Victorian Bills Explanatory Memoranda Victorian Bills Explanatory Memoranda[Index] [Search] [Download] [Bill] [Help]
Crimes (Money Laundering) Bill
Victorian Legislation and Parliamentary Documents
Circulation Print
EXPLANATORY MEMORANDUM
General
This Bill replaces existing money laundering offences in the Confiscation
Act 1997 with new offences in the Crimes Act 1958. The new offences
cover dealing with proceeds of crime and dealing with instruments of crime.
Clause Notes
Clause 1 sets out the purposes of the Bill which are to--
· amend the Crimes Act 1958 to insert offences in
relation to dealing with proceeds of crime, dealing with
property suspected of being proceeds of crime and
dealing with property which subsequently becomes an
instrument of crime;
· repeal Part 14 (Money Laundering) of the Confiscation
Act 1997; and
· correct a reference in the Surveillance Devices Act
1999.
Clause 2 provides for the commencement of this Bill. Section 7 of the
Bill (Amendment of the Surveillance Devices Act 1999) comes
into operation on the day after the Bill receives Royal Assent.
The remaining provisions commence on a day to be proclaimed.
If the Bill has not come into operation before 1 January 2004,
then it will come into operation on that date.
Clause 3 inserts a new Division 2A (Money Laundering etc.) in Part I of
the Crimes Act 1958.
Under section 2B of the Crimes Act 1958, offences in that Act
are deemed to be indictable offences unless the contrary intention
appears. All of the offences in new Division 2A will be
indictable offences, except for new section 195.
1
551121 BILL LA CIRCULATION 6/11/2003
New section 193(1) provides definitions for Division 2A.
Two key definitions are "proceeds of crime" and "instruments of
Victorian Legislation and Parliamentary Documents
crime".
"Proceeds of crime" means property that is derived or realised
(directly or indirectly) from the commission of--
· a "forfeiture offence" listed in Schedule 1 to the
Confiscation Act 1997;
· a Commonwealth indictable offence; or
· an offence against the law of any other
Australian State or Territory, or a foreign
jurisdiction, that would have constituted a
"forfeiture offence" if it had been committed in
Victoria.
This is the equivalent of the existing definition of "proceeds of
crime" in Part 14 (Money Laundering) of the Confiscation Act
1997.
"Instrument of crime" means property that is used in the
commission of, or used to facilitate the commission of--
· a "forfeiture offence" listed in Schedule 1 to the
Confiscation Act 1997;
· a Commonwealth indictable offence; or
· an offence against the law of any other
Australian State or Territory, or a foreign
jurisdiction, that would have constituted a
"forfeiture offence" if it had been committed in
Victoria.
The Bill creates offences for dealing with these types of property.
New section 193(1) provides that "deal with" includes receive,
possess, conceal or dispose of.
New section 193(2) provides that for the purposes of the
definitions of "proceeds of crime" and" instruments of crime", the
prosecution needs to prove facts that constitute one or more of
the offences referred to in those definitions. If these facts can be
proved then the particulars (e.g. in some circumstances who
committed the offence, or the date on which it was committed)
need not be proven.
2
Dealing with proceeds of crime
New section 194 provides for offences for dealing with proceeds
Victorian Legislation and Parliamentary Documents
of crime. These offences will replace the existing offence in
section 122 of the Confiscation Act 1997. The difference
between the four offences in new section 194 is the fault element.
New section 194(1) prohibits a person dealing with proceeds of
crime, knowing that it is proceeds of crime and intending to
conceal that it is proceeds of crime. This is the most serious
offence in this category, and it is punishable by a maximum
penalty of 20 years imprisonment. The prosecution will be
required to prove that the defendant intended to "launder" the
property, in the sense of disguising its illegal origins.
New section 194(2) prohibits a person dealing with proceeds of
crime, knowing that it is proceeds of crime.
New section 194(3) provides that a person must not deal with
proceeds of crime, being reckless as to whether or not it is
proceeds of crime. The principles of recklessness have been
developed by the courts at common law. To be reckless, a person
must be aware that there is a substantial risk that the property is
proceeds of crime, and decide to deal with the property anyway
despite this risk.
New section 194(4) provides that a person must not deal with
proceeds of crime, being negligent as to whether or not it is
proceeds of crime. Criminal negligence is not the same as civil
negligence. The lack of care which may constitute civil liability
will not be enough to make a person criminally responsible under
the principles of criminal negligence developed by the courts at
common law. To establish criminal negligence, the prosecution
must prove that the accused person consciously and voluntarily
dealt with property (although he or she failed to realise that it was
proceeds of crime), and this occurred in circumstances which
involved such a great falling short of the standard of care which a
reasonable person would have exercised, and such a high risk that
the property was proceeds of crime, that the accused person's
conduct merits criminal punishment.
New section 194(5) provides that it is a defence to a prosecution
under section 194 if the accused satisfies the court that he or she
dealt with the property in order to assist in law enforcement.
A similar defence applies in existing section 122 of the
Confiscation Act 1997.
3
Dealing with property suspected of being proceeds of crime
New section 195 creates a summary offence for dealing with
Victorian Legislation and Parliamentary Documents
property if there are reasonable grounds to suspect that it is
proceeds of crime. This replaces the existing offence in
section 123 of the Confiscation Act 1997. The offence is a strict
liability offence. Accordingly, it is intended that the common
law defence of honest and reasonable mistake of fact should
apply.
