage of a person other than that adult.



(e) “Eligible adult” means either an adult with disabilities aged 18 through 59 or a person aged 60 or older who resides in a domestic living situation and is, or is alleged to be, abused, neglected, or financially exploited by another individual or who neglects himself or herself. “Eligible adult” also includes an adult who resides in any of the facilities that are excluded from the definition of “domestic living situation” under paragraphs (1) through (9) of subsection (d), if either: (i) the alleged abuse or neglect occurs outside of the facility and not under facility supervision and the alleged abuser is a family member, caregiver, or another person who has a continuing relationship with the adult; or (ii) the alleged financial exploitation is perpetrated by a family member, caregiver, or another person who has a continuing relationship with the adult, but who is not an employee of the facility where the adult resides.

Civil Financial Exploitation
33 V.S.A. § 6902 (2020)

TITLE THIRTY-THREE.  HUMAN SERVICES 
PART 5.  PROGRAMS AND SERVICES FOR VULNERABLE ADULTS 
CHAPTER 69.  REPORTS OF ABUSE, NEGLECT, AND EXPLOITATION OF VULNERABLE ADULTS 
SUBCHAPTER 1.  REPORTS OF ABUSE OF VULNERABLE ADULTS
§ 6902. Definitions

(6) “Exploitation” means:
(A) willfully using, withholding, transferring, or disposing of funds or property of a vulnerable adult without or in excess of legal authority for the wrongful profit or advantage of another;
(B) acquiring possession or control of or an interest in funds or property of a vulnerable adult through the use of undue influence, harassment, duress, or fraud;
(C) the act of forcing or compelling a vulnerable adult against his or her will to perform services for the profit or advantage of another;
(D) any sexual activity with a vulnerable adult when the vulnerable adult does not consent or when the actor knows or should know that the vulnerable adult is incapable of resisting or declining consent to the sexual activity due to age or disability or due to fear of retribution or hardship, whether or not the actor has actual knowledge of vulnerable status.



(14) “Vulnerable adult” means any person 18 years of age or older who:
(A) is a resident of a facility required to be licensed under chapter 71 of this title;
(B) is a resident of a psychiatric hospital or a psychiatric unit of a hospital;
(C) has been receiving personal care services for more than one month from a home health agency certified by the Vermont Department of Health or from a person or organization that offers, provides, or arranges for personal care; or
(D) regardless of residence or whether any type of service is received, is impaired due to brain damage, infirmities of aging, mental condition, or physical, psychiatric, or developmental disability:
(i) that results in some impairment of the individual's ability to provide for his or her own care without assistance, including the provision of food, shelter, clothing, health care, supervision, or management of finances; or
(ii) because of the disability or infirmity, the individual has an impaired ability to protect himself or herself from abuse, neglect, or exploitation.

Civil Financial Exploitation
34 V.I.C. § 452. Definitions (2020)

Title 34. Welfare.
Chapter 15. The Elder and Dependent Adult Abuse Prevention Act(c) ‘Abuse of an elder or dependent adult‘ means any of the following:

(1) Physical, emotional or financial abuse, neglect, abandonment, isolation, abduction, or other treatment resulting in physical or emotional injury, maltreatment, sexual conduct with an elder or dependent adult, or exploitation of an elder or dependent adult by any person; or
(2) The deprivation by a care custodian of goods or services that are necessary to avoid physical or emotional injury; or
(3) Use of a physical or chemical restraint or psychotropic medication under any of the following conditions:
(A) For punishment;
(B) For a period beyond that for which the medication was ordered pursuant to the instructions of a physician or surgeon licensed in the Virgin Islands, who is providing medical care to the elder or dependent adult at the time the instructions are given; or
(C) For any purpose not authorized by a physician or surgeon.



(j) ‘Dependent adult‘ means any person between the ages of 18 to 59 who has physical or mental limitations that restrict the person's ability to carry out normal activities or to protect a persons' rights.

Civil Financial Exploitation
35 P.S. § 10225.103 (2020)

PENNSYLVANIA STATUTES  
TITLE 35.  HEALTH AND SAFETY 
CHAPTER 58.  OLDER ADULTS PROTECTIVE SERVICES ACT 
CHAPTER 1.  PRELIMINARY PROVISIONS
35 P.S. § 10225.103 (2013)
§ 10225.103.  Definitions

“Exploitation.” An act or course of conduct by a caretaker or other person against an older adult or an older adult's resources, without the informed consent of the older adult or with consent obtained through misrepresentation, coercion or threats of force, that results in monetary, personal or other benefit, gain or profit for the perpetrator or monetary or personal loss to the older adult.



“Older adult.” A person within the jurisdiction of the Commonwealth who is 60 years of age or older.

Civil Financial Exploitation
52-3-803, MCA (2020)

TITLE 52.  FAMILY SERVICES 
CHAPTER 3.  ADULT SERVICES 
PART 8.  MONTANA ELDER AND PERSONS WITH DEVELOPMENTAL DISABILITIES ABUSE PREVENTION ACT
52-3-803.  Definitions.

(3) “Exploitation” means:
(a) the unreasonable use of an older person or a person with a developmental disability or of a power of attorney, conservatorship, or guardianship with regard to an older person or a person with a developmental disability in order to obtain control of or to divert to the advantage of another the ownership, use, benefit, or possession of or interest in the person's money, assets, or property by means of deception, duress, menace, fraud, undue influence, or intimidation with the intent or result of permanently depriving the older person or person with a developmental disability of the ownership, use, benefit, or possession of or interest in the person's money, assets, or property;
(b) an act taken by a person who has the trust and confidence of an older person or a person with a developmental disability to obtain control of or to divert to the advantage of another the ownership, use, benefit, or possession of or interest in the person's money, assets, or property by means of deception, duress, menace, fraud, undue influence, or intimidation with the intent or result of permanently depriving the older person or person with a developmental disability of the ownership, use, benefit, or possession of or interest in the person's money, assets, or property;
(c) the unreasonable use of an older person or a person with a developmental disability or of a power of attorney, conservatorship, or guardianship with regard to an older person or a person with a developmental disability done in the course of an offer or sale of insurance or securities in order to obtain control of or to divert to the advantage of another the ownership, use, benefit, or possession of the person's money, assets, or property by means of deception, duress, menace, fraud, undue influence, or intimidation with the intent or result of permanently depriving the older person or person with a developmental disability of the ownership, use, benefit, or possession of the person's money, assets, or property.



(8) “Older person” means a person who is at least 60 years of age.

(9) “Person with a developmental disability” means a person 18 years of age or older who has a developmental disability, as defined in 53-20-102.

Civil Financial Exploitation
8 L.P.R.A. § 342 Definitions (2020)

Title 8. Public Welfare and Charitable Institutions.
Chapter 18. Bill of Rights for Elderly Persons.

(k) Financial exploitation.- The improper use of an adult's funds, property or resources by another individual including, but not limited to, fraud, false pretenses, embezzlement, conspiracy, forgery, falsifying records, coercion, property transfers or denial of access to assets.



(a) Elderly person.- A person who is sixty (60) years of age or older.

Civil Financial Exploitation
Burns Ind. Code Ann. § 35-46-1-12 (2020)

Burns Ind. Code Ann. § 12-10-3-2  (2020)

Title 35  Criminal Law and Procedure 
Article 46  Miscellaneous Offenses 
Chapter 1  Offenses Against the Family

"financial exploitation" (b) A person who recklessly uses or exerts control over the personal services or the property of:
(1) an endangered adult; or
(2) a dependent;
for the person's own profit or advantage or for the profit or advantage of another person, but not for the profit or advantage of a person described in subdivision (1) or (2), commits exploitation of a dependent or an endangered adult, a Class A misdemeanor. However, the offense is a Level 6 felony if the person has a prior unrelated conviction under this section.
(c) A person in a position of trust who recklessly engages in self-dealing with the property of:
(1) an endangered adult; or
(2) a dependent;
commits exploitation of a dependent or an endangered adult, a Class A misdemeanor. However, the offense is a Level 6 felony if the person has a prior unrelated conviction under this section.



Title 12  Human Services 
Article 10  Aging Services 
Chapter 3  Adult Protective Services

Sec. 2. (a) Except as provided in subsection (b), as used in this chapter,
endangered adult” means an individual who is:
(1) at least eighteen (18) years of age;
(2) incapable by reason of mental illness, intellectual disability, dementia, habitual drunkenness, excessive use of drugs, or other physical or mental incapacity of managing or directing the management of the individual's property or providing or directing the provision of self-care; and
(3) harmed or threatened with harm as a result of:
(A) neglect;
(B) a battery offense included in IC 35-42-2; or
(C) exploitation of the individual's personal services or property.
(b) For purposes of IC 12-10-3-17, IC 35-42-2-1, IC 35-42-2-1.3, and IC 35-46-1-13, “endangered adult” means an individual who is:
(1) at least eighteen (18) years of age;
(2) incapable by reason of mental illness, intellectual disability, dementia, or other physical or mental incapacity of managing or directing the management of the individual's property or providing or directing the provision of self-care; and
(3) harmed or threatened with harm as a result of:
(A) neglect; or
(B) battery.

Civil Financial Exploitation
C.R.S. 26-3.1-101(4) & (1.5) (2020)

TITLE 26 Human Services Code

ARTICLE 3.1. PROTECTIVE SERVICES FOR ADULTS AT RISK OF MISTREATMENT OR SELF-NEGLECT 

PART 1. PROTECTIVE SERVICES FOR AT-RISK ADULTS
26-3.1-101. Definitions.

(4) “Exploitation” means an act or omission that:
(a) Uses deception, harassment, intimidation, or undue influence to permanently or temporarily deprive an at-risk adult of the use, benefit, or possession of any thing of value; or
(b) Employs the services of a third party for the profit or advantage of the person or another person to the detriment of the at-risk adult; or
(c) Forces, compels, coerces, or entices an at-risk adult to perform services for the profit or advantage of the person or another person against the will of the at-risk adult; or
(d) Misuses the property of an at-risk adult in a manner that adversely affects the at-risk adult's ability to receive health care or health care benefits or to pay bills for basic needs or obligations.



(1.5) “At-risk adult” means an individual eighteen years of age or older who is susceptible to mistreatment or self-neglect because the individual is unable to perform or obtain services necessary for his or her health, safety, or welfare, or lacks sufficient understanding or capacity to make or communicate responsible decisions concerning his or her person or affairs.

Civil Financial Exploitation
Cal Wel & Inst Code § 15610.30 &  § 15610.23 (2020)

WELFARE AND INSTITUTIONS CODE 
Division 9.  Public Social Services 
Part 3.  Aid and Medical Assistance 
Chapter 11.  Elder Abuse and Dependent Adult Civil Protection Act 
Article 2.  Definitions
§ 15610.30.  Financial abuse

(a) “Financial abuse” of an elder or dependent adult occurs when a person or entity does any of the following:
(1) Takes, secretes, appropriates, obtains, or retains real or personal property of an elder or dependent adult for a wrongful use or with intent to defraud, or both.
(2) Assists in taking, secreting, appropriating, obtaining, or retaining real or personal property of an elder or dependent adult for a wrongful use or with intent to defraud, or both.
(3) Takes, secretes, appropriates, obtains, or retains, or assists in taking, secreting, appropriating, obtaining, or retaining, real or personal property of an elder or dependent adult by undue influence, as defined in Section 15610.70.
(b) A person or entity shall be deemed to have taken, secreted, appropriated, obtained, or retained property for a wrongful use if, among other things, the person or entity takes, secretes, appropriates, obtains, or retains the property and the person or entity knew or should have known that this conduct is likely to be harmful to the elder or dependent adult.
(c) For purposes of this section, a person or entity takes, secretes, appropriates, obtains, or retains real or personal property when an elder or dependent adult is deprived of any property right, including by means of an agreement, donative transfer, or testamentary bequest, regardless of whether the property is held directly or by a representative of an elder or dependent adult.
(d) For purposes of this section, “representative” means a person or entity that is either of the following:
(1) A conservator, trustee, or other representative of the estate of an elder or dependent adult.
(2) An attorney-in-fact of an elder or dependent adult who acts within the authority of the power of attorney.



15610.23  (a) “Dependent adult” means a person, regardless of whether the person lives independently, between the ages of 18 and 64 years who resides in this state and who has physical or mental limitations that restrict his or her ability to carry out normal activities or to protect his or her rights, including, but not limited to, persons who have physical or developmental disabilities, or whose physical or mental abilities have diminished because of age.

(b) “Dependent adult” includes any person between the ages of 18 and 64 years who is admitted as an inpatient to a 24-hour health facility, as defined in Sections 1250, 1250.2, and 1250.3 of the Health and Safety Code.

Civil Financial Exploitation
Code of Ak. § 47-24-900(8) & (21) (2020)

TITLE 47 Welfare, Social Services, and Institutions

CHAPTER 24 Protection of Vulnerable Adults

§  47-24-900. Definitions.

In this chapter,

(8) “Exploitation

(A) means unjust or improper use of another person or another person's resources for one's own profit or advantage, with or without the person's consent; and
(B) includes acts by a person who stands in a position of trust or confidence with a vulnerable adult or who knows or should know that the vulnerable adult lacks the capacity to consent that involve obtaining profit or advantage through undue influence, deception, fraud, intimidation, or breach of fiduciary duty; in this subparagraph, “fraud” has the meaning given in AS 13.26.595(1) and (2);



(21) “Vulnerable adult” means a person 18 years of age or older who, because of incapacity, mental illness, mental deficiency, physical illness or disability, advanced age, chronic use of drugs, chronic intoxication, fraud, confinement, or disappearance, is unable to meet the person's own needs or to seek help without assistance.

Civil Financial Exploitation
Code of Ala. § 38-9-2(8) & (18) (2020)

TITLE 38 Public Welfare

CHAPTER 9 Protection of Aged Adults And Adults With A Disability

§ 38-9-2. Definitions.

For the purposes of this chapter, the following terms shall have the following meanings:

(8) Exploitation. — The expenditure, diminution, or use of the property, assets, or resources of a protected person without the express voluntary consent of that person or his or her legally authorized representative or the admission of or provision of care to a protected person who needs to be in the care of a licensed hospital by an unlicensed hospital after a court order obtained by the State Board of Health has directed closure of the unlicensed hospital. For the purpose of this section and Sections 38-9-6 and 38-9-7, the term “unlicensed hospital” shall have the meaning ascribed to it in Section 22-21-33, and the term “licensed hospital” shall have the meaning ascribed to it in Section 22-21-20.



(18) Protected person. — Any person over 18 years of age subject to protection under this chapter or any person, including, but not limited to, persons with a neurodegenerative disease, persons with intellectual disabilities and developmental disabilities, or any person over 18 years of age that is mentally or physically incapable of adequately caring for himself or herself and his or her interests without serious consequences to himself or herself or others.

Civil Financial Exploitation
Code of Ari. § 46-4-471(3) & (2) (2020)

TITLE 46 Welfare

CHAPTER 4 Adult Protective Services

§  46-4-471.  Definitions.

In this article, unless the context otherwise requires:

(3) “Financial exploitation” means either of the following:
(a) The wrongful or unauthorized taking, withholding, appropriating or use of money, assets or property of an eligible adult.
(b) Any act or omission taken by a person, including through the use of a power of attorney, guardianship or conservatorship of an eligible adult, to either:
(i) Obtain control through deception, intimidation or undue influence over the eligible adult's money, assets or property to deprive the eligible adult of the ownership, use, benefit or possession of the eligible adult's money, assets or property.
(ii) Convert money, assets or property of the eligible adult to deprive the eligible adult of the ownership, use, benefit or possession of the eligible adult's money, assets or property.



(2) “Eligible adult” means either of the following:
(a) A person who is sixty-five years of age or older.
(b) A person who is a vulnerable adult.

Civil Financial Exploitation
Code of Ark. §9-20-103(7) & (6) (2020)

TITLE 9. Family Law

CHAPTER 20. Adult Maltreatment Custody Act

§ 9–20–103. Definitions.

As used in this chapter:

(7) “Exploitation” means the:
(A) Illegal or unauthorized use or management of an endangered person's or an impaired person's funds, assets, or property;
(B) Use of an adult endangered person's or an adult impaired person's power of attorney or guardianship for the profit or advantage of one's own self or another;
(C) Fraudulent or otherwise illegal, unauthorized, or improper act or process of an individual, including a caregiver or fiduciary, that uses the resources of an endangered or an impaired person or long-term care facility resident for monetary or personal benefit, profit, or gain or that results in depriving the person or resident of rightful access to or use of benefits, resources, belongings, or assets; or
(D) Misappropriation of property of a long-term care facility resident



(6) “Endangered adult” means:
(A) An adult eighteen (18) years of age or older who:
(i) Is found to be in a situation or condition that poses a danger to himself or herself; and
(ii) Demonstrates a lack of capacity to comprehend the nature and consequences of remaining in that situation or condition; or
(B) An adult resident of a long-term care facility who:
(i) Is found to be in a situation or condition that poses an imminent risk of death or serious bodily harm to that person; and
(ii) Demonstrates a lack of capacity to comprehend the nature and consequences of remaining in that situation or condition;

Civil Financial Exploitation
Conn. Gen. Stat. § 17b-450(7) & (1) (2020)

TITLE 17b  Social Services 
CHAPTER 319dd  Protective Services for the Elderly
SECTION 17b-450.

For purposes of sections 17b-450 to 17b-461, inclusive:

(7) The term “exploitation” refers to the act or process of taking advantage of an elderly person by another person or caregiver whether for monetary, personal or other benefit, gain or profit.



(1) The term “elderly person” means any resident of Connecticut who is sixty years of age or older.

Civil Financial Exploitation
D.C. Code § 7-1901 (8) (2020) & D.C. Code  § 22-3201(3) & (4) (2020)

TITLE 7 Human Health Care and Safety

CHAPTER 19 Adult Protective Services

When used in this chapter, the following terms shall have the meanings ascribed by this section:

(8) “Exploitation” means the unlawful appropriation or use of another's “property,” defined in § 22-3201, for one's own benefit or that of a 3rd person.
(F) A government-issued license, permit, or benefit.



(3) “Property” means anything of value. The term “property” includes, but is not limited to:
(A) Real property, including things growing on, affixed to, or found on land;
(B) Tangible or intangible personal property;
(C) Services;
(D) Credit;
(E) Debt; and

(4) “Property of another” means any property in which a government or a person other than the accused has an interest which the accused is not privileged to interfere with or infringe upon without consent, regardless of whether the accused also has an interest in that property. The term “property of another” includes the property of a corporation or other legal entity established pursuant to an interstate compact. The term “property of another” does not include any property in the possession of the accused as to which any other person has only a security interest.

Civil Financial Exploitation
Fla. Stat. § 415.102(8a) & (28) (2020)

TITLE 30.  SOCIAL WELFARE (Chs. 409-430) 
CHAPTER 415.  ADULT PROTECTIVE SERVICES
§ 415.102.  Definitions of terms used in ss. 415.101-415.113

(8)(a) “Exploitation” means a person who:
1. Stands in a position of trust and confidence with a vulnerable adult and knowingly, by deception or intimidation, obtains or uses, or endeavors to obtain or use, a vulnerable adult's funds, assets, or property with the intent to temporarily or permanently deprive a vulnerable adult of the use, benefit, or possession of the funds, assets, or property for the benefit of someone other than the vulnerable adult; or
2. Knows or should know that the vulnerable adult lacks the capacity to consent, and obtains or uses, or endeavors to obtain or use, the vulnerable adult's funds, assets, or property with the intent to temporarily or permanently deprive the vulnerable adult of the use, benefit, or possession of the funds, assets, or property for the benefit of someone other than the vulnerable adult.
(b) “Exploitation” may include, but is not limited to:
1. Breaches of fiduciary relationships, such as the misuse of a power of attorney or the abuse of guardianship duties, resulting in the unauthorized appropriation, sale, or transfer of property;
2. Unauthorized taking of personal assets;
3. Misappropriation, misuse, or transfer of moneys belonging to a vulnerable adult from a personal or joint account; or
4. Intentional or negligent failure to effectively use a vulnerable adult's income and assets for the necessities required for that person's support and maintenance.



(28) “Vulnerable adult” means a person 18 years of age or older whose ability to perform the normal activities of daily living or to provide for his or her own care or protection is impaired due to a mental, emotional, sensory, long-term physical, or developmental disability or dysfunction, or brain damage, or the infirmities of aging.

Civil Financial Exploitation
HRS § 346-222 (2020)

DIVISION 1.  GOVERNMENT 
TITLE 20  Social Services 
CHAPTER 346  Department of Human Services 
PART X.  Adult Protective Services
§ 346-222.  Definitions.

For the purposes of this part:

Financial exploitation” means the wrongful taking, withholding, appropriation, or use of a vulnerable adult's money, real property, or personal property, including but not limited to:
(1) The breach of a fiduciary duty, such as the misuse of a power of attorney or the misuse of guardianship privileges, resulting in the unauthorized appropriation, sale, or transfer of property;
(2) The unauthorized taking of personal assets;
(3) The misappropriation or misuse of moneys belonging to the vulnerable adult from a personal or joint account; or
(4) The failure to effectively use a vulnerable adult's income and assets for the necessities required for the vulnerable adult's support and maintenance, by a person with a duty to expend income and assets on behalf of the vulnerable adult for such purposes.
Financial exploitation may be accomplished through coercion, manipulation, threats, intimidation, misrepresentation, or exertion of undue influence.



