Money laundering involves hiding, disguising or legitimising the true origin and ownership of money used in or derived from committing crimes. Money laundering is an extremely diverse activity that is carried out at all levels of sophistication and plays an important role in organised crime. There is no single method of laundering money. Although use of the banking system and money transfer services is common, money launderers are imaginative and are constantly creating new schemes to circumvent the counter-measures designed to detect them. Money laundering schemes may include moving money to create complex money trails, making it difficult to identify the original source and breaking up large amounts of cash and depositing the smaller sums in different bank accounts in an effort to place money in the financial system without arousing suspicion.
Money laundering offences are defined in Part 10.2 of the Criminal Code and encompass a very wide range of criminal activity. Money laundering prosecutions are typically complex prosecutions, involving complicated factual circumstances and often including conduct overseas, which requires overseas cooperation and evidence to assist the investigation and prosecution. The prosecution of these offences often requires detailed financial analysis and evidence. We are continuing to deal with an increasing number of prosecutions of money laundering matters as law enforcement agencies ‘follow the money’ in the investigation of serious and organised criminal activity.
Commonly Used Offences
- ss.400.3-400.8 Criminal Code – dealing in proceeds of crime etc – money or property worth any value up to $1,000,000 or more
- s.400.9 Criminal Code – dealing with property reasonably suspected of being proceeds of crime etc.
Sections 400.3 to 400.8 of the Criminal Code are all similarly drafted. Each section relates to dealing with money or property which is proceeds of crime or could become an instrument of crime. However, each section relates to money or property of a different amount.
Sections 400.3 to 400.8 contain three different offences, each with a different maximum penalty, classified according to the state of mind (fault element) of the defendant. Whether the offence is classified as being contrary to subsection (1), (2) or (3) will depend upon the classification of the fault element (intention, recklessness or negligence) associated with the circumstances that the money or other property was proceeds of crime or was a potential instrument of crime.
Offences contained in the Anti-Money Laundering and Counter-Terrorism Financing Act 2006 are also often used in prosecuting money laundering – in particular the following sections:
- ss.142-143 – structuring offences;
- ss.53, 55 –the movement of physical currency both in and out of Australia;
- ss.136-138 – opening of bank accounts using false customer identification documents;
- ss.139-141 – use of bank accounts in false names or failing to disclose the use of 2 or more names.
|Value of money/ property||$1million or more||$100,000 or more||$50,000 or more||$10,000 or more||$1000 or more||Any value|
|Penalty||Ss (1) Intention||25 years||20 years||15 years||10 years||5 years||12 mths|
|Ss (2) Reckless||12 years||10 years||7 years||5 years||2 years||6 mths|
|Ss(3) Negligent||5 years||4 years||3 years||2 years||12 mths||10 p/units|
The maximum penalty for dealing with property reasonably suspected of being proceeds of crime is 3 years imprisonment if the property is valued at $100,000 or more, or 2 years imprisonment if the property is valued at less than $100,000.
The CDPP provides sentencing data to the Commonwealth Sentencing Database (CSD). Permission to access the CSD can be obtained at http://njca.com.au/sentencing/ .
- Ansari & Anor v R (2010) 241 CLR 299
- R v LK & RK (2010) 241 CLR 177
- Chen v DPP (2011) 210 A Crim R 523
- Christian v Sawka  WASCA 147
- R v Au Chung Fong – NSW District Court 23.09.2005
- R v Edwards  QDC 406
- R v Huang Bin & Anor  NSWCCA 259
- Lee v R  NSWCCA 71
- R v Milne (No.1) NSWSC 19.08.2010
- R v Orlov – WA District Court 28.11.2006
- Schembri v R  NSWCCA 149
- Thorn v R  NSWCCA 294
- Trandy & Ors v R  VSCA 321
- Wong v R  VSCA 52
- HAT & Ors v The Queen  VSCA 427
In April 2007 the Anti-Money Laundering and Counter Terrorism Financing Amendment Act 2007 commenced. The Act made technical amendments to the Anti-Money Laundering and Counter Terrorism Financing Act 2006 including replacing a fault element of absolute liability with strict liability in the offences contained in sections 136, 137, 139, 140 and 141.
- Australian Federal Police
- Australian Customs and Border Protection Service
- Australian Transaction Reports and Analysis Centre
- Australian Institute of Criminology
- Attorney-General’s Department