Dealing with property which subsequently becomes an
instrument of crime
New section 195A provides for offences for dealing with
property that subsequently becomes an instrument of crime.
These offences have no equivalent in the existing Part 14 of the
Confiscation Act 1997. Under new section 195A(4), a
prosecution for an offence against this section cannot commence
unless the Director of Public Prosecutions consents to the
prosecution.
The difference between each of the three offences in new
section 195A is the fault element.
New section 195A(1) provides that a person commits an offence
if:
· he or she deals with property, intending that it will
become an instrument of crime; and
· the property does subsequently become an instrument of
crime.
New section 195A(2) provides that a person commits an offence
if:
· he or she deals with property, being reckless as to
whether it will become an instrument of crime; and
· the property does subsequently become an instrument of
crime.
The principles of recklessness have been developed by the courts
at common law. To be reckless, a person must be aware that there
is a substantial risk that the property will become an instrument
of crime, and decide to deal with the property anyway despite
this risk.
4
New section 195A(3) provides that a person commits an offence
if--
·
Victorian Legislation and Parliamentary Documents
he or she deals with property, being negligent as to
whether it will become an instrument of crime; and
· the property does subsequently become an instrument of
crime.
Criminal negligence is not the same as civil negligence. The lack
of care which may constitute civil liability will not be enough to
make a person criminally responsible under the principles of
criminal negligence developed by the courts at common law.
To establish criminal negligence, the prosecution must prove that
the accused person consciously and voluntarily dealt with
property (although he or she failed to realise that it would be used
as an instrument of crime), and this occurred in circumstances
which involved such a great falling short of the standard of care
which a reasonable person would have exercised, and such a high
risk that the property would be used as an instrument of crime,
that the accused person's conduct merits criminal punishment.
New section 195A(5) provides that it is a defence to a
prosecution under section 195A if the accused satisfies the court
that he or she dealt with the property in order to assist in law
enforcement.
Clause 4 inserts a new section 599 in the Crimes Act 1958. This is a
transitional provision. It provides that the amendments made by
this Bill to the Crimes Act 1958 apply only to offences alleged
to have been committed on or after commencement of clause 3 of
this Bill.
New section 599(2) provides that if an offence is alleged to have
been committed between two dates, one before and one after the
commencement of clause 3 of this Bill, then the offence is
considered to have been committed before that commencement.
Under section 14 of the Interpretation of Legislation Act 1984,
Part 14 of the Confiscation Act 1997, as in force immediately
before the commencement of clause 5(1) of this Bill, will
continue to apply to offences alleged to have been committed
before that commencement, despite the repeal of Part 14.
5
Clause 5 makes consequential amendments to the Confiscation Act 1997.
Clause 5(1) repeals Part 14 (Money Laundering) of the
Victorian Legislation and Parliamentary Documents
Confiscation Act 1997.
Clause 5(10) provides that offences against new section 195 of
the Crimes Act 1958 (Dealing with property suspected of being
proceeds of crime) will be listed in Schedule 1 to the
Confiscation Act 1997. Offences listed in Schedule 1 are
"forfeiture offences" under the Confiscation Act 1997.
New section 173(5) of the Confiscation Act 1997, inserted by
clause 6 of the Bill, provides that, for offences alleged to have
been committed prior to commencement of clause 5(1) of this
Bill, item 18 of Schedule 1 to the Confiscation Act 1997 will
continue to apply.
Clause 5(12) of the Bill provides that offences against new
section 194(1), (2) and (3) of the Crimes Act 1958 will be listed
in Schedule 2 to the Confiscation Act 1997. Offences listed in
Schedule 2 are "automatic forfeiture offences" under the
Confiscation Act 1997. An offence against new section 194(1),
(2) or (3) will be an automatic forfeiture offence where--
· the proceeds of crime dealt with are proceeds of an
offence committed in the circumstances referred to in
item 1, 1A, 2, 2A, 2B, 2C, 8 or 9 of Schedule 2 to the
Confiscation Act 1997; and
· the property dealt with is of a certain value--
· $50 000 or more where one offence against
section 194(1), (2) or (3) of the Crimes Act 1958
is charged; or
· $75 000 or more where more than one offence
against section 194(1), (2) or (3) of the Crimes
Act 1958 is charged and the offences are
founded on the same facts or form or are part of
a series of offences of the same or similar
character.
New section 173(5) of the Confiscation Act 1997, as inserted by
clause 6 of the Bill, provides that, for offences alleged to have
been committed prior to commencement of clause 5(1) of this
Bill, item 3 of Schedule 2 to the Confiscation Act 1997 will
continue to apply.
6
Clause 6 inserts a transitional provision in the Confiscation Act 1997.
New section 173 sets out how the amendments made by this Bill
to the Confiscation Act 1997 are to apply.
Victorian Legislation and Parliamentary Documents
In accordance with section 14 of the Interpretation of
Legislation Act 1984, the Confiscation Act 1997 will continue
to apply as in force immediately before the commencement of
section 5 of this Bill to offences alleged to have been committed
before that commencement, despite the amendments to the
Confiscation Act 1997.
Clause 7 amends the definition of "chief law enforcement officer" in the
Surveillance Devices Act 1999. The reference to "National
Crime Authority" is corrected to refer to the "Australian Crime
Commission".
7