Vulnerable adult” means a person eighteen years of age or older who, because of mental, developmental, or physical impairment, is unable to:
(1) Communicate or make responsible decisions to manage the person's own care or resources;
(2) Carry out or arrange for essential activities of daily living; or
(3) Protect oneself from abuse, as defined in this part.

Civil Financial Exploitation
Idaho Code § 39-5302(6) & (2020)

GENERAL LAWS 
TITLE 39.  HEALTH AND SAFETY 
CHAPTER 53.  ADULT ABUSE, NEGLECT AND EXPLOITATION ACT
§ 39-5302. Definitions.

For the purposes of this chapter:

(6) “Exploitation” means an action that may include, but is not limited to, the unjust or improper use of a vulnerable adult's financial power of attorney, funds, property, or resources by another person for profit or advantage.



(10) “Vulnerable adult” means a person eighteen (18) years of age or older who is unable to protect himself from abuse, neglect or exploitation due to physical or mental impairment that affects the person's judgment or behavior to the extent that he lacks sufficient understanding or capacity to make or communicate or implement decisions regarding his person.

Civil Financial Exploitation
Iowa Code § 235B.2 (2020)

TITLE VI HUMAN SERVICES 
SUBTITLE 6 CHILDREN AND FAMILIES 
CHAPTER 235B DEPENDENT ADULT ABUSE SERVICES - INFORMATION REGISTRY 
GENERAL PROVISIONS
235B.2 Definitions.

5. a. “Dependent adult abuse” means:
(1) Any of the following as a result of the willful or negligent acts or omissions of a caretaker:
(a) Physical injury to, or injury which is at a variance with the history given of the injury, or unreasonable confinement, unreasonable punishment, or assault of a dependent adult.
(b) The commission of a sexual offense under chapter 709 or section 726.2 with or against a dependent adult.
(c) Exploitation of a dependent adult which means the act or process of taking unfair advantage of a dependent adult or the adult's physical or financial resources, without the informed consent of the dependent adult, including theft, by the use of undue influence, harassment, duress, deception, false representation, or false pretenses.
(d) The deprivation of the minimum food, shelter, clothing, supervision, physical or mental health care, or other care necessary to maintain a dependent adult's life or health.



4. “Dependent adult” means a person eighteen years of age or older who is unable to protect the person's own interests or unable to adequately perform or obtain services necessary to meet essential human needs, as a result of a physical or mental condition which requires assistance from another, or as defined by departmental rule.

Civil Financial Exploitation
K.S.A. § 39-1430 (2020)

Chapter 39. MENTALLY ILL, INCAPACITATED AND DEPENDENT PERSONS; SOCIAL WELFARE 
Article 14. REPORTING ABUSE, NEGLECT OR EXPLOITATION OF CERTAIN PERSONS
39-1430. Abuse, neglect or exploitation of certain adults; definitions.

As used in this act:

(d) “Exploitation” means misappropriation of an adult's property or intentionally taking unfair advantage of an adult's physical or financial resources for another individual's personal or financial advantage by the use of undue influence, coercion, harassment, duress, deception, false representation or false pretense by a caretaker or another person.

(e) “Fiduciary abuse” means a situation in which any person who is the caretaker of, or who stands in a position of trust to, an adult, takes, secretes or appropriates their money or property to any use or purpose not in the due and lawful execution of such person's trust or benefit.



(a) “Adult” means an individual 18 years of age or older alleged to be unable to protect their own interest and who is harmed or threatened with harm, whether financial, mental or physical in nature, through action or inaction by either another individual or through their own action or inaction when: (1) Such person is residing in such person's own home, the home of a family member or the home of a friend; (2) such person resides in an adult family home as defined in K.S.A. 39-1501, and amendments thereto; or (3) such person is receiving services through a provider of community services and affiliates thereof operated or funded by the Kansas department for children and families or the Kansas department for aging and disability services or a residential facility licensed pursuant to K.S.A. 39-2001 et seq., and amendments thereto. Such term shall not include persons to whom K.S.A. 39-1401 et seq., and amendments thereto, apply.

Civil Financial Exploitation
KRS § 209.020  (2020)

TITLE XVII  Economic Security and Public Welfare 
CHAPTER 209  Protection of Adults
KRS § 209.020 Definitions for chapter

As used in this chapter, unless the context otherwise requires:

(9) “Exploitation” means obtaining or using another person's resources, including but not limited to funds, assets, or property, by deception, intimidation, or similar means, with the intent to deprive the person of those resources;



(4) “Adult” means a person eighteen (18) years of age or older who, because of mental or physical dysfunctioning, is unable to manage his or her own resources, carry out the activity of daily living, or protect himself or herself from neglect, exploitation, or a hazardous or abusive situation without assistance from others, and who may be in need of protective services;

Civil Financial Exploitation
La. R.S. 15:1503 (2020)

LOUISIANA REVISED STATUTES 
TITLE 15.  CRIMINAL PROCEDURE 
CHAPTER 14.  ADULT PROTECTIVE SERVICES ACT
§ 15:1503. Definitions
(7) “Exploitation” means the illegal or improper use or management of the funds, assets, or property of a person who is aged or an adult with a disability, or the use of power of attorney or guardianship of a person who is aged or an adult with a disability for one's own profit or advantage.



(3) “Adult” means any individual eighteen years of age or older, or an emancipated minor who, due to a physical, mental, or developmental disability or the infirmities of aging, is unable to manage his own resources, carry out the activities of daily living, or protect himself from abuse, neglect, or exploitation.

Pages

Источник: https://www.justice.gov/elderjustice/prosecutors/statutes

Australian Electoral Commission

Updated: 3 December 2020

What is fraud?

The Commonwealth definition of fraud is:

'dishonestly obtaining a benefit, or causing a loss, by deception or other means.'

Electoral fraud

Electoral fraud is defined by the AEC as:

'a breach of the Commonwealth Electoral Act 1918 or related legislation with intent to obtain a benefit for which the person is not otherwise entitled to or to cause detriment to the Commonwealth.'

The act of fraud requires intent and must be due to more than carelessness, accident or error.

In understanding and applying this definition of fraud, it is important to recognise:

  • a benefit is not restricted to monetary or material benefits, and may be tangible or intangible including the unauthorised provision of access to or disclosure of information
  • fraud may involve a third party obtaining a benefit rather than, or in addition to, the perpetrator of the fraud.

What is not electoral fraud?

The following non-compliance and misuse offences under the Commonwealth Electoral Act 1918 would not typically be considered electoral fraud:

These are dealt with by the AEC under the standard business process.

How do I make a report?

You can report a suspected fraud by one of these channels:

  • Online
  • Calling AEC's fraud line on 1300 795 898
  • Mailing:
    Fraud Control Manager
    AEC National Office
    Locked Bag 4007
    Canberra ACT 2601

The AEC commits to treating a complaint seriously and in line with the Complaints Management Policy.

In some circumstances it will not be appropriate to provide complainants with details of the outcome of an investigation, however the AEC will endeavour to provide such information wherever the law and AEC policy allows.

Can I remain anonymous?

You can remain anonymous, but please keep in mind that your decision for anonymity may limit our ability to conduct a complete investigation. If you choose the online reporting channel you will be required to provide an email address.

Will my information be secure?

This online service uses secure communications to protect your privacy. Please read the privacy policy and security information prior to using this service.

Источник: https://www.aec.gov.au/footer/fraud.htm

Centrelink Fraud Cases

What is Centrelink Fraud?

Centrelink fraud, also known as social security fraud or welfare fraud, occurs when someone receives social benefits they are not entitled to. This usually happens because they have mistakenly, or purposely, provided incorrect information.

There are several different forms of Centrelink Fraud under sections 134 and 135 of the Criminal Code Act 1995 (Cth). These offences are described in the legislation as obtaining property or financial advantage by dishonesty or deception. They include gaining a benefit:

  • Under a false name.
  • By reporting less income than earned.
  • By failing to declare property.
  • By failing to declare a relationship.

It is sometimes difficult to know if you are entitled to a Centrelink benefit, and if so, which benefit. A few possible scenarios that could get you into trouble include:

  • Your circumstances change and you forget to notify Centrelink.
  • You provide requested information to Centrelink, but the information is insufficient.
  • You perform part time work and receive a top up benefit, but one week your income exceeds the threshold level and you don’t declare it.

How do Centrelink investigate?

Centrelink fraud offences are prosecuted by the office of the Commonwealth Director of Public Prosecutions (CDPP).

If Centrelink suspects that you have committed an offence, they will first conduct an investigation. They may invite you to attend a formal interview or may come to your house. If they still believe you committed an offence, they will then refer the matter to the CDPP.

If you have been asked to attend an interview with Centrelink regarding a possible overpayment, it is likely that the matter will be referred to the CDPP who may bring criminal charges.  You should seek legal advice from an experienced defence lawyer.

What happens to Centrelink cheats?

Courts treat these offences seriously. The penalties for Centrelink fraud range from 12 months to 10 years imprisonment. If you obtain a Centrelink benefit by deception, a prison sentence is a likely outcome, and you may be liable for the 10 years maximum sentence.

“By deception” might include claiming unemployment benefits but receiving income under a false name.

Frequently Asked Questions

Источник: https://ngm.com.au/centrelink-matters/

It is a criminal offence to intentionally provide false information to Centrelink in order to obtain a payment, to continue to maintain a payment, or in order to receive a higher payment where a person is not otherwise entitled to it.

Services Australia, in circumstances where it suspects unlawful conduct has occurred, can pass on a person’s details to the Commonwealth Department for Public Prosecutions who can commence a criminal prosecution against the person.

This criminal process is not to be confused with the process Centrelink undertakes when recovering a debt from a person who has unknowingly received an overpayment, for example. A prosecution can result in court proceedings, a criminal conviction, and a penalty being imposed. For that reason it is important for a person to obtain legal advice should they receive notification of a criminal investigation or charge.

Most Centrelink related criminal offences are contained in the Criminal Code Act 1995 (Cth) [see for example s 134.1(1) – obtaining property by deception; s 134.2(1) – obtaining financial advantage by deception; s 135.2(1) – obtaining a financial advantage].

The maximum penalties for such offences can be as severe as up to 10 years imprisonment. As these cases are often complex and can involve significant penalties, obtaining early legal advice is recommended.

There is no requirement to attend a "prosecution interview"

When determining whether to prosecute a person for unlawful conduct, Centrelink may request that the person attend a prosecution interview. It will be a prosecution interview (as opposed to an assessment interview) if Centrelink provide a warning that anything the person says may be used against them in a court of law and that the interview will be taped.

The prosecution interviewer may suggest that there is no need for the person to attend the interview and to just "send them a letter" instead. In these circumstances Centrelink should be advised that the person is seeking legal advice.

There is no explicit legal obligation to attend or remain in a prosecution interview.

If a person does decide to attend, they can walk out at any point that they wish. No penalty can be imposed on them for not attending such an interview, or for stopping it once it has begun. Their current payments cannot be stopped for refusing to attend a prosecution interview.

Prosecution  :  Last Revised: Mon Mar 23rd 2020
The content of the Law Handbook is made available as a public service for information purposes only and should not be relied upon as a substitute for legal advice. See Disclaimer for details. For free and confidential legal advice in South Australia call 1300 366 424.

Источник: https://lawhandbook.sa.gov.au/ch32s01s08.php

: Obtaining financial advantage by deception commonwealth

Obtaining financial advantage by deception commonwealth
FREE CREDIT CARD NUMBERS WITH MONEY 2018
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Obtaining financial advantage by deception commonwealth -

Bribery & Corruption Laws and Regulations 2021

Bank manager hid employee's fraud to hide his own $500,000 fraud, police say

This was published 2 years ago

A senior manager at the Commonwealth Bank, who stole almost half a million dollars, failed to report a member of his team for fraudulently transferring an alleged $64,000 to her personal account, lest his own fraud be discovered, police allege.

Lee Zaragoza, a self-described "results driven" senior manager in the bank's payment operations unit, is accused of funding a gambling habit by redirecting $463,240 from the bank into his own personal account between 2013 and 2018.

It was during this period, police allege, that the 37-year-old uncovered a series of separate suspicious transactions in the bank's internal accounts, all linked to a 38-year-old female employee who reported to him in the same team.

The employee, Kathy Ung, had also allegedly defrauded the bank of $64,000 by conducting 107 fraudulent transactions, disguised as reimbursements, between 2015 and 2016.

Upon discovering the suspicious transactions around 2017, it is alleged Mr Zaragoza encouraged Ms Ung to repay the money, telling her that if she did so he would not escalate the matter by reporting it, as required by bank policy.

The Herald and The Age understand she repaid the full amount around this time.

Police now allege Mr Zaragoza did so in an effort to avoid his own fraudulent activity being discovered.

However, in December last year, attempts to conceal both alleged frauds unravelled, when the bank reported Mr Zaragoza to police following an internal investigation.

Detectives from the NSW state crime command then established Strike Force Woodfull.

Earlier this month the father of two attended Parramatta police station, where he was charged with three counts of dishonestly obtaining financial advantage by deception.

Police will allege in court that the former bank manager fraudulently lodged reimbursements from the bank to himself on more than 90 separate occasions, using the money to make cash withdrawals that funded gambling activity, and purchase items including a television, PlayStation games and a grey Range Rover.

It is understood the luxury vehicle was an initial source of suspicion for some of his colleagues at the bank.

Describing himself on his LinkedIn profile as "a highly motivated and results driven professional," Mr Zaragoza has more than 10 years of managerial experience and 18 years in the banking sector, the entirety of which he has worked at the Commonwealth Bank.

Ms Ung has also been charged with one count of dishonestly obtaining financial advantage by deception.

Both were granted conditional bail and are scheduled to appear before Parramatta Local Court on July 3.

A Commonwealth Bank spokeswoman said the institution had "zero tolerance for any illegal activity and behaviour," adding that any employee "who knowingly does the wrong thing" would be removed.

"Where allegations are raised of any wrongdoing by employees, these will be taken seriously and fully investigated. Where we identify possible criminal conduct, we refer matters to the police and cooperate with authorities through any investigation,” the spokeswoman said.

She confirmed no customers were impacted or experienced any financial loss.

From our partners

Источник: https://www.smh.com.au/national/nsw/bank-manager-hid-employee-s-fraud-to-hide-his-own-500-000-fraud-police-say-20190522-p51pzu.html

Elder Abuse and Elder Financial Exploitation Statutes

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Showing results 1 - 25 of 378

Citation Statute
Civil Financial Exploitation
10 G.C.A. § 21002. Definitions.

Title 10. Health and Safety.
Chapter 2. Division of Public Welfare.
Article 10. Adult Protective Services

(l) Financial or Property Exploitation means illegal or improper use of an elderly or adult with a disability's money, property, or other resources for monetary or personal benefit, profit or gain. This includes, but is not limited to, theft, misappropriation, concealment, misuse or fraudulent deprivation of money or property belonging to the elderly or adult with a disability.



(b) Adult with a Disability is any person eighteen (18) years or older who:
(1) has a physical or mental impairment which substantially limits one (1) or more major life activities; or
(2) has a history of, or has been classified as having, an impairment which substantially limits one (1) or more major life activities.

(h) Elderly refers to a person age sixty (60) years or older.

Civil Financial Exploitation
22 M.R.S. § 3472 (2020)

TITLE 22.  HEALTH AND WELFARE 
SUBTITLE 3.  INCOME SUPPLEMENTATION 
PART 2.  AGED, BLIND, DISABLED OR MEDICALLY INDIGENT PERSONS 
CHAPTER 958-A.  ADULT PROTECTIVE SERVICES ACT 
SUBCHAPTER 1.  GENERAL PROVISIONS
§ 3472.  Definitions

9. Exploitation. “Exploitation” means the illegal or improper use of an incapacitated or dependent adult or that adult's resources for another's profit or advantage.



2. Adult. “Adult” means any person who has attained 18 years of age or who is a legally emancipated minor.

6. Dependent adult. “Dependent adult” means an adult who has a physical or mental condition that substantially impairs the adult's ability to adequately provide for that adult's daily needs. “Dependent adult” includes, but is not limited to, any of the following:
A. A resident of a nursing home licensed or required to be licensed under section 1817;
B. A resident of a facility providing assisted living services licensed or required to be licensed pursuant to section 7801;
C. A person considered a dependent person under Title 17–A, section 555; or
D. A person, regardless of where that person resides, who is wholly or partially dependent upon one or more other persons for care or support, either emotional or physical, because the person suffers from a significant limitation in mobility, vision, hearing or emotional or mental functioning.

10. Incapacitated adult. “Incapacitated adult” means an adult who is unable to receive and evaluate information or make or communicate informed decisions to such an extent that the adult lacks the ability to meet essential requirements for physical health, safety or self-care, even with reasonably available appropriate technological assistance.

Civil Financial Exploitation
31 Del. C. § 3902(12) & (24) (2020)

TITLE 31.  WELFARE 
PART II.  WELFARE AGENCIES 
CHAPTER 39.  ADULT PROTECTIVE SERVICES
§ 3902. Definitions.

As used in this chapter:

(11) “Exploitation” means an act of forcing, compelling, or exerting undue influence over a vulnerable adult causing the vulnerable adult to act in a way that is inconsistent with relevant past behavior, or causing the vulnerable adult to perform services for the benefit of another.
(12) “Financial exploitation” means the illegal or improper use, control over, or withholding of the property, income, resources, or trust funds of the elderly person or the vulnerable adult by any person or entity for any person's or entity's profit or advantage other than for the elder person or the vulnerable adult's profit or advantage. “Financial exploitation” includes, but is not limited to:
a. The use of deception, intimidation, or undue influence by a person or entity in a position of trust and confidence with an elderly person or a vulnerable adult to obtain or use the property, income, resources, or trust funds of the elderly person or the vulnerable adult for the benefit of a person or entity other than the elderly person or the vulnerable adult;
b. The breach of a fiduciary duty, including, but not limited to, the misuse of a power of attorney, trust, or a guardianship appointment, that results in the unauthorized appropriation, sale, or transfer of the property, income, resources, or trust funds of the elderly person or the vulnerable adult for the benefit of a person or entity other than the elderly person or the vulnerable adult; and
c. Obtaining or using an elderly person or a vulnerable adult's property, income, resources, or trust funds without lawful authority, by a person or entity who knows or clearly should know that the elderly person or the vulnerable adult lacks the capacity to consent to the release or use of his or her property, income, resources, or trust funds.



(24) "Vulnerable adult" means an adult who meets the criteria set forth in § 1105c of Title 11.

Civil Financial Exploitation
320 ILCS 20/2(f-1) & (e) (2020)

CHAPTER 320.  AGING 
AN ACT IN RELATION TO ADULT PROTECTIVE SERVICES
§ 320 ILCS 20/2.  Definitions.

(f-1) “Financial exploitation” means the use of an eligible adult's resources by another to the disadvantage of that adult or the profit or advantage of a person other than that adult.



(e) “Eligible adult” means either an adult with disabilities aged 18 through 59 or a person aged 60 or older who resides in a domestic living situation and is, or is alleged to be, abused, neglected, or financially exploited by another individual or who neglects himself or herself. “Eligible adult” also includes an adult who resides in any of the facilities that are excluded from the definition of “domestic living situation” under paragraphs (1) through (9) of subsection (d), if either: (i) the alleged abuse or neglect occurs outside of the facility and not under facility supervision and the alleged abuser is a family member, caregiver, or another person who has a continuing relationship with the adult; or (ii) the alleged financial exploitation is perpetrated by a family member, caregiver, or another person who has a continuing relationship with the adult, but who is not an employee of the facility where the adult resides.

Civil Financial Exploitation
33 V.S.A. § 6902 (2020)

TITLE THIRTY-THREE.  HUMAN SERVICES 
PART 5.  PROGRAMS AND SERVICES FOR VULNERABLE ADULTS 
CHAPTER 69.  REPORTS OF ABUSE, NEGLECT, AND EXPLOITATION OF VULNERABLE ADULTS 
SUBCHAPTER 1.  REPORTS OF ABUSE OF VULNERABLE ADULTS
§ 6902. Definitions

(6) “Exploitation” means:
(A) willfully using, withholding, transferring, or disposing of funds or property of a vulnerable adult without or in excess of legal authority for the wrongful profit or advantage of another;
(B) acquiring possession or control of or an interest in funds or property of a vulnerable adult through the use of undue influence, harassment, duress, or fraud;
(C) the act of forcing or compelling a vulnerable adult against his or her will to perform services for the profit or advantage of another;
(D) any sexual activity with a vulnerable adult when the vulnerable adult does not consent or when the actor knows or should know that the vulnerable adult is incapable of resisting or declining consent to the sexual activity due to age or disability or due to fear of retribution or hardship, whether or not the actor has actual knowledge of vulnerable status.



