Bills Digest No. 76 2002-03
Proceeds of Crime (Consequential Amendments and
Transitional Provisions) Bill 2002
WARNING:
This Digest was prepared for debate. It reflects the legislation as
introduced and does not canvass subsequent amendments. This Digest
does not have any official legal status. Other sources should be
consulted to determine the subsequent official status of the
Bill.
CONTENTS
Passage History
Purpose
Background
Main Provisions
Concluding Comments
Endnotes
Contact Officer & Copyright Details
Passage History
Proceeds of Crime (Consequential
Amendments and Transitional Provisions) Bill
2002
Date Introduced:
13 March 2002
House: House of Representatives
Portfolio: Justice and Customs
Commencement:
The main operational
sections of the Bill will commence at the same time as the
operational sections of the Proceeds of Crime Act 2002.
Purpose
The Bill amends a number of finance-related and
law enforcement Acts to create or increase linkages with the
Proceeds of Crime Act 2002. Most notably, the Bill
contains a substantially revised set of money laundering offences
to replace those in the current Proceeds of Crime Act
1987.
Background
The Proceeds of Crime (Consequential Amendments
and Transitional Provisions) Bill 2002 (the Bill) is part of a
legislative package designed to broaden the Commonwealth regime for
the confiscation of the proceeds of crime, including the
introduction of provisions that enables confiscation without the
need for first obtaining a criminal conviction. Background to the
changes is contained is in the Digest
to the main Bill, Proceeds of Crime Bill 2002. Both Bills were
passed on the 23 September 2002 and received Royal Assent on 11
October.
This Digest only contains a brief overview of
the money laundering offences contained in Schedule 1 of the
Bill.
Main Provisions
Item 1 inserts a new
Part 10.2 into the Criminal Code Act 1995
(Criminal Code).
New sections 400.3-400.8 set
out offences for dealing with money or other property that is
either the proceeds of crime(1) or may become an
instrument of crime.(2)
These six sections form a sliding scale of
offences depending on the value of the money or property involved.
For example, new section 400.3 deals with
situations were the value of the money or property is $1 million or
more. At the other end of the scale, the value need only be 'any
value' (ie more than zero) for new section 400.8
to apply.
Within each section, there are three 'levels' of
offence. The levels are determined according to the fault element
involved. The most serious level applies if the accused believed
the money or property was proceeds or intended it to be used as an
instrument. The middle level applies where a person is
reckless(3)of this fact. The lowest level is where the
accused is negligent(4) of this fact.
Thus overall the appropriate offence provision
depends on the value of the money or property involved plus the
fault element applying. The penalties are also in a sliding scale,
with the fault element being the most important determinant. For
example, an offence involving $1.1 million, if the accused has
intent or belief, the maximum prison term is 25 years. For
negligence, it is 5 years. For a lower level amount (say $20,000),
if the accused has intent or belief, the maximum prison term is 10
years. For negligence, it is 2 years.
The apparent appropriate offence may be varied
if the accused can demonstrate that they had a mistaken but
reasonable belief about that value of the property or money:
new section 400.10. Thus if they could show they
had a reasonable belief that say the proceeds of a crime was worth
$800,000 - but in actual fact it was worth $1.1 million - they
could only be found guilty of a new section 400.4
offence, not the higher level 400.3. New
subsection 400.10(2) allows a belief to be based on
assessments gained through the accused's previous experience in
dealing with the proceeds or instruments of crime.
New section 400.9 creates an
offence of receiving, possessing, concealing, disposing or bringing
into / taking out of Australia any money or other property that may
reasonably be suspected by the accused of being proceeds of
indictable offences, including foreign indictable offences or State
indictable offences where they attract certain Commonwealth
constitution power. New subsection 400.9(2)
indicates instances in which the 'reasonable suspicion' requirement
will be satisfied include holding bank accounts in false names, or
where the accused says they were acting on another's behalf but has
not (or cannot) provide information enabling that other person to
be identified and located.
The above money laundering offences obviously
arise in relation to some other criminal offence - eg drug
importation, fraud etc. New section 400.13
provides that the prosecution does not have to prove what the
particular related offence was or who was the perpetrator of the
offence in order to gain a money laundering conviction.
An Australian national or resident who engages
in dealings with money or other property wholly outside Australia
will be subject to the above offences by virtue of the application
of the Criminal Code Category B extended geographical jurisdiction:
new section 400.15.
-
- Instrument of crime is defined as money or other
property used in the commission of, or used to facilitate the
commission of, an offence that may be dealt with as an indictable
offence. Indictable offences are those punishable by imprisonment
for a period exceeding 12 months: new section
400.1.
- Proceeds of crimeis defined as any money or other
property that is derived or realised, directly or indirectly, by
any person from the commission of an offence that may be dealt with
as an indictable offence: new section 400.1.
- A person is reckless with respect to a
circumstance (eg that money is proceeds of crime)
if they are aware of a substantial risk that the circumstance
exists or will exist and, having regard to the
circumstances known to them, it is unjustifiable to take the risk.
A person is reckless with respect to a result (eg
that money will become an instrument of crime) if they are aware of
a substantial risk that the result will occur, and having
regard to the circumstances known to them, it is unjustifiable to
take the risk. See Criminal Code Act 1995, section 5.4.
- A person is negligent with respect to a physical element of an
offence if his or her conduct involves such a great falling short
of the standard of care that a reasonable person would exercise in
the circumstances; and such a high risk that the physical
element exists or will exist, that the conduct merits criminal
punishment for the offence. See Criminal Code Act 1995,
section 5.5.
Angus Martyn
9 December 2002
Bills Digest Service
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ISSN 1328-8091
© Commonwealth of Australia 2002
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Published by the Department of the Parliamentary Library,
2002.
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