Commonwealth Consolidated Acts Commonwealth Consolidated ActsPart 1 -- Criminal Code Act 1995
1 Subsection 400.1(1) of the Criminal Code (definition of instrument of crime )
After "an offence", insert "against a law of the Commonwealth, a State, a Territory or a foreign country".
2 Subsection 400.1(1) of the Criminal Code (definition of proceeds of crime )
After "that is", insert "wholly or partly".
3 Subsection 400.1(1) of the Criminal Code (definition of proceeds of crime )
After "an offence", insert "against a law of the Commonwealth, a State, a Territory or a foreign country".
4 Section 400.2 of the Criminal Code
Repeal the section, substitute:
400.2 Definition of deals with money or other property
A person deals with money or other property if the person does any of the following:
(a) receives, possesses, conceals or disposes of money or other property;
(b) imports money or other property into Australia;
(c) exports money or other property from Australia;
(d) engages in a banking transaction relating to money or other property.
400.2A Application of offences relating to possible instruments of crime
(1) This section affects the application of sections 400.3, 400.4, 400.5, 400.6, 400.7 and 400.8 so far as they relate to a person dealing with money or other property that:
(a) is intended by the person to become an instrument of crime; or
(b) is at risk of becoming an instrument of crime.
(2) Those sections apply if at least one of the circumstances described in subsections (3) and (4) exists.
(3) One circumstance is that money or other property is intended to become, or at risk of becoming, an instrument of crime in relation to an offence that is:
(a) a Commonwealth indictable offence; or
(b) a foreign indictable offence; or
(c) a State indictable offence that has a federal aspect; or
(d) an Australian Capital Territory indictable offence; or
(e) a Northern Territory indictable offence.
Note: The prosecution need not prove the existence of any fault element for the nature of the offence: see section 400.11.
(4) Another circumstance is that the dealing with the money or other property occurs:
(a) in the course of or for the purposes of importation of goods into, or exportation of goods from, Australia; or
(b) by means of a communication using a postal, telegraphic, telephonic or other like service within the meaning of paragraph 51(v) of the Constitution; or
(c) in the course of banking (other than State banking that does not extend beyond the limits of the State concerned); or
(d) outside Australia.
(5) Absolute liability applies to subsections (3) and (4).
Note: For absolute liability, see section 6.2.
5 Subsection 400.3(4) of the Criminal Code (note)
Omit "Note", substitute "Note 1".
6 At the end of subsection 400.3(4) of the Criminal Code
Add:
Note 2: Section 400.2A affects the application of this section so far as it relates to a person dealing with money or other property that:
(a) is intended by the person to become an instrument of crime; or
(b) is at risk of becoming an instrument of crime.
7 Subsection 400.4(4) of the Criminal Code (note)
Omit "Note", substitute "Note 1".
8 At the end of subsection 400.4(4) of the Criminal Code
Add:
Note 2: Section 400.2A affects the application of this section so far as it relates to a person dealing with money or other property that:
(a) is intended by the person to become an instrument of crime; or
(b) is at risk of becoming an instrument of crime.
9 Subsection 400.5(4) of the Criminal Code (note)
Omit "Note", substitute "Note 1".
10 At the end of subsection 400.5(4) of the Criminal Code
Add:
Note 2: Section 400.2A affects the application of this section so far as it relates to a person dealing with money or other property that:
(a) is intended by the person to become an instrument of crime; or
(b) is at risk of becoming an instrument of crime.
11 Subsection 400.6(4) of the Criminal Code (note)
Omit "Note", substitute "Note 1".
12 At the end of subsection 400.6(4) of the Criminal Code
Add:
Note 2: Section 400.2A affects the application of this section so far as it relates to a person dealing with money or other property that:
(a) is intended by the person to become an instrument of crime; or
(b) is at risk of becoming an instrument of crime.
13 Subsection 400.7(4) of the Criminal Code (note)
Omit "Note", substitute "Note 1".
14 At the end of subsection 400.7(4) of the Criminal Code
Add:
Note 2: Section 400.2A affects the application of this section so far as it relates to a person dealing with money or other property that:
(a) is intended by the person to become an instrument of crime; or
(b) is at risk of becoming an instrument of crime.
15 At the end of section 400.8 of the Criminal Code
Add:
Note: Section 400.2A affects the application of this section so far as it relates to a person dealing with money or other property that:
(a) is intended by the person to become an instrument of crime; or
(b) is at risk of becoming an instrument of crime.
16 Subsection 400.9(1) of the Criminal Code
Repeal the subsection, substitute:
(1) A person commits an offence if:
(a) the person deals with money or other property; and
(b) it is reasonable to suspect that the money or property is proceeds of crime; and
(c) at the time of the dealing, the value of the money and other property is $100,000 or more.