(14) “Vulnerable adult” means any person 18 years of age or older who:
(A) is a resident of a facility required to be licensed under chapter 71 of this title;
(B) is a resident of a psychiatric hospital or a psychiatric unit of a hospital;
(C) has been receiving personal care services for more than one month from a home health agency certified by the Vermont Department of Health or from a person or organization that offers, provides, or arranges for personal care; or
(D) regardless of residence or whether any type of service is received, is impaired due to brain damage, infirmities of aging, mental condition, or physical, psychiatric, or developmental disability:
(i) that results in some impairment of the individual's ability to provide for his or her own care without assistance, including the provision of food, shelter, clothing, health care, supervision, or management of finances; or
(ii) because of the disability or infirmity, the individual has an impaired ability to protect himself or herself from abuse, neglect, or exploitation.

Civil Financial Exploitation
34 V.I.C. § 452. Definitions (2020)

Title 34. Welfare.
Chapter 15. The Elder and Dependent Adult Abuse Prevention Act(c) ‘Abuse of an elder or dependent adult‘ means any of the following:

(1) Physical, emotional or financial abuse, neglect, abandonment, isolation, abduction, or other treatment resulting in physical or emotional injury, maltreatment, sexual conduct with an elder or dependent adult, or exploitation of an elder or dependent adult by any person; or
(2) The deprivation by a care custodian of goods or services that are necessary to avoid physical or emotional injury; or
(3) Use of a physical or chemical restraint or psychotropic medication under any of the following conditions:
(A) For punishment;
(B) For a period beyond that for which the medication was ordered pursuant to the instructions of a physician or surgeon licensed in the Virgin Islands, who is providing medical care to the elder or dependent adult at the time the instructions are given; or
(C) For any purpose not authorized by a physician or surgeon.



(j) ‘Dependent adult‘ means any person between the ages of 18 to 59 who has physical or mental limitations that restrict the person's ability to carry out normal activities or to protect a persons' rights.

Civil Financial Exploitation
35 P.S. § 10225.103 (2020)

PENNSYLVANIA STATUTES  
TITLE 35.  HEALTH AND SAFETY 
CHAPTER 58.  OLDER ADULTS PROTECTIVE SERVICES ACT 
CHAPTER 1.  PRELIMINARY PROVISIONS
35 P.S. § 10225.103 (2013)
§ 10225.103.  Definitions

“Exploitation.” An act or course of conduct by a caretaker or other person against an older adult or an older adult's resources, without the informed consent of the older adult or with consent obtained through misrepresentation, coercion or threats of force, that results in monetary, personal or other benefit, gain or profit for the perpetrator or monetary or personal loss to the older adult.



“Older adult.” A person within the jurisdiction of the Commonwealth who is 60 years of age or older.

Civil Financial Exploitation
52-3-803, MCA (2020)

TITLE 52.  FAMILY SERVICES 
CHAPTER 3.  ADULT SERVICES 
PART 8.  MONTANA ELDER AND PERSONS WITH DEVELOPMENTAL DISABILITIES ABUSE PREVENTION ACT
52-3-803.  Definitions.

(3) “Exploitation” means:
(a) the unreasonable use of an older person or a person with a developmental disability or of a power of attorney, conservatorship, or guardianship with regard to an older person or a person with a developmental disability in order to obtain control of or to divert to the advantage of another the ownership, use, benefit, or possession of or interest in the person's money, assets, or property by means of deception, duress, menace, fraud, undue influence, or intimidation with the intent or result of permanently depriving the older person or person with a developmental disability of the ownership, use, benefit, or possession of or interest in the person's money, assets, or property;
(b) an act taken by a person who has the trust and confidence of an older person or a person with a developmental disability to obtain control of or to divert to the advantage of another the ownership, use, benefit, or possession of or interest in the person's money, assets, or property by means of deception, duress, menace, fraud, undue influence, or intimidation with the intent or result of permanently depriving the older person or person with a developmental disability of the ownership, use, benefit, or possession of or interest in the person's money, assets, or property;
(c) the unreasonable use of an older person or a person with a developmental disability or of a power of attorney, conservatorship, or guardianship with regard to an older person or a person with a developmental disability done in the course of an offer or sale of insurance or securities in order to obtain control of or to divert to the advantage of another the ownership, use, benefit, or possession of the person's money, assets, or property by means of deception, duress, menace, fraud, undue influence, or intimidation with the intent or result of permanently depriving the older person or person with a developmental disability of the ownership, use, benefit, or possession of the person's money, assets, or property.



(8) “Older person” means a person who is at least 60 years of age.

(9) “Person with a developmental disability” means a person 18 years of age or older who has a developmental disability, as defined in 53-20-102.

Civil Financial Exploitation
8 L.P.R.A. § 342 Definitions (2020)

Title 8. Public Welfare and Charitable Institutions.
Chapter 18. Bill of Rights for Elderly Persons.

(k) Financial exploitation.- The improper use of an adult's funds, property or resources by another individual including, but not limited to, fraud, false pretenses, embezzlement, conspiracy, forgery, falsifying records, coercion, property transfers or denial of access to assets.



(a) Elderly person.- A person who is sixty (60) years of age or older.

Civil Financial Exploitation
Burns Ind. Code Ann. § 35-46-1-12 (2020)

Burns Ind. Code Ann. § 12-10-3-2  (2020)

Title 35  Criminal Law and Procedure 
Article 46  Miscellaneous Offenses 
Chapter 1  Offenses Against the Family

"financial exploitation" (b) A person who recklessly uses or exerts control over the personal services or the property of:
(1) an endangered adult; or
(2) a dependent;
for the person's own profit or advantage or for the profit or advantage of another person, but not for the profit or advantage of a person described in subdivision (1) or (2), commits exploitation of a dependent or an endangered adult, a Class A misdemeanor. However, the offense is a Level 6 felony if the person has a prior unrelated conviction under this section.
(c) A person in a position of trust who recklessly engages in self-dealing with the property of:
(1) an endangered adult; or
(2) a dependent;
commits exploitation of a dependent or an endangered adult, a Class A misdemeanor. However, the offense is a Level 6 felony if the person has a prior unrelated conviction under this section.



Title 12  Human Services 
Article 10  Aging Services 
Chapter 3  Adult Protective Services

Sec. 2. (a) Except as provided in subsection (b), as used in this chapter,
endangered adult” means an individual who is:
(1) at least eighteen (18) years of age;
(2) incapable by reason of mental illness, intellectual disability, dementia, habitual drunkenness, excessive use of drugs, or other physical or mental incapacity of managing or directing the management of the individual's property or providing or directing the provision of self-care; and
(3) harmed or threatened with harm as a result of:
(A) neglect;
(B) a battery offense included in IC 35-42-2; or
(C) exploitation of the individual's personal services or property.
(b) For purposes of IC 12-10-3-17, IC 35-42-2-1, IC 35-42-2-1.3, and IC 35-46-1-13, “endangered adult” means an individual who is:
(1) at least eighteen (18) years of age;
(2) incapable by reason of mental illness, intellectual disability, dementia, or other physical or mental incapacity of managing or directing the management of the individual's property or providing or directing the provision of self-care; and
(3) harmed or threatened with harm as a result of:
(A) neglect; or
(B) battery.

Civil Financial Exploitation
C.R.S. 26-3.1-101(4) & (1.5) (2020)

TITLE 26 Human Services Code

ARTICLE 3.1. PROTECTIVE SERVICES FOR ADULTS AT RISK OF MISTREATMENT OR SELF-NEGLECT 

PART 1. PROTECTIVE SERVICES FOR AT-RISK ADULTS
26-3.1-101. Definitions.

(4) “Exploitation” means an act or omission that:
(a) Uses deception, harassment, intimidation, or undue influence to permanently or temporarily deprive an at-risk adult of the use, benefit, or possession of any thing of value; or
(b) Employs the services of a third party for the profit or advantage of the person or another person to the detriment of the at-risk adult; or
(c) Forces, compels, coerces, or entices an at-risk adult to perform services for the profit or advantage of the person or another person against the will of the at-risk adult; or
(d) Misuses the property of an at-risk adult in a manner that adversely affects the at-risk adult's ability to receive health care or health care benefits or to pay bills for basic needs or obligations.



(1.5) “At-risk adult” means an individual eighteen years of age or older who is susceptible to mistreatment or self-neglect because the individual is unable to perform or obtain services necessary for his or her health, safety, or welfare, or lacks sufficient understanding or capacity to make or communicate responsible decisions concerning his or her person or affairs.

Civil Financial Exploitation
Cal Wel & Inst Code § 15610.30 &  § 15610.23 (2020)

WELFARE AND INSTITUTIONS CODE 
Division 9.  Public Social Services 
Part 3.  Aid and Medical Assistance 
Chapter 11.  Elder Abuse and Dependent Adult Civil Protection Act 
Article 2.  Definitions
§ 15610.30.  Financial abuse

(a) “Financial abuse” of an elder or dependent adult occurs when a person or entity does any of the following:
(1) Takes, secretes, appropriates, obtains, or retains real or personal property of an elder or dependent adult for a wrongful use or with intent to defraud, or both.
(2) Assists in taking, secreting, appropriating, obtaining, or retaining real or personal property of an elder or dependent adult for a wrongful use or with intent to defraud, or both.
(3) Takes, secretes, appropriates, obtains, or retains, or assists in taking, secreting, appropriating, obtaining, or retaining, real or personal property of an elder or dependent adult by undue influence, as defined in Section 15610.70.
(b) A person or entity shall be deemed to have taken, secreted, appropriated, obtained, or retained property for a wrongful use if, among other things, the person or entity takes, secretes, appropriates, obtains, or retains the property and the person or entity knew or should have known that this conduct is likely to be harmful to the elder or dependent adult.
(c) For purposes of this section, a person or entity takes, secretes, appropriates, obtains, or retains real or personal property when an elder or dependent adult is deprived of any property right, including by means of an agreement, donative transfer, or testamentary bequest, regardless of whether the property is held directly or by a representative of an elder or dependent adult.
(d) For purposes of this section, “representative” means a person or entity that is either of the following:
(1) A conservator, trustee, or other representative of the estate of an elder or dependent adult.
(2) An attorney-in-fact of an elder or dependent adult who acts within the authority of the power of attorney.



15610.23  (a) “Dependent adult” means a person, regardless of whether the person lives independently, between the ages of 18 and 64 years who resides in this state and who has physical or mental limitations that restrict his or her ability to carry out normal activities or to protect his or her rights, including, but not limited to, persons who have physical or developmental disabilities, or whose physical or mental abilities have diminished because of age.

(b) “Dependent adult” includes any person between the ages of 18 and 64 years who is admitted as an inpatient to a 24-hour health facility, as defined in Sections 1250, 1250.2, and 1250.3 of the Health and Safety Code.

Civil Financial Exploitation
Code of Ak. § 47-24-900(8) & (21) (2020)

TITLE 47 Welfare, Social Services, and Institutions

CHAPTER 24 Protection of Vulnerable Adults

§  47-24-900. Definitions.

In this chapter,

(8) “Exploitation

(A) means unjust or improper use of another person or another person's resources for one's own profit or advantage, with or without the person's consent; and
(B) includes acts by a person who stands in a position of trust or confidence with a vulnerable adult or who knows or should know that the vulnerable adult lacks the capacity to consent that involve obtaining profit or advantage through undue influence, deception, fraud, intimidation, or breach of fiduciary duty; in this subparagraph, “fraud” has the meaning given in AS 13.26.595(1) and (2);



(21) “Vulnerable adult” means a person 18 years of age or older who, because of incapacity, mental illness, mental deficiency, physical illness or disability, advanced age, chronic use of drugs, chronic intoxication, fraud, confinement, or disappearance, is unable to meet the person's own needs or to seek help without assistance.

Civil Financial Exploitation
Code of Ala. § 38-9-2(8) & (18) (2020)

TITLE 38 Public Welfare

CHAPTER 9 Protection of Aged Adults And Adults With A Disability

§ 38-9-2. Definitions.

For the purposes of this chapter, the following terms shall have the following meanings:

(8) Exploitation. — The expenditure, diminution, or use of the property, assets, or resources of a protected person without the express voluntary consent of that person or his or her legally authorized representative or the admission of or provision of care to a protected person who needs to be in the care of a licensed hospital by an unlicensed hospital after a court order obtained by the State Board of Health has directed closure of the unlicensed hospital. For the purpose of this section and Sections 38-9-6 and 38-9-7, the term “unlicensed hospital” shall have the meaning ascribed to it in Section 22-21-33, and the term “licensed hospital” shall have the meaning ascribed to it in Section 22-21-20.



(18) Protected person. — Any person over 18 years of age subject to protection under this chapter or any person, including, but not limited to, persons with a neurodegenerative disease, persons with intellectual disabilities and developmental disabilities, or any person over 18 years of age that is mentally or physically incapable of adequately caring for himself or herself and his or her interests without serious consequences to himself or herself or others.

Civil Financial Exploitation
Code of Ari. § 46-4-471(3) & (2) (2020)

TITLE 46 Welfare

CHAPTER 4 Adult Protective Services

§  46-4-471.  Definitions.

In this article, unless the context otherwise requires:

(3) “Financial exploitation” means either of the following:
(a) The wrongful or unauthorized taking, withholding, appropriating or use of money, assets or property of an eligible adult.
(b) Any act or omission taken by a person, including through the use of a power of attorney, guardianship or conservatorship of an eligible adult, to either:
(i) Obtain control through deception, intimidation or undue influence over the eligible adult's money, assets or property to deprive the eligible adult of the ownership, use, benefit or possession of the eligible adult's money, assets or property.
(ii) Convert money, assets or property of the eligible adult to deprive the eligible adult of the ownership, use, benefit or possession of the eligible adult's money, assets or property.



(2) “Eligible adult” means either of the following:
(a) A person who is sixty-five years of age or older.
(b) A person who is a vulnerable adult.

Civil Financial Exploitation
Code of Ark. §9-20-103(7) & (6) (2020)

TITLE 9. Family Law

CHAPTER 20. Adult Maltreatment Custody Act

§ 9–20–103. Definitions.

As used in this chapter:

(7) “Exploitation” means the:
(A) Illegal or unauthorized use or management of an endangered person's or an impaired person's funds, assets, or property;
(B) Use of an adult endangered person's or an adult impaired person's power of attorney or guardianship for the profit or advantage of one's own self or another;
(C) Fraudulent or otherwise illegal, unauthorized, or improper act or process of an individual, including a caregiver or fiduciary, that uses the resources of an endangered or an impaired person or long-term care facility resident for monetary or personal benefit, profit, or gain or that results in depriving the person or resident of rightful access to or use of benefits, resources, belongings, or assets; or
(D) Misappropriation of property of a long-term care facility resident



(6) “Endangered adult” means:
(A) An adult eighteen (18) years of age or older who:
(i) Is found to be in a situation or condition that poses a danger to himself or herself; and
(ii) Demonstrates a lack of capacity to comprehend the nature and consequences of remaining in that situation or condition; or
(B) An adult resident of a long-term care facility who:
(i) Is found to be in a situation or condition that poses an imminent risk of death or serious bodily harm to that person; and
(ii) Demonstrates a lack of capacity to comprehend the nature and consequences of remaining in that situation or condition;

Civil Financial Exploitation
Conn. Gen. Stat. § 17b-450(7) & (1) (2020)

TITLE 17b  Social Services 
CHAPTER 319dd  Protective Services for the Elderly
SECTION 17b-450.

For purposes of sections 17b-450 to 17b-461, inclusive:

(7) The term “exploitation” refers to the act or process of taking advantage of an elderly person by another person or caregiver whether for monetary, personal or other benefit, gain or profit.



(1) The term “elderly person” means any resident of Connecticut who is sixty years of age or older.

Civil Financial Exploitation
D.C. Code § 7-1901 (8) (2020) & D.C. Code  § 22-3201(3) & (4) (2020)

TITLE 7 Human Health Care and Safety

CHAPTER 19 Adult Protective Services

When used in this chapter, the following terms shall have the meanings ascribed by this section:

(8) “Exploitation” means the unlawful appropriation or use of another's “property,” defined in § 22-3201, for one's own benefit or that of a 3rd person.
(F) A government-issued license, permit, or benefit.



(3) “Property” means anything of value. The term “property” includes, but is not limited to:
(A) Real property, including things growing on, affixed to, or found on land;
(B) Tangible or intangible personal property;
(C) Services;
(D) Credit;
(E) Debt; and

(4) “Property of another” means any property in which a government or a person other than the accused has an interest which the accused is not privileged to interfere with or infringe upon without consent, regardless of whether the accused also has an interest in that property. The term “property of another” includes the property of a corporation or other legal entity established pursuant to an interstate compact. The term “property of another” does not include any property in the possession of the accused as to which any other person has only a security interest.

Civil Financial Exploitation
Fla. Stat. § 415.102(8a) & (28) (2020)

TITLE 30.  SOCIAL WELFARE (Chs. 409-430) 
CHAPTER 415.  ADULT PROTECTIVE SERVICES
§ 415.102.  Definitions of terms used in ss. 415.101-415.113

(8)(a) “Exploitation” means a person who:
1. Stands in a position of trust and confidence with a vulnerable adult and knowingly, by deception or intimidation, obtains or uses, or endeavors to obtain or use, a vulnerable adult's funds, assets, or property with the intent to temporarily or permanently deprive a vulnerable adult of the use, benefit, or possession of the funds, assets, or property for the benefit of someone other than the vulnerable adult; or
2. Knows or should know that the vulnerable adult lacks the capacity to consent, and obtains or uses, or endeavors to obtain or use, the vulnerable adult's funds, assets, or property with the intent to temporarily or permanently deprive the vulnerable adult of the use, benefit, or possession of the funds, assets, or property for the benefit of someone other than the vulnerable adult.
(b) “Exploitation” may include, but is not limited to:
1. Breaches of fiduciary relationships, such as the misuse of a power of attorney or the abuse of guardianship duties, resulting in the unauthorized appropriation, sale, or transfer of property;
2. Unauthorized taking of personal assets;
3. Misappropriation, misuse, or transfer of moneys belonging to a vulnerable adult from a personal or joint account; or
4. Intentional or negligent failure to effectively use a vulnerable adult's income and assets for the necessities required for that person's support and maintenance.



(28) “Vulnerable adult” means a person 18 years of age or older whose ability to perform the normal activities of daily living or to provide for his or her own care or protection is impaired due to a mental, emotional, sensory, long-term physical, or developmental disability or dysfunction, or brain damage, or the infirmities of aging.

Civil Financial Exploitation
HRS § 346-222 (2020)

DIVISION 1.  GOVERNMENT 
TITLE 20  Social Services 
CHAPTER 346  Department of Human Services 
PART X.  Adult Protective Services
§ 346-222.  Definitions.

For the purposes of this part:

Financial exploitation” means the wrongful taking, withholding, appropriation, or use of a vulnerable adult's money, real property, or personal property, including but not limited to:
(1) The breach of a fiduciary duty, such as the misuse of a power of attorney or the misuse of guardianship privileges, resulting in the unauthorized appropriation, sale, or transfer of property;
(2) The unauthorized taking of personal assets;
(3) The misappropriation or misuse of moneys belonging to the vulnerable adult from a personal or joint account; or
(4) The failure to effectively use a vulnerable adult's income and assets for the necessities required for the vulnerable adult's support and maintenance, by a person with a duty to expend income and assets on behalf of the vulnerable adult for such purposes.
Financial exploitation may be accomplished through coercion, manipulation, threats, intimidation, misrepresentation, or exertion of undue influence.



Vulnerable adult” means a person eighteen years of age or older who, because of mental, developmental, or physical impairment, is unable to:
(1) Communicate or make responsible decisions to manage the person's own care or resources;
(2) Carry out or arrange for essential activities of daily living; or
(3) Protect oneself from abuse, as defined in this part.

Civil Financial Exploitation
Idaho Code § 39-5302(6) & (2020)

GENERAL LAWS 
TITLE 39.  HEALTH AND SAFETY 
CHAPTER 53.  ADULT ABUSE, NEGLECT AND EXPLOITATION ACT
§ 39-5302. Definitions.

For the purposes of this chapter:

(6) “Exploitation” means an action that may include, but is not limited to, the unjust or improper use of a vulnerable adult's financial power of attorney, funds, property, or resources by another person for profit or advantage.



(10) “Vulnerable adult” means a person eighteen (18) years of age or older who is unable to protect himself from abuse, neglect or exploitation due to physical or mental impairment that affects the person's judgment or behavior to the extent that he lacks sufficient understanding or capacity to make or communicate or implement decisions regarding his person.

Civil Financial Exploitation
Iowa Code § 235B.2 (2020)

TITLE VI HUMAN SERVICES 
SUBTITLE 6 CHILDREN AND FAMILIES 
CHAPTER 235B DEPENDENT ADULT ABUSE SERVICES - INFORMATION REGISTRY 
GENERAL PROVISIONS
235B.2 Definitions.

