Proceeds of Crime (Consequential Amendments and Transitional Provisions) Act 2002
No. 86, 2002
An Act to deal with consequential and transitional matters arising from the enactment of the Proceeds of Crime Act 2002, and for other purposes
Note: An electronic version of this Act is available in SCALEplus (http://scaleplus.law.gov.au/html/comact/browse/TOCN.htm)
Contents
1 Short title...........................................................................................1 2 Commencement.................................................................................2 3 Schedule(s)........................................................................................2
Schedule 1—Money laundering 3 Criminal Code Act 1995 3 Proceeds of Crime Act 1987 17 Telecommunications (Interception) Act 1979 17
Schedule 2—Foreign proceeds of crime orders and requests by Australia for orders in foreign countries 18 International War Crimes Tribunals Act 1995 18 Mutual Assistance in Criminal Matters Act 1987 21 Schedule 3—Retaining financial transaction documents 53 Financial Transaction Reports Act 1988 53 Proceeds of Crime Act 1987 60 Schedule 4—Bankruptcy 62 Part 1—Effect of proceeds of crime orders 62 Bankruptcy Act 1966 62 Proceeds of Crime Act 1987 69 Part 2—Other amendments 70 Bankruptcy Act 1966 70
Schedule 5—Property settlement and spousal maintenance proceedings 72 Family Law Act 1975 72 Family Law Legislation Amendment (Superannuation) Act 2001 78 Schedule 6—Other amendments 79 Administrative Decisions (Judicial Review) Act 1977 79 Australian Federal Police Act 1979 79 Crimes Act 1914 79 Customs Act 1901 81 Director of Public Prosecutions Act 1983 83
Foreign Evidence Act 1994 84 National Crime Authority Act 1984 84 National Environment Protection Measures (Implementation) Act 1998 85 Sea Installations Act 1987 86 Service and Execution of Process Act 1992 86 Taxation Administration Act 1953 86 Telecommunications (Interception) Act 1979 87 Trade Marks Act 1995 87 Witness Protection Act 1994 88 Schedule 7—Transitional and related matters 89 Part 1—Application of the Proceeds of Crime Act 1987 89 Proceeds of Crime Act 1987 89 Part 2—Application of the Proceeds of Crime Act 2002 93
Proceeds of Crime (Consequential Amendments and Transitional Provisions) Act 2002
No. 86, 2002
An Act to deal with consequential and transitional matters arising from the enactment of the Proceeds of Crime Act 2002, and for other purposes
[Assented to 11 October 2002]
The Parliament of Australia enacts:
1 Short title
This Act may be cited as the Proceeds of Crime (Consequential Amendments and Transitional Provisions) Act 2002.
2 Commencement
(1) Each provision of this Act specified in column 1 of the table commences, or is taken to have commenced, on the day or at the time specified in column 2 of the table. Commencement information |
Column 1 | Column 2 | Column 3 |
Provision(s) | Commencement | Date/Details |
1. Sections 1 to 3 and anything in this Act not | The day on which this Act receives the Royal Assent | 11 October 2002 |
elsewhere covered | |
by this table | |
2. Schedules 1 to 4 | At the same time as sections 3 to 338 of the Proceeds of Crime Act 2002 commence | 1 January 2003 |
3. Schedule 5, At the same time as sections 3 to 338 of the 1 January 2003 items 1 to 9 Proceeds of Crime Act 2002 commence 4. Schedule 5, item 10 | The later of: (a) the commencement of sections 3 to 338 of the Proceeds of Crime Act 2002; or | 1 January 2003 (paragraph (a) applies) |
| (b) immediately after the commencement of section 5 of the Family Law Legislation Amendment (Superannuation) Act 2001 | |
5. Schedules 6 and 7 | At the same time as sections 3 to 338 of the Proceeds of Crime Act 2002 commence | 1 January 2003 |
Note: This table relates only to the provisions of this Act as originally passed by the Parliament and assented to. It will not be expanded to deal with provisions inserted in this Act after assent.
(2) Column 3 of the table is for additional information that is not part of this Act. This information may be included in any published version of this Act.
3 Schedule(s)
Each Act that is specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Act has effect according to its terms.
Schedule 1—Money laundering
Criminal Code Act 1995
1 The Schedule (before Part 10.5 of the Criminal Code)
Insert:
Part 10.2—Money laundering
Division 400—Money laundering
400.1 Definitions
(1) In this Division:
ADI (authorised deposit-taking institution) means: - (a)
- a body corporate that is an ADI for the purposes of the Banking Act 1959; or
- (b)
- the Reserve Bank of Australia; or
- (c)
- a person who carries on State banking within the meaning of paragraph 51(xiii) of the Constitution.
deals with money or other property has the meaning given by section 400.2.
instrument of crime: money or other property is an instrument of crime if it is used in the commission of, or used to facilitate the commission of, an offence that may be dealt with as an indictable offence (even if it may, in some circumstances, be dealt with as a summary offence).
proceeds of crime means 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 (even if it may, in some circumstances, be dealt with as a summary offence).
property means real or personal property of every description, whether situated in Australia or elsewhere and whether tangible or intangible, and includes an interest in any such real or personal property.