Penalty: Imprisonment for 3 years, or 180 penalty units, or both.
(1A) A person commits an offence if:
(a) the person deals with money or other property; and
(b) it is reasonable to suspect that the money or property is proceeds of crime; and
(c) at the time of the dealing, the value of the money and other property is less than $100,000.
Penalty: Imprisonment for 2 years, or 120 penalty units, or both.
Note: The heading to section 400.9 is altered by omitting " Possession etc. of " and substituting " Dealing with ".
17 Subsection 400.9(2) of the Criminal Code
After "(1)(b)", insert "or (1A)(b)".
18 Paragraph 400.9(2)(c) of the Criminal Code
After "expenditure", insert "over a reasonable period within which the conduct occurs".
19 Subsection 400.9(3) of the Criminal Code
Repeal the subsection.
20 Subsection 400.9(4) of the Criminal Code
Omit "paragraph (1)(b)", substitute "paragraphs (1)(b) and (c) and (1A)(b) and (c)".
21 Subsection 400.9(6) of the Criminal Code
Repeal the subsection.
22 Subsection 400.10(1) of the Criminal Code
Omit "or 400.7", substitute ", 400.7 or 400.9".
23 Section 400.15 of the Criminal Code
Repeal the section, substitute:
400.15 Geographical jurisdiction
(1) A person does not commit an offence against this Division unless:
(a) the conduct constituting the alleged offence occurs:
(i) wholly or partly in Australia; or
(ii) wholly or partly on board an Australian aircraft or an Australian ship; or
(b) the conduct constituting the alleged offence occurs wholly outside Australia (but not on board an Australian aircraft or an Australian ship) and the money or other property:
(i) is proceeds of crime; or
(ii) is intended to become an instrument of crime; or
(iii) is at risk of becoming an instrument of crime;
in relation to a Commonwealth indictable offence, a State indictable offence, an Australian Capital Territory indictable offence or a Northern Territory indictable offence; or
(c) the conduct constituting the alleged offence occurs wholly outside Australia and:
(i) at the time of the alleged offence, the person is an Australian citizen; or
(ii) at the time of the alleged offence, the person is a resident of Australia; or
(iii) at the time of the alleged offence, the person is a body corporate incorporated by or under a law of the Commonwealth or of a State or Territory; or
(d) all of the following conditions are satisfied:
(i) the alleged offence is an ancillary offence;
(ii) the conduct constituting the alleged offence occurs wholly outside Australia;
(iii) the conduct constituting the primary offence to which the ancillary offence relates occurs, or is intended by the person to occur, wholly or partly in Australia or wholly or partly on board an Australian aircraft or an Australian ship.
Note: The expression offence is given an extended meaning by subsection 11.2(1), section 11.3 and subsection 11.6(1).
Defence--primary offence
(2) A person is not guilty of an offence against this Division if:
(a) the alleged offence is a primary offence; and
(b) the conduct constituting the alleged offence occurs wholly in a foreign country, but not on board an Australian aircraft or an Australian ship; and
(c) paragraph (1)(b) of this section does not apply; and
(d) the person is neither:
(i) an Australian citizen; nor
(ii) a body corporate incorporated by or under a law of the Commonwealth or of a State or Territory; and
(e) there is not in force in:
(i) the foreign country where the conduct constituting the alleged offence occurs; or
(ii) the part of the foreign country where the conduct constituting the alleged offence occurs;
a law of that foreign country, or a law of that part of that foreign country, that creates an offence that corresponds to the offence against this Division.
Note: A defendant bears an evidential burden in relation to the matters in subsection (2). See subsection 13.3(3).
(3) For the purposes of the application of subsection 13.3(3) to an offence, subsection (2) of this section is taken to be an exception provided by the law creating the offence.
Defence--ancillary offence
(4) A person is not guilty of an offence against this Division if:
(a) the alleged offence is an ancillary offence; and
(b) the conduct constituting the alleged offence occurs wholly in a foreign country, but not on board an Australian aircraft or an Australian ship; and
(c) the conduct constituting the primary offence to which the ancillary offence relates occurs, or is intended by the person to occur, wholly in a foreign country, but not on board an Australian aircraft or an Australian ship; and
(d) paragraph (1)(b) of this section does not apply (and would not apply if the conduct described in paragraph (c) of this subsection occurred as intended); and
(e) the person is neither:
(i) an Australian citizen; nor
(ii) a body corporate incorporated by or under a law of the Commonwealth or of a State or Territory; and
(f) there is not in force in:
(i) the foreign country where the conduct constituting the primary offence to which the ancillary offence relates occurs, or is intended by the person to occur; or
(ii) the part of the foreign country where the conduct constituting the primary offence to which the ancillary offence relates or is intended by the person to occur;
a law of that foreign country, or a law of that part of that foreign country, that creates an offence that corresponds to the primary offence.