5. a. “Dependent adult abuse” means:
(1) Any of the following as a result of the willful or negligent acts or omissions of a caretaker:
(a) Physical injury to, or injury which is at a variance with the history given of the injury, or unreasonable confinement, unreasonable punishment, or assault of a dependent adult.
(b) The commission of a sexual offense under chapter 709 or section 726.2 with or against a dependent adult.
(c) Exploitation of a dependent adult which means the act or process of taking unfair advantage of a dependent adult or the adult's physical or financial resources, without the informed consent of the dependent adult, including theft, by the use of undue influence, harassment, duress, deception, false representation, or false pretenses.
(d) The deprivation of the minimum food, shelter, clothing, supervision, physical or mental health care, or other care necessary to maintain a dependent adult's life or health.



4. “Dependent adult” means a person eighteen years of age or older who is unable to protect the person's own interests or unable to adequately perform or obtain services necessary to meet essential human needs, as a result of a physical or mental condition which requires assistance from another, or as defined by departmental rule.

Civil Financial Exploitation
K.S.A. § 39-1430 (2020)

Chapter 39. MENTALLY ILL, INCAPACITATED AND DEPENDENT PERSONS; SOCIAL WELFARE 
Article 14. REPORTING ABUSE, NEGLECT OR EXPLOITATION OF CERTAIN PERSONS
39-1430. Abuse, neglect or exploitation of certain adults; definitions.

As used in this act:

(d) “Exploitation” means misappropriation of an adult's property or intentionally taking unfair advantage of an adult's physical or financial resources for another individual's personal or financial advantage by the use of undue influence, coercion, harassment, duress, deception, false representation or false pretense by a caretaker or another person.

(e) “Fiduciary abuse” means a situation in which any person who is the caretaker of, or who stands in a position of trust to, an adult, takes, secretes or appropriates their money or property to any use or purpose not in the due and lawful execution of such person's trust or benefit.



(a) “Adult” means an individual 18 years of age or older alleged to be unable to protect their own interest and who is harmed or threatened with harm, whether financial, mental or physical in nature, through action or inaction by either another individual or through their own action or inaction when: (1) Such person is residing in such person's own home, the home of a family member or the home of a friend; (2) such person resides in an adult family home as defined in K.S.A. 39-1501, and amendments thereto; or (3) such person is receiving services through a provider of community services and affiliates thereof operated or funded by the Kansas department for children and families or the Kansas department for aging and disability services or a residential facility licensed pursuant to K.S.A. 39-2001 et seq., and amendments thereto. Such term shall not include persons to whom K.S.A. 39-1401 et seq., and amendments thereto, apply.

Civil Financial Exploitation
KRS § 209.020  (2020)

TITLE XVII  Economic Security and Public Welfare 
CHAPTER 209  Protection of Adults
KRS § 209.020 Definitions for chapter

As used in this chapter, unless the context otherwise requires:

(9) “Exploitation” means obtaining or using another person's resources, including but not limited to funds, assets, or property, by deception, intimidation, or similar means, with the intent to deprive the person of those resources;



(4) “Adult” means a person eighteen (18) years of age or older who, because of mental or physical dysfunctioning, is unable to manage his or her own resources, carry out the activity of daily living, or protect himself or herself from neglect, exploitation, or a hazardous or abusive situation without assistance from others, and who may be in need of protective services;

Civil Financial Exploitation
La. R.S. 15:1503 (2020)

LOUISIANA REVISED STATUTES 
TITLE 15.  CRIMINAL PROCEDURE 
CHAPTER 14.  ADULT PROTECTIVE SERVICES ACT
§ 15:1503. Definitions
(7) “Exploitation” means the illegal or improper use or management of the funds, assets, or property of a person who is aged or an adult with a disability, or the use of power of attorney or guardianship of a person who is aged or an adult with a disability for one's own profit or advantage.



(3) “Adult” means any individual eighteen years of age or older, or an emancipated minor who, due to a physical, mental, or developmental disability or the infirmities of aging, is unable to manage his own resources, carry out the activities of daily living, or protect himself from abuse, neglect, or exploitation.

Pages

Источник: https://www.justice.gov/elderjustice/prosecutors/statutes
Australia

Legal regime

Australia is a federation comprising six States and two self-governing Territories.  The Australian Constitution specifies those areas in which the Commonwealth has power to legislate and leaves the remainder to the States.  Corruption and bribery are largely State matters.

Each of the States and Territories criminalise both public sector and private sector bribery.[i]  However, many of these offences are technical in nature and therefore difficult to enforce.

The Australian federal government (the Commonwealth) has laws which prohibit bribery of federal public officials,[ii] as well as laws which prohibit bribery of foreign public officials.

Foreign public sector bribery

Australia ratified the Organisation for Economic Co-operation and Development (OECD) Convention on Combating Bribery of Foreign Public Officials in International Business Transactions (OECD Convention) in 1999.  Australia is also a party to the United Nations Convention against Corruption (UNCAC) of 2003.  Both treaties require State Parties to criminalise bribery of foreign public officials in the course of international business.

Australia has given effect to its treaty obligations in Division 70 of the Criminal Code Act 1995 (Cth) (Criminal Code).  Section 70.2(1) makes it an offence to provide, offer or promise to provide a benefit not legitimately due to another person, with the intention of influencing the exercise of a foreign public official’s duties in order to obtain business or a business advantage.

“Foreign public official” is broadly defined to include:

  • an employee or official of a foreign government body;
  • a member of the executive, judiciary or magistracy of a foreign country;
  • a member or officer of the legislature of a foreign country;
  • a person who performs official duties under the law of a foreign country; and
  • an employee or official of a public international organisation, such as the United Nations.

“Benefit” is also broadly defined to mean “any advantage” and is expressly not limited to property.

The offence created by section 70.2(1) captures bribes made to foreign public officials either directly or indirectly via an agent, relative or business partner.  While a key element of the offence is that the defendant must have intended to influence the foreign public official, it is not necessary to show that such an intention was expressed.[iii]  Section 70.2(1A) makes it clear that liability under section 70.2(1) will arise whether or not the bribe achieved its desired purpose of obtaining or retaining business or a business advantage.  In determining whether a benefit was legitimately due, a court must disregard whether the benefit in question was customary, necessary or required in the particular circumstances.  The value of the benefit is also to be disregarded.

Section 70.2 has extra-territorial reach.  Liability arises if the bribery occurred in Australia, and also where it occurred outside Australia, so long as the person who engaged in it was an Australian citizen or resident, or a body corporate incorporated in Australia.[iv]

The maximum penalty for an individual who is convicted under section 70.2(1) is 10 years’ imprisonment, a fine of AU$2.22 million, or both.  A corporation can be fined the greatest of: AU$22.2 million; three times the value of any benefit obtained directly or indirectly that can be reasonably attributed to the bribe; or, where the value of the benefit cannot be determined, 10% of the corporation’s annual turnover for the 12 months up to the end of the month in which the conduct constituting the offence occurred.  Bribery may also give rise to money-laundering charges under Division 400 of the Criminal Code.

In addition to criminal penalties, any benefits obtained by foreign bribery can be forfeited to the Australian government under the Proceeds of Crime Act 2002 (Cth).  That Act establishes a regime that allows proceeds of Commonwealth-indictable offences to be traced, restrained and confiscated by a court.  It also confers power on a court to order that a person appear before it to demonstrate that unexplained wealth was acquired by lawful means.

In December 2019, the Crimes Legislation Amendment (Combatting Corporate Crime) Bill 2019 (Cth) (Crimes Bill) was introduced to Parliament.

If passed, the Crimes Bill will:

  • extend the definition of foreign public official to include candidates for office;
  • remove the concept of a benefit being “not legitimately due” as an element of foreign bribery offences and replace it with a concept of “improperly influencing”.  The Crimes Bill also proposes the introduction of a provision which specifies matters which may and must not be taken into account in determining whether influence is improper;
  • extend the definition of foreign bribery to include conduct directed at obtaining or retaining personal advantage.  The current definition is limited to conduct directed at business advantage;
  • create a new corporate offence of failing to prevent foreign bribery.  This offence would be very similar to the failing-to-prevent-bribery offence in the UK Bribery Act 2010;
  • remove the requirement of influencing a foreign official in their official capacity;
  • make certain clarifying amendments to remove supposed uncertainties in the existing provisions;
  • introduce a Deferred Prosecution Agreement scheme in respect of certain serious corporate offences (see further below); and
  • amend the definition of dishonesty to mean “dishonest according to the standards of ordinary people” and remove the requirement for a defendant to have also “known” that the conduct was dishonest according to those standards.

In March 2020, the Senate Legal and Constitutional Affairs Legislation Committee recommended that the Crimes Bill be passed.[v]  The Crimes Bill is still before Parliament, and it is difficult to predict when it will likely be passed.

Defences to foreign public sector bribery

The Criminal Code provides two defences to the offence of foreign bribery under section 70.2(1).  The first defence is engaged where the provision of the benefit is permitted or required by a written law of the place where the conduct occurred.[vi]

The second defence is in respect of facilitation payments.  If the value of the benefit in question was of a minor nature, provided in return for expediting or securing the performance of a minor “routine government action”, and a record of the details of the conduct was created as soon as practicable, a defendant will have a good defence against liability.[vii]

For the purposes of the defence, routine government action is an action of a foreign public official that is commonly performed by that person, including things like granting permits or licences, processing government papers and providing access to utilities.  Routine government action does not involve a decision as to whether to award new business, or to continue existing business with a person.  Setting the terms of new or existing business is also excluded.  While sections 26–52 and 26–53 of the Income Tax Assessment Act 1997 (Cth) provide that domestic or foreign bribes cannot be deducted under the Act, facilitation payments are not considered bribes, so are tax-deductible as losses or outgoings.  A defendant bears the onus of proving a defence.

Domestic bribery offences

The Criminal Code also criminalises bribery of Commonwealth public officials.  Section 141.1(1) provides that it is an offence for a person to dishonestly provide or offer a benefit to another person, or cause a benefit to be so provided or offered, if done with the intention of influencing an Australian Commonwealth public official in the exercise of his or her official duties.  A Commonwealth public official will be guilty of a criminal offence under section 141.1(3) if he or she dishonestly requests, receives or agrees to receive a benefit with the intention either of having his or her duties influenced, or of fostering a belief that such influence will be wielded.  The maximum penalties for individuals and corporations convicted of these offences are the same as those for offences under section 70.2 of the Criminal Code.

Section 141.1 has extra-territorial reach.  A person will be liable whether or not the conduct constituting domestic public sector bribery occurred in Australia, and whether or not the result of the bribery was obtained in Australia, so long as it involved an Australian Commonwealth public official.

There are also State and Territory provisions which prohibit bribery of public officials, although those provisions are often the same as those which prohibit private sector bribery.[viii]

Domestic private sector bribery

The Criminal Code does not criminalise bribery in the private sector; the States and Territories are left to legislate in this area.  Indirect Commonwealth regulation is provided to some extent by the prescription of directors’ duties in the Corporations Act 2001 (Cth) (Corporations Act) and by the market-sharing and price-fixing provisions in Part IV of the Competition and Consumer Act 2010 (Cth).

At the State and Territory levels generally, it is illegal to corruptly give or offer inducements or secret commissions to, or receive them from, employees or agents of corporations and individuals.[ix]  Conduct will be “corrupt” only if engaged in with the intention of influencing the recipient to show favour.

Examples of the State and Territory provisions are those in the Crimes Act 1900 (NSW), the relevant statute for the State of New South Wales (NSW).  In that statute:

  • Section 249B(1) prohibits an agent from corruptly receiving or soliciting (or corruptly agreeing to receive or solicit) any benefit from another person as an inducement, a reward, or on account of doing or not doing something, or showing or not showing favour to any person in relation to the affairs or business of the agent’s principal.  It also prohibits the receipt of any expectation which would tend to influence the agent to show or not show favour to any person in relation to the affairs or business of the agent’s principal.  Section 249B(2) imposes mirror offences on persons who give or offer an agent any such benefit.
  • Section 249D(1) prohibits a person from corruptly giving a benefit to another person for giving secret advice to a third party where the person giving the benefit intends the advice to influence the third party to enter into a contract with the person giving the benefit, or appointing the person who gives the benefit to any office.  Section 249D(2) makes it an offence to corruptly receive such a benefit.
  • Section 249E makes it an offence for a person who offers or gives a benefit to a person entrusted with property (or any person entrusted with property who receives or solicits a benefit for anyone) without the consent of each person beneficially entitled to the property or the Supreme Court of NSW as an inducement or reward for the appointment of any person to be a person entrusted with the property.
  • Section 249J provides that it is not a defence that the receiving, soliciting, giving or offering of any benefit is customary in any trade, business, profession or calling.
  • The definition of “agent” is a wide one and includes employees: section 249A.

The legislation in the States and Territories varies as to the penalties that may be imposed for private sector bribery.  Generally, individuals are liable to between three and 21 years’ imprisonment.[x]  Under the NSW Crimes Act, an individual can be imprisoned for up to seven years, and may also be ordered to repay all or part of the value of any benefit received or given by that person.  He or she may also be disqualified from holding civic office for up to seven years.  Where bribery is perpetrated by a corporation, some jurisdictions provide for fines instead of imprisonment.

False accounting

On 1 March 2016, new false accounting provisions came into effect.  The provisions, found in Part 10.9 of the Criminal Code, criminalise intentional or reckless concealment of bribery by dealing with accounting documents.

Specifically, the provisions make it an offence to make, alter, destroy or conceal an accounting document, or to fail to make or alter an accounting document that the person is under a legal duty to make or alter, if that conduct is done:

  • with intent to “facilitate, conceal or disguise”; or
  • recklessly as to whether the conduct “facilitates, conceals or disguises”,

the occurrence of certain matters relating to the giving or receiving of a benefit which is not legitimately due.[xi]  This concept of a “benefit not legitimately due” echoes the language of the foreign bribery offences described above.

The offence only arises if “certain circumstances apply”.  The certain circumstances are intended to ensure that the offences are within the constitutional power of Federal Parliament.  However, they make it clear that the offence may apply to conduct committed outside of Australia.  The maximum penalties for these offences are identical to the penalties for the foreign bribery offences in the Criminal Code, described above.

These provisions were introduced as a direct response to criticism in the OECD Phase 3 report (discussed further below) about the inadequacy of Australia’s books and records offences.

Whistleblower protection

Sweeping reforms of Australia’s whistleblower protection framework came into force on 1 July 2019 as a result of the Treasury Laws Amendment (Enhancing Whistleblower Protections) Act 2019 (Cth).  The new regime, which sits in Part 9.4AAA of the Corporations Act, has significantly expanded and strengthened private sector whistleblower protections, increased applicable penalties and introduced a requirement for public companies and large proprietary companies to have a whistleblower policy which addresses certain matters.

Importantly, protected disclosures are no longer limited to potential contraventions of the corporations legislation, but now extend to disclosures where the whistleblower has reasonable grounds to suspect that the information concerns misconduct, or an improper state of affairs or circumstances, in relation to the relevant company or a related body corporate.  This specifically includes conduct by the entity, or one of its employees or officers, that constitutes an offence against a law of the Commonwealth punishable by imprisonment for a period of 12 months or more (e.g., the foreign bribery offence).

Where certain criteria are met, a whistleblower will receive protections in relation to the confidentiality of their identity and victimisation.  The penalties for breach of these protections have been significantly increased.  The maximum civil penalty for companies, for example, is now the greater of AU$11.1 million, three times the benefit derived from the contravention or 10% of annual turnover (up to a maximum of AU$555 million).  It is also now easier for victimised whistleblowers to claim compensation and other remedies.

The federal government considered the use of financial rewards to incentivise whistleblowing, as occurs in the United States, but decided not to implement this.

Public officials are protected under the Public Interest Disclosure Act 2013 (Cth) (PID Act).  The PID Act seeks to encourage public officials to report suspected wrongdoing in the Australian public sector, while protecting those who make public interest disclosures from reprisals.  There is equivalent legislation covering public servants in each State and Territory.

There are also specific protections against reprisals for union whistleblowers.  These were introduced by the Fair Work (Registered Organisations) Amendment Act 2016 (Cth), which contained a range of measures intended to fight union corruption.

Investigation and enforcement agencies

Australia has adopted a multi-agency approach to combatting corruption.  Australia’s main criminal law enforcement agencies in bribery cases are the Australian Federal Police (AFP) and the Office of the Commonwealth Director of Public Prosecutions (DPP).  State-based investigations are generally conducted by the fraud squad of the particular State police department, with prosecutions being undertaken by State Directors of Public Prosecution.

The AFP is active in detecting and investigating corruption as part of its statutory obligations to investigate serious crimes against federal laws and against Commonwealth property, revenue and expenditure.

While allegations of corruption will generally be referred to the AFP, other agencies that may become involved in investigation processes include: the Australian Securities and Investments Commission (ASIC); the Australian Commission for Law Enforcement Integrity; the Australian Criminal Intelligence Commission; the Inspector-General of Intelligence and Security; and the Office of the Commonwealth Ombudsman.  The DPP is largely responsible for prosecuting offenders under the anti-bribery provisions of the Criminal Code.

Corruption involving or affecting the public sector (including State government agencies, local government authorities, members of Parliament and the judiciary) is also dealt with at State level through independent bodies such as the NSW Independent Commission Against Corruption (ICAC).[xii]  While it cannot charge individuals or corporations with offences, the ICAC has wide-ranging power to investigate “corrupt conduct” involving NSW public officials or public bodies/authorities.  Reports following an investigation can be given to Parliament, the police, or be released publicly.

Despite repeated calls over recent years, there is still no federal anti-corruption commission in Australia.  The present federal government has agreed to establish a federal integrity commission to address the issue of corruption within the administration of the government in both its law enforcement and public sector agencies.  However, the model previously proposed by the government was heavily criticised by the opposition and cross-bench parties as lacking teeth.  Draft legislation formalising the government’s current proposal was released on 2 November 2020, and will be the subject of an extensive consultation process.

Cases prosecuted

The first case prosecuted under Australia’s foreign anti-bribery laws centred upon Securency International Pty Limited (Securency), a subsidiary of the Reserve Bank of Australia.  It arose from allegations by a company insider that Securency had paid nearly AU$50 million to international sales agents to bribe central banking officials in Malaysia, Indonesia and Vietnam in order to secure banknote supply contracts.  Investigations were jointly conducted by the AFP, the United Kingdom’s Serious Fraud Office and Malaysia’s Anti-Corruption Commission, leading to raids and searches in all three countries.

In 2011, following the AFP’s investigation, the AFP charged Securency and another Reserve Bank subsidiary, Note Printing Australia Limited (NPA), and several of the companies’ former senior managers with conspiracy to bribe foreign public officials contrary to section 70.2(1) of the Criminal Code.

Over the ensuing years, the prosecutions were mired in lengthy committal hearings and interlocutory arguments.  Unfortunately for the AFP, public awareness of the outcomes of the prosecutions was hampered by a suite of non-publication orders made by the Supreme Court of Victoria.  Those orders were only vacated in November 2018, following the last accused pleading guilty to conspiracy to bribe a foreign public official in Malaysia.

Amongst the information suppressed were the early guilty pleas by both Securency and NPA in 2011.  Each pleaded guilty to three charges of conspiracy to commit foreign bribery, and were fined AU$480,000 and AU$450,000, respectively.  Each company also co-operated in an application brought under the Proceeds of Crime Act 2002 (Cth) as a result of the successful prosecutions, and paid a total of about AU$22 million in pecuniary penalty orders.

The DPP ultimately secured a series of convictions against various individuals, following guilty pleas, on charges of conspiracy to bribe foreign public officials and/or false accounting.  The individuals convicted included the former CEO of Securency, the former CFO of Securency, the Indonesian sales agent for Securency, a former senior business development manager of Securency, and a former banknote specialist of Securency.

However, in a significant blow for the AFP and Commonwealth DPP, in 2018, the prosecutions of a further four individuals were permanently stayed by the High Court (the highest court in the Australian judicial system).  The stay was granted on the basis that the continued prosecution of these individuals would bring the administration of justice into disrepute following unlawful compulsory examinations conducted during the course of the AFP’s investigation by what is now the Australian Criminal Intelligence Commission: see Strickland v Commonwealth Director of Public Prosecution [2018] HCA 53.

The second charges under Australian foreign anti-bribery laws were laid by the AFP in February 2015 against two directors of an Australian construction company, Lifese.  The directors were charged with conspiracy to bribe a foreign public official in connection with building contracts in Iraq.  A third man was also charged.  Much of the evidence relied upon by the prosecution was from intercepted telephone conversations.  The three men pleaded guilty and were sentenced in September 2017 (R v Jousif; R v I Elomar; R v M Elomar [2017] NSWSC 1299).  The directors were each sentenced to four years’ imprisonment and fined $250,000.  The third man was sentenced to four years’ imprisonment.  The jail sentences of the directors were reduced on appeal to three years and four months (with a non-parole period of one year and eight months) (Elomar v R [2018] NSWCCA 224).

In May 2018, the AFP charged engineering consultancy Sinclair Knight Merz, now known as Jacobs Group Australia, its former chief executive and other individuals, with conspiring to bribe foreign officials in the Philippines and Vietnam to secure various infrastructure projects.  The case is still at the committal stage.