(2) To avoid doubt, a reference in this Division to money or other property includes a reference to financial instruments, cards and other objects that represent money or can be exchanged for money, whether or not they have intrinsic value.
400.2 Meaning of dealing with money or other property - (1)
- For the purposes of this Division, a person deals with money or other property if:
- (a)
- the person does any of the following:
- (i)
- receives, possesses, conceals or disposes of money or other property;
- (ii)
- imports money or other property into, or exports money or other property from, Australia;
(iii) engages in a banking transaction relating to money or other property; and
- (b)
- the money or other property is proceeds of crime, or could become an instrument of crime, in relation to an offence that is a Commonwealth indictable offence or a foreign indictable offence.
- (2)
- For the purposes of this Division, a person deals with money or other property if:
- (a)
- the person does any of the following:
- (i)
- receives, possesses, conceals or disposes of money or other property;
- (ii)
- imports money or other property into, or exports money or other property from, Australia;
(iii) engages in a banking transaction relating to money or other property; and
- (b)
- the person does any of the matters referred to in paragraph (a):
- (i)
- in the course of or for the purposes of importation of goods into, or exportation of goods from, Australia; or
- (ii)
- by means of a communication using a postal, telegraphic or telephonic service within the meaning of paragraph 51(xx) of the Constitution; or
(iii) in the course of banking (other than State banking that does not extend beyond the limits of the State concerned).
- (3)
- In this section:
banking transaction includes: - (a)
- any transaction made at an ADI; and
- (b)
- any transaction involving a money order.
Commonwealth indictable offence means an offence against a law of the Commonwealth, or a law of a Territory (other than the Australian Capital Territory and the Northern Territory), that may be dealt with as an indictable offence (even if it may, in some circumstances, be dealt with as a summary offence).
export money or other property, from Australia, includes transfer money or other property from Australia by an electronic communication.
foreign indictable offence means an offence against a law of a foreign country constituted by conduct that, if it had occurred in Australia, would have constituted an offence against: - (a)
- a law of the Commonwealth; or
- (b)
- a law of a State or Territory connected with the offence;
that may be dealt with as an indictable offence (even if it may, in some circumstances, be dealt with as a summary offence).
Note: See subsection (4) for when a law of a State or Territory is connected with the offence.
import money or other property, into Australia, includes transfer money or other property to Australia by an electronic communication.
(4) For the purposes of the definition of foreign indictable offence in subsection (3), a State or Territory is connected with the offence if: - (a)
- a dealing in money or property takes place in the State or Territory; and
- (b)
- the money or property would be proceeds of crime, or could become an instrument of crime, in relation to the offence if the offence were a foreign indictable offence.
400.3 Dealing in proceeds of crime etc.—money or property worth $1,000,000 or more
(1) A person is guilty of an offence if: - (a)
- the person deals with money or other property; and
- (b)
- either:
- (i)
- the money or property is, and the person believes it to be, proceeds of crime; or
- (ii)
- the person intends that the money or property will become an instrument of crime; and
- (c)
- at the time of the dealing, the value of the money and other property is $1,000,000 or more.
Penalty: Imprisonment for 25 years, or 1500 penalty units, or both.
(2) A person is guilty of an offence if: - (a)
- the person deals with money or other property; and
- (b)
- either:
- (i)
- the money or property is proceeds of crime; or
- (ii)
- there is a risk that the money or property will become an instrument of crime; and
- (c)
- the person is reckless as to the fact that the money or property is proceeds of crime or the fact that there is a risk that it will become an instrument of crime (as the case requires); and
- (d)
- at the time of the dealing, the value of the money and other property is $1,000,000 or more.
Penalty: Imprisonment for 12 years, or 720 penalty units, or both.
(3) A person is guilty of an offence if: - (a)
- the person deals with money or other property; and
- (b)
- either:
- (i)
- the money or property is proceeds of crime; or
- (ii)
- there is a risk that the money or property will become an instrument of crime; and
- (c)
- the person is negligent as to the fact that the money or property is proceeds of crime or the fact that there is a risk that it will become an instrument of crime (as the case requires); and
- (d)
- at the time of the dealing, the value of the money and other property is $1,000,000 or more.
Penalty: Imprisonment for 5 years, or 300 penalty units, or both.
(4) Absolute liability applies to paragraphs (1)(c), (2)(d) and (3)(d).