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Section 490.2 Criminal Code Act 1995
Reckless False Dealing With Accounting Documents

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Reckless false dealing with accounting documents is an offence under section 490.2 of the Criminal Code Act 1995 (Cth), which carries a maximum penalty of 5 years in prison and/or 5,000 penalty units for an individual or the greatest of 50,000 penalty units, 1.5 times the value of any benefit derived, or 5% of annual turnover for a corporation.

To establish the offence, the prosecution must prove beyond reasonable doubt that:

  1. You made, altered, destroyed or concealed an accounting document, or failed to make or alter an accounting document as required by your duty under a law of the Commonwealth, a state or territory, or the common law
  2. You were reckless as to whether that making, alteration, destruction or concealment – or failure thereof – would facilitate, conceal or disguise:(a) That any person receiving or giving the resulting benefit was not entitled to do so, or
    (b) That any loss incurred by any person did not legitimately incur that loss, and
  1. That the person was constitutional corporation or corporation incorporated in a Territory, or an officer or employee of a constitutional corporation who is acting in the course of his or her duties or functions relating to that office or employment, or a person engaged to provide services to a constitutional corporation who is acting in the course of providing those services, or a Commonwealth public official acting in the performance of his or her duties or functions, or that the person’s act or omission occurred in a Territory or outside Australia, or concerned matters or things outside Australia, or facilitated or concealed the commission of an offence against the Commonwealth, or that the accounting document was outside Australia, or was kept in a Territory, or was kept under or for the purposes of a Commonwealth law, or was kept to record the receipt or use of Australian currency.

A ‘constitutional corporation’ one to which paragraph 51(xx) of the Australian Constitution applies.

Paragraph 51 (xx) concerns:

‘Foreign corporations, and trading or financial corporations formed within the limits of the Commonwealth’.

A ‘Commonwealth public official’ is:

  1. The Governor‑General
  2. A person appointed to administer the Commonwealth Government under section 4 of the Constitution
  3. A Minister, Parliamentary Secretary or Member of either House of Parliament
  4. A person who holds an appointment under section 67 of the Commonwealth Constitution, which provides for the appointment of civil servants
  5. An Administrator, Acting Administrator or Deputy Administrator of the Northern Territory
  6. A Commonwealth judicial officer including a Magistrate, Judge or Justice
  7. An employee of the Australian Public Service
  8. A person employed by the Commonwealth otherwise than under the Public Service Act 1999
  9. A member of the Australian Defence Force or Australian Federal Police
  10. A person who holds or performs the duties of an office established by or under a law of the Commonwealth, other than:

(i)  the Corporations (Aboriginal and Torres Strait Islander) Act 2006

(ii)  the Australian Capital Territory (Self‑Government) Act 1988

(iii)  the Corporations Act 2001, or

(iv)  the Northern Territory (Self‑Government) Act 1978

  1. An officer or employee of a Commonwealth authority
  2. A contracted service provider for a Commonwealth contract
  3. An officer or employee of a contracted service provider for a Commonwealth contract who provides services for the purposes of the contract
  4. A person who exercises powers or functions conferred by or under a Commonwealth law other than:

(i)  the Corporations (Aboriginal and Torres Strait Islander) Act 2006

(ii)  the Australian Capital Territory (Self‑Government) Act 1988

(iii)  the Corporations Act 2001

(iv)  the Northern Territory (Self‑Government) Act 1978, or

(v)  a provision specified in the regulations

  1. A person who exercises powers or function conferred under a law in force on Christmas Island, the Cocos (Keeling) Islands or Norfolk Island, or
  1. A Registrar or Deputy Registrar of Aboriginal and Torres Strait Islander Corporations.

You were ‘reckless’ if you were aware there was a substantial risk that your conduct would result in the commission of the offence, and it was unjustifiable to take that risk but you went ahead with your actions regardless.

Duress is a defence to the charge.

The Legislation

490.2   Reckless false dealing with accounting documents
(1)  A person commits an offence if:
(a)  the person:
(i)  makes, alters, destroys or conceals an accounting document; or
(ii)  fails to make or alter an accounting document that the person is under a duty, under a law of the Commonwealth, a State or Territory or at common law, to make or alter; and
(b)  the person is reckless as to whether the making, alteration, destruction or concealment of the document (or the failure to make or alter the document) facilitates, conceals or disguises the occurrence of one or more of the following:
(i)  the person receiving a benefit that is not legitimately due to the person;
(ii)  the person giving a benefit that is not legitimately due to the recipient, or intended recipient, of the benefit;
(iii)  another person receiving a benefit that is not legitimately due to the other person;
(iv)  another person giving a benefit that is not legitimately due to the recipient, or intended recipient, of the benefit (who may be the first-mentioned person);
(v)  loss to another person that is not legitimately incurred by the other person; and
(c)  one or more of the circumstances referred to in subsection 490.1(2) applies.
(2)  Absolute liability applies to paragraph (1)(c).
Note:          For absolute liability, see section 6.2.
Penalty for individual
(3)  An offence against this section committed by an individual is punishable on conviction by imprisonment for not more than 5 years, a fine not more than 5,000 penalty units, or both.
Penalty for body corporate
(4)  An offence against this section committed by a body corporate is punishable on conviction by a fine not more than the greatest of the following:
(a)  50,000 penalty units;
(b)  if the court can determine the value of the benefit that the body corporate, and any body corporate related to the body corporate, have obtained directly or indirectly and that is reasonably attributable to the conduct constituting the offence–1.5 times the value of that benefit;
(c)  if the court cannot determine the value of that benefit–5% of the annual turnover of the body corporate during the period (the turnover period ) of 12 months ending at the end of the month in which the conduct constituting the offence occurred.

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