Palmer Faces Prison After Transferring $12 Million To Boost Political Campaign

Palmer Faces Prison After Transferring $12 Million To Boost Political Campaign

Palmer Faces Prison After Transferring $12 Million To Boost Political Campaign

The Australian Securities and Investments Commission (ASIC) has revealed that businessman Clive Palmer is currently facing four fraud charges that were laid in March 2020. It is alleged that during Palmer’s successful 2013 campaign, approximately $12 million was transferred to the Palmer United Party to assist in securing a spot in Federal Parliament. According to ASIC, Palmer used the companies Media Circus Network Pty Ltd and Cosmo Developments Pty Ltd to transfer the money in two separate transactions between August 2013 and September 2013. Both transfers were authorised by Palmer as director of his leading company Mineralogy Pty Ltd. ASIC claims that Palmer used the $12 million “contrary to the purpose for which the funds were being held”. As a result, Palmer has been charged with two counts of dishonestly obtaining a benefit or advantage in breach of the Criminal Code Act 1899 (Qld). Palmer also faces two counts of dishonestly taking advantage of his position as director in breach of the Corporations Act 2001 (Cth).

FRAUD BY DISHONESTY

Section 408C(1)(d) of the Criminal Code Act 1899 (Qld) establishes the actions of a person who commits a fraudulent offence. Relevant actions include dishonestly gaining a benefit or advantage, pecuniary or otherwise. Following an ASIC investigation, it is alleged that Palmer is in breach of section 408C(1)(d) by authorising the transfer of $12 million. The transferred funds from the two companies were dishonestly obtained by Palmer for reasons that are contrary to their intended purpose, namely, to be distributed within each respective company. It is alleged that Palmer has then used these funds to boost his 2013 political campaign to build a larger profile and gain popularity. As a result, Palmer has dishonestly obtained funds to gain personal and financial advantage.

Maximum Penalty

The maximum penalty for breaching section 408C(1)(d) is 5 years imprisonment. However, if the prosecution succeeds in proving aggravating factors, Palmer may face an increased maximum penalty of 12 years imprisonment. Aggravating factors include the amount of money involved, the motive behind the offending and whether the accused was in a position of trust when the fraud was committed. Palmer is alleged to have dishonestly obtained $12 million by exercising his trusted position as a company director to help boost his own political campaign.

There is no doubt that if these allegations are proven to be true, Palmer will find it difficult to talk his way out of this one.

THE LAW IN NSW

Section 192E of the Crimes Act 1900 (NSW) deals with fraudulent offences. A person is guilty of fraud if they deceptively or dishonestly:

1.   Obtain property belonging to another; or

2.   Obtain any financial advantage or causes any financial disadvantages.

Maximum Penalty

The maximum penalty for breaching section 192E is imprisonment of 2 years (if heard in the Local Court) or 10 years (if heard in the District Court). Fraud is an indictable offence. These types of offences are often heard in the Local Court. However, if the subject of the financial advantage exceeds $100,000, the matter will be heard in a higher court such as the District Court.

Defences

If a person is charged with obtaining a financial advantage by deception, particular defences may be available. To succeed with a defence, the accused must prove that his/her actions:

–   Were not dishonest;

–   Were not deceptive;

–   Did not result in advantage or cause disadvantage;

–   Were compelled by way of threats resulting in “duress”;

–   Were necessary to prevent greater harm from occurring giving rise to “necessity”; and/or

–   Were an attempt to defend his/herself or another person’s property giving rise to “self-defence”.

For more information on what deception and dishonesty includes, click here.

BREACH OF DIRECTOR’S DUTY

The powers and duties of a director of a company are established in the Corporations Act 2001 (Cth). Director duties include the duty to disclose personal interests and liability for debts and other obligations incurred by the corporation as a trustee. In the current case, Palmer faces two counts of contravening section 184(2)(a) which states:

(2) A director, other officer or employee of a corporation commits an offence if they use their position dishonestly:

(a)  with the intention of directly or indirectly gaining an advantage for themselves, or someone else, or causing detriment to the corporation.

Maximum Penalty

The maximum penalty for an offence under section 184(2)(a) is a fine of $340,000 or imprisonment for 5 years (or both).

WHAT THIS MEANS FOR PALMER?

If Palmer is found guilty of the current charges, the businessman may be imposed with a fine of up to $340,000 or imprisonment. Palmer has condemned ASIC in his response to the fraud allegations. Palmer states that the charges have “no merit” and that he is “not concerned about these charges as they are simply made up”. The matter was adjourned on 17 July 2020 and will appear before the Brisbane Magistrates Court on 28 August 2020.

CONTACT US

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