In September 2018, the AFP charged Mr. Mozammil Bhojani with conspiracy to bribe a foreign public official.  It was alleged that between January 2015 and 2018, Mr. Bhojani conspired to bribe two Nauru government officials with more than AU$100,000 in kickbacks in exchange for favourable phosphate shipments for his company, Radiance International Pty Ltd.  In 2020, Mr. Bhojani pleaded guilty and was convicted and sentenced to two-and-a-half years of intensive correction in the community and 400 hours of community work.

In March and April 2015, NSW police charged two former executives of Commonwealth Bank of Australia (CBA) with receiving bribes in return for the grant of IT contracts to a US company, ServiceMesh.  The charges resulted from the bank reporting anomalies it had uncovered to the police.  These charges were brought under domestic anti-bribery laws.  One of the former executives, who pleaded guilty, was sentenced in late 2016 to three-and-a-half years’ jail.  The other has pleaded not guilty.

In March 2019, the former chief of staff at National Australia Bank (NAB), Ms. Rosemary Rogers, was charged in NSW with one count of dishonestly obtaining advantage by deception and 56 counts of an agent corruptly receiving benefits under domestic anti-bribery laws.  The charges relate to a scheme by which the executive allegedly approved inflated invoices issued by an events company to the bank, in return for personal travel, cash and other benefits totalling AU$5.4 million.  The head of the events company, Ms. Helen Rosamond, has also been charged.  The bank has commenced civil proceedings against Ms. Rosamond and her events company in an attempt to recover its losses.  In February 2020, Ms. Rogers pleaded guilty to an amended list of 38 charges, including dishonestly obtaining a financial benefit by deception.  Ms. Rogers is now awaiting sentencing, while Ms. Rosamund has pleaded not guilty to over 70 fraud and corruption charges.  Her trial is set to go ahead in July 2021.

Disgraced former NSW government minister, Mr. Eddie Obeid, who was found guilty of misconduct in public office in 2016 in relation to his family’s business interests in café leases in Sydney’s Circular Quay, has also been charged, along with his son and another former minister, Mr. Ian MacDonald, with conspiracy to commit misconduct in public office over their alleged involvement in the issuance of a coal mining exploration licence.  Each has entered a not-guilty plea and the trial is currently in progress.

In September 2019, the NSW DPP dropped corruption charges against the former Australian CEO of fleet management company Orix, and a former fellow executive, after disclosure issues emerged during the trial.  The individuals had been accused of making corrupt payments totalling almost AU$1 million to a former fleet manager of Coca-Cola Amatil in exchange for vehicle leasing contracts.  That former fleet manager was convicted of corruption charges in 2017 after pleading guilty, and jailed for a minimum of four years.  One other individual was also convicted of corruption charges after pleading guilty, and served a home prison sentence.  In December 2018, Mr. Peter Gregg, the former CFO of Leighton Holdings, was found guilty of two counts of contravening section 1307 of the Corporations Act by engaging in conduct that resulted in the falsification of Leighton Holdings’ books.  The case centred on two payments totalling US$15 million made in 2011 to the United Arab Emirates’ Asian Global Projects and Trading FZE, and a backdated agreement to buy and sell steel, executed by Mr. Gregg on behalf of Leighton Holdings.  The Crown alleged that the agreement was not genuine, and was only signed in order to legitimise the payments in question.  Mr. Gregg was sentenced to a total effective sentence of two years’ imprisonment, to be served by way of an intensive correction order.  However on 30 September 2020, the Court of Criminal Appeal quashed Mr. Gregg’s conviction and entered a verdict of acquittal on each count, finding that the verdicts against him were unreasonable and that there had been a miscarriage of justice.

In July 2020, Mr. Dennis Teen, a Melbourne property developer, was charged with bribing a Malaysian foreign public official and four counts of false accounting relating to the sale in 2013 of a newly-developed student hostel to a Malaysian government-owned entity.  It is alleged that the sale occurred at an inflated price and that about AU$4.75 million was paid to Malaysian foreign officials.  The AFP has also restrained about AU$1.6 million of assets held by Mr. Teen, his wife and associated entities in connection with the matter.

Current investigations

It is difficult to obtain reliable data in relation to the number of bribery and corruption investigations currently under way in Australia.  However, in December 2019, the OECD’s Phase 4 Two-Year Follow-Up Report on Australia (discussed further below) recorded that the AFP had eight foreign bribery cases under investigation (compared to 19 as at December 2017).

The AFP does not generally publish details of its ongoing investigations.  However, aspects of some investigations are the subject of media reports from time to time.  For example, it has been reported that the AFP is investigating the mining company Getax, and its director Mr. Amit Gupta, in relation to allegations of conspiracy to bribe a number of high-ranking politicians in Nauru in order to gain control of the country’s phosphate resources.  It has also been reported that in February 2020, in connection with this investigation, the Attorney-General of Australia requested that US authorities obtain court orders to prevent Gupta family members from selling a US$3.67 million apartment in New York.

In August 2019, the NSW ICAC commenced a public inquiry into whether, from January 2015, NSW Labor party officials, members of Chinese Friends of Labor, political donors and others entered into a scheme to circumvent prohibitions or requirements under Part 6 of the Election Funding, Expenditure and Disclosures Act 1981 (NSW) relating to political donations.  This includes investigating allegations that a billionaire property developer, Mr. Huang Xiangmo, made a AU$100,000 cash donation to the NSW Labor Party and that party officials sought to mask the origins of the money using “straw donors”.  It is illegal in NSW for property developers to make donations to political parties.

In September 2020, the NSW ICAC commenced a public inquiry into whether, from 2012 to August 2018, the then NSW Member of Parliament for Wagga Wagga, Mr. Daryl Maguire, engaged in conduct that involved a breach of public trust by using his public office and parliamentary resources to improperly gain a benefit for himself and/or entities close to him.  This inquiry, which is ongoing, followed an earlier inquiry during which the ICAC heard secret recordings of telephone conversations in which Mr. Maguire allegedly admitted trying to earn commission payments by setting property developers up with Chinese investors.

Current trends of enforcement action

Despite a growing number of successful prosecutions, Australia is still in the early stages of enforcing anti-bribery laws in relation to foreign public officials.  However, significant progress has been made in the level of enforcement action in recent years.  The catalyst for that progress was the Phase 3 Report on Implementing the OECD Anti-Bribery Convention in Australia, issued by the OECD Working Group on Bribery in late 2012 (OECD Phase 3 Report).  The OECD Phase 3 Report noted that a substantial proportion of Australia’s international economic activity is exposed to foreign bribery risks, particularly in the mining & resources and agriculture sectors.  It criticised Australian enforcement efforts and was particularly scathing about the failure of the AFP to resource, prioritise and pursue foreign bribery investigations.

The AFP and the Australian government responded to the OECD Phase 3 Report with a number of initiatives.  These included: entry by the AFP into a Memorandum of Understanding with ASIC in respect of collaborative working arrangements and the sharing of information; the establishment by the AFP of dedicated Fraud and Anti-Corruption (FAC) teams in five capital cities; and the establishment of a FAC Centre to improve coordination amongst agencies, to develop standards and procedures for fraud and anti-corruption investigation and to provide training to investigators.

The OECD Working Group published its Phase 4 Report for Australia in December 2017.[xiii]  That report found that Australia’s enforcement of laws on foreign bribery had increased markedly since the Phase 3 Report.  It noted that seven offenders had been convicted of foreign bribery offences, and that Australia had taken substantial steps to improve its framework for detecting and investigating foreign bribery cases, including the creation of the FAC Centre.  It provided recommendations designed to further help Australia strengthen foreign bribery enforcement, including:

  • enhancing whistleblower protections in the private sector (which, as discussed above, has since occurred);
  • proactively pursuing criminal charges against companies for foreign bribery and related offences; and
  • encouraging companies to develop and adopt adequate internal controls and compliance programmes.

In its two-year follow-up report on the Phase 4 report, the OECD Working Group commended Australia for its full and partial implementation of a number of recommendations from its Phase 4 report, including establishing enhanced protections for private sector whistleblowers, increasing the AFP’s budget for foreign bribery investigations, and adopting measures to improve the detection of foreign bribery through its money laundering system.[xiv]  However, the Working Group noted that not all of its earlier recommendations had yet been implemented, and expressed concern about the low level of foreign bribery enforcement in Australia given the size of its economy and the high-risk regions and sectors in which its companies operate.  It regarded Australia’s low level of cases against corporate entities, in particular, to be “very concerning” and hoped that Australia would address its longstanding challenges in attributing wrongdoing to corporate entities.

The enforcement environment in Australia has also intensified in the wake of the Royal Commission into Misconduct in the Banking, Superannuation and Financial Services Industry (Royal Commission).  The final report of Commissioner Hayne was provided to the Governor-General on 1 February 2019.

The Royal Commission highlighted multiple instances of serious malpractice by Australian banks and other financial services providers, and the Commissioner’s report included 76 recommendations for reform.  The Commissioner was, amongst other things, very critical of ASIC for failing to take tougher action against companies and individuals.  In the aftermath of the Royal Commission, ASIC announced a new enforcement approach, by which ASIC will actively ask itself “Why not litigate?”, and established a new “Office of Enforcement” in July 2019 to lead its enforcement function.  This new strategic approach, coupled with a significant boost in government funding and increased penalties and powers, has led to an uplift in the number of civil and criminal enforcement actions by ASIC in the past year, and it is expected that it will continue to do so.  In a recent enforcement update, ASIC noted that between January 2019 and January 2020, there had been a 10% increase in the number of ASIC enforcement investigations generally, and a 52% increase in enforcement investigations involving Australia’s pre-eminent financial services companies, CBA, NAB, Westpac, ANZ and AMP (or their officers or subsidiary employees).[xv]  In the year ahead, referrals from the Royal Commission remain one of ASIC’s strategic priorities.

In the foreign bribery space, we have seen a trend, in the last few years, of ASIC taking a more active interest in potential Corporations Act contraventions by directors or officers.  We expect that trend to continue.

Facilitation payments

The Criminal Code excludes criminal liability for facilitation payments.  However, individuals and corporates alike need to be aware that they will only be able to rely upon the defence if the value of the benefit is of a minor nature, made for the sole or dominant purpose of expediting or securing the performance of a routine government action of a minor nature, and specific details of the payment are properly recorded as soon as is reasonably practicable.  Determining whether a particular payment satisfies these strict requirements can often be difficult.

Although the OECD Convention does not require countries to criminalise the use of facilitation payments, there has been a gradual shift in mood, and such payments are no longer widely considered acceptable.  A growing number of Australian companies with international operations now prohibit, as a matter of company policy, facilitation payments.

Somewhat controversially, the Crimes Bill does not propose the abolition of the “facilitation payments” defence, even though the Senate Economic References Committee report on Foreign Bribery (2018) recommended, by majority, that the defence be abolished over a transition period.

Hospitality

Australian legislation does not expressly explain the circumstances under which providing gifts and hospitality may amount to bribery.  As the law currently stands, the giving of such benefits will only be unlawful if done with the intention of influencing a public official.  There is little in the way of guidance on this area from Australian regulators.  The principal guidance for Commonwealth public officials is under the Public Service Act 1999 (Cth), which has a series of relevant standards set out in the Australian Public Service Code of Conduct, and the Australian Public Service Values, under the umbrella of the Australian Public Service Commission Guide to its Integrated Leadership System.  The Department of Foreign Affairs and Trade has its own Code of Conduct for Overseas Service.  State and Territory governments also have their own public services with their own codes of conduct, which may be supplemented by agency-specific codes.

In certain business transactions, providing a level of hospitality to prospective clients may be required.  Vigilance is recommended in this area to ensure compliance with anti-bribery laws, particularly when engaging with public officials.  Some issues to consider in determining whether hospitality is appropriate are: whether the company providing it has a clear policy on gifts and hospitality and whether that policy is being complied with; whether the expenditure is reasonable and is accurately recorded; and whether the hospitality might reasonably be suspected of influencing the recipient’s decision-making processes.

The BHP Billiton case is a timely reminder of the particular risks associated with the provision of hospitality to public officials.  In 2015, BHP Billiton agreed to pay to the SEC a US$25 million penalty to settle SEC charges that it violated the FCPA by failing to devise and maintain sufficient internal controls over its global hospitality programme connected to the company’s sponsorship of the 2008 Summer Olympic Games in Beijing.

Self-reporting

In Australia, self-reporting of foreign bribery to the AFP is encouraged but is not mandated by any legislative or formal framework.  At the time the OECD Phase 4 Report was published, at least eight companies had self-reported evidence of bribery committed by persons related to them.  In each case, the AFP proceeded to investigate.

The AFP has indicated that it expects to see more self-reporting by companies; however, this has not been matched by legislative amendments or clear prosecution guidelines.  While there are few, if any, formal incentives from a criminal law perspective, a potential benefit to self-reporting is that the AFP may be more inclined to work with the corporation in question, and keep it better informed during the investigation process.  There may also be leniency at the prosecution stage, although a number of other factors would also be considered in accordance with the Prosecution Policy of the Commonwealth.  While the AFP has attempted to address some of this uncertainty through the publication of a Best Practice Guideline for self-reporting of foreign bribery and related offending by corporations,[xvi] it is the proposed introduction of a deferred prosecution agreement scheme (see below) that will likely be the “game-changer” in terms of encouraging self-reporting.

Plea bargaining

A plea bargain can take two forms, the first being an agreement between the prosecution and the defence that the defendant agree to plead guilty to a particular charge in return for more serious charges being dropped.  This type of plea bargain is allowed in Australia and, in certain circumstances, the DPP may be able to provide a defendant with testimonial or prosecutorial immunity.  In addition to agreeing to drop certain charges in return for a guilty plea, the DPP may agree to proceed with a charge summarily rather than on indictment, or agree not to oppose a defence.

The Prosecution Policy of the Commonwealth provides guidance on negotiations between the prosecution and the defence about charges to be prosecuted.  Charge negotiations are specifically encouraged and can occur at any stage of a prosecution, and at the DPP’s initiation.  This practice will meet the requirements of justice as long as the charges to be continued bear a reasonable relationship to the nature of the defendant’s criminal conduct, provide an adequate basis for the imposition of an appropriate sentence, and are supported by evidence.

The second form involves a defendant pleading guilty to a charge in return for a lesser sentence being imposed by a court.  This form of plea bargaining has been precluded by the High Court in Barbaro v the Queen (2014) 253 CLR 58 for criminal proceedings, which holds that prosecutors are not required and should not be permitted to proffer even a sentencing regime to a judge.  In Commonwealth v Director, Fair Work Building Industry Inspectorate and Others (2015) 258 CLR 482, the High Court held that this principle did not apply in civil penalty proceedings (which will include many proceedings brought under the Corporations Act – see above – but not proceedings under the Criminal Code).

The Crimes Bill will, if passed, introduce a deferred prosecution scheme in Australia.  It will have the following features:

  • Deferred Prosecution Agreements (DPAs) would be available only to companies (and not individuals) for certain specified crimes which are regarded as “serious corporate crime”.  These would include foreign bribery, false accounting and insider trading;
  • there would be certain mandatory terms of a DPA, including a statement of facts relating to each offence specified in the DPA, the requirements to be fulfilled by the person under the DPA, the amount of financial penalty to be paid by the person, and the circumstances which constitute a material contravention of the DPA; and
  • after the proposed terms of any DPA are agreed between the person and the Director, it will need to be referred to an “approving officer” – who must be a retired judicial officer with sufficient knowledge and experience – who would determine whether the terms are in the interests of justice and are fair, reasonable and proportionate (in which case, the DPA must be approved).  In referring the DPA for approval, the Director must provide a written statement to the effect that he or she is satisfied that there are reasonable grounds to believe that an offence specified in the DPA has been committed, and that entering into the DPA is in the public interest.

The Australian Law Reform Commission (an independent federal government agency that provides recommendations for law reform to government) (ALRC), in its Final Report on Corporate Criminal Attribution, dated April 2020, recommended that the Crimes Bill be amended to require that the terms of any DPA be subject to approval by a (current) judge of the Federal Court of Australia, and that reasons for the approval of the DPA be published in open court (following receipt of oral submissions from the parties).  The ALRC considered that these amendments would enhance the integrity of DPAs and uphold public trust in them.  The government is still considering this recommendation.

Civil versus criminal prosecution

Foreign and domestic public sector bribery offences at the Commonwealth level are prosecuted in Australia under provisions of the Criminal Code.  At the State and Territory levels, public and private sector bribery are also prosecuted criminally.  There are only some circumstances in which acts of bribery may also give rise to civil claims.  Civil penalty proceedings under the Corporations Act (which are brought by ASIC) for breaching directors’ duties are an example.

Examples of cases in which ASIC has pursued directors or officers for breach of section 180 of the Corporations Act (for failing to exercise due care, skill and diligence) include ASIC v Ingleby [2013] VSCA 49, ASIC v Lindberg [2012] VSC 332 and ASIC v Flugge [2016] VSC 779.  Those cases all arose out of the rorting by AWB Ltd, an Australian wheat exporter, of the UN’s Oil-for-Food Programme in Iraq.  These cases highlight the need for directors and officers to ensure that proper systems are in place to combat bribery and corruption within their organisations, the importance of not ignoring “red flags”, and the need to ensure that the Board is appropriately informed of relevant matters.

Parallel investigations

As the drive to enforce the anti-bribery regime gathers momentum and the regime itself becomes more sophisticated, Australian agencies are increasingly using parallel investigations and collaborating with overseas agencies, both generally and in relation to specific cross-border investigations.

An International Foreign Bribery Taskforce (IFBT) was established in May 2013 as a platform for specialist investigators from Australia, the United States, Canada and the United Kingdom to work together to combat foreign bribery.  The IFBT facilitates collaboration and cooperation between experts from the AFP, the Federal Bureau of Investigation, the Royal Canadian Mounted Police and the City of London Police Overseas Anti-Corruption Unit.  The IFBT aims to enhance the response of these like-minded countries to foreign bribery by encouraging experts to share knowledge, skills and methodologies.

Australia is also an active member of the G20 Anti-Corruption Working Group, which aims to enhance the prevention of corruption-related activities.  In 2018, the G20 published its Anti-Corruption Action Plan for 2019–2021, which included a strengthened commitment to work together to prevent, investigate and take enforcement action against corruption.

Another multilateral anti-corruption forum to which Australia contributes is the Asia-Pacific Economic Cooperation (APEC) Anti-Corruption and Transparency Experts Taskforce.  Australia was a key participant in developing the APEC Code of Conduct for Business and has since worked with Chile, Thailand and Vietnam to implement it.  For the purpose of disturbing the financing of corrupt activities, Australia has also collaborated with other APEC members to promote the use of anti-money laundering systems, and hosted several international conferences on this topic.

Overseas impacts

Australia’s geographic location and footprint in certain high-risk economic activities expose it to impacts from overseas laws concerning bribery and corruption, as set out above.  In addition to the mining & resources and agriculture sectors, another area of risk is the construction sector, especially in the Asian markets (and in particular, China) to which Australian companies are increasingly turning, given the investment opportunities.

Overseas impacts are also felt in Australia, due to the increasingly international nature of business.  An example is provided by the differences in anti-bribery laws in Australia and the United Kingdom.  While in Australia, facilitation payments are allowed and there is (for the moment at least) no strict liability bribery offence for corporations, the opposite is true in the United Kingdom.  Australian-based companies doing business in the United Kingdom must be aware of the need to comply with the strict anti-bribery regime in place there, and may be required to implement company-wide procedures and policies to ensure compliance.

Corporate liability may arise under foreign laws even where there is no obvious jurisdictional nexus.  It is increasingly common for international business partners to demand that their Australian counterparts comply with foreign laws.  International business contracts may require that Australian companies warrant their compliance with foreign anti-corruption laws or provide annual certificates of compliance with them.

Section 70.2(1) of the Criminal Code creates the offence of providing, offering or promising to provide a benefit not legitimately due to another person, with the intention of influencing the exercise of a foreign public official’s duties to obtain business or a business advantage.  This offence captures the conduct of individuals and corporations alike; however, to establish the criminal liability of a corporation, the Criminal Code requires that both the physical and mental (or “fault”) elements can be attributed to the corporation.

The physical element of the offence under section 70.2(1) is attributed to a corporation if the conduct was committed by an employee, agent or officer of the body corporate acting within the actual or apparent scope of that person’s employment or authority.[xvii]  The key fault element, being the requirement of intention under section 70.2(1), is satisfied if the corporation “expressly, tacitly or impliedly authorised or permitted the commission of the offence”.[xviii]  Authorisation or permission can be established in several ways under Part 2.5 of the Criminal Code, including by proving that:

  • the corporation’s board of directors or a “high managerial agent”[xix] (a senior officer) carried out the conduct, or authorised or permitted the commission of the offence;
  • the corporation had a corporate culture that directed, encouraged, tolerated or led to non-compliance with the legislative provisions; or
  • the corporation failed to create and maintain a corporate culture requiring compliance with the relevant anti-bribery laws.

A similar analysis applies in respect of the false accounting provisions in the Criminal Code.

