Dishonesty Offences Under the Commonwealth Criminal Code Act

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By Paul Gregoire and Ugur Nedim

A spokesperson for the Australian federal police announced late last Thursday that it would not be pursuing an investigation into claims author and historian Bruce Pascoe lied about his Aboriginal heritage for financial gain, as “no Commonwealth offence had been identified”.

Worimi entrepreneur Josephine Cashman alleged Pascoe was lying about his Bunurong and Yuin ancestry. She wrote to Peter Dutton last month requesting that the author be investigated in regard to dishonesty offences. And the home affairs minister referred this to the AFP on 24 December.

These complaints link to a campaign aimed at discrediting Pascoe’s heritage, which has been led by conservative commentators, like Andrew Bolt. And this seems to have been sparked by the writer’s Dark Emu, which debunks colonial myths, specifically that First Nations were hunter gatherer societies.

Originally published in 2014, the history book uses colonial-era European accounts of encounters with Indigenous peoples, which document them engaged in agriculture. This undermines the British assertions that Aboriginal societies didn’t work the land and therefore, had a lesser claim to it.

“Aboriginality was not relevant in determining whether a Commonwealth offence had been committed,” the AFP explained last Friday. And this leaves questions as to what dishonesty offences have been found not to relate to the author who’s forged a new historical narrative.

Obtaining a benefit by deception

Dishonesty offences in general can involve a range of crimes including theft, fraud, dealing with the proceeds of crime and making false accusations. However, the federal offences that have been cited in relation to the Pascoe case fall under divisions 134 and 135 of the Criminal Code Act 1995 (Cth).

The Criminal Code Amendment (Theft, Fraud, Bribery and Related Offences) Act 2000 (Cth) inserted Chapter 7—The Proper Administration of Government – into the Criminal Code. And it contains the dishonesty offence divisions.

The first of these offences falls under section 134.1 of the Criminal Code. It’s the crime of obtaining property by deception, which involves a person deceiving another in order to obtain a possession of theirs with the intention of permanently depriving them of it.

This property must belong to a Commonwealth entity, and an individual found guilty of this offence faces up to 10 years prison time.

While section 134.2 makes obtaining financial advantage by deception an offence, which entails an individual deceiving a Commonwealth entity with the aim of gaining monetary benefit. And this crime can see a defendant locked up for up to 10 years.

Involving fraudulent conduct

Division 135 of the Criminal Code contains “other offences” involving fraudulent behaviour. Section 135.1 contains four separate dishonesty crimes that all result in a convicted individual being liable to up to 10 years behind bars.

Subsection 135.1(1) makes dishonestly obtaining a gain an offence under federal law. It involves an individual doing “anything with the intention of dishonestly obtaining a gain” from another person, who must be a Commonwealth entity.

While subsection 135.1(3) criminalises dishonestly causing a loss to another. Subsection (5) applies when a person dishonestly engages in behaviour that risks causing a loss to another. And subsection 135.1(7) pertains to dishonestly influencing a Commonwealth public official in their duties.

Subsection 135.2(1) of the Criminal Code contains the offence of obtaining financial advantage, which involves an individual engaging in conduct that results in them gaining monetarily from a Commonwealth entity, in circumstances when they’re not eligible to receive that advantage.

The next subsection – 135.2(2) – sets out a similar offence to the last, however it involves obtaining financial advantage from a Commonwealth entity for a third person, who’s not eligible. And both these offences under section 135.2 carry a maximum of 12 months gaol time.

Plotting a dishonest advantage

Section 135.4 contains four separate offences involving conspiracy to defraud, each of which carry a penalty of up to 10 years inside. Subsection 135.4(1) makes conspiring with another to dishonestly obtain a gain from a third person – who must be a Commonwealth entity – a crime.

While subsection 135.4(3) of the Criminal Code contains the offence of plotting with another to cause a loss to a Commonwealth entity. Subsection (5) outlaws knowingly conspiring in behaviour that risks causing a loss to another.

And subsection 135.4(7) makes it an offence for an individual to conspire with another when they have “the intention of dishonestly influencing” a Commonwealth public official in the exercising of their official duties.

No real claim to make

As we know, the AFP came to the conclusion that none of these dishonesty offences relate to Pascoe’s heritage or his writing. And in deciding not to investigate the matter, it aligned with the view of many, which is that investigating matters of Aboriginality isn’t part of the AFP mandate.

Writing in an IndigenousX article, Gamilaraay writer Natalie Cromb pointed to the that fact Ms Cashman is a lawyer. And this would have added extra credence to her fraud claims, as it’s expected a legal professional wouldn’t make such assertions without some basis.

Cromb posited a fortnight ago that the claims levelled against Pascoe were doomed to failure, as in order to find the historian guilty of one of these offences, AFP officers would have had to have proven he was not Indigenous and that he gained advantage as a result of claiming he was.

It would also have had to have been found that Pascoe did this knowingly, and that the aggrieved party was a Commonwealth entity.

However, according to Cromb, Pascoe’s First Nations status meets the accepted definition, as he identifies as being Aboriginal, he’s publicly confirmed documentation of this in the past, and Yuin lore men have established his Indigenous status.

Indeed, one reading of the embarrassing fiasco is that Pascoe’s take on this nation’s history – which is based upon the primary text produced by the colonisers – holds such significant authority that it’s made certain entities so uncomfortable that they’ll go to drastic lengths to try and discredit it.

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