Note: A defendant bears an evidential burden in relation to the matters in subsection (4). See subsection 13.3(3).
(5) For the purposes of the application of subsection 13.3(3) to an offence, subsection (4) of this section is taken to be an exception provided by the law creating the offence.
Extended application of sections 16.1, 16.2 and 16.3
(6) Section 16.1, except paragraph 16.1(1)(a), applies in relation to an offence against this Division (in addition to the application of that section apart from this subsection).
Note: Section 16.1 requires the Attorney - General's consent for prosecution of an offence if the alleged conduct occurred wholly in a foreign country in certain circumstances.
(7) Sections 16.2 and 16.3 apply for the purposes of this Division in the same way as they apply for the purposes of Part 2.7.
Note: Section 16.2 treats the sending of things and electronic communications into and out of Australia as conduct occurring partly in Australia. Section 16.3 affects the meaning of Australia .
24 Application
The amendments made by this Part apply in relation to conduct engaged in on or after the commencement of this Part.
Part 2 -- Anti - Money Laundering and Counter - Terrorism Financing Act 2006
25 Section 5
Insert:
"non-financier" means a person who is not:
(a) an ADI; or
(b) a bank; or
(c) a building society; or
(d) a credit union; or
(e) a person specified in the AML/CTF Rules.
26 Section 5 (definition of stored value card )
Repeal the definition, substitute:
"stored value card" does not include a debit card or credit card but includes a portable device (other than a debit card or credit card) that:
(a) is capable of:
(i) storing monetary value in a form other than physical currency; or
(ii) being used to gain access to monetary value stored in such a form; and
(b) is of a kind prescribed by the regulations.
27 Subsection 6(2) (table items 21, 22, 23 and 24)
Omit "stored on" (wherever occurring), substitute "stored in connection with".
28 Subsection 6(2) (table items 31 and 32)
Repeal the items, substitute:
31 | in the capacity of a non - financier carrying on a business of giving effect to remittance arrangements, accepting an instruction from a transferor entity for the transfer of money or property under a designated remittance arrangement | the transferor entity |
32 | in the capacity of a non - financier carrying on a business of giving effect to remittance arrangements, making money or property available, or arranging for it to be made available, to an ultimate transferee entity as a result of a transfer under a designated remittance arrangement | the ultimate transferee entity |
29 Application
The amendments of section 6 of the Anti - Money Laundering and Counter - Terrorism Financing Act 2006 made by this Part apply in relation to the provision of designated services on or after the commencement of this Part.
30 Paragraphs 10(1)(a) and (b)
Repeal the paragraphs, substitute:
(a) at least one of the persons described in the following subparagraphs is a non - financier:
(i) a person who accepts an instruction from the transferor entity for the transfer of money or property under the remittance arrangement;
(ii) a person who makes money or property available, or arranges for it to be made available, to an ultimate transferee entity as a result of a transfer under the remittance arrangement; and
31 Transitional provisions for AML/CTF Rules
(1) This item applies if, immediately before the commencement of this Part, a provision of the AML/CTF Rules specified a person for the purposes of subparagraph 10(1)(a)(v) or (b)(v) of the Anti - Money Laundering and Counter - Terrorism Financing Act 2006 (as in force immediately before that commencement).
(2) The provision has effect as if it specified the person for the purposes of paragraph (e) of the definition of non - financier in section 5 of that Act as amended by this Part.
(3) This item does not prevent the amendment or repeal of those rules so as to affect the provision.
32 Paragraph 10(3)(a)
Omit "money or property is accepted so as to enable its transfer under the arrangement", substitute "an instruction is accepted for the transfer of money or property under the arrangement".
33 Section 46 (table items 3 and 4)
Omit "person in Australia", substitute "non - financier in Australia".
34 Subsection 59(1)
Omit "as soon as possible", substitute "immediately".
35 Subsection 123(3)
Repeal the subsection, substitute:
(3) If a reporting entity is required under subsection 49(1) to give information, or produce a document, to a person, the reporting entity must not disclose to anyone else:
(a) that the reporting entity is or has been required to do so; or
(b) that the information has been given or the document has been produced; or
(c) any other information from which the person to whom the information is disclosed could reasonably be expected to infer that:
(i) the reporting entity had been required to give the first - mentioned information or produce the document; or
(ii) the first - mentioned information had been given; or
(iii) the document had been produced.
36 Application
Subsection 123(3) of the Anti - Money Laundering and Counter - Terrorism Financing Act 2006 , as amended by this Part, applies in relation to requirements made under subsection 49(1) of that Act before, on or after the commencement of this item.