The scope of corporate liability provisions in the Criminal Code is potentially broad, although the provisions are often complex to apply in practice.  The provisions relating to corporate culture direct attention to the adequacy of a corporation’s anti-bribery compliance programme.

As is discussed above, the proposed amendments to the Criminal Code would see the introduction into Australia of an even broader corporate offence of failure to prevent bribery closely modelled on section 7 of the UK Bribery Act 2010.

Such an offence would have the effect that a body corporate would be liable for the offence of failing to prevent bribery of a foreign public official if an associate (including employees, contractors, agents and subsidiaries) commits an offence against section 70.2 (or engages in conduct outside Australia that, if engaged in in Australia, would constitute an offence against section 70.2), and the associate does so for the profit or gain of the body corporate.  The offence will be an offence of strict liability; however, it will be a defence if the body corporate can prove that it had in place adequate procedures, designed to prevent the commission of an offence against section 70.2.

The Crimes Bill includes a provision which would require the minister to publish guidance on the steps that a body corporate could take to prevent an associate from bribing foreign public officials,  A draft of such guidance was issued by the Attorney-General’s Department in November 2019 for comment.  However, the legislation will not prescribe what constitutes “adequate procedures” – that task will be left to the courts to determine on a case-by-case basis.

The ALRC’s Final Report on Corporate Criminal Responsibility (April 2020) comprehensively reviewed Australia’s corporate criminal responsibility regime.  It made a number of recommendations, including standardising attribution of criminal responsibility to corporations and amending Part 2.5 of the Criminal Code to make it simpler and arguably more prosecutorially friendly, but still allowing corporations to avoid liability by demonstrating that they took reasonable precautions to prevent misconduct.  The ALRC also recommended that the government develop a national debarment regime for criminally convicted corporations.  The government is still considering, and has not yet responded to, the recommendations made by the ALRC.

If passed, the Crimes Bill will see three significant reforms relevant to bribery and corruption, namely:

  • reforms to the foreign bribery provisions in the Criminal Code, aimed at making enforcement of those offences easier;
  • the introduction of the corporate offence of failure to prevent foreign bribery; and
  • the introduction of a deferred prosecution scheme.

We may also finally see the establishment of a federal anti-corruption body, together with potentially significant reform to Australia’s corporate criminal responsibility regime.

Collectively, these reform proposals represent a recognition and continuation of the government’s response to the criticisms of Australia’s anti-corruption efforts.

 

[i] Crimes Act 1900 (NSW), s 249B; Crimes Act 1958 (Vic), s 176; Criminal Law Consolidation Act 1935 (SA), s 150; Criminal Code Act 1899 (Qld), ss 442B–442BA; The Criminal Code (WA), ss 529–530; Criminal Code Act 1924 (Tas), s 266; Criminal Code 2002 (ACT), ss 356–357; and Criminal Code Act 1983 (NT), s 236.

[ii] Part 7.6 of the Criminal Code Act 1995 (Cth).

[iii] Proving an offence under s 70.2(1) of the Criminal Code requires proof of the physical elements and the fault elements of the offence.  In the case of the key fault element, intention to influence may be proved by showing that the person in question “means to bring [the result] about or is aware that it will occur in the ordinary course of events”: Criminal Code, s 5.2.

[iv] Criminal Code, s 70.5.

[v]  (Hyperlink) See also the Committee’s earlier report dated 20 April 2018 on the predecessor 2017 bill (Hyperlink) and the report of the Senate Economics References Committee on “Foreign bribery” dated March 2018 (Hyperlink)

[vi] Criminal Code, s 70.3.

[vii] Criminal Code, s 70.4.

[viii] Various State and Territory legislation criminalises public sector bribery: Crimes Act 1900 (NSW), s 249B; Crimes Act 1958 (Vic), s 176; Criminal Law Consolidation Act 1935 (SA), s 150; Criminal Code Act 1899 (Qld), ss 442B–442BA; The Criminal Code (WA), ss 529–530; Criminal Code Act 1924 (Tas), s 266; Criminal Code 2002 (ACT), ss 356–357; and Criminal Code Act 1983 (NT), s 236.

[ix] Crimes Act 1900 (NSW), Part 4A; Crimes Act 1958 (Vic), s 176; Criminal Code 1899 (Qld), ss 60 and 98C; Criminal Law Consolidation Act 1935 (SA), ss 149–150; Criminal Code Act 1942 (Tas), s 72; Criminal Code Compilation Act 1913 (WA), s 61; Criminal Code 2002 (ACT), s 356; and Criminal Code Act 1983 (NT), ss 59–60 and 77–88.

[x] Maximum periods of imprisonment provided for by the various pieces of State and Territory legislation are: seven years under the Crimes Act 1900 (NSW), s 249B; 10 years under the Crimes Act 1958 (Vic), s 176; seven years under the Criminal Law Consolidation Act 1935 (SA), s 150; seven years under the Criminal Code Act 1899 (Qld), s 442I; seven years under The Criminal Code (WA), s 538; 21 years under the Criminal Code Act 1924 (Tas), s 389(3); 10 years under the Criminal Code 2002 (ACT), s 356; and three years under the Criminal Code Act 1983 (NT), s 236.

[xi] Criminal Code, s 490.1 and 490.2.

[xii] Other bodies include: the Independent Broad-based Anti-Corruption Commission in Victoria; the Crime and Corruption Commission in Queensland; and the Corruption and Crime Commission in Western Australia.

[xvii] Criminal Code Act 1995 (Cth), s 12.2.

[xviii] Criminal Code Act 1995 (Cth), s 12.3.

[xix] Subject to a due diligence defence: Criminal Code, s 12.3(3).

Источник: https://www.globallegalinsights.com/practice-areas/bribery-and-corruption-laws-and-regulations/australia

Tasmanian tax agent James Burrows accused of stealing in excess of a million dollars from clients

A 35-year-old tax agent has been charged with more than 40 fraud offences, after allegedly stealing in excess of a million dollars from his clients.

Key points:

  • Police laid the larges following an 18-month investigation, sparked by social media
  • It's alleged James Burrows misappropriated tax returns and falsified business activity statements
  • Police say there could be up to 50 victims

Tasmania Police arrested and charged James Burrows after an 18-month long joint investigation with the Australian Tax Office (ATO) that was sparked by complaints on social media.

The Launceston man was charged with 25 counts of obtaining financial advantage by deception and 16 counts of stealing by misappropriation.

Detective Inspector Kim Steven said while the investigation was still underway, they believe there could be up to 50 victims.

"A number of people made a number of accusations and allegations through social media that eventually made their way to us and started the investigation," he said.

"We've certainty interviewed and spoken to a large number of people including employees."

Police said Mr Burrows misappropriated individual tax returns and falsified business activity statements for his financial benefit from September 2017 until March 2020.

The alleged offending breached both state and Commonwealth legislation.

Inspector Steven said both businesses and individuals had fallen victim to the alleged fraudulent activity.

"You like to think your money is safe when you're dealing with tax agents or accountants but unfortunately for a myriad of reasons, the human factor sometimes comes in and that's why we're still in the job unfortunately," he said.

"This doesn't happen every day. People should have faith in the tax system."

The Tax Practitioners Board terminated Mr Burrows' registration as a tax agent in 2019, following its own investigation.

In a statement, ATO Assistant Commissioner Ian Read said they are providing support to clients of Mr Burrows.

"The majority of tax agents are trusted advisors who support the integrity of the tax system and their clients," Mr Read said.

"However, when we identify tax agents who appear to be breaching the trust placed in them and defrauding their clients and the system, we take it seriously.

Mr Burrows has been bailed to appear in the Launceston Magistrates Court on the 26th of May.

Источник: https://www.abc.net.au/news/2021-03-12/tax-accountant-charged-over-alleged-theft-from-clients/13242728

Bribery & Corruption Laws and Regulations 2021

Why Sydney woman stole $3.5m from Commonwealth Bank

A former Commonwealth Bank employee who ripped off customers to the tune of $3.5m to pay for a lavish lifestyle and appease an abusive ex has been jailed.

Hsin-Yu Tsai, 33, had claimed that she was not motivated by greed when she used her position as a customer service officer to move millions of dollars out of the accounts of unsuspecting clients.

However, a NSW District Court judge ruled that she did reap substantial amounts of money from the scheme and said there was no other option than for her to be jailed.

The court was told that Tsai claimed she was pressured into the offending in order to satisfy her then boyfriend’s desire for expensive watches and clothes.

Judge John Pickering said that according to Tsai, shortly after she moved in with the man, he pressured her to lavish him with material gifts.

Tsai pleaded guilty to three counts of dishonestly obtaining financial advantage by deception and one count of using false documents to gain advantage by deception.

Judge Pickering said aspects of the boyfriend’s behaviour were similar to those of a “domestic predator” and Tsai claimed that he had been violent and abusive.

It was in those circumstances that she began stealing from the bank, the court was told.

She moved $2.4m out of the account of a South African national who lived overseas; however, he did not discover the fraud for another three years.

She also siphoned off money from the term deposit account of another customer and in all stole $3.5m.

She claimed that her then boyfriend was a financial burden on her and had pressured her into buying a $600,000 Ferrari.

“She felt she had to please him and keep him happy because she had no other family to rely on in Sydney. Her parents were overseas and she had been isolated from her friends,” Judge Pickering said.

However, she also used the money for her own gain.

When the relationship ended, they negotiated through lawyers for her to be paid a $1m settlement.

She used the money to travel to Taiwan, China and Europe, bought designer handbags and purchased property.

However, Judge Pickering noted, her offending ceased following the break-up and despite her having the opportunity to continue stealing money over the next three years while she continued to work at the bank.

“Sometimes the proof is in how you live your life after this,” Judge Pickering said.

“ … That needs to be balanced by the fact she made a lot of money including the million dollars she got at the end of her settlement.

“But nevertheless it is a remarkable circumstance that she continued to be employed by the Commonwealth Bank, did not take the opportunity to commit any fraud and placed herself in a completely different life.”

The court was told that with the help of her parents, Tsai had paid back the money she had stolen from the Commonwealth Bank.

Judge Pickering noted she was now working in the health industry, had a how to open a barclays bank account in the us family and had rehabilitated herself.

However, he said there was no other option than to send her to prison considering the amount of money she had stolen.

“It would be an extremely rare scenario where someone who defrauded the bank of $3.5m and was an employee … did not go to jail fulltime,” Judge Pickering said.

Tsai also made full admissions to police and pleaded guilty at the first opportunity.

She was sentenced to three years and three months in prison, with a 14-month non parole period, meaning she will be eligible for release in December next year.

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Источник: https://thewest.com.au/news/why-sydney-woman-stole-35m-from-commonwealth-bank-c-4366282

It is a criminal offence to intentionally provide false information to Centrelink in order to obtain a payment, to continue to maintain a payment, or in order to receive a higher payment where a person is not otherwise entitled to it.

Services Australia, in circumstances where it suspects unlawful conduct has occurred, can pass on a person’s details to the Commonwealth Department for Public Prosecutions who can commence a criminal prosecution against the person.

This criminal process is not to be confused with the process Centrelink undertakes when recovering a debt from a person who has unknowingly received an overpayment, for example. A prosecution can result in court proceedings, a criminal conviction, and a penalty being imposed. For that reason it is important for a person to obtain legal advice should they receive notification of a criminal investigation or charge.

Most Centrelink related criminal offences are contained in the Criminal Code Act 1995 (Cth) [see for example s 134.1(1) – obtaining property by deception; s 134.2(1) – obtaining financial advantage by deception; s 135.2(1) – obtaining a financial advantage].

The maximum penalties for such offences can be as severe as up to 10 years imprisonment. As these cases are often complex and can involve significant penalties, obtaining early legal advice is recommended.

There is no requirement to attend a "prosecution interview"

When determining whether to prosecute a person for unlawful conduct, Centrelink may request that the person attend a prosecution interview. It will be a prosecution interview (as opposed to an assessment interview) if Centrelink provide a warning that anything the person says may be used against them in a court of law and that the interview will be taped.

The prosecution interviewer may suggest that there is no need for the person to attend the interview and to just "send them a letter" instead. In these circumstances Centrelink should be advised that the person is seeking legal advice.

There is no explicit legal obligation to attend or remain in a prosecution interview.

If a person does decide to attend, they can walk out at any point that they wish. No penalty can be imposed on them for not attending such an interview, or for stopping it once it has begun. Their current payments cannot be stopped for refusing to attend a prosecution interview.

Prosecution  :  Last Revised: Mon Mar 23rd 2020
The content of the Law Handbook is made available as a public service for information purposes only and should not be relied upon as a substitute for legal advice. See Disclaimer for details. For free and confidential legal advice in South Australia call 1300 366 424.

Источник: https://lawhandbook.sa.gov.au/ch32s01s08.php

Centrelink Fraud Cases

What is Centrelink Fraud?

Centrelink fraud, also known as social security fraud or welfare fraud, occurs when someone receives social benefits they are not entitled to. This usually happens because they have mistakenly, or purposely, provided incorrect information.

There are several different forms of Centrelink Fraud under sections 134 and 135 of the Criminal Code Act 1995 (Cth). These offences are described in the legislation as obtaining property or financial advantage by dishonesty or deception. They include gaining a benefit:

  • Under a false name.
  • By reporting less income than earned.
  • By failing to declare property.
  • By failing to declare a relationship.

It is sometimes difficult to know if you are entitled to a Centrelink benefit, and if so, which benefit. A few possible scenarios that could get you into trouble include:

  • Your circumstances change and you forget to notify Centrelink.
  • You provide requested information to Centrelink, but the information is insufficient.
  • You perform part time work and receive a top up benefit, but one week your income exceeds the threshold level and you don’t declare it.

How do Centrelink investigate?

Centrelink fraud offences are prosecuted by the office of the Commonwealth Director of Public Prosecutions (CDPP).

If Centrelink suspects that you have committed an offence, they will first conduct an investigation. They may invite you to attend a formal interview or may come to your house. If they still believe you committed an offence, they will then refer the matter wells fargo bank hours friday the CDPP.

If you have been asked to attend an interview with Centrelink regarding a possible overpayment, it is likely that the matter will be referred to the CDPP obtaining financial advantage by deception commonwealth may bring criminal charges.  You should seek legal advice from an experienced defence lawyer.

What happens to Centrelink cheats?

Courts treat these offences seriously. The penalties for Centrelink fraud range from 12 months to 10 years imprisonment. If you obtain a Centrelink benefit by deception, a prison sentence is a likely outcome, and you may be liable for the 10 years maximum sentence.

“By deception” might include claiming unemployment benefits but receiving income under a false name.

Frequently Asked Questions

Источник: https://ngm.com.au/centrelink-matters/

Tasmanian tax agent James Burrows accused of stealing in excess of a million dollars from clients

A 35-year-old tax agent has been charged with more than 40 fraud offences, after allegedly stealing in excess of a million dollars from his clients.

Key points:

  • Police laid the larges following an 18-month investigation, sparked by social media
  • It's alleged James Burrows misappropriated tax returns and falsified business activity statements
  • Police say there could be up to 50 victims

Tasmania Police arrested and charged James Burrows after an 18-month long joint investigation with the Australian Tax Office (ATO) that was sparked by complaints on social media.

The Launceston man was charged with 25 counts of obtaining financial advantage by deception and 16 counts of stealing by misappropriation.

Detective Inspector Kim Steven said while the investigation was still underway, they believe there could be up to 50 victims.

"A number of people made a number of accusations and allegations through social media that eventually made their way to us and started the investigation," he said.

"We've certainty interviewed and spoken to a large number of people including employees."

Police said Mr Burrows misappropriated individual tax returns and falsified business activity statements for his financial benefit from September 2017 until March 2020.

The alleged offending breached both state and Commonwealth legislation.

Inspector Steven said both businesses and individuals had fallen victim to the alleged fraudulent activity.

"You like to think your money is safe when you're dealing with tax agents or accountants but unfortunately for a myriad of reasons, the human factor sometimes comes in obtaining financial advantage by deception commonwealth that's why we're still in the job unfortunately," he said.

"This doesn't happen every day. People should have faith open chase business savings account online the tax system."

The Tax Practitioners Board terminated Mr Burrows' registration as a tax agent in 2019, following its own investigation.

In a statement, ATO Assistant Commissioner Ian Read said they are providing support to clients of Mr Burrows.

"The majority of tax agents are trusted advisors who support the integrity of the tax system and their clients," Mr Read said.

"However, when we identify tax agents who appear to be breaching the trust placed in them and defrauding their clients and the system, we take it seriously.

Mr Burrows has been bailed to appear in the Launceston Magistrates Court on the 26th of May.

Источник: https://www.abc.net.au/news/2021-03-12/tax-accountant-charged-over-alleged-theft-from-clients/13242728
aol online help charged over text scam that allegedly stole $100,000 from victims

A man has been charged over an alleged text scam that has netted more than $100,000 since 2018 by targeting customers of the Commonwealth Bank and Telstra.

The 38-year-old was arrested in Ryde, in Sydney's northwest, on Wednesday and charged over the phishing scam in which he allegedly stole from more than 450 victims.

Phishing is when someone impersonates a legitimate business such as a bank or a company to get people to reveal personal details like credit card numbers or passwords.

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The Commonwealth Bank runs the most used school banking programs.

The Australian Federal Police investigation began in September 2021 when it received information a man was using suspicious webpages to "phish customers of Australian telecommunications providers and financial institutions".

Police will allege the man used these websites to lure victims to enter their personal information, which he would subsequently use to access their telephone accounts, bank accounts and create new accounts without their knowledge.

Customers of the Commonwealth Bank of Australia, National Australia Bank and Telstra, among others, were targeted, the AFP said.

Investigators have so far allegedly linked the man to more than $100,000 taken from the accounts of 450 people. Enquiries are continuing to determine the full extent of this fraud.

The 38-year-old's home in Ryde was searched and police seized drug paraphernalia, multiple sim cards, bank cards, electronic devices, mobile telephones and storage devices.

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These devices will now be the subject of further forensic examination.

The 38-year-old has been charged by the AFP with:

  • Unauthorised access, modification or impairment with intent to commit a serious offence
  • Producing, supplying or obtaining data with intent to commit a computer offence
  • Deal in proceeds of crime worth $100,000 or more

A second search warrant was executed in Sydney CBD, and a man, 36, was arrested and charged by NSW Police with dishonestly obtain financial advantage by deception and possess identification information to commit, facilitate commission of an indictable offence.

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AFP Commander Cybercrime Operations Chris Goldsmid said scammers will use any tools they can to exploit people.

"We encourage people to protect themselves against phishing scams by carefully reviewing emails or SMSs before clicking on any links," he said.

"Anyone who believes they have been a victim of a phishing scam, or who sees anomalies in their banking transactions should contact their bank and also report the matter via Report Cyber at cyber.gov.au."

Источник: https://www.9news.com.au/national/sydney-man-charged-over-alleged-text-scam-impersonating-banks-telstra/e3c66fde-f360-4bc5-9006-5541f63391b2
Australia

Legal regime

Australia is a federation comprising six States and two self-governing Territories.  The Australian Constitution specifies those areas in which the Commonwealth has power to legislate and leaves the remainder to the States.  Corruption and bribery are largely State matters.

Each of the States and Territories criminalise both public sector and private sector bribery.[i]  However, many of these offences are technical in nature and therefore difficult to enforce.

The Australian federal government (the Commonwealth) has laws which prohibit bribery of federal public officials,[ii] as well as laws which prohibit bribery of foreign public officials.

Foreign public sector bribery

Australia ratified the Organisation for Economic Co-operation and Development (OECD) Convention on Combating Bribery of Foreign Public Officials in International Business Transactions (OECD Convention) in 1999.  Australia is also a party to the United Nations Convention against Corruption (UNCAC) of 2003.  Both treaties require State Parties to criminalise bribery of foreign public officials in the course of international business.

Australia has given effect to its treaty obligations in Division 70 of the Criminal Code Act 1995 (Cth) (Criminal Code).  Section 70.2(1) makes it an offence to provide, offer or promise to provide a benefit not legitimately due to another person, with the intention of influencing the exercise of a foreign public official’s duties in order to obtain business or a business advantage.

“Foreign public official” is broadly defined to include:

  • an employee or official of a foreign government body;
  • a member of the executive, judiciary or magistracy of a foreign country;
  • a member or officer of the legislature of a foreign country;
  • a person who performs official duties under the law of a foreign country; and
  • an employee or official of a public international organisation, such as the United Nations.

“Benefit” is also broadly defined to mean “any advantage” and is expressly not limited to property.

The offence created by section 70.2(1) captures bribes made to foreign public officials either directly or indirectly via an agent, relative or business partner.  While a key element of the offence is that the defendant must have intended to influence the foreign public official, it is not necessary to show that such an intention was expressed.[iii]  Section 70.2(1A) makes it clear that liability under section 70.2(1) will arise whether or not the bribe achieved its desired purpose of obtaining or retaining business or a business advantage.  In determining whether a benefit was legitimately due, a court must disregard whether the benefit in question was customary, necessary or required in the particular circumstances.  The value of the benefit is also to be disregarded.

