Embezzlement is a white collar crime with a bit of a reputation. Generally, embezzlement is associated with greed, and reserved for films or high profile media cases. But there is more to embezzlement than that alone. Embezzlement is actually just one among a whole suite of white collar crimes that relate to the misappropriation of money. In a lot of cases, embezzlement occurs through negligence, or as a result of stress and mental illness in professional settings. It’s rarely a crime that lives up to its almost glamorous reputation. And in fact, embezzlement looks quite different here in Queensland, than it does in other areas. So let’s take a look at some of the specifics, and work out precisely what embezzlement is, and how the law approaches it.
Queensland laws don’t recognise embezzlement crimes in the same way as other jurisdictions
The first thing that ought to be pointed out, is that Queensland doesn’t actually have a law against embezzlement. At least, it doesn’t make any reference to embezzlement. We’re not alone in that approach, either; New South Wales is, in fact, the only Australian jurisdiction that criminalises embezzlement on those terms. The New South Wales Crimes Act 1900 makes an offence of conduct in which a specified person misappropriates money entrusted to him or her by a specified entity. Notably, embezzlement provisions in the Crimes Act have been repealed in the past decade. That suggests, perhaps, a shift towards the more fraud-based approach currently adopted in other States, with regard to embezzlement laws.
That doesn’t mean embezzlement is legal; fraud and misappropriation laws prevail
Of course, embezzlement is not legal in Queensland. So why do our laws not reflect that? It’s simple: our laws create an offence of conduct that could be categorised as embezzlement in other jurisdictions. However, in Queensland, that conduct falls well within the scope of fraud provisions, and theft provisions. In essence, there is no need to categorise embezzlement outside of fraud. The constituent elements of both offences are largely the same. That means embezzlement is provable as a form of fraud, which may be prosecuted accordingly. And although that might seem questionable to some, it actually works in the favour of those who stand to be affected by embezzlement. Fraudulent behaviour is necessary in an act of embezzlement, but not all of that behaviour will always fall within an embezzlement provision. It is possible, then, that two offences would have to be prosecuted: an act of embezzlement, and an act of fraud. By bringing such conduct under the one title of fraud, the law is able to streamline its response to the misappropriation of money in an employment context.
An experienced lawyer’s advice will ensure that your business’s money is dealt with appropriately
You may wondering how to recognise embezzlement if it is not defined under Queensland law. And that’s an understandable question. As a business owner, it’s important to be aware of the potential for criminal behaviour to arise under almost any circumstances. The most effective safeguard against embezzlement—or fraud, as it’s called in Queensland—is organisation. If you have a reliable accountant, well-organised finances, and a firm understanding of how your business’s money is managed, the chance of fraud is reduced. Legal advice is important in that regard, too. If your business’s financial structure is established with the input of an experienced commercial lawyer, it will be almost impenetrable to the effects of fraud. With legal assistance, things like insurance and account compliance will be established in a way that favours you strongly, should any criminal behaviour manage to arise.
But there is another way to lessen the likelihood of fraud taking hold in your business: employee management. Fraud and embezzlement generally occur where employees are stressed, overworked, or pushed towards unrealistic targets. Of course, you can’t account for everyone’s wellbeing as a business owner, and much of it is beyond your control. But if you’re alert to the warning signs, you can intervene holistically where it appears that an employee is at risk of irrational or illegal behaviour in the workplace.
By Finian McGrath
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