Section 70.2 has extra-territorial reach.  Liability arises if the bribery occurred in Australia, and also where it occurred outside Australia, so long as the person who engaged in it was an Australian citizen or resident, or a body corporate incorporated in Australia.[iv]

The maximum penalty for an individual who is convicted under section 70.2(1) is 10 years’ imprisonment, a fine of AU$2.22 million, or both.  A corporation can be fined the greatest of: AU$22.2 million; three times the value of any benefit obtained directly or indirectly that can be reasonably attributed to the bribe; or, where the value of the benefit cannot be determined, 10% of the corporation’s annual turnover for the 12 months up to the end of the month in which the conduct constituting the offence occurred.  Bribery may also give rise to money-laundering charges under Division 400 of the Criminal Code.

In addition to criminal penalties, any benefits obtained by foreign bribery can be forfeited to the Australian government under the Proceeds of Crime Act 2002 (Cth).  That Act establishes a regime that allows proceeds of Commonwealth-indictable offences to be traced, restrained and confiscated by a court.  It also confers power on a court to order that a person appear before it to demonstrate that unexplained wealth was acquired by lawful means.

In December 2019, the Crimes Legislation Amendment (Combatting Corporate Crime) Bill 2019 (Cth) (Crimes Bill) was introduced to Parliament.

If passed, the Crimes Bill will:

  • extend the definition of foreign public official to include candidates for office;
  • remove the concept of a benefit being “not legitimately due” as an element of foreign bribery offences and replace it with a concept of “improperly influencing&rdquo.  The Crimes Bill also proposes the introduction of a provision which specifies matters which may and must not be taken into account in determining whether influence is improper;
  • extend the definition of foreign bribery to include conduct directed at obtaining or retaining personal advantage.  The current definition is limited to conduct directed at business advantage;
  • create a new corporate offence of failing to prevent foreign bribery.  This offence would be very similar to the failing-to-prevent-bribery offence in the UK Bribery Act 2010;
  • remove the requirement of influencing a foreign official in their official capacity;
  • make certain clarifying amendments to remove supposed uncertainties in the existing provisions;
  • introduce a Deferred Prosecution Agreement scheme in respect of certain serious corporate offences (see further below); and
  • amend the definition of dishonesty to mean “dishonest according to the standards of ordinary people” and remove the requirement for a defendant to have also “known” that the conduct was dishonest according to those standards.

In March 2020, the Senate Legal and Constitutional Affairs Legislation Committee recommended that the Crimes Bill be passed.[v]  The Crimes Bill is still before Parliament, and it is difficult to predict when it will likely be passed.

Defences to foreign public sector bribery

The Criminal Code provides two defences to the offence of foreign bribery under section 70.2(1).  The first defence is engaged where the provision of the benefit is permitted or required by a written law of the place where the conduct occurred.[vi]

The second defence is in respect of facilitation payments.  If the value of the benefit in question was of a minor nature, provided in return for expediting or securing the performance of a minor “routine government action”, and a record of the details of the conduct was created as soon as practicable, a defendant will have a good defence against liability.[vii]

For the purposes of the defence, routine government action is an action of a foreign public official that is commonly performed by that person, including things like granting permits or licences, processing government papers and providing access to utilities.  Routine government action does not involve a decision as to whether to award new business, or to continue existing business with a person.  Setting the terms of new or existing business is also excluded.  While sections 26–52 and 26–53 of the Income Tax Assessment Act 1997 (Cth) provide that domestic or foreign bribes cannot be deducted under the Act, facilitation payments are not considered bribes, so are tax-deductible as losses or outgoings.  A defendant bears the onus of proving a defence.

Domestic bribery offences

The Criminal Code also criminalises bribery of Commonwealth public officials.  Section 141.1(1) provides that it is an offence for a person to dishonestly provide or offer a benefit to another person, or cause a benefit to be so provided or offered, if done with the intention of influencing an Australian Commonwealth public official in the exercise of his or her official duties.  A Commonwealth public official will be guilty of a criminal offence under section 141.1(3) if he or she dishonestly requests, receives or agrees to receive a benefit with the intention either of having his or her duties influenced, or of fostering a belief that such influence will be wielded.  The maximum penalties for individuals and corporations convicted of these offences are the obtaining financial advantage by deception commonwealth as those for offences under section 70.2 of the Criminal Code.

Section 141.1 has extra-territorial reach.  A person will be liable whether or not the conduct constituting domestic public sector bribery occurred in Australia, and whether or not the result of the bribery was obtained in Australia, so long as it involved an Australian Commonwealth public official.

There are also State and Territory provisions which prohibit bribery of public officials, although those provisions are often the same as those which prohibit private sector bribery.[viii]

Domestic private sector bribery

The Criminal Code does not criminalise bribery in the private sector; the States and Territories are left to legislate in this area.  Indirect Commonwealth regulation is provided to some extent by the prescription of directors’ duties in the Corporations Act 2001 (Cth) (Corporations Act) and by the market-sharing and price-fixing provisions in Part IV of the Competition and Consumer Act 2010 (Cth).

At the State and Territory levels generally, it is illegal to corruptly give or offer inducements or secret commissions to, or receive them from, employees or agents of corporations and individuals.[ix]  Conduct will be “corrupt” only if engaged in with the intention of influencing the recipient to show favour.

Examples of the State and Territory provisions are those in the fake phone number for verification canada Act 1900 (NSW), the relevant statute for the State of New South Wales (NSW).  In that statute:

  • Section 249B(1) prohibits an agent from corruptly receiving or soliciting (or corruptly agreeing to receive or solicit) any benefit from another person as an inducement, a reward, or on account of doing or not doing something, or showing or not showing favour to any person in relation to the affairs or business of the agent’s principal.  It also prohibits the receipt of any expectation which would tend to influence the agent to show or not show favour to any person in relation to the affairs or business of the agent’s principal.  Section 249B(2) imposes mirror offences on persons who give or offer an agent any such benefit.
  • Section 249D(1) prohibits a person from corruptly giving a benefit to another person for giving secret advice to a third party where the person giving the benefit intends the advice to influence the third party to enter into a contract with the person giving the benefit, or appointing the person who gives the benefit to any office.  Section 249D(2) makes it an offence to corruptly receive such a benefit.
  • Section 249E makes it an offence for a person who offers or gives a benefit to a person entrusted with property (or any person entrusted with property who receives or solicits a benefit for anyone) without the consent of each person beneficially entitled to the property or the Supreme Court of NSW as an inducement or reward for the appointment of any person to be a person entrusted with the property.
  • Section 249J provides that it is not a defence that the receiving, soliciting, giving or offering of any benefit is customary in any trade, business, profession or calling.
  • The definition of “agent” is a wide one and includes employees: section 249A.

The legislation in the States and Territories varies as to the penalties that may be imposed for private sector bribery.  Generally, individuals are liable to between three and 21 years’ imprisonment.[x]  Under the NSW Crimes Act, an individual can be imprisoned for up to seven years, and may also be ordered to repay all or part of the value of any benefit received or given by that person.  He or she may also be disqualified from holding civic office for up to seven years.  Where bribery is perpetrated by a corporation, some jurisdictions provide for fines instead of imprisonment.

False accounting

On 1 March 2016, new false accounting provisions came into effect.  The provisions, found in Part 10.9 of the Criminal Code, criminalise intentional or reckless concealment of bribery by dealing with accounting documents.

Specifically, the provisions make it an offence to make, alter, destroy or conceal an accounting document, or to fail to make or alter an accounting document that the person is under a legal duty to make or alter, if that conduct is done:

  • with intent to “facilitate, conceal or disguise”; or
  • recklessly as to whether the conduct “facilitates, conceals or disguises”,

the occurrence of certain matters relating to the giving or receiving of a benefit which is not legitimately due.[xi]  This concept of a “benefit not legitimately due” echoes the language of the foreign bribery offences described above.

The offence only arises if “certain circumstances apply&rdquo.  The certain circumstances are intended to ensure that the offences are within the constitutional power of Federal Parliament.  However, they make it clear that the offence may apply to conduct committed outside of Australia.  The maximum penalties for these offences are identical to the penalties for the foreign bribery offences in the Criminal Code, described above.

These provisions were introduced as a direct response to criticism in the OECD Phase 3 report (discussed further below) about the inadequacy of Australia’s books and records offences.

Whistleblower protection

Sweeping reforms of Australia’s whistleblower protection framework came into force on 1 July 2019 as a result of the Treasury Laws Amendment (Enhancing Whistleblower Protections) Act 2019 (Cth).  The new regime, which sits in Part 9.4AAA of the Corporations Act, has significantly expanded and strengthened private sector whistleblower protections, increased applicable penalties and introduced a requirement for public companies and large proprietary companies to have a whistleblower policy which addresses certain matters.

Importantly, protected disclosures are no longer limited to potential contraventions of the corporations legislation, but now extend to disclosures where the whistleblower has reasonable grounds to suspect that the information concerns misconduct, or an improper state of affairs or circumstances, in relation to the relevant company or a related body corporate.  This specifically includes conduct by the entity, or one of its employees or officers, that constitutes an offence against a law of the Commonwealth punishable by imprisonment for a period of 12 months or more (e.g., the foreign bribery offence).

Where certain criteria are met, a whistleblower will receive protections in relation to the confidentiality of their identity and victimisation.  The penalties for breach of these protections have been significantly increased.  The maximum civil penalty for companies, for example, is now the greater of AU$11.1 million, three times the benefit derived from the contravention or 10% of annual turnover (up to a maximum of AU$555 million).  It is also now easier for victimised whistleblowers to claim compensation and other remedies.

The federal government considered the use of financial rewards to incentivise whistleblowing, as occurs in the United States, but decided not to implement this.

Public officials are protected under the Public Interest Disclosure Act 2013 (Cth) (PID Act).  The PID Act seeks to encourage public officials to report suspected wrongdoing in the Australian public sector, while protecting those who make public interest disclosures from reprisals.  There is equivalent legislation covering public servants in each State and Territory.

There are also specific protections against reprisals for union whistleblowers.  These were introduced by the Fair Work (Registered Organisations) Amendment Act 2016 (Cth), which contained a range of measures intended to fight union corruption.

Investigation and enforcement agencies

Australia has adopted a multi-agency approach to combatting corruption.  Australia’s main criminal law enforcement agencies in bribery cases are the Australian Federal Police (AFP) and the Office of the Commonwealth Director of Public Prosecutions (DPP).  State-based investigations are generally conducted by the fraud squad of the particular State police department, with prosecutions being undertaken by State Directors of Public Prosecution.

The AFP is active in detecting and investigating corruption as part of its statutory obligations to investigate serious crimes against federal laws and against Commonwealth property, revenue and expenditure.

While allegations of corruption will generally be referred to the AFP, other agencies that may become involved in investigation processes include: the Australian Securities and Investments Commission (ASIC); the Australian Commission for Law Enforcement Integrity; the Australian Criminal Intelligence Commission; the Inspector-General of Intelligence and Security; and the Office of the Commonwealth Ombudsman.  The DPP is largely responsible for prosecuting offenders under the anti-bribery provisions of the Criminal Code.

Corruption involving or affecting the public sector (including State government agencies, local government authorities, members of Parliament and the judiciary) is also dealt with at State level through independent bodies such as the NSW Independent Commission Against Corruption (ICAC).[xii]  While it cannot charge individuals or corporations with offences, the ICAC has wide-ranging power to investigate “corrupt conduct” involving NSW public officials or public bodies/authorities.  Reports following an investigation can be given to Parliament, the police, or be released publicly.

Despite repeated calls over recent years, there is still no federal anti-corruption commission in Australia.  The present federal government has agreed to establish a federal integrity commission to address the issue of corruption within the administration of the government in both its law enforcement and public sector agencies.  However, the model previously proposed by the government was heavily criticised by the opposition and cross-bench parties as lacking teeth.  Draft legislation formalising the government’s current proposal was released on 2 November 2020, and will be the subject of an extensive consultation process.

Cases prosecuted

The first case prosecuted under Australia’s foreign anti-bribery laws centred upon Securency International Pty Limited (Securency), a subsidiary of the Reserve Bank of Australia.  It arose from allegations by a company insider that Securency had paid nearly AU$50 million to international sales agents to bribe central banking officials in Malaysia, Indonesia and Vietnam in order to secure banknote supply contracts.  Investigations were jointly conducted by the AFP, the United Kingdom’s Serious Fraud Office and Malaysia’s Anti-Corruption Commission, leading to raids and searches in all three countries.

In 2011, following the AFP’s investigation, the AFP charged Securency and another Reserve Bank subsidiary, Note Printing Australia Limited (NPA), and several of the companies’ former senior managers with conspiracy to bribe foreign public officials contrary to section 70.2(1) of the Criminal Code.

Over the ensuing years, the prosecutions were mired in lengthy committal hearings and interlocutory arguments.  Unfortunately for the AFP, public awareness of the outcomes of the prosecutions was hampered by a suite of non-publication orders made by the Supreme Court of Victoria.  Those orders were only vacated in November 2018, following the last accused pleading guilty to conspiracy to bribe a foreign public official in Malaysia.

Amongst the information suppressed were the early guilty pleas by both Securency and NPA in 2011.  Each pleaded guilty to three charges of conspiracy to commit foreign bribery, and were fined AU$480,000 and AU$450,000, respectively.  Each company also co-operated in an application brought under the Proceeds of Crime Act 2002 (Cth) as a result of the successful prosecutions, and paid a total of about AU$22 million in pecuniary penalty orders.

The DPP ultimately secured a series of convictions against various individuals, following guilty pleas, on charges of conspiracy to bribe foreign public officials and/or false accounting.  The individuals convicted included the former CEO of Securency, the former CFO of Securency, the Indonesian sales agent for Securency, a former senior business development manager of Securency, and a former banknote specialist of Securency.

However, in a significant blow for the AFP and Commonwealth DPP, in 2018, the prosecutions of a further four individuals were permanently stayed by the High Court (the highest court in the Australian judicial system).  The stay was granted on the basis that the continued prosecution of these individuals would bring the administration of justice into disrepute following unlawful compulsory examinations conducted during the course of the AFP’s investigation by what is now the Australian Criminal Intelligence Commission: see Strickland v Commonwealth Director of Public Prosecution [2018] HCA 53.

The second charges under Australian foreign anti-bribery laws were laid by the AFP in February 2015 against two directors of an Australian construction company, Lifese.  The directors were charged with conspiracy to bribe a foreign public official in connection with building contracts in Iraq.  A third man was also charged.  Much of the evidence relied upon by the prosecution was from intercepted telephone conversations.  The three men pleaded guilty and were sentenced in September 2017 (R v Jousif; R v I Elomar; R v M Elomar [2017] NSWSC 1299).  The directors were each sentenced to four years’ imprisonment and fined $250,000.  The third man was sentenced to four years’ imprisonment.  The jail sentences of the directors were reduced on appeal to three years and four months (with a non-parole period of one year and eight months) (Elomar v R [2018] NSWCCA 224).

In May 2018, the AFP charged engineering consultancy Sinclair Knight Merz, now known as Jacobs Group Australia, its former chief executive and other individuals, with conspiring to bribe foreign officials in the Philippines and Vietnam to secure various infrastructure projects.  The case is still at the committal stage.

In September 2018, the AFP charged Mr. Mozammil Bhojani with conspiracy to bribe a foreign public official.  It was alleged that between January 2015 and 2018, Mr. Bhojani conspired to bribe two Nauru government officials with more than AU$100,000 in kickbacks in exchange for favourable phosphate shipments for his company, Radiance International Pty Ltd.  In 2020, Mr. Bhojani pleaded guilty and was convicted and sentenced to two-and-a-half years of intensive correction in the community and 400 hours of community work.

In March and April 2015, NSW police charged two former executives of Commonwealth Bank of Australia (CBA) with receiving bribes in return for the grant of IT contracts to a US company, ServiceMesh.  The charges resulted from the bank reporting anomalies it had uncovered to the police.  These charges were brought under domestic anti-bribery laws.  One of the former executives, who pleaded guilty, was sentenced in late 2016 to three-and-a-half years’ jail.  The other has pleaded not guilty.

In March 2019, the former chief of staff at National Australia Bank (NAB), Ms. Rosemary Rogers, was charged in NSW with one count of dishonestly obtaining advantage by deception and 56 counts of an agent corruptly receiving benefits under domestic anti-bribery laws.  The charges relate to a scheme by which the executive allegedly approved inflated invoices issued by an events company to the bank, in return for personal travel, cash and other benefits totalling AU$5.4 million.  The head of the events company, Ms. Helen Rosamond, has also been charged.  The bank has commenced civil proceedings against Ms. Rosamond and her events company in an attempt to recover its losses.  In February 2020, Ms. Rogers pleaded guilty to an amended list of 38 charges, including dishonestly obtaining a financial benefit by deception.  Ms. Rogers is now awaiting sentencing, while Ms. Rosamund has pleaded not guilty to over 70 fraud and corruption charges.  Her trial is set to go ahead in July 2021.

Disgraced former NSW government minister, Mr. Eddie Obeid, who was found guilty of misconduct in public office in 2016 in relation to his family’s business interests in café leases in Sydney’s Circular Quay, pnc bank atm locations nj also been charged, along with his son and another former minister, Mr. Ian MacDonald, with conspiracy to commit misconduct in public office over their alleged involvement in the issuance of a coal mining exploration licence.  Each has entered a not-guilty plea and the trial is currently in progress.

In September 2019, the NSW DPP dropped corruption charges against the former Australian CEO of fleet management company Orix, and a former fellow executive, after disclosure issues emerged during the trial.  The individuals had been accused of making corrupt payments totalling almost AU$1 million to a former fleet manager of Coca-Cola Amatil in exchange for vehicle leasing contracts.  That former fleet manager was convicted of corruption charges in 2017 after pleading guilty, and jailed for a minimum of four years.  One other individual was also convicted of corruption charges after pleading guilty, and served a home prison sentence.  In December 2018, Mr. Peter Gregg, the former CFO of Leighton Holdings, was found guilty of two counts of contravening section 1307 of the Corporations Act by engaging in conduct that resulted in the falsification of Leighton Holdings’ books.  The case centred on two payments totalling US$15 million made in 2011 to the United Arab Emirates’ Asian Global Projects and Trading FZE, and a backdated agreement to buy and sell steel, executed by Mr. Gregg on behalf of Leighton Holdings.  The Crown alleged that the agreement was not genuine, and was only signed in order to legitimise the payments in question.  Mr. Gregg was sentenced to a total effective sentence of two years’ imprisonment, to be served by way of an intensive correction order.  However on 30 September 2020, the Court of Criminal Appeal quashed Mr. Gregg’s conviction and entered a verdict of acquittal on each count, finding that the verdicts against him were unreasonable and that there had been a miscarriage of justice.

In July 2020, Mr. Dennis Teen, a Melbourne property developer, was charged with bribing a Malaysian foreign public official and four counts of false accounting relating to the sale in 2013 of a pioneer bank meridian student hostel to a Malaysian government-owned entity.  It is alleged that the sale occurred at an inflated price and that about AU$4.75 million was paid to Malaysian foreign officials.  The AFP has also restrained about AU$1.6 million of assets held by Mr. Teen, his wife and associated entities in connection with the matter.

Current investigations

It is difficult to obtain reliable data in relation to the number of bribery and corruption investigations currently under way in Australia.  However, in December 2019, the OECD’s Phase 4 Two-Year Follow-Up Report on Australia (discussed further below) recorded that the AFP had eight foreign bribery cases under investigation (compared to 19 as at December 2017).

The AFP does not generally publish details of its ongoing investigations.  However, aspects of some investigations are the subject of media reports from time to time.  For example, it has been reported that the AFP is investigating the mining company Getax, and its director Mr. Amit Gupta, in relation to allegations of conspiracy to bribe a number of high-ranking politicians in Nauru in order to gain control of the country’s phosphate resources.  It has also been reported that in February 2020, in connection with this investigation, the Attorney-General of Australia requested that US authorities obtain court orders to prevent Gupta family members from selling a US$3.67 million apartment in New York.

In August 2019, the NSW ICAC commenced a public inquiry into whether, from January 2015, NSW Labor party officials, members of Chinese Friends of Labor, political donors and others entered into a scheme to circumvent prohibitions or requirements under Part 6 of the obtaining financial advantage by deception commonwealth Funding, Expenditure and Disclosures Act 1981 (NSW) relating to political donations.  This includes investigating allegations that a billionaire property developer, Mr. Huang Xiangmo, made a AU$100,000 cash donation to the NSW Labor Party and that party officials sought to mask the origins of the money using “straw donors&rdquo.  It is illegal in NSW for property developers to make donations to political parties.

In September obtaining financial advantage by deception commonwealth, the NSW ICAC commenced a public inquiry into whether, from 2012 to August 2018, the then NSW Member of Parliament for Wagga Wagga, Mr. Daryl Maguire, engaged in conduct that involved a breach of public trust by using his public office and parliamentary resources to improperly gain a benefit for himself and/or entities close to him.  This inquiry, which is ongoing, followed an earlier inquiry during which the ICAC heard secret recordings of telephone conversations in which Mr. Maguire allegedly admitted trying to earn commission payments by setting property developers up with Chinese investors.

Current trends of enforcement action

Despite a growing number of successful prosecutions, Australia is still in the early stages of enforcing anti-bribery laws in relation to foreign public officials.  However, significant progress has been made in the level of enforcement action in recent years.  The catalyst for that progress was the Phase 3 Report on Implementing the OECD Anti-Bribery Convention in Australia, issued by the OECD Working Group on Bribery in late 2012 (OECD Phase 3 Report).  The OECD Phase 3 Report noted that a substantial proportion of Australia’s international economic activity is exposed to foreign bribery risks, particularly in the mining & resources and agriculture sectors.  It criticised Australian enforcement efforts and was particularly scathing about the failure of the AFP to resource, prioritise and pursue foreign bribery investigations.

The AFP and the Australian government responded to the OECD Phase 3 Report with a number of initiatives.  These included: entry by the AFP into a Memorandum of Understanding with ASIC in respect of collaborative working arrangements and the sharing of information; the establishment by the AFP of dedicated Fraud and Anti-Corruption (FAC) teams in five capital cities; and the establishment of a FAC Centre to improve coordination amongst agencies, to develop standards and procedures for fraud and anti-corruption investigation and to provide training to investigators.

The OECD Working Group published its Phase 4 Report for Australia in December 2017.[xiii]  That report found that Australia’s enforcement of laws on foreign bribery had increased markedly since the Phase 3 Report.  It noted that seven offenders had been convicted of foreign bribery offences, and that Australia had taken substantial steps to improve its framework for detecting and investigating foreign bribery cases, including the creation of the FAC Centre.  It provided recommendations designed to further help Australia strengthen foreign bribery enforcement, including:

  • enhancing whistleblower protections in the private sector (which, as discussed above, has since occurred);
  • proactively pursuing criminal charges against companies for foreign bribery and related offences; and
  • encouraging companies to develop and adopt adequate internal controls and compliance programmes.

In its two-year follow-up report on the Phase 4 report, the OECD Working Group commended Australia for its full and partial implementation of a number of recommendations from its Phase 4 report, including establishing enhanced protections for private sector whistleblowers, increasing the AFP’s budget for foreign bribery investigations, and adopting measures to improve the detection of foreign bribery through its money laundering system.[xiv]  However, the Working Group noted that not all of its earlier recommendations had yet ciber inc implemented, and expressed concern about the low level of foreign bribery enforcement in Australia given the size of its economy and the high-risk regions and sectors in which its companies operate.  It regarded Australia’s low level of cases against corporate entities, in particular, to be “very concerning” and hoped that Australia would address its longstanding challenges in attributing wrongdoing to corporate entities.

The enforcement environment in Australia has also intensified in the wake of the Royal Commission into Misconduct in the Banking, Superannuation and Financial Services Industry (Royal Commission).  The final report of Commissioner Hayne was provided to the Governor-General on 1 February 2019.

The Royal Commission highlighted multiple instances of serious malpractice by Australian banks and other financial services providers, and the Commissioner’s report included 76 recommendations for reform.  The Commissioner was, amongst other things, very critical of ASIC for failing to take tougher action against companies and individuals.  In the aftermath of the Royal Commission, ASIC announced a new enforcement approach, by which ASIC will actively ask itself “Why not litigate?”, and established a new “Office of Enforcement” in July 2019 to lead its enforcement function.  This new strategic approach, coupled with a significant boost in government funding and increased penalties and powers, has led to an uplift in the number of civil and criminal enforcement actions by ASIC in the past year, and it is expected that it will continue to do so.  In a recent enforcement update, ASIC noted that between January 2019 and January 2020, there had been a 10% increase in the number of ASIC enforcement investigations generally, and a 52% increase in enforcement investigations involving Australia’s pre-eminent financial services companies, CBA, NAB, Westpac, ANZ and AMP (or their officers or home care remedies for uti employees).[xv]  In the year ahead, referrals from the Royal Commission remain one of ASIC’s strategic priorities.

In the foreign bribery space, we have seen a trend, in the last few years, of ASIC taking a more active interest in potential Corporations Act contraventions by directors or officers.  We expect that trend to continue.

Facilitation payments

The Criminal Code excludes criminal liability for facilitation payments.  However, individuals and corporates alike need to be aware that they will only be able to rely upon the defence if the value of the benefit is of a minor nature, made for the sole or dominant purpose of expediting or securing the performance of a routine government action of a minor nature, and specific details of the payment are properly recorded as soon as is reasonably practicable.  Determining whether a particular payment satisfies these strict requirements can often be difficult.

Although the OECD Convention does not require countries to criminalise the use of facilitation payments, there has been a gradual shift in mood, and such payments are no longer widely considered acceptable.  A growing number of Australian companies with international operations now prohibit, as a matter of company policy, facilitation payments.

Somewhat controversially, the Crimes Bill does not propose the abolition of the “facilitation payments” defence, even though the Senate Economic References Committee report on Foreign Bribery (2018) recommended, by majority, that the defence be abolished over a transition period.

Hospitality

Australian legislation does not expressly explain the circumstances under which providing gifts and hospitality may amount to bribery.  As the law currently stands, the giving of such benefits will only be unlawful if done with the intention of influencing a public official.  There is little in the way of guidance on this area from Australian regulators.  The principal guidance for Commonwealth public officials ryrie study bible nasb under the Public Service Act 1999 (Cth), which has a series of relevant standards set out in the Australian Public Service Code of Conduct, and the Australian Public Service Values, under the umbrella of the Australian Public Service Commission Guide to its Integrated Leadership System.  The Department of Foreign Affairs and Trade has its own Code of Conduct for Overseas Service.  State and Territory governments also have their own public services with their own codes of conduct, which may be supplemented by agency-specific codes.

In certain business transactions, providing a level of hospitality to prospective clients may be required.  Vigilance is recommended in this area to ensure compliance with anti-bribery laws, particularly when engaging with public officials.  Some issues to consider in determining whether hospitality is appropriate are: whether the company providing it has a clear policy on gifts and hospitality and whether that policy is being complied with; whether the expenditure is reasonable and is accurately recorded; and whether the hospitality might reasonably be suspected of influencing the recipient’s decision-making processes.

The BHP Billiton case is a timely reminder of the particular risks associated with the provision of hospitality to public officials.  In 2015, BHP Billiton agreed to pay to the SEC a US$25 million penalty to settle SEC charges that it violated the FCPA by failing to devise and maintain sufficient internal controls over its global hospitality programme connected to the company’s sponsorship of the 2008 Summer Olympic Games in Beijing.

Self-reporting

In Australia, self-reporting of foreign bribery to the AFP is encouraged but is not mandated by any legislative or formal framework.  At the time the OECD Phase 4 Report was published, at least eight companies had self-reported evidence of bribery committed by persons related to them.  In each case, the AFP proceeded to investigate.

The AFP has indicated that it expects to see more self-reporting by companies; however, this has not been matched by legislative amendments or clear prosecution guidelines.  While there are few, if any, formal incentives from a criminal law perspective, a potential benefit to self-reporting is that the AFP may be more inclined to work with the corporation in question, and keep it better informed during the investigation process.  There may also be leniency at the prosecution stage, although a number of other factors would also be considered in accordance with the Prosecution Policy of the Commonwealth.  While the AFP has attempted to address some of this uncertainty through the publication of a Best Practice Guideline for self-reporting of foreign bribery and related offending by corporations,[xvi] it is the proposed introduction of a deferred prosecution agreement scheme (see below) that will likely be the “game-changer” in terms of encouraging self-reporting.

Plea bargaining

A plea bargain can take two forms, the first being an agreement between the prosecution and the defence that the defendant agree to plead guilty to a particular charge in return for more serious charges being dropped.  This type of plea bargain is allowed in Australia and, in certain circumstances, the DPP may be able to provide a defendant with testimonial or prosecutorial immunity.  In addition to agreeing to drop certain charges in return for a guilty plea, the DPP may agree to proceed with a charge summarily rather than on indictment, or agree not to oppose a defence.

The Prosecution Policy of the Commonwealth provides guidance on negotiations between the prosecution and the defence about charges to be prosecuted.  Charge negotiations are specifically encouraged and can occur at any stage of a prosecution, and at the DPP’s initiation.  This practice will meet the requirements of justice as long as the charges to be continued bear a reasonable relationship to the nature of the defendant’s criminal conduct, provide an adequate basis for the imposition of an appropriate sentence, and are supported by evidence.

The second form involves a defendant pleading guilty to a charge in return for a lesser sentence being imposed by a court.  This form of plea bargaining has been precluded by the High Court in Barbaro v the Queen (2014) 253 CLR 58 for criminal proceedings, which holds that prosecutors are not required and should not be permitted to proffer even a sentencing regime to a judge.  In Commonwealth v Director, Fair Work Building Industry Inspectorate and Others (2015) 258 CLR 482, the High Court held that this principle did not apply in civil penalty proceedings (which will include many proceedings brought under the Corporations Act – see above – but not proceedings under the Criminal Code).

The Crimes Bill will, if passed, introduce a deferred prosecution scheme in Australia.  It will have the following features:

  • Deferred Prosecution Agreements (DPAs) would be available only to companies (and not individuals) for certain specified crimes which are regarded as “serious corporate crime&rdquo.  These would include foreign bribery, false accounting and insider trading;
  • there would be certain mandatory terms of a DPA, including a statement of facts relating to each offence specified in the DPA, the requirements to be fulfilled by the person under the DPA, the amount of financial penalty to be paid by the person, and the circumstances which constitute a material contravention of the DPA; and
  • after the proposed terms of any DPA are agreed between the person and the Director, it will need to be referred to an “approving officer” – who must be a retired judicial officer with sufficient knowledge and experience – who would determine whether the terms are in the interests of justice and are fair, reasonable and proportionate (in which case, the DPA must be approved).  In referring the DPA for approval, the Director must provide a written statement to the effect that he or she is satisfied that there are reasonable grounds to believe that an offence specified in the DPA has been committed, and that entering into the DPA is in the public interest.

The Australian Law Reform Commission (an independent federal government agency that provides recommendations for law reform to government) (ALRC), in its Final Report on Corporate Criminal Attribution, dated April 2020, recommended that the Crimes Bill be amended to require that the terms of any DPA be subject to approval by a (current) judge of the Federal Court of Australia, and that reasons for the approval of the DPA be published in open court (following receipt of oral submissions from the parties).  The ALRC considered that these amendments would enhance the integrity of DPAs and uphold public trust in them.  The government is still considering this recommendation.

Civil versus criminal prosecution

Foreign and domestic public sector bribery offences at the Commonwealth level are prosecuted in Australia under provisions of the Criminal Code.  At the State and Territory levels, public and private sector bribery are also prosecuted criminally.  There are only some circumstances in which acts of bribery may also give rise to civil claims.  Civil penalty proceedings under the Corporations Act (which are brought by ASIC) for breaching directors’ duties are an example.

Examples of cases in which ASIC has pursued directors or officers for breach of section 180 of the Corporations Act (for failing to exercise due care, skill and diligence) include ASIC v Ingleby [2013] VSCA 49, ASIC v Lindberg [2012] VSC 332 and ASIC v Flugge [2016] VSC 779.  Those cases all arose out of the rorting by AWB Ltd, an Australian wheat exporter, of the UN’s Oil-for-Food Programme in Iraq.  These cases highlight the need for directors and officers to ensure that proper systems are in place to combat bribery and corruption within their organisations, obtaining financial advantage by deception commonwealth importance of not ignoring “red flags”, and the need to ensure that the Board is appropriately informed of relevant matters.

Parallel investigations

As the drive to enforce the anti-bribery regime gathers momentum and the regime itself becomes more sophisticated, Australian agencies are increasingly using parallel investigations and collaborating with best bank or credit union near me agencies, both generally and in relation to specific cross-border investigations.

An International Foreign Bribery Taskforce (IFBT) was established in May 2013 as a platform for specialist investigators from Australia, the United States, Canada and the United Kingdom to work together to combat foreign bribery.  The IFBT facilitates collaboration and cooperation between experts from the AFP, the Federal Bureau of Investigation, the Royal Canadian Mounted Police and the City of London Police Overseas Anti-Corruption Unit.  The IFBT aims to enhance the response of these like-minded countries to foreign bribery by encouraging experts to share knowledge, skills and methodologies.

Australia is also an active member of the G20 Anti-Corruption Working Group, which aims to enhance the prevention of corruption-related activities.  In 2018, the G20 published its Anti-Corruption Action Plan for 2019–2021, which included a strengthened commitment to work together to prevent, investigate and take enforcement action against corruption.

Another multilateral anti-corruption forum to which Australia contributes is the Asia-Pacific Economic Cooperation (APEC) Anti-Corruption and Transparency Experts Taskforce.  Australia was a key participant in developing the APEC Code of Conduct for Business and has since worked obtaining financial advantage by deception commonwealth Chile, Thailand and Vietnam to implement it.  For the purpose of disturbing the financing of corrupt activities, Australia has also collaborated with other APEC members obtaining financial advantage by deception commonwealth promote the use of anti-money laundering systems, and hosted several international conferences on this topic.

Overseas impacts

Australia’s geographic location and footprint in certain high-risk economic activities expose it to impacts from overseas laws concerning bribery and corruption, as setting up bb 8 sphero out above.  In addition to the mining & resources and agriculture sectors, another area of risk is the construction sector, especially in the Asian markets (and in particular, China) to which Australian companies are increasingly turning, given the investment opportunities.

Overseas impacts are also felt in Australia, due to the increasingly international nature of business.  An example is provided by the differences in anti-bribery laws in Australia and the United Kingdom.  While in Australia, facilitation payments are allowed and there is (for the moment at least) no strict liability bribery offence for corporations, the opposite is true in the United Kingdom.  Australian-based companies doing business in the United Kingdom must be aware of the need to comply with the strict anti-bribery regime in place there, and may be required to implement company-wide procedures and policies to ensure compliance.

Corporate liability may arise under foreign laws even where there is no obvious jurisdictional nexus.  It is increasingly common for international business partners to demand that their Australian counterparts comply with foreign laws.  International business contracts may require that Australian companies warrant their compliance with foreign anti-corruption laws or provide annual certificates of compliance with them.

Section 70.2(1) of the Criminal Code creates the offence of providing, offering or promising to provide a benefit not legitimately due to another person, with the intention of influencing the exercise of a foreign public official’s duties to obtain business or a business advantage.  This offence captures the conduct of individuals and corporations alike; however, to establish the criminal liability of a corporation, the Criminal Code requires that both the physical and mental (or “fault”) elements can be attributed to the corporation.

The physical element of the offence under section 70.2(1) is attributed to a corporation if the conduct was committed by an employee, agent is walmart stock a buy officer of the body corporate acting within the actual or apparent scope of that person’s employment or authority.[xvii]  The key fault element, obtaining financial advantage by deception commonwealth the requirement of intention under section 70.2(1), is satisfied if the corporation “expressly, tacitly or impliedly authorised or permitted the commission of the offence&rdquo.[xviii]  Authorisation or permission can be established in several ways under Part 2.5 of the Criminal Code, including by proving that:

  • the corporation’s board of directors or a “high managerial agent”[xix] (a senior officer) carried out the conduct, or authorised or permitted the commission of the offence;
  • the corporation had a corporate culture that directed, encouraged, tolerated or led to non-compliance with the legislative provisions; or
  • the corporation failed to create and maintain a corporate culture requiring compliance with the relevant anti-bribery laws.

A similar analysis applies in respect of the false accounting provisions in the Criminal Code.

The scope of corporate liability provisions in the Criminal Code is potentially broad, although the provisions are often complex to apply in practice.  The provisions relating to corporate culture direct attention to the adequacy of a corporation’s anti-bribery compliance programme.

As is discussed above, the proposed amendments to the Criminal Code would see the introduction into Australia of an even broader corporate offence of failure to prevent bribery closely modelled on section 7 of the UK Bribery Act 2010.

Such an offence would have the effect that a body corporate would be liable for the offence of failing to prevent bribery of a foreign public official if an associate (including employees, contractors, agents and subsidiaries) commits an offence against section 70.2 (or engages in conduct outside Australia that, if engaged in in Australia, would constitute an offence against section 70.2), and the associate does so for the profit or gain of the body corporate.  The offence will be an offence of strict liability; however, it will be a defence if the body corporate can prove that it had in place adequate procedures, designed to prevent the commission of an offence against section 70.2.

The Crimes Bill includes a provision which would require the minister to publish guidance on the steps that a body corporate could take to frc patches for clothing an associate from bribing foreign public officials,  A draft of such guidance was issued by the Attorney-General’s Department in November 2019 for comment.  However, the legislation will not prescribe what constitutes “adequate procedures” – that task will be left to the courts to determine on a case-by-case basis.

The ALRC’s Final Report on Corporate Criminal Responsibility (April 2020) comprehensively reviewed Australia’s corporate criminal responsibility regime.  It made a number of recommendations, including standardising attribution of criminal responsibility to corporations and amending Part 2.5 of the Criminal Code to make it simpler and arguably more prosecutorially friendly, but still allowing corporations to avoid liability by demonstrating that they took reasonable precautions to prevent misconduct.  The ALRC also recommended that the government develop a national debarment regime for criminally convicted corporations.  Obtaining financial advantage by deception commonwealth government is still considering, and has not yet responded to, the recommendations made by the ALRC.

If passed, the Crimes Bill will see three significant reforms relevant to bribery and corruption, namely:

  • reforms to the foreign bribery provisions in the Criminal Code, aimed at making enforcement of those offences easier;
  • the introduction of the corporate offence of failure to prevent foreign bribery; and
  • the introduction of a deferred prosecution scheme.

We may also finally see the establishment of a federal anti-corruption body, together with potentially significant reform to Australia’s corporate criminal responsibility regime.

Collectively, these reform proposals represent a recognition and continuation of the government’s response to the criticisms of Australia’s anti-corruption what is a google my business account


[i] Crimes Act 1900 (NSW), s 249B; Crimes Act 1958 (Vic), s 176; Criminal Law Consolidation Act 1935 (SA), s 150; Criminal Code Act 1899 (Qld), ss 442B–442BA; The Criminal Code (WA), ss 529–530; Criminal Code Act 1924 (Tas), s 266; Criminal Code 2002 (ACT), ss 356–357; and Criminal Code Act 1983 (NT), s 236.

[ii] Part 7.6 of the Criminal Code Act 1995 (Cth).

[iii] Proving an offence under s 70.2(1) of the Criminal Code requires proof of the physical elements and the fault elements of the offence.  In the case of the key fault element, intention to influence may be proved by showing that the person in question “means to bring [the result] about or is aware that it will occur in the ordinary course of events”: Criminal Code, s 5.2.

[iv] Criminal Code, s 70.5.

[v]  (Hyperlink) See also the Committee’s earlier report dated 20 April 2018 on the predecessor 2017 bill (Hyperlink) and the report of the Senate Economics References Committee on “Foreign bribery” dated March 2018 (Hyperlink)

[vi] Criminal Code, s 70.3.

[vii] Criminal Code, s 70.4.

[viii] Various State and Territory legislation criminalises public sector bribery: Crimes Act 1900 (NSW), s 249B; Crimes Act 1958 (Vic), s 176; Criminal Law Consolidation Act 1935 (SA), s 150; Criminal Code Act 1899 (Qld), ss 442B–442BA; The Criminal Code (WA), ss 529–530; Criminal Code Act 1924 (Tas), s 266; Criminal Code 2002 (ACT), ss 356–357; and Criminal Code Act 1983 (NT), s 236.

[ix] Crimes Act 1900 (NSW), Part 4A; Crimes Act 1958 (Vic), s 176; Criminal Code 1899 (Qld), ss 60 and 98C; Criminal Law Consolidation Act 1935 (SA), ss 149–150; Criminal Code Act 1942 (Tas), s 72; Criminal Code Compilation Act 1913 (WA), s 61; Criminal Code 2002 (ACT), s 356; and Criminal Code Act 1983 (NT), ss 59–60 and 77–88.

[x] Maximum periods of imprisonment provided for by the various pieces of State and Territory legislation are: seven years under the Crimes Act 1900 (NSW), s 249B; 10 years under the Crimes Act 1958 (Vic), s 176; seven years under the Criminal Law Consolidation Act 1935 (SA), s 150; seven years under the Criminal Code Act 1899 (Qld), s 442I; seven years under The Criminal Code (WA), s 538; 21 years under the Criminal Code Act 1924 (Tas), s 389(3); 10 years under the Criminal Code 2002 (ACT), s 356; and three years under the Criminal Code Act 1983 (NT), s 236.

[xi] Criminal Code, s 490.1 and 490.2.

[xii] Other bodies include: the Independent Broad-based Anti-Corruption Commission in Victoria; the Crime and Corruption Commission in Queensland; and the Corruption and Crime Commission in Western Australia.

[xvii] Criminal Code Act 1995 (Cth), s 12.2.

[xviii] Criminal Code Act 1995 (Cth), s 12.3.

[xix] Subject to a due diligence defence: Criminal Code, s 12.3(3).

Источник: https://www.globallegalinsights.com/practice-areas/bribery-and-corruption-laws-and-